2002 INSC 0693 SUPREME COURT OF INDIA Bharatbhai Bhagwanjibhai Vs. State of Gujarat Crl.A.No.312 of 2002 (Umesh C. Banerjee and B.N. Agrawal JJ.) 29.10.2002 JUDGMENT U.C.Banerjee, J. 1. The Statement of Objects and Reasons of the Narcotic Drugsand Psychotropic Substances Act, 1985 (hereinafter referred to asthe "NDPS Act") categorically records the inadequacy of theexisting legislation to combat illicit drug traffic and drug abuse,both at the national and international levels and it is by reason ofsuch deficiencies in the existing laws, the legislature thought itprudent to consolidate the same and bring about a comprehensivelegislation so as to meet the exigencies of the situation. A plainlook at the provisions of the Act read with the Statement of Objectsand the Preamble would depict the intent of legislature as regardsthe offences under the said consolidated legislation, which standsexpressed in rather explicit language as one of the most heinousones in nature. This Court, however, in consonance with criminaljurisprudence of the country has been insisting on strictcompliance of the safe- guards provided under the Statute so as tobe in tune therewith.At this juncture, however, it would be convenient to advertto the contextual facts briefly : The factual score records that on23rd January, 2000, Inspector Mr. Katara along with two HeadConstables and four Constables was on patrolling duty and whilston duty at the bus stand at Chowk in Upleta at about 3.00 p.m. itwas noticed that the accused on seeing the police started running.This undue movement however aroused the curiosity and as suchaccused was intercepted and upon having the presence of twoPanchas was searched which however led to the disclosure ofsmall size plastic bag containing Charas of about 12 gms. inweight. The inspector lodged a complaint at about 1630 hours andnecessary entries were made in the records. The substance foundin the plastic bag was forwarded to the Forensic ScienceLaboratory for opinion and all necessary formalities thereafterwere complied with culminating into the filing of the charge- sheet.The learned Sessions Judge framed the charge against the accusedwho pleaded 'not guilty' and as a matter of fact in his statementunder Section 313 Cr.P. Code, the appellant has stated that theevidence stands created, as he was not aware of any such incidentas noticed above. The learned Sessions Judge, however, on thebasis of available records convicted the accused person andsentenced as noticed earlier. The High Court, however, confirmedthe conviction as well as sentenced the accused to suffer rigorousimprisonment for 10 years and 1 SpotLaw a fine of Rs.1.00 lakh with a defaultclause as well.The principal contention raised that since the deterrentpunishments are prescribed under the NDPS Act, the legislaturehas taken care to incorporate several provisions in Chapter V of theAct and as interpreted by this Court, the provisions are mandatoryin nature and non-compliance therewith would completely vitiatethe trial. It is on this score it has been contended in support of theappeal that by reason of the factum of ascertainment of the wishesand desires of the accused as regards the search and seizure andthat being a mandatory requirement and there being admitted non-compliance therewith, question of either maintaining the guilt ofthe accused person by the Additional Sessions Judge orconfirmation thereof by the High Court would not arise. In thiscontext Section 50 has been very strongly emphasised, which wefeel it convenient to set out along with Sections 51 and 57 onwhich the appellant also laid strong emphasis. The said provisionsread as below: "50. Conditions under which search of personsshall be conducted (1) When any officer dulyauthorised under Section 42 is about to search anyperson under the provisions of Section 41, Section 42 orSection 43, he shall, if such person so requires, takesuch person without unnecessary delay to the nearestGazetted Officer of any the departments mentioned inSection 42 or to the nearest Magistrate. (2) If such requisition is made, the officer maydetain the person until he can bring him before theGazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistratebefore whom any such person is brought shall, if hesees no reasonable ground for search forthwithdischarge the person but otherwise shall direct thatsearch be made. (4) No female shall be searched by anyoneexcepting a female. (5) When an officer duly authorised underSection 42 has reason to believe that it is not possible totake the person to be searched to the nearest GazettedOfficer or Magistrate without the possibility of theperson to be searched parting with possession of anynarcotic drug or psychotropic substance, or controlledsubstance or article or document, he may, instead oftaking such person to the nearest Gazetted Officer orMagistrate, proceed to search the person as providedunder 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 suchbelief which necessitated such search and withinseventy-two hours send a copy thereof to his immediateofficial superior." "51. Provisions of the Code of CriminalProcedure, 1973 to apply to warrants, arrests,searches and seizures - The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply,insofar as they are not inconsistent with the provisionsof this Act, to all warrants issued and arrests, searchesand seizures made under this Act." 2 SpotLaw "57. Report of arrest and seizureWhenever any person makes any arrest or seizure underthis Act, he shall, within forty-eight hours next aftersuch arrest or seizure, make a full report of all theparticulars of such arrest or seizure to his immediateofficial superior." 2. Turning attention to the requirement of Section 50, it is nowwell settled that the same is mandatory in nature and thus thereexists an obligation to comply with the provisions and non-compliance thereof would entail an order of acquittal in aproceeding under the NDPS Act. This Court consistently andwithout even sounding a contra note followed the same and as suchwe need not dilate thereon any further.Incidentally, Section 51 of the Act is an enabling provisionunder which the provisions of Code of Criminal Procedure havebeen made applicable to warrants, searches, arrests and seizuresunder the Act provided further the same be not inconsistent withthe provisions of the special statute being the Act of 1985. It is inthis context that Section 4 of the Code of Criminal Procedure, 1973 ought to be noticed which provides for trial of offences under theIndian Penal Code and other laws since sub-section (2) thereofexpressly records that all offences under any other law shall beinvestigated, inquired into, tried and otherwise dealt withaccording to the same provisions, but subject to any enactment forthe time being in force regulating the manner or place ofinvestigation and other incidentals noticed above.On a reading of the aforesaid provisions thus, it appears thatSection 51 of the Narcotics Act permits introduction of Section 4of the Criminal Procedure Code even in the matter of investigation,searches, seizures, etc.As regards the provisions of Section 57, we do not find anyinfraction thereof. As such no question can be raised as regardsthe intimation of arrest and seizure and a report to that effect.Turning attention to the contextual facts once again,admittedly, the search was not in accordance with the requirementof Section 50 and it is on this score that learned Advocate wasrather vocal and emphatic as regards the factum of the learnedAdditional Sessions Judge being subjected to a very serious errorand the High Court also by reason of its concurrence has been in amanifest error. The issue, however, is slightly different in thecontextual facts. Section 50 categorically lays down that if thesearch is to be conducted by an officer duly authorised underSection 42 and the search is about to be conducted under theprovisions of Sections 41, 42 or 43, the concerned officer does owea duty to intimate the person to be searched that if the latter sorequires, he would be taken to the nearest Gazetted Officer or tothe nearest Magistrate for the purpose of having the search in theirpresence. But in the event of a situation otherwise, as in thecontextual facts, viz., the accused person on seeing the patrollingpolice party started running, which created a suspicion in the mindof the concerned officer, who thereafter intercepted him and thenin the presence of Panchas effected a search, question ofcompliance with the safeguards as prescribed under Section 50 ofthe Act would not arise. In Balbir Singh (State of Punjab v. Balbir Singh1) this Court in the similar vein answeredthe question in the negative in the manner following :" It thus emerges that when the police,while acting under the provisions of Cr.P.C. asempowered therein and while exercising surveillance orinvestigating into other offences, had to carry out thearrests or searches they would be acting under theprovisions of Cr.P.C. At this stage if there is any non-compliance of the provisions of Section 100 or Section165 Cr.P.C. that by itself cannot be a ground to rejectthe prosecution case outright. The effect of such non-compliance will have a bearing on the appreciation ofevidence of the official witness and other 3 SpotLaw materialdepending upon the facts and circumstances of eachcase. In carrying out such searches if they come acrossany substance covered by the NDPS Act the question ofcomplying with the provisions of the said Act includingSection 50 at that stage would not arise. When thecontraband seized during such arrests or searchesattracts the provisions of NDPS Act then from thatstage the remaining relevant provisions of NDPS Actwould be attracted and the further steps have to betaken in accordance with the provisions of the saidAct." 3. Admittedly, on perusal of the evidence as is available on therecords, it is clear that there was no prior information to the policeofficer that the accused is likely to come with a narcotic substance,neither the inspector had any reason to believe from his personalknowledge or information that the accused is likely to be in thearea from where he was found with the contraband item. As amatter of fact, even at the time of effecting search, there was noknowing that an offence under Chapter IV of NDPS Act has beencommitted by the accused. The Inspector merely suspected thecommission of an offence by reason of the fact that the accusedstarted running on seeing the patrolling party. The evidence onthis score is clear and categorical to the effect as discussedhereinbefore. Though the Panchas have given a slightly differentversion of the search and seizure, but that does not by itself takeaway the primary evidence as regards the search and subsequentdiscovery of Charas in the possession of the accused and theresultant seizure thereof. The contextual facts thus depict asituation not covered within the purview of Section 50. In thiscontext, the observation of the Constitution Bench of this Court in State of Punjab v. Baldev Singh2 also lendscredence to the above statement of law. In paragraph 12 of theReport, this Court stated as below: "12. On its plain reading, Section 50 would comeinto play only in the case of a search of a person asdistinguished from search of any premises etc.However, if the empowered officer, without any priorinformation as contemplated by Section 42 of the Actmakes a search or causes arrest of a person during thenormal course of investigation into an offence orsuspected offence and on completion of that search, acontraband under the NDPS Act is also recovered, therequirements of Section 50 of the Act are not attracted." 4. The learned Advocate in support of the appeal furthercontended that the decision of this Court in Ahmed v. State of Gujarat3, upon reference to both Balbir andBaldev (supra) came to a conclusion of the applicability of Section50 in all cases of NDPS. Unfortunately, however, the reliance onAhmed (supra) is totally misplaced by reason of the fact that thisCourt in Ahmed was considering the issue of empowered officer ora duly authorised officer. This Court went on to record that toensure fairness in the search itself and for compliance with Section50 of the Act, no differentiation can be made whether the search isbeing made by the empowered officer, who obviously is an officerof a gazetted rank or the authorised officer, who may be asubordinate officer to whom the empowered officer authorises.This Court went on to observe that a combined reading of theprovisions of Sections 42 and 50 would make it crystal clear thatwherever a search of a person is about to be made on the basis ofpersonal knowledge or information received in that behalf, then ifthe 4 SpotLaw person to be searched requires to be taken to a gazetted officeror the nearest Magistrate, the same must be complied with andfailure to comply with the same would constitute an infraction ofthe requirements of the provisions of Section 50, which wouldultimately vitiate the conviction and it is on this score this Courtrelied upon the plain and categorical language used by thelegislature in Section 50. The decision in Ahmed (supra) does notlend any credence to the submissions in support of the appeal.The High Court in fact recorded a categorical satisfaction asregards the acceptance of evidence as credible and trustworthy andwe also do not find any reason to record a different opinion inregard thereto.On the wake of the aforesaid, we are not inclined to interferewith the order of the High Court. As such this appeal fails and isdismissed. 11994 (3) SCC 299 21999 (6) SCC 172 32000 (7) SCC 477 5 SpotLaw