State of Punjab Vs. Labh Singh [1996] INSC 830 (19 July 1996)

Ramaswamy, K.Ramaswamy, K.G.B. Pattanaik (J)

CITATION: JT 1996 (6) 598 1996 SCALE (5)366

ACT:

HEAD NOTE:

WITH CRIMINAL APPEAL NOs.731-33 OF 1996 [@ SLP [Crl. Nos.2475, 2476 & 2477 of 1991]

O R D E R

Leave granted.

These appeals arise under the Narcotic Drugs and Pschotropic Substances Act, 1985. The respondents were acquitted on trial on the ground that they were not informed of their valuable right that under Section 50 of the Act they were entitled to be searched in the presence of a Gazetted Officer. Violation therefore. vitiates the trial as the accused have the statutory right to be searched. The absence of their information as to the said right is one of the infirmities to the validity of their prosecution.

The question was considered in State of Punjab vs. Balbir Singh [1994) 3 SCC 299]. Subsequently, another Bench of this Court in State of Punjab v. Jasbir Singh [(1996) 1 SCC 288] has pointed out hat it would be open to the search officer to inform the suspect, at the time of search, that he is entitled to be searched in the presence of a Gazetted Officer and also to take in writing from the accused that he has been so informed and that the accused has waived that right. Thus it would form part of the record as contemporaneous evidence. Thereafter, it may not be open to the accused to take the plea of noncompliance of Section 50.

It would be for the Court to consider, at the trial, whether the officer who conducted the search, had, as a fact, informed the accused of that right and whether the accused had waived that right of being searched only in the presence of a Gazetted Officer. This Court held that:

"The matter of appreciation of evidence and the totality of the facts and circumstances have to be considered by the trial Court. On the facts in that case, it was held that since the Additions Sessions Judge was not inclined to accept the prosecution case in the absence of anything in writing, this Court confirmed the acquittal." In State of Himachal Pradesh v. Prithi Chand & Anr. [(1996) 2 SCC 37], this Court further elaborately considered the effect of the violation of Section 50 and held that any evidence recorded and recovered in violation of the search and the contraband seized in violation of the mandatory requirement does not ipso facto invalidates the trial.

Section 50 contemplates right to be searched in the presence of a Gazetted Officer. It depends upon the facts and circumstances in each case. It was found that the discharge of the accused on that ground was deprecated. In view of the long delay in the matter, this Court declined to interfere with the discharge recorded by t he Additional Sessions Judge.

In view of the settled legal position that the accused has valuable right to be informed of his right to be searched in the presence of a Gazetted Officer, the search officer invariably would conduct the search subserving the salutory right given under Section 50. Each case should be considered in the light of the facts and circumstances in which the contraband was seized, viz., time when the search was conducted, the place where it was seized, whether police had prior information of the contraband being in transport or place of concealment, whether there was proper opportunity to the police to secure the presence of a Gazetted Officer; whether the delay in search and seizure would result in the escape of the accused from arrest or contraband would be destroyed or wisked away and host of all relevant attendant circumstances. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. The Court has to consider each case on its own setting. In view of the absence of any writing from the accused to the effect that the accused was informed of his right and that the same was waived taken by the officer who conducted the searched and seized the contraband and in view of the long delay that has taken place, we think that these may not be cases warranting interference with the order of acquittal at this distance of time.

The appeals are accordingly, dismissed. The respondents are directed to be set at liberty forthwith.

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