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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