Man Bahadur Vs. State
of H.P.  INSC 1626 (23 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1513 OF 2008
(Arising out of S.L.P. (Crl) No.4628/2007) Man Bahadur ...Appellant Versus
State of H.P. ...Respondent O R D E R Delay condoned.
(1) One of the
questions which arises for consideration in this appeal is as to whether Shri
Lal Chand No. 8 I.O. P.P.Pandoh(P.W.10) was bound to make the accused-appellant
aware that he had also a right to be searched before a Magistrate or a gazetted
Bench of this Court
has clearly held that the accused has a right to be made aware thereof. Having
regard to the Miranda clause as enunciated by the Supreme Court of Bench held
that, although,such communication itself may not necessarily be made in writing
but as far as possible such communication should be made in the presence of
some independent and respectable persons witnessing the arrest and search.
It was opined:
" 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.
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 Magistrate would cause prejudice to an
of Gujarat - (2007) 1
SCC 433 noticed the aforementioned dicta laid by the Constitution Bench in
Baldev Singh(Supra) and in no uncertain terms opined that the accused must be
told of his right to be searched before a gazetted officer or a Magistrate.
(4) The Bench,
however, was of the opinion that some more clarification is necessary as to
whether such communication of the right of the accused could be taken in
evidence by way of oral evidence of the officer concerned.
(5) In this case it
is accepted at the Bar that the search memo or any other document do not show
that the appellant was made aware of his right to be searched before a gazetted
officer or a Magistrate.
-2- (6) From the
deposition of P.W.10-I.O.P.P. Pandoh, it appears that he had merely given an
option to the appellant to be searched either by himself or in presence of a
Magistrate or a gazetted Officer.
(7) No evidence has
been adduced to show that the appellant was communicated of his right either to
be searched in presence of a Magistrate or a gazetted officer on the one hand
and by an empowered officer on the other.
2008(9) SCALE 681,
categorically, held that as the provisions contained in the N.D.P.S.Act are
penal in nature, all requirements laid down therein must be complied with
" 149. Section
50 of the Act provides for an option to be given. This Court in Baldev Singh(supra)
quoted with approval the decision of the Supreme Court of " The Latin
maxim salus populi suprema lex ( the safety of the people is the supreme law)
and salus republicae suprema lex(safety of the State is the supreme law)
coexist and are not only important and relevant but lie at the heart of the
doctrine that the welfare of an individual must yield to that of the community.
The action of the State, however, must be right, just and fair."
150. Justness and
fairness of a trial is also implicit in Article 21 of the Constitution.
151. A fair trial is
again a human right. Every action of the authorities under the Act must be
construed having regard to the provisions of the Act as also the right of an
accused to have a fair trial.
-3- 152. The courts,
in order to do justice between the parties, must examine the materials brought
on record in each case on its own merits. Marshalling and appreciation of
evidence must be done strictly in accordance with the well known legal
principles governing the same; wherefor the provisions of the Code of Criminal
Procedure and Evidence Act must be followed.
153. Appreciation of
evidence must be done on the basis of materials on record and not on the basis
of some reports which have nothing to do with the occurrence in question.
154. Article 12 of
the Universal Declaration of Human Rights provides for the Right to a fair
trial. Such rights are enshrined in our Constitutional Scheme being Article 21
of the Constitution of India. If an accused has a right of fair trial, his case
must be examined keeping in view the ordinary law of the land.
155. It is one thing
to say that even applying the well known principles of law, they are found to
be guilty of commission of offfences for which they are charged but it is
another thing to say that although they cannot be held guilty on the basis of
the materials on record, they must suffer punishment in view of the past
experience of otherwise."
(8) In the instant
case, there has been even no substantial compliance of Section 50 of the
(9) For the reasons
aforementioned, the impugned judgment of conviction and sentence cannot be
upheld. It is set aside accordingly. The appeal is allowed.
(10) Appellant is in
custody. He shall be released forthwith unless required in connection with some
[ CYRIAC JOSEPH ]