Criminal Application No.892 of 2001

25th September, 2001

Petitioner Counsel: Shri. V.N.MORANDE
Respondent Counsel: Smt. NEETA JOG

Cases Cited:
State of Punjab Vs. Balbir Singh, AIR 1994 SC 1872 [Para 2]
Ebanezer Adebaya @ Monday Obtor Vs. B.S.Rawat Collector of Customs, 1996(2) ALL MR 402 (F.B.)=1996(2) Mh.L.J. 280 [Para 2]
Namdi Francis Nwazor Vs. Union of India, 1998(8) SCC 534 [Para 2]
Mohinder Kumar Vs. State, Panaji Goa, 1998(8) SCC 655 [Para 2]
Sajan Abraham Vs. State of Kerala, 2001 AIR SCW 2970 [Para 2]
State of Punjab Vs. Baldev Singh, 1998(2) SCC 724 [Para 3]
Kalema Tumba Vs. State of Maharashtra, 1998 ALL MR (Cri) 596=AIR 2000 SC 402 [Para 3,11]
Birakishore Kar Vs. State of Orissa, 2000(9) SCC 541 [Para 3]
Kanhaiya Lal Vs. State of M.P., 2000(10) SCC 380 [Para 3]
Superintendent, Narcotics Central Bureau, Chennai Vs. R. Paulsamy, AIR 2000 SC 3661 [Para 3]
Union of India Vs. Ram Samujh, 1999(9) SCC 429 : 1999(6) JT SC 397 [Para 3,15]
State of Punjab Vs. Baldev Singh, 1999(6) SCC 172 [Para 10]
Saiyad Mohd. Saiyad Umar Saiyad Vs. State of Gujarat, 1995(3) SCC 610 [Para 10]
State of Punjab Vs. Jasbir Singh, (1995) 9 JT (SC) 308 [Para 11]
Sarjudas Vs. State of Gujarat, AIR 2000 SC 403 [Para 12]
Gurbax Singh v. State of Haryana, 2001 Cri.L.J. 1166 [Para 17]

JUDGMENT

JUDGMENT:- The applicants are facing trial under Section 20(b) punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of Ganja, 350 gms. of Ganja was found from the room occupied by the applicants who are husband and wife and 700 gms. of Ganja was recovered from the bucket which applicant No.2 was carrying when the police came. In this bucket, on the top, there were wet clothes and below the wet clothes, there was 700 gms. of Ganja. The bail application filed by the applicants for release on bail was rejected by the learned Additional Sessions Judge, Gondia Vide order dated 01.06.2001. This is how the applicants have moved the application for bail before this Court.

2. Learned Advocate for the applicants urged before me that in so far as the applicant No.2 is concerned, the mandatory provisions of section 50 have not been complied with since the applicant No.2 before search was not informed by the police of her right to be searched before the Gazetted Officer or Magistrate. According to the learned Advocate for the applicants, the raid was conducted on prior information and it is not a case of chance recovery as a result of which the mandatory provisions of Section 50 were required to be followed. He has placed reliance on State of Punjab v. Balbir Singh (reported in AIR 1994 SC 1872); Ebanezer Adebaya @ Monday Obtor v. B.S.Rawat, Collector of Customs, R & I, New Delhi and another (reported in 1996(2) Mh.L.J. 280 : 1996(2) ALL MR 402 (F.B.)); Namdi Francis Nwazor v. Union of India and another (reported in 1998(8) SCC 534); Mohinder Kumar v. State, Panaji, Goa (reported in 1998(8) SCC 655); Sajan Abraham v. State of Kerala (reported in 2001 AIR SCW 2970).

3. On the other hand, learned A.P.P. urged that the search in question of the applicant cannot be considered as personal search in view of the pronouncements of the Apex Court as a result of which there was no question of complying with Section 50 of the N.D.P.S. Act. She has placed reliance on State of Punjab v. Baldev Singh (reported in 1998(2) SCC 724); Kalema Tumba v. State of Maharashtra and another (reported in 1999(8) SCC 257 : 1998 ALL MR (Cri) 596); Birakishore Kar v. State of Orissa (reported in 2000(9) SCC 541); Kanhaiya Lal v. State of M.P. (reported in 2000(10) SCC 380); Superintendent, Narcotics Central Bureau, Chennai v. R.Paulsamy (reported in AIR 2000 SC 3661); and Union of India v. Ram Samujh and another (reported in 1999(9) SCC 429).

4. In order to appreciate the contention advanced on either side, it is necessary to have a look into the law on the subject.

5. In State of Punjab v. Balbir Singh (supra), it has been held that the provisions of Sections 41(1), 41(2), 42(1) and Section 50 of the N.D.P.S. Act are mandatory. In para 26, the conclusions have been recorded and for our purpose the conclusion in sub paragraphs (1) and (5) of paragraph 26 are relevant which read as under :-

"(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(5) On prior information, the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact."

6. In Ebanezer Adebaya @ Monday Obtor v. B.S.Rawat, Collector of Customs, New Delhi and another (supra), a Full Bench of this Court has dealt with expression "to search any person" occurring in Section 50(1) of the N.D.P.S. Act, it has been laid down therein :-

"The expression "to search any person" in section 50(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, means search of articles on the person or body of the person to be searched as also search of articles in immediate possession such as bag and other luggage carried by him or in physical possession of the person to be searched. It would not and cannot be extended to include search of bag or luggage which is presumed to be in possession of the person even though it may be lying in a house or railway compartment or at the airport. It has no applicability also to a case of search of a place, conveyance or a house if the accused is physically present at the time of search. The main object of section 50 of the Act is to avoid the allegation of planting something or of fabricating evidence by the prosecution or the authorised officer. If, the contraband is recovered in a search of a house, building, conveyance or public place, Section 50 will not be attracted. If the narcotic drugs are recovered from the baggage which was not in actual possession of the accused, the question of compliance with section 50 does not arise."

7. In Namdi Francis Nwazor v. Union of India and another (supra), the petitioner's luggage, while he was leaving India for Lagos, was searched at the airport at Delhi but no incriminating material was found in the handbags he was carrying. He had, however, booked one bag which had already been checked in and was loaded in the aircraft by which he was supposed to travel. That bag was called to the place of the said search and on examination it was found that one of the many cartons kept in that bag, contained a material which was suspected to be heroin. The petitioner was prosecuted and convicted under Sections 21, 23 and 28 of the N.D.P.S. Act. The petitioner contended that the omission on the part of the prosecution to inform the petitioner of his right under Section 50 of the Act to opt for being examined by a Gazetted Officer of any department or the nearest Magistrate, vitiated the prosecution. It was held by the Apex Court that at the relevant time, the bag from which incriminating article was found was not in actual possession of the petitioner when he was searched at the airport. It was laid down that Section 50 applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear from Section 50(4) which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched, the law requires that if that person happens to be female, the search shall be carried out only by a female and such restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search. However, it was clarified that if a person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person.

8. In Mohinder Kumar v. State, Panaji, Goa (supra), the provisions of Sections 42(1), 42(2) and 50 had not been complied with and the accused was acquitted of the offence of possession of Charas.

9. In State of Punjab v. Baldev Singh (supra), the matter was referred to larger bench. In view of conflict of opinion between different branches of Apex Court, the following questions were referred to the larger bench :-

"(i) Is it the mandatory requirement of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, ("Act" for short) that when an officer, duly authorised under Section 42 of the Act, is about to search a person he must inform him of his right under sub-section (1) thereof of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search ?

(ii) If any search is made without informing the person of his such right would the search be illegal even if he does not of his own exercise his right under Section 50(1) ? and

(iii) Whether a trial held in respect of any recovery of contraband articles pursuant to such a search would be void ab initio ?"

10. In State of Punjab v. Baldev Singh (reported in 1999(6) SCC 172), it has been pointed that initially a two-judge bench noticed that there was divergence of opinion between different Benches of the Court with regard to the ambit and scope of Section 50 of the said Act and in particular with regard to the admissibility of the evidence collected by an investigating officer during search and seizure conducted in violation of the provisions of Section 50 of the N.D.P.S. Act. Accordingly, the two -judge Bench referred the matter to larger bench and the matter was placed before the three-judge Bench and the three-judge Bench was of the opinion that the judgment of a three-judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat (1995 (3) SCC 610) required reconsideration and, therefore, the cases were required to be considered still by a larger Bench and as such vide order dated 19.11.1997, the three-Judge Bench in State of Punjab v. Baldev Singh (supra) referred the questions already record above. In this respect, the Constitution Bench of the Apex Court in State of Punjab v. Baldev Singh (supra) has laid down :-

"32. However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequence of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intendant to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires is sacrosanct and indefeasible - it cannot be disregarded by the prosecution except at its own peril.

33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the 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 in that section were complied with, it would not be advisable to cut short a criminal trial."

11. In Kalema Tumba v. State of Maharashtra and another (reported in JT 1999(8) SC 293 : AIR 2000 SC 402), the Apex Court was dealing with a case where the appellant was asked to identify his baggage. The appellant identified his black colour rexine bag with brown strips. It was found locked. Baggage tag fixed on it tallied with the claim tag affixed on his Air-ticket. The appellant then opened the bag after taking out a key from his pocket. On examination packets containing brownish powder were found from it. The test revealed that the said powder was heroin and the quantity was found from the possession of the appellant was 2 kgs. It was urged that the appellant before search by the officers of Narcotic Control Bureau did not inform him that he had a right to be searched in presence of a Gazetted Officer or a Magistrate. This contention was rejected by the Apex Court because on the ground that only when a person of an accused is to be searched then he is required to be informed about his right to be examined in presence of a Gazetted Officer or a Magistrate and it was rightly pointed out by the High Court that search of baggage of a person is not the same thing as search of the person himself. It was pointed out in State of Punjab v. Baldev Singh (supra) that the requirement of informing the accused about his right under Section 50 comes into existence only when person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh (1995) 9 JT (SC), 308, wherein it is held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in Baldev Singh's case (supra). It is pointed by the Apex Court that if a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his 'person'. In this case heroin was found from a bag belonging to the appellant and not from his person and, therefore, it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate.

12. In Sarjudas and another v. State of Gujarat (reported in AIR 2000 SC 403), Charas was not found on person of accused but it was found kept in a bag which was hanging on scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. Accordingly, it was held that the search cannot be said to be illegal on the ground that the accused were not informed about their right under Section 50 to be searched in the presence of Gazetted Officer or a Magistrate.

13. In Birakishore Kar v. State of Orissa (supra), the appellant was found lying on a plastic bag in one of the compartments of that train. The said plastic bag was then seized and on verification, it was found containing 10 kg. of poppy straw. The appellant raised the question of noncompliance of mandatory requirement of Section 50 of the N.D.P.S.Act that he was not informed of his right to be searched in the presence of Gazetted Officer or a Magistrate. The contention was rejected as misconceived since it was not the person of the appellant which was searched as he was found sitting on a plastic bag which belonged to him and which contained poppy straw. It was observed that as pointed out by the Court in State of Punjab v. Baldev Singh (supra), Section 50 would come into play only in the case of search of a person as distinguished from search of any premise.

14. In Kanhaiya Lal v. State of M.P. (supra), the only point raised in this appeal is that the mandatory requirement of Section 50 of the Act was not complied with. The Apex Court found that there is no substance in this contention because 1 kg. of opium was not found from the person of the appellant but it was found from a bag which was being carried by the appellant and, therefore, this cannot be said to be a case where on search of the person of the accused, a narcotic drug or psychotropic substance was found.

15. Learned A.P.P. has also placed reliance on Superintendent, Narcotic Central Bureau, Chennai v. R.Paulsamy (supra) wherein the Apex Court had examined the question of grant of bail on ground of prima facie violation of Sections 52 and 57 of the said Act. It was pointed that compliance of Sections 52 and 57 is a matter which could be established only at the trial and could not be prejudged at the stage of consideration for bail and the minimum which the lower Court should have taken into account was the factual presumption in law position that official acts have been regularly performed and such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the Court during bail stage regarding the compliance of the formalities mentioned in those two sections. In this case reference was also made to earlier judgment of the Apex Court in Union of India v. Ram Samujh (1999(6) JT SC 397 : AIR 1999(9) SCC 429), wherein it was pointed out that to check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the N.D.P.S. Act should not be released on bail during trial unless the mandatory conditions provided in Section 37(1)(b) are satisfied.

16. In Sajan Abraham v. State of Kerala (supra), upon which reliance has been placed by the learned Advocate for the applicant, it has been laid down by the Apex Court that sending information forthwith to immediate superior by officer who has received such an information in compliance with Section 42 is not mandatory when in fact situation following mandate strictly results in delay in trapping accused which may lead the accused to escape. It has also been laid down that oral communication to accused about his right under Section 50 of the said Act is valid. It also lays down that Section 57 is not mandatory.

17. After the Constitution Bench judgment of the Apex Court in State of Punjab v. Baldev Singh (supra) and after placing reliance on the same, in five judgments, the Apex Court has taken a strict view of personal search as required under Section 50 of the N.D.P.S. Act. In these rulings the scope of Section 50 has been restricted to search of person in strict sense and it is held that Section 50 does not apply to an article being carried by the accused. The said rulings are Kalema Tumba v. State of Maharashtra and another; Sarjudas and another v. State of Gujarat; Birakishore Kar v. State of Orissa; and Kanhaiya Lal v. State of M.P. (supra) and Gurbax Singh v. State of Haryana (reported in 2001 Cri.L.J. 1166), where consistently this view has been taken.

18. In Gurbax Singh v. State of Haryana (supra), the appellant was travelling in second class compartment. When P.S.I. started checking the said compartment, appellant became panicky and left the train from the door towards the side of engine carrying a Katta (gunny bag) on his left shoulder. He was nabbed and was found to be carrying 7 kg. of poppy straw in the said bag. Relying on State of Punjab v. Baldev Singh (supra) and Kalema Tumba (supra), it was a held that Section 50 of the Act comes into operation only when "the person" of an accused is searched.

19. In the light of this prima facie, I am of the opinion that Section 50 would not come into play in relation to the search of applicant No.2 of the bucket which she was carrying at the relevant time in which on the top there were wet clothes and concealed thereunder was Ganja.

20. Besides this, the Apex Court in Superintendent, Narcotics Central Bureau, Chennai v. R.Paulsamy (supra) has with reference to contentions relating to violation of Sections 52 and 57 and consideration of the same at the bail stage laid down that compliance of Sections 52 and 57 is a matter which could be establish only at trial and could not be prejudged at the stage of consideration of bail. It is pertinent to note that the Apex Court has pointed out that minimum which the lower Court should have taken into account was the factual presumption in law position that official acts have been regularly performed and such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the Court during bail stage regarding the compliance of the formalities mentioned in those two sections. The Constitution Bench in State of Punjab v. Baldev Singh (supra) without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made has held that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the investigating officer to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and if he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The Constitution Bench of the Apex Court has in categorical terms pointed out that the question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. It is pertinent to note that the Apex Court has further pointed out that without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial.

21. In the case under consideration, the prosecution has recovered 1 kg. of Ganja from the possession of the applicants as a result of which Section 37 of the N.D.P.S. Act comes into play. This position is clear from the judgment of the Apex Court in Union of India v. Ram Samujh and another (supra) and Intelligence Officer NCB v. Sambhu Sonkar (reported in 2001 Cri.L.J. 1082).

22. For the aforesaid reasons, I do not consider that this is a case for granting bail. The bail application is accordingly rejected.

Application dismissed.