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SUPREME COURT OF INDIA
Hamza
Versus
State of Kerala
(K.T. Thomas and D.P. Mohapatra, JJ.)
Crl. Appeal No. 798 of 1997
11.08.1999
JUDGMENT
D.P. Mohapatra, J. - This appeal filed by the accused in Sessions
case No. 100\90 of the Court of Sessions Kozhikode Division, is directed
against the judgment and order of conviction and sentence u\s 21 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS
Act'), and sentence of 10 years R.I. and a fine of Rs. 1 lakh, which was
confirmed in appeal by the High Court of Kerala with slight modification
regarding the default sentence which was reduced from 2 years to 1 year's
R.I.
2. The charge against the appellant was that on 18.7.1990 at
6.05 p.m. he was found in possession of 1750 milligrams of brown sugar at AKG
Memorial over-bridge at Francis Road in Nagaram, in violation of the
provisions of the NDPS Act and thereby committed an offence punishable u\s 21
of the NDPS Act.
3. The case of the prosecution, shortly stated is that the
sub-inspector of police, Chemmangad Police Station, having received
information that the accused was selling brown sugar went along with two
constables PW2 and CW2 to the scene of occurrence. On searching the accused
nine small polythene bags containing brown sugar were found in his
possession. The articles were seized. The articles were found on weighing as
1750 milligram. After completing the procedural paraphernalia a sample was
sent for chemical analysis. The sample which was sent for chemical analysis
was found to be diacetyl morphine (Heroin) commonly known as brown sugar.
4. The prosecution mainly relied on the evidence of Shri
T. Raman PW 1, the police officer, who effected the search and seizure and other
witnesses to establish the charge of illegal possession of brown sugar. The
Courts below on appreciation of the evidence on record accepted the
prosecution case and passed the order of conviction and sentence as noticed
earlier.
5. The main thrust of the arguments of Shri Somnath
Mukherjee, learned counsel for the appellant was that the Courts below erred
in placing reliance on the recovery of the brown sugar from the appellant
since the mandatory requirements prescribed u\s 50 of the NDPS Act had not
been followed by the police officer before making the search which led to the
seizure of the articles.
6. The contention of Shri K.M.K. Nair, learned Counsel for
the respondent on the other hand was that there was substantial compliance
with the provisions of Section 50 of the NDPS Act, inasmuch as the police
officer (PW1) had asked the accused whether he would like to be produced
before a Magistrate or a Gazetted Officer to which he replied in the
negative.
7. The question that falls for determination is whether on
the facts and in the circumstances of the case as revealed from the evidence
on record the search of the person of the accused and the recovery of the
packets of brown sugar from his possession was vitiated on account of
non-compliance with the requirements of section 50 of the NDPS Act. From the
discussion in the impugned judgments it appears that the contention did not
find favour with the courts.
8. Sub-section (1) of Section 50 which is the relevant
provision in this regard reads thus :
"50. Conditions under which search of person shall be
conducted - (1) When any officer duly authorized 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."
9. On a bare reading of the provision it is clear that the
statute provides a reasonable safeguard to the accused before a search of his
person is made by an officer authorised under section 42 to make it. The
provision is also intended to avoid criticism of arbitrary and high handed
action against authorised officers. The legislature in its wisdom considered
it necessary to provide such a statutory safeguard to lend credibility to the
procedure keeping in view the severe punishment prescribed in the statute.
Various questions relating to interpretation of section 50, obligatory
character of the provisions therein and the consequence of non-compliance
with the requirements have been considered by a Constitution Bench of this
Court in the case of State of Punjab v. Baldev Singh, 1999(3) RCR (Crl.) 533
: JT 1999(4) SC 595. On a detailed discussion of the various contentions
raised and the previous decisions of the Court in the matter this Court held
as follows :
"To be searched before a Gazetted Officer or a
Magistrate, if the suspect so requires, is an extremely valuable right which
the legislature has given to the concerned person having regard to the grave
consequence that may entail the possession of illicit articles under the NDPS
Act. It appears to have been incorporated in the Act keeping in view the
severity of the punishment. The rationale behind the provision is even
otherwise manifest. The search before a Gazetted Officer or a Magistrate
would impart much more authenticity and credit-worthiness to the search and
seizure proceeding. It would also verily strengthen the prosecution case.
There is, thus, no justification for the empowered officer, who goes to
search the person, on prior information, to effect the search, of not
informing the concerned person of the existence of his right to have his
search conducted before a Gazetted Officer or a Magistrate, so as to enable
him to avail of that right. It is, however, not necessary to give the
information to the person to be searched about his right in writing. It is
sufficient if such information is communicated to the concerned person orally
and as far as possible in the presence of some independent and respectable
persons witnessing the arrest and search. The prosecution must, however, at
the trial, establish that the empowered officer had conveyed the information
to the concerned person of his right of being searched in the presence of the
Magistrate or a Gazetted Officer, at the time of the intended search. Courts
have to be satisfied at the trial of the case about due compliance with the
requirements provided in Section 50. No presumption under Section 54 of the
Act can be raised against an accused, unless the prosecution establishes it
to the satisfaction of the court, that the requirements of Section 50 were
duly complied with."
10. In para 55 of the judgment the conclusions arrived at by
the Court have been summed up thus :
"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 concerned person 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 concerned person 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 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;
(4) That there is indeed need to protect society from
criminals. The societal intent in safety will suffer if persons who commit
crimes are let off because the evidence against them is to be treated as if
it does not exist. The answer, therefore, is that the investigating agency
must follow the procedure as envisaged by the statute scrupulously, and the
failure to do so must be viewed by the higher authorities seriously inviting
action against the concerned official so that the laxity on the part of the
investigating authority is curbed. In every case the end result is important
but the means to achieve it must remain above board. The remedy cannot be
worse than the disease itself. The legitimacy of judicial process may come
under cloud if the court is seen to condone acts of lawlessness conducted by
the investigating agency during search operations and may also undermine
respect for law and may have the effect of unconscionable comprising the
administration of justice. That cannot be permitted. An accused is entitled
to a fair trial. A conviction resulting from an unfair trial is contrary to
our concept of justice. The use of evidence collected in breach of the
safeguards provided by Section 50 at the trial, would render the trial
unfair;
(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 evidence led at the trial. Findings 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 concerned
person 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;
(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's case 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 provisions
of Section 50 of the Act, can by itself be used as evidence of unlawful
possession of the illicit article on the person from whom the contraband has
been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case correctly
interprets and distinguishes the judgment of Pooran Mal's case and the broad
observations made in Pirthi Chand's case and Jasbir Singh's case are not in
tune with the correct exposition of law as laid down in Pooran Mal's
case."
11. Testing the case in hand on the touchstone of the
principles laid down in the aforementioned decision the conclusion is
inevitable that the requirements of section 50(1) of the NDPS Act were not
complied before making the search of the person of the accused. The trial
court in para 10 of its judgment while discussing the evidence of PW1
observed that the witness admitted that before searching the accused he did
not ask him whether he should be searched in presence of a Gazetted Officer.
The Court further observed that the witness was not aware whether the inquiry
about the Gazetted Officer should be made before the search was effected.
12. In paragraph 12 of the judgment referring to the
evidence of PW 2 the Police Constable who accompanied PW1 to the place of
search, the Court observed that the witness admitted that before the search
was made, no question was put to the accused whether he should be searched in
presence of a Magistrate or a Gazetted Officer. In paragraph 6 of the
judgment the Court observed that on seeing the police party the accused had
attempted to escape but was apprehended; it was then that the accused was
questioned by PW1 and he answered that he was having brown sugar; the accused
had taken out the bags and the same were handed over to PW1 and it was then
that the accused was asked as to whether the presence of a Gazetted Officer
was required to which he answered in the negative.
13. The High Court placing reliance on the decision of the
State of Punjab v. Balbir Singh, 1994(1) RCR Crl. 719 : JT 1994(2) SC 108
held that the search and seizure in the case has not been adversely effected
by non-compliance with the provisions of section 50(1) of the NDPS Act.
14. The position is clear that it was also not seriously
disputed before us that there was no compliance of the provisions of section
50(1) of the Act before the search and seizure in the case were effected.
Therefore the search and seizure thus effected cannot be relied upon by the
prosecution. The learned counsel for the State fairly accepted the position
and in our view rightly that the prosecution case of illegal possession of
the contraband article is based entirely on the search of the person of the
accused leading to recovery of the article and there is no other evidence in
support of the charge. It follows, therefore, that the judgment and order of
conviction against the appellant by the Sessions Court which was confirmed by
the High Court is clearly unsustainable. 373_
15. Accordingly, the appeal is allowed. The impugned
judgment of the High Court confirming the judgment and order of conviction of
the Sessions Court is set aside. The appellant is acquitted. He shall be
released forthwith unless his detention is required in any other case.
Appeal allowed.
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