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TMI Blog2020 (2) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... e words if such person so requires as used in Section 50(1) of the NDPS Act make it amply clear that the person to be searched would be taken before a Magistrate or a Gazetted Officer, only if he so requires. In terms of Sub-section (2) of Section 50 of the NDPS Act, the Authorised Officer is empowered to detain the person proposed to be searched until he can bring him before the Gazetted Officer/Magistrate, as referred to in Sub-section (1) of Section 50 of the NDPS Act. The words such requisition , as mentioned in the opening sentence of Subsection (2) of Section 50 of the NDPS Act, obviously refers to the person proposed to be searched electing to exercise his right to be searched before a Gazetted Officer / Magistrate. Sub-section (5) of Section 50 of the NDPS Act were met, that is, if it is not possible to take the person to be searched to the nearest Gazetted Officer/Magistrate without the possibility of the person being searched parting with the possession of any narcotic drugs, psychotropic substance or any controlled substance or article or document. In terms of Sub-section (6) of Section 50 of the NDPS Act, the authorised officer is also required to record reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, as it was not conducted in the presence of Gazetted Officer/Magistrate. Context 3. Briefly, the case of the prosecution is that on 04.06.2015, SI Shiv Darshan Singh, Narcotic Cell, Crime Branch, Daryaganj was informed by a secret informer that a person namely Innocent, resident of the Arjun Nagar area, is a supplier of cocaine in Delhi and would be coming to Sudarshan Marg, Gautam Nagar, Delhi between 06:30 pm and 07:00 pm to supply cocaine. A raiding party was constituted, which reached the spot at about 06:30 pm. At 06:55 pm, the informer pointed towards the accused who was wearing black t-shirt and green capris. When the accused was 5-7 steps away from the police officials, he became suspicious and started going back. At this moment, he was apprehended by the raiding team. 4. SI Shiv Darshan informed the accused that his search was going to be conducted. He also explained to the accused his legal right to be searched before a Magistrate or a Gazetted officer. However, the appellant declined the offer of being searched before a Gazetted Office/Magistrate. SI Shiv Darshan asked some passersby to join the proceedings, but none agreed. On search of the accused, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by FSL was handed over to him by HC Jag Narayan. In his cross-examination, he denied having been authorized by the inspector in writing to collect the samples from the aforesaid MHC (M). 11. HC Jag Narayan, PS Crime Branch, Malviya Nagar deposed as PW-3. He deposed that at about 11:35 pm, Insp. Ravinder Kumar Sharma had called him along with register no. 19 to his office. He made entry in the said register at serial no. 2319 and deposited the pullanda in the malkhana. In his cross-examination, he stated that the SHO had already written the FIR number on the pullandas when PW-3 was called by him at about 11:35 pm. He completed recording the requisite information in register no. 19 at about 12:00 am. 12. Ct. Rajeev Kumar, Narcotics Cell, Crime Branch deposed as PW- 4. He deposed that on 05.06.2015, the report under Section 57 of the NPDS Act regarding the seizure of the contraband and arrest of the accused was received in his office and he made entry in the diary register vide Ex. PW4/C and Ex. PW4/D. 13. HC Satyawan, Sector-16, Rohini deposed as PW-5. He deposed that on 04.06.2015, he was posted at Narcotic Cell, Daryaganj. He, along with other officials, constituted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w one Nigerian person coming from the side of Yusuf Sarai on foot wearing green coloured capris and a black coloured t-shirt. The accused was apprehended by the raiding team at about 07:00 pm. Thereafter, SI Shivdarshan introduced himself and other members of the raiding party to the accused, who identified himself as Innocent Uzoma. SI Shivdarshan informed the accused about his legal right to be searched before a Gazetted officer or a Magistrate. A notice under Section 50 of the NDPS Act was prepared by SI Shivdarshan and a carbon copy of the same was given to the accused. Since the accused was illiterate, SI Shivdarshan read the contents of the same out to the accused. The accused s refusal was written on the said notice as was dictated to SI Shivdarshan by the accused. PW-7 stated that thereafter, the accused s search was conducted, consequent to which, a transparent polythene containing cocaine was found from the left side pocket of the capris worn by the accused. In his cross-examination, PW-7 affirmed that the IO had not asked any shopkeeper or permanent employee of the Metro Station to join the raid. He could not recollect whether a mobile phone was recovered from the posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as PW-12. He deposed that on the intervening night of 04.06.2015 and 05.06.2015 at about 01:15 am, HC Satyawan handed him a computerized copy of FIR No. 84/15 dated 04.06.2015 and an original rukka. In his crossexamination, he stated that he came to know about the case through HC Satyawan. He affirmed that no mobile phone was recovered from the accused during his search. Submissions 19. At the outset, Mr. Kushwaha, learned counsel appearing for the appellant clarified that he does not wish to contest the appellant s conviction under Section 14(a) of the Foreigners Act, 1946. He stated that the appellant was sentenced to three years of rigorous imprisonment and a fine of ₹10,000/- for committing the offence under Section 14 of the Foreigners Act, 1946 and the appellant has served the said sentence. He limited the challenge in the present appeal to the appellant s conviction under Section 21(b) of the NDPS Act. He submitted that although the appellant had almost completed the sentence awarded for the commission of the said offence, the appellant, nonetheless, wished to contest his conviction as he was not guilty of committing any such offence. 20. The learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered from the right pocket of the capris or the left pocket of the capris, worn by the appellant at the material time. However, on a closer examination, it is apparent that there is no contradiction in the testimony of PW7 and PW10 in this regard. In his examination in chief, PW 10 had deposed that on the formal search the accused, on which one semi-transparent polythene was recovered from the left pocket of Capri of accused, tied with rubber band containing white powder . This is consistent with the testimony of PW7. The statement made in the cross-examination must be read in its context. PW10 had clarified that he had checked both the pockets and besides the contraband, a purse was recovered from the right pocket of the trousers worn by the appellant. This ought not to be read to mean that the contraband was recovered from the right pocket of the capris worn by the appellant. 22. Insofar as the recovery of mobile phone is concerned, there is inconsistency in the testimony of PW 5 and other witnesses. PW 5 had stated that a mobile phone was recovered from the left side pocket of the capris worn by the appellant. However,PW 7 and PW12 had denied that any mobile phone had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall and it was expressly indicated that the officer authorized under Section 42 of the Act shall take the person to the nearest Gazetted Officer or to the nearest Magistrate. 26. The aforesaid contention is unmerited. It is not disputed that the provisions of Section 50 of the NDPS Act are mandatory and must be strictly complied. The Supreme Court in The State of Punjab v. Baldev Singh: 1999 6 SCC 172 had explained that it is imperative that a person proposed to be searched be informed of his right under Sub-Section (1) of Section 50 of the NDPS Act of being taken to the nearest Gazetted Officer or the nearest Magistrate for conducing his/her search. In the present case, the notice issued under Section 50 of the NDPS Act (Ex. PW 5/A) clearly informed the appellant of such right. The use of the word can in the statement before conducting a search it is your legal right that a search can be conducted for which arrangement can be made instead of the word shall is irrelevant, because the appellant was duly communicated that he had a legal right to be searched before a Magistrate or a Gazetted Officer. 27. The next question to be addressed is whether there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial superior. 29. In State of Punjab v. Baldev Singh: 1999 6 SCC 172, the Constitution Bench of the Supreme had, inter alia, held as under: - 57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search. (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) That the judgment in Pooran Mal case [(1974) 1 SCC 345 : 1974 SCC (Tax) 114] cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. 30. As observed in Presidential Poll, In re [(1974) 2 SCC 33] : (SCC p. 49, para 13) 13. It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole. 31. We are of the opinion that the concept of substantial compliance with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez [(2000) 1 SCC 707 : 2000 SCC (Cri) 300] and Prabha Shankar Dubey [(2004) 2 SCC 56 : 2004 SCC (Cri) 420] is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he recovery of the illicit article suspect and vitiate the conviction. However, the Court had also observed that Thereafter, the suspect may or may not choose to exercise the right provided to him under the said proviso . 33. In Ashok Kumar Sharma v. State of Rajasthan: (2013) 2 SCC 67 , the Supreme Court considered a case where the authorized officer had merely informed the accused (appellant therein) that he can be searched before any Magistrate or Gazetted Officer, if he so wished. The Supreme Court held that the same did not comply with the mandatory procedure of Section 50 of the NDPS Act and, thus, vitiated the entire proceedings. The Court reasoned that the accused was only informed that he could be searched before a Magistrate or a Gazetted Officer if he so wished, however, the fact that the accused had a right under Section 50 of the NDPS Act to be searched before the Gazetted Officer or a Magistrate was not made known to him. The relevant extract of the said decision, is set out below: - 7. We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of the appellant had followed the procedure lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could conduct the search on the body of the person. 8. We may, in this connection, also examine the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Undisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various laws laid down in this country, leave aside the NDPS Act. We notice that this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorised officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a gazetted officer or a Magistrate warranting strict compliance with that procedure. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate. In terms of Sub-section (3) of Section 50 of the NDPS Act, a Gazetted Officer or a Magistrate may discharge any person brought before him/her, if he/she finds no reasonable grounds for conducting such search. Sub-section (5) and (6) were introduced in Section 50 of the NDPS Act by virtue of the Narcotics, Drugs and Psychotropic Substances (Amendment) Act, 2001 enacted on 27.09.2001 and came into effect from 02.10.2001. The said Subsections provided option to the authorised officer to search a person notwithstanding the said persons (suspect) requiring to be searched before a Magistrate/Gazetted Officer. However, the authorised person could do so only if the conditions as specified under Sub-section (5) of Section 50 of the NDPS Act were met, that is, if it is not possible to take the person to be searched to the nearest Gazetted Officer/Magistrate without the possibility of the person being searched parting with the possession of any narcotic drugs, psychotropic substance or any controlled substance or article or document. In terms of Sub-section (6) of Section 50 of the NDPS Act, the authorised officer is also required to record reasons for his belief that necessitated him t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the appellant-accused. 18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remain no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497]. 19. Indeed, the latter Constitution Bench decision rendered in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] has settled the aforementioned questions after taking into considerations all previous case law on the subject. 20. Their Lordships have held in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence the appellant was liable to be convicted for the offence punishable under the NDPS Act. 24. We do not agree to this finding of the two courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband charas does not satisfy the mandatory requirements of Section 50 as held by this Court in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] . This we say for the following reasons: 24.1. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or gazetted officer. 24.2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband charas was not made from the appellant in the presence of any Magistrate or gazetted officer. 24.3. Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband charas from him, was the gazetted officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband charas as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate or a Gazetted Officer, and he had himself agreed to be searched by the raiding party, the mandate of Section 50 stood fulfilled, though attractive, cannot sustain, as an identical plea, raised in similar facts, stands negated in Arif Khan (supra). 42. In Sikodh Mahto v. State: Crl.A. 660/2017 decided on 06.06.2019, the co-ordinate bench of this Court of Delhi held as hereunder: 52. Insofar as the facts, essential for determination of the controversy in issue are concerned, the present case cannot be distinguished, in any manner, from Arif Khan (supra). The only difference, on facts which makes no difference to the legal position is that, in Arif Khan (supra), the appellant Arif Khan, on being queried, confessed to carrying charas, whereas the appellants, in the present case, did not do so. In the present case, too, the alleged contraband charas was recovered from the bags of the appellants. In the present case, too, the search of the bags, and the seizure of charas therefrom, was effected by the raiding team, in the absence of any Magistrate or a Gazetted Officer. The witnesses, in the present case, have deposed that the I/O was not a Gazetted Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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