Vijaysinh Chandubha
Jadeja Vs State of Gujarat
With Criminal Appeal
No.974 of 2003 & Criminal Appeal No.1809 Of 2009
Judgment
D.K. Jain, J.:
1.
The
short question arising for consideration in this batch of appeals is whether
Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short "the NDPS Act") casts a duty on the empowered officer to
`inform' the suspect of his right to be searched in the presence of a Gazetted
Officer or a Magistrate, if he so desires or whether a mere enquiry by the said
officer as to whether the suspect would like to be searched in the presence of
a Magistrate or a Gazetted Officer can be said to be due compliance with the
mandate of the said Section?
2.
When
these appeals came up for consideration before a bench of three Judges, it was
noticed that there was a divergence of opinion between the decisions of this
Court in the case of Joseph Fernandez Vs. State of Goa1, Prabha Shankar Dubey
Vs. State of M.P.2 on the one hand and Krishna Kanwar (Smt) alias Thakuraeen
Vs. State of Rajasthan3 on the other, with regard to the dictum laid down by
the Constitution Bench of this Court in State of Punjab Vs. Baldev Singh4, in
particular regarding the question whether before conducting search, the
concerned police officer is merely required to ask the suspect whether he would
like to be produced before the Magistrate or a Gazetted Officer for the purpose
of search or is the suspect required to be made aware of the existence of his
right in that behalf under the law. It would be expedient to extract the
relevant portion of the order:-
3.
"When
the matter came up before this Court, it was found that in some of the
decisions rendered by this Court, a slightly different view was taken than what
was expressed by the Constitution Bench with regard to interpretation of
Section 50 of the NDPS Act. In the case Joseph Fernandez Vs. State of Goa, 2001
(1) SCC p.707, a Bench of three Hon'ble Judges held that even when the
searching officer informed him that "if you wish you may be searched in
the presence of a gazetted officer or a Magistrate"; it was held that it
was in substantial compliance with the requirement of Section 50 of the NDPS Act,
and the Court observed that it did not agree with the contention that there was
non-compliance of the mandatory provisions contained in Section 50 of the NDPS
Act. In 1 (2000) 1 SCC 7072 (2004) 2 SCC 563 (2004) 2 SCC 6084 (1999) 6 SCC 172
another decision of this Court in Prabha Shankar Dubey Vs.State of M.P. 2004(2)
SCC p.56, the following information was conveyed to the accused: "By way
of this notice, you are informed that we have received information that you are
illegally carrying opium with you, therefore, we are required to search your
scooter and you for this purpose. You would like to give me search or you would
like to be searched by a gazetted officer or by a Magistrate". This was
held to be substantial compliance of Section 50 of the NDPS Act. InKrishan
Kanwar (Smt.) Alias Thakuraeen Vs. State of Rajasthan, 2004(2) SCC p.608, the
same question was considered and it was held that there is no specific form
prescribed or initiated for conveying the information required to be given
under Section 50 of the NDPS Act and it was held that" what is necessary
is that the accused (suspect) should be made aware of the existence of his
right to be searched in the presence of one of the officers named in the
section itself. Since no specific mode or manner is prescribed or intended, the
court has to see the substance and not the form of intimation. Whether the
requirement of Section 50 have been met is a question which is to be decided on
the facts of each case and there cannot be any sweeping generalization and/or a
straitjacket formula.............................................................................
Thus, in a way, it all depends on the oral evidence of the officer who conducts
search, in case nothing is mentioned in the search mahazar or any other
contemporaneous document prepared at the time of search. In view of the large
number of cases coming up under the provisions of the NDPS Act the
interpretation of Section 50 of the Act requires a little more clarification as
its applicability is quite frequent in many cases. In appreciating the law laid
down by the Constitution Bench in Baldev Singh's case (supra), we have noticed
that conflicting decisions have been rendered by this court. We feel that the
matter requires some clarification by a larger Bench. The matter be placed
before the Hon'ble Chief Justice of India for taking further action in this
regard." That is how these appeals came to be placed before this
ConstitutionBench.
4.
Since
the cases have come up before us for a limited purpose of clarification as to
the interpretation of Section 50 of the NDPS Act by the Constitution Bench in
Baldev Singh's case (supra), we deem it unnecessary to state the background
facts, giving rise to these appeals.
5.
We
have heard learned counsel for the appellant, State of Gujarat, State of West
Bengal, Government of National Capital Territory of Delhi and learned
Additional Solicitor General on behalf of Union of India.
6.
Mr.
P.H. Parekh, learned senior counsel appearing on behalf of appellant (Criminal
Appeal No.943 of 2005), strenuously urged that a conjoint reading of Section
50(1) and 50(3) of the NDPS Act, in its common grammatical connotation, makes
it abundantly clear that the procedural safeguards envisaged under Section 50
are to be employed effectively and honestly while informing, apprising and
advising the suspect of his vested right to be searched only by a Gazetted
Officer or a Magistrate. It was contended that the ambit of statutory
protection granted by the Parliament under Section 50(1) of the NDPS Act having
been explained unambiguously and clearly by the Constitution Bench in the case
of Baldev Singh (supra), there is no scope for any other interpretation or
clarification of Section 50 of the NDPS Act.
7.
Learned
counsel vehemently contended that in the light of the dictum laid down in
Baldev Singh (supra), the decisions of this Court in Joseph Fernandez (supra)
and Prabha Shankar Dubey (supra) wherein the concept of `substantial
compliance' has been erroneously read into Section 50 of the NDPS Act, do not
lay down the correct proposition of law. It was argued that Section 50 being
the only safeguard provided to the suspect under the NDPS Act, the legislature,
while enacting it, gave it the character of a "due process" clause, thereby
placing some minimum procedural limitations on the exercise of such extensive
statutory power, by insisting on the strict observance of the procedure
established under the said Section. According to the learned counsel, this
safeguard is meant to ensure that the powers under the NDPS Act are not abused
and a person is not falsely implicated and subjected to grave consequences
which are likely to follow under the said Act. Relying on the decision of this
Court in Beckodan Abdul Rahiman Vs. State of Kerala 5, learned counsel
submitted that the harsh provisions of the NDPS Act cast a heavier duty upon
the prosecution to strictly follow and comply with the safeguards.5 (2002) 4
SCC 229
8.
Learned
counsel thus, argued that the theory of `substantial compliance' cannot be
applied to defeat, negate or neutralise important safeguards provided by the
legislature. It was asserted that merely asking the suspect whether he would
like to be produced before a Magistrate or a Gazetted Officer for the purpose
of the search can never amount to due compliance with Section 50 of the NDPS
Act.
9.
Mr.
Siddharth Luthra, learned senior counsel appearing on behalf of State of
Gujarat, on the other hand, submitted that the rigours of Section 50 of the
NDPS Act are neither applicable to the officers who have been empowered by a
warrant under Section 41(1); nor to the gazetted/empowered officers who order
search or arrest under Section 41(2). It was argued that Section 41(1) of the
NDPS Act grants the Magistrate the power to issue warrants for arrest or
search, whether by day or night, inter alia, in relation to a person whom the
Magistrate has reason to believe has committed an offence under the NDPS Act.
It was urged that a reading of Sections 41(1), 41(3), 42, 43 and 50 of the NDPS
Act shows that an officer acting under a warrant by a Magistrate under Section
41(1) would not fall within the ambit of Section 50(1) of the NDPS Act. It was
submitted that from the language of Section 41(2) of the NDPS Act, it is clear
that the Central Government or the State Government, as the case may be, can
only empower an officer of a gazetted rank who can either himself act or
authorise his subordinate on the terms stated in the Section. On the contrary,
however, under Section 42(1) of the NDPS Act, there is no restriction on the
Central Government or the State Government to empower only a gazetted officer
and, therefore, additional checks and balances over officers acting under
Section 42 have been provided in the proviso to Section 42(1) and in Section
42(2) of the NDPS Act. It was, thus, contended that the language of Section 42
of the NDPS Act makes it clear that the provision applies only to an officer
empowered under Section 42(1) and not an empowered Gazetted Officer under
Section 41(2) of the NDPS Act. In support of the submission that a distinction
between a Gazetted Officer and an officer acting under Section 42 of the NDPS
Act has to be maintained, learned counsel commended us to the decisions of this
Court in M. Prabhulal Vs. Assistant Director, Directorate of Revenue Intelligence6
and Union of India Vs. Satrohan7. It was pleaded that the divergent view on the
point expressed by this Court in Ahmed Vs. State of Gujarat8, does not lay down
the correct proposition of law.
10.
It
was then contended by Mr. Luthra that a reading of sub-sections (1) and (3) of
Section 50 of the NDPS Act makes it clear that the right granted to a suspect
is not the right to be searched before the nearest6 (2003) 8 SCC 4497 (2008) 8
SCC 3138 (2000) 7 SCC 477 Gazetted Officer or nearest Magistrate, but the right
to be taken before the nearest Gazetted Officer or nearest Magistrate,
whereupon such officer or Magistrate is duly empowered under Section 50(3), to
either discharge the suspect from detention or direct that a search be made.
In support of the proposition, reliance is placed on a decision of this Court in
State of Rajasthan Vs. Ram Chandra
11.
Learned
counsel also submitted that the decisions of this Court in State of Punjab Vs.
Balbir Singh10, Saiyad Mohd. Saiyad Umar Saiyad & Ors. Vs. State of
Gujarat11, Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala12 and affirmed
in Baldev Singh (supra) have all read the phrase `for making the search' into
Section 50(1) of the NDPS Act, which has led to safeguards and protections to
an accused person, as envisaged under Section 50 of the NDPS Act to be read down,
making the said provision virtually ineffective and, therefore, the decision
of this Court in Baldev Singh (supra) needs reconsideration.
12.
11.Adopting
the same line of arguments, Mr. P.P. Malhotra, the learned Additional
Solicitor General, appearing on behalf of the Government of NCT of Delhi
maintained that it is clear from language of Sections 41(2), 42 and 43 of the
NDPS Act that the legislature has dealt with9 (2005) 5 SCC 15110 (1994) 3 SCC
29911 (1995) 3 SCC 61012 (1994) 6 SCC 569 gazetted officers differently,
reposing higher degree of trust in them and, therefore, if a search of a person
is conducted by a gazetted officer, he would not be required to comply with the
rigours of Section 50(1) of the Act. It was argued that the view expressed by
this Court in Ahmed (supra), is incorrect and, therefore, deserves to be
reversed.
13.
12.The
NDPS Act was enacted in the year 1985, with a view to consolidate and amend the
law relating to narcotic drugs, incorporating stringent provisions for control
and regulation of operations relating to narcotic drugs and psychotropic
substances. The object of the said legislation has been explained time and
again by this Court in a plethora of cases and, therefore, we feel that it is
not necessary to delve upon this aspect all over again, except to re-emphasise
that in order to prevent abuse of the provisions of the NDPS Act, which confer
wide powers on the empowered officers, the safeguards provided by the
Legislature have to be observed strictly. Moreover, having regard to the terms
of reference to the larger Bench, extracted above, it is equally unnecessary to
extract extensively all the provisions of the NDPS Act to which reference was made
by learned counsel appearing for the States, and a brief reference to these
provisions would suffice.
14.
13.Under
Section 41 of the NDPS Act, certain classes of Magistrates are competent to
issue warrants for the arrest of any person whom such 1Magistrates have reason
to believe to have committed any offence punishable under the NDPS Act, or for
the search of any building, conveyance or place in which such Magistrate has
reason to believe any narcotic drug or psychotropic substance or controlled
substance in respect of which an offence punishable under the said Act has been
committed or any document or other article which may furnish evidence of the
commission of such offence or any illegally acquired property or any document
or other article which may furnish evidence of holding any illegally acquired
property which is liable for seizure or freezing or forfeiture under Chapter VA
is kept or concealed. Under Section 42 of the NDPS Act, the empowered officer
can enter, search, seize and arrest even without warrant or authorisation, if
he has reason to believe from his personal knowledge or information taken down in
writing, that an offence under Chapter IV of the said Act has been committed.
Under proviso to sub-section (1), if such officer has reason to believe that a
search warrant or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for the escape of an
offender, he may enter and search such building, conveyance or enclosed place
at any time between sunset and sunrise after recording the grounds of his belief
and send the same to his immediate official superior in terms of sub-section
(2) of the Section.
15.
Section
50 of the NDPS Act prescribes the conditions under which personal search of a
person is required to be conducted. Being the pivotal provision, the Section,
(as amended by Act 9 of 2001 - inserting sub-sections (5) and (6) with effect
from 2nd October 2001) is extracted in full. It reads as under: "50.
Conditions under which search of persons shall be conducted.--(1) When any
officer duly authorised under section 42 is about to search any person under
the provisions of section 41, section 42 or section 43, he shall, if such
person so requires, take such person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in section 42 or to the
nearest Magistrate. (2) If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer or the Magistrate
referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate
before whom any such person is brought shall, if he sees no reasonable ground
for search, forthwith discharge the person but otherwise shall direct that
search be made. (4) No female shall be searched by anyone excepting a female. (5)
When an officer duly authorised under section 42 has reason to believe that it
is not possible to take the person to be searched to the nearest Gazetted
Officer or Magistrate without the possibility of the person to be searched
parting with possession of any narcotic drug or psychotropic substance, or controlled
substance or article or document, he may, instead of taking such person to the
nearest Gazetted Officer or Magistrate, proceed to search the person as
provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall
record the reasons for such belief whichnecessitated such search and within
seventy-two hours send a copy thereof to his immediate official superior."
16.
Sub-section
(1) of the said Section provides that when the empowered officer is about to
search any suspected person, he shall, if the person to be searched so
requires, take him to the nearest gazetted officer or the Magistrate for the
purpose. Under sub-section (2), it is laid down that if such request is made by
the suspected person, the officer who is to take the search, may detain the
suspect until he can be brought before such gazetted officer or the Magistrate.
It is manifest that if the suspect expresses the desire to be taken to the
gazetted officer or the Magistrate, the empowered officer is restrained from
effecting the search of the person concerned. He can only detain the suspect
for being produced before the gazetted officer or the Magistrate, as the case
may be. Sub- section (3) lays down that when the person to be searched is
brought before such gazetted officer or the Magistrate and such gazetted
officer or the Magistrate finds that there are no reasonable grounds for
search, he shall forthwith discharge the person to be searched, otherwise he shall
direct the search to be made. The mandate of Section 50 is precise and clear,
viz. if the person intended to be searched expresses to the authorised officer
his desire to be taken to the nearest gazetted officer or the Magistrate, he
cannot be searched till the gazetted officer or the Magistrate, as the case may
be, directs the authorised officer to do so.
17.
16.At
this juncture, we must state that the issue before us in terms of the referral
order is not about the applicability of Section 50 of the NDPS Act per se but
is confined to the scope and width of the expression "if the person to be
searched so requires" as figuring in sub-section (1) of the said Section.
Therefore, we deem it unnecessary to evaluate the submissions made by the
learned counsel regarding the applicability of the rigours of Section 50 of the
NDPS Act when a search of the suspect is conducted by an officer empowered
under Section 41 of the said Act. We may, however, add that while considering
the question of compliance with Section 50 of the NDPS Act, the Constitution
Bench in Baldev Singh (supra) considered the provisions of Section 41 as well.
It observed as under :- "8. Section 41 of the NDPS Act provides that a
Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of
the Second Class specially empowered by the State Government in this behalf,
may issue a warrant for the arrest of and for search of any person whom he has
reason to believe to have committed any offence punishable under Chapter IV. Vide
sub-section (2) the power has also been vested in gazetted officers of the
Departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any
other department of the Central Government or of the Border Security Force, empowered
in that behalf by a general or special order of the State Government to arrest
any person, who he has reason to believe to have committed an offence
punishable under Chapter IV or to search any person or conveyance or vessel or building
etc. with a view to seize any contraband or document or other article which may
furnish evidence of the commission of such an offence, concealed in such
building or conveyance or vessel or place."
18.
17.In
the above background, we shall now advert to the controversy at hand. For this
purpose, it would be necessary to recapitulate the conclusions, arrived at by
the Constitution Bench in Baldev Singh's case (supra). We are concerned with
the following conclusions:- "57. (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
suspect and vitiate the conviction and sentence of an accused, where the
conviction has been recorded only on the basis of the possession of the
illicit article, recovered from his person, during a search conducted in
violation of the provisions of Section 50 of the Act. xxxxxxxxxxxxxxxxxxxx (5)
That whether or not the safeguards provided in Section 50 have been duly
observed would have to be determined by the court on the basis of the evidence
led at the trial. Finding on that issue, one way or the other, would be
relevant for recording an order of conviction or acquittal. Without giving an
opportunity to the prosecution to establish, at the trial, that the provisions
of Section 50 and, particularly, the safeguards provided therein were duly
complied with, it would not be permissible to cut short a criminal trial. (6)
That in the context in which the protection has been incorporated in Section 50
for the benefit of the person intended to be searched, we do not express any
opinion whether the provisions of Section 50 are mandatory or directory, but
hold that failure to inform the person concerned of his right as emanating from
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."
19.
18.Although
the Constitution Bench did not decide in absolute terms the question whether or
not Section 50 of the NDPS Act was directory or mandatory yet it was held that
provisions of sub-section (1) of Section 50 make it imperative for the
empowered officer to "inform" the person concerned (suspect) about
the existence of his right that if he so requires, he shall be searched before
a gazetted officer or a Magistrate; failure to "inform" the suspect
about the existence of his said right would cause prejudice to him, 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 suspect and vitiate the conviction and sentence of an accused,
where the conviction has been recorded only on the basis of the possession of
the illicit article, recovered from the person during a search conducted in violation
of the provisions of Section 50 of the NDPS Act. The Court also noted that it
was not necessary that the information required to be given under Section 50
should be in a prescribed form or in writing but it was mandatory that the
suspect was made aware of the existence of his right to be searched before a
gazetted officer or a Magistrate, if so required by him. We respectfully concur
with these conclusions. Any other interpretation of the provision would make
the valuable right conferred on the suspect illusory and a farce.
20.
19.As
noted above, sub-sections (5) and (6) were inserted in Section 50 by Act 9 of
2001. It is pertinent to note that although by the insertion of the said two
sub-sections, the rigour of strict procedural requirement is sought to be
diluted under the circumstances mentioned in the sub- sections, viz. when the
authorised officer has reason to believe that any delay in search of the person
is fraught with the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance etc., or article or
document, he may proceed to search the person instead of taking him to the
nearest gazetted officer or Magistrate. However, even in such cases a safeguard
against any arbitrary use of power has been provided under sub-section (6).
Under the said sub-section, the empowered officer is obliged to send a copy of the
reasons, so recorded, to his immediate official superior within seventy two
hours of the search. In our opinion, the insertion of these two sub-sections
does not obliterates the mandate of sub-section (1) of Section 50 to inform the
person, to be searched, of his right to be taken before a gazetted officer or a
Magistrate. The object and the effect of insertion of sub-sections (5) and (6)
were considered by a Constitution Bench of this Court, of which one of us (D.K.
Jain, J.) was a member, in Karnail Singh Vs. State of Haryana13. Although in
the said decision the Court did observe that by virtue of insertion of
sub-sections (5) and (6), the mandate given in Baldev Singh's case (supra) is
diluted but the Court also opined that it cannot be said that by the said
insertion, the protection or safeguards given to the suspect have been taken
away completely. The Court observed :- "Through this amendment the strict
procedural requirement as mandated by Baldev Singh case was avoided as
relaxation and fixing of the reasonable time to send the record to the superior
official as well as exercise of Section 100 CrPC was included by the
legislature. The effect conferred upon the previously mandated strict
compliance with Section 50 by Baldev Singh case was that the procedural
requirements which may have handicapped an emergency requirement of search and
seizure and give the suspect a chance to escape were made directory based on
the reasonableness of such emergency situation. Though it cannot be said that
the protection or safeguard given to the suspects have been taken away
completely but certain flexibility in the procedural norms were adopted only
(2009) 8 SCC 539 to balance an urgent situation. As a consequence the mandate given
in Baldev Singh case is diluted."
21.
20.It
can, thus, be seen that apart from the fact that in Karnail Singh (supra), the
issue was regarding the scope and applicability of Section 42 of the NDPS Act
in the matter of conducting search, seizure and arrest without warrant or
authorisation, the said decision does not depart from the dictum laid down in
Baldev Singh's case (supra) in so far as the obligation of the empowered
officer to inform the suspect of his right enshrined in sub-section (1) of
Section 50 of the NDPS Act is concerned. It is also plain from the said
paragraph that the flexibility in procedural requirements in terms of the two
newly inserted sub-sections can be resorted to only in emergent and urgent
situations, contemplated in the provision, and not as a matter of course.
Additionally, sub- section (6) of Section 50 of the NDPS Act makes it
imperative and obligatory on the authorised officer to send a copy of the
reasons recorded by him for his belief in terms of sub-section (5), to his immediate
superior officer, within the stipulated time, which exercise would again be
subjected to judicial scrutiny during the course of trial. We shall now deal
with the two decisions, referred to in the referral order, wherein
"substantial compliance" with the requirement embodied in Section 50
of the NDPS Act has been held to be sufficient. In 1 Prabha Shankar Dubey
(supra), a two Judge bench of this Court culled out the ratio of Baldev Singh's
case (supra), on the issue before us, as follows: "What the officer
concerned is required to do is to convey about the choice the accused has. The
accused (suspect) has to be told in a way that he becomes aware that the choice
is his and not of the officer concerned, even though there is no specific form.
The use of the word "right" at relevant places in the decision of
Baldev Singh case seems to be to lay effective emphasis that it is not by the
grace of the officer the choice has to be given but more by way of a right in
the "suspect" at that stage to be given such a choice and the
inevitable consequences that have to follow by transgressing it."However,
while gauging whether or not the stated requirements of Section50 had been met
on facts of that case, finding similarity in the nature of evidence on this aspect
between the case at hand and Joseph Fernandez(supra), the Court chose to follow
the views echoed in the latter case, wherein it was held that searching
officer's information to the suspect to the effect that "if you wish you
may be searched in the presence of a gazetted officer or a Magistrate" was
in substantial compliance with the requirement of Section 50 of the NDPS Act.
Nevertheless, the Court indicated the reason for use of expression
"substantial compliance" in the following words: "The use of the
expression "substantial compliance" was made in the background that
the searching officer had Section 50 in mind and it was unaided by the
interpretation placed on it by the Constitution Bench in Baldev Singh case. A
line or a word in a judgment cannot be read in isolation or as if interpreting
a statutory provision, to impute a different meaning to the observations."It
is manifest from the afore-extracted paragraph that Joseph Fernandez(supra)
does not notice the ratio of Baldev Singh (supra) and in Prabha Shankar Dubey
(supra), Joseph Fernandez (supra) is followed ignoring the dictum laid down in
Baldev Singh's case (supra).22.In view of the foregoing discussion, we are of
the firm opinion that the object with which right under Section 50(1) of the
NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to
check the misuse of power, to avoid harm to innocent persons and to minimise
the allegations of planting or foisting of false cases by the law enforcement agencies,
it would be imperative on the part of the empowered officer to apprise the
person intended to be searched of his right to be searched before a gazetted
officer or a Magistrate. We have no hesitation in holding that in so far as the
obligation of the authorised officer under sub-section (1) of Section 50 of the
NDPS Act is concerned, it is mandatory and requires a strict compliance.
Failure to 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. As observed in Re Presidential
Poll14, 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 impotents, the intention of the law maker
expressed in the law itself, taken as a whole." 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 (supra) and Prabha Shankar Dubey (supra) is neither
borne out from the language of sub-section (1) of Section 50 nor it is in
consonance with the dictum laid down in Baldev Singh's case (supra). Needless
to add that the question whether or not the procedure prescribed has been
followed and the requirement of Section 50 had been met, is a matter of trial.
It would neither be possible nor feasible to lay down any absolute formula in
that behalf. We also feel that though Section 50 gives an option to the
empowered officer to take such person (suspect) either before the nearest
gazetted officer or the Magistrate but in order to impart authenticity, transparency
and creditworthiness to the entire proceedings, in the first instance, an endeavor
should be to produce the suspect before the nearest Magistrate, who enjoys more
confidence of14 (1974) 2 SCC the common man compared to any other officer. It
would not only add legitimacy to the search proceedings, it may verily
strengthen the prosecution as well.23.Accordingly, and we answer the reference
in the manner aforesaid. The appeals shall, now, be placed before the
appropriate Bench for disposal.
............................................J
(D.K. JAIN)
............................................J.(B.
SUDERSHAN REDDY)
............................................J.(DR.
MUKUNDAKAM SHARMA)
............................................J.(R.M.
LODHA)
............................................J.(DEEPAK
VERMA)
NEW
DELHI;
OCTOBER
29, 2010.2
Back
