2002 ALL MR (Cri) 2156
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.G. CHITRE, J.

Shri. Koyappakalathil Ahamed Koya Vs. Shri. A. S. Menon & Anr.

Criminal Appeal No.337 of 1998

3rd July, 2002

Petitioner Counsel: Ms. Y. N. KATPITIA, Ms. R. B. AMROLIA
Respondent Counsel: Mr. PRAKASH THAKUR, Mr. A. S. GADKARI

(A) Narcotic Drugs and Psychotropic Substances Act (1985), S.50 - Seizure of Contraband - Compliance of S.50 - Is mandatory - Every court is duty bound to see whether Investigating Agency had acted consistent with provisions of law while effecting seizure from the accused - Safeguard or protection to be searched in presence of Gazetted Officer or Magistrate - Safeguard incorporated in S.50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search.

It would be the duty of every Court to see whether the Investigating Agency had acted consistent with the provisions of law while effecting the seizure from the accused. It will have to be seen whether the procedure which was followed by the Investigating Agency in effecting the seizure and at the time of seizing the narcotic drug from such accused, the Investigating Agency was above board or not. To be searched before a gazetted officer or 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 consequences that may entail the possession of illicit articles under NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of punishment. The rationale behind the provisions 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. Thus, there is no justification for the empowered officer, who goes to search the person, on prior information, to effect search, without informing the concerned person of the existence of his right to have he being searched before a gazetted officer or a magistrate, so as to enable him to avail of that right. The safeguard or protection to be searched in presence of a gazetted officer or a magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search. [Para 22]

2000 (5) Bom. C.R. (SC) 236 - Followed.

(B) Narcotic Drugs and Psychotropic Substances Act (1985), S.50 - Search and seizure - Right of accused - Chance detection - Held, even in case of chance detection, the investigating agency is under obligation to inform the suspect that he is having an important right in view of S.50 to get himself searched before any Gazetted Officer or Magistrate.

Even in case of chance detection, the investigating agency is under obligation to inform the suspect that he is having an important right in view of provisions of section 50 to get himself searched before any other gazetted officer or a magistrate.

In view of the principle that Ceaser's wife must be above board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of the citizen, the search was conducted. If that is done, then there would be credit worthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed. [Para 24]

(C) Narcotic Drugs and Psychotropic Substances Act (1985), S.50 - Search - Right of accused under S.50 - Accused must be informed of his important right of being searched before Gazetted Officer or Magistrate - This has to be done in straight forward manner and not by any other way which would be causing serious or significant prejudice to said entitlement of accused.

When there is a prior information, and a panch has been specially called who knows the language of the accused, the procedure laid down by necessary provisions of law to be followed, has to be followed and if such raiding party does not follow that procedure, then, there would be reasonable ground to believe that there has been an attempt to give a go-bye to such important provisions of law to be followed for oblique purpose. Here, at this juncture, it would be pertinent to note that though the Supreme Court has observed in number of cases that it is obligatory on the part of the raiding party that they should inform such an accused of his important right which has been envisaged by provisions of Section 50 of the NDPS Act. That has to be done in straight forward manner and not by any other way which would be causing a serious or significant prejudice to the said entitlement of the accused. In the present case, as it has been pointed out by Ms. Katpitia in her submissions, the members of the raiding party informed the appellant that he was having a right to be searched before any other gazetted officer or a magistrate but at the same time informed him that PW Gautam present in the raiding party was a gazetted officer. Ms. Katpitia has submitted that it was an allurement given to the accused-appellant prompting him for expressing his no objection for being searched in the presence of PW Gautam and not for asking to be searched before any other gazetted officer or magistrate. In number of cases the members of the raiding party are following this improper way of taking a gazetted officer connected with the Department to which the members of the raiding party belong. The intention behind providing such a right to such an accused who is to be searched, as indicated by provisions of section 50 of the NDPS Act, is to allow him to be searched before an independent gazetted officer or a magistrate who is not expected to have any connection whatsoever with the members of the raiding party. It is for the purpose of avoiding the partisanness and ensuring that such search should be through an impartial person and providing assurance of any other gazetted officer. It should not be in the nature of member of the raiding party or giving allurement to such an accused, while informing about his important right to him as indicated by provisions of Section 50 of the NDPS Act. If that is done in such way it would be stabbing the spirit of providing a safeguard to the accused as it has been provided by Section 50 of the NDPS Act. It would be impliedly dodging such an ordeal which is important for avoiding the prejudice to the defence by the accused or an important right of the accused provided by the relevant law. When the members of the raiding party follow such improper way, their evidence loses the credit worthiness and assumes suspiciousness. [Para 43]

(D) Narcotic Drugs and Psychotropic Substances Act (1985), Ss.50, 67 - Seizure of contraband - Storage of contraband - Officer in custody of sample packets and remaining packet, should not have custody of seals used by members of raiding party while effecting seizure and drawing panchanama.

The intention behind making a provisions that the sample to be sent for examination and the remaining packets should be handed over to the custody of the officer in charge of the nearest police station by the members of the raiding party is that there should be a separation between the members of the raiding party and such an officer. The purpose of ensuring such separateness is for the purpose of avoiding the possibility of tampering with the samples and other packets by partisan persons who happen to be members of the raiding party. Another step in that direction is to keep the separateness of the seals and, therefore, such officer incharge of the police station is required to impress his seal on such packets. The intention behind it is also that the members of the raiding party should not get the opportunity of withdrawing the contents of the samples and to tamper with the contents of such packets. The good purpose, the safeguards created, assurance rendered gets frustrated by allowing such an officer to have the seals, in his possession or custody, which were used by the members of the raiding party by effecting the raid, search and panchanama. The prosecution evidence on this point suffers the infirmity which is significant. [Para 50]

(E) Narcotic Drugs and Psychotropic Substances Act (1985), S.67 - Scope of - Statement of accused under S.67 - Cannot be used for corroborating that aspect of prosecution case which the prosecution is obliged to prove by leading evidence.

Constitution of India, Art.20(3).

The provisions of Section 67 can be used for the purpose of knowing as from where the narcotic drug has been obtained by such person ?, who sold it to him, whether that was sold to him or handed over to him ? As to who is the main person of the racket. As to how such racket functions ? What amount has been paid for that ? What remuneration the said person is likely to get after doing the work of a carrier ? All such questions and other questions can be asked legitimately for the purpose of going further and detecting a racket or detecting the source of the said narcotic drug. An enquiry can be legitimately made and questions can be legitimately asked to such person who may become later on an accused, about the root of narcotic drug, modus operandi of the gang operating behind it. The persons to whom the said narcotic drug was to be distributed and all other many things. But not the things which would get the admission from the accused about the things for which the prosecution has to adduce the evidence for trial for discharging its burden of proving the case. One gets afraid as to how long the cardinal principles of jurisprudence are to be molested by such investigating agencies. It is also travelling through the provisions of Article 20 sub-Article 3 and compelling such person to give evidence against him in indirect way.

Such statements cannot be used for corroborating that aspect of the prosecution case which the prosecution is obliged to prove by leading evidence. It can be used for corroborating on other auxiliary points by remaining away from the ambit of Article 20 sub-Article (3) of the Constitution of India. [Para 54,55]

(1997) 3 SCC 721 - Distinguished.

Cases Cited:
Mohinder Kumar Vs. State of Panaji, Goa AIR 1995 SC 1157 [Para 14,24]
Sajan Abraham Vs. State of Kerala, 2002 SOL Case No.435 [Para 15,29]
Kalema Tumba Vs. State of Maharashtra, Narcotic Laws, 2000 SCJ page no.204 [Para 16,29,33]
Birakishore Kar Vs. State of Orissa, 2001 Drugs Cases 337 [Para 17,33]
Ebanezer Adebaya @ Monday Obtor Vs. B. S. Rawat, Collector of Customs R & I New Delhi , 1996(2) ALL MR 402 (F.B.)=1996 (4) Bombay C.R. 185 [Para 18,29]
State of Punjab Vs. Baldev Singh 2000 (5) Bom., C.R. (SC) 236 : JT (1999) 4 SC 595 [Para 19,20,21,24,33,34,38,41]
D. K. Basu Vs. State of West Bangal, JT (1997) 1 SC 1 [Para 21]
Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 [Para 22]
United States of America in Mirada Vs. Arizona, 384 US 436 : 16 L Ed 694 (1966) [Para 24]
Ali Mustaffa Abdul Rahman Moosa's case, JT (1994) 6 SC 326 [Para 31,32]
Gurbax Singh Vs. State of Haryana, 2001 Drugs Cases 8 [Para 33]
Mattulal Vs. Radhe Lal, AIR 1974 SC 1596 [Para 39]
State of U.P. Vs. Ram Chandra Trivedi, AIR 1976 SC 2547 [Para 39]
K. I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin (1997) 3 SCC 721 [Para 51,55]
Shivaji Sahebrao Bobade Vs. State of Maharashtra, AIR 1973 SC 2622 [Para 57]


JUDGMENT

JUDGMENT :- Heard at length with reference to evidence on record and the judgments referred to during the course of the arguments.

2. The appellant is hereby assailing the correctness, propriety and legality of the judgment and order passed by Additional Sessions Judge, Greater Mumbai in NDPS Special Case No.106 of 1997 wherein the appellant has been convicted for offences punishable under provisions of section 21 read with section 8(c) and section 28 read with section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act" for convenience). The appellant has been sentenced to undergo R.I. for 10 years and to pay fine of Rs.1,00,000/-, in default to under go further R.I. for six months for the offence punishable under the provisions of section 21 read with section 8(c) of NDPS Act. He has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/-, in default, to undergo further R.I. for six months for the offence punishable under section 28 read with Section 23 of NDPS Act.

3. The prosecution case in brief is that in the night between 11th and 12th of December, 1996 Superintendent of Customs, Preventive Unit, Shri. Babulal Vedprakash Gautam was on duty at N.I.P.T. Sahar, along with other customs officers and Intelligence Officers, namely, Albert John Issac (P.W.1), Shri. Bichhu, Borkar. As per the prosecution case either Shri. Issac or Gautam saw the appellant moving in a suspicious way carrying hand bag in his hand in the premises of the said airport. He was accosted and after accosting him, P.W. Issac stopped him, PW-1 Issac brought two witnesses from assistants of Air India Staff. One of them was Balchandran (PW-3). The appellant was searched in transit lounge after telling him that he was entitled to be searched before nearest gazetted officer or a magistrate. The appellant, as per the prosecution case, opted to be searched by Gautam, Issac, Bichhu, Borkar and panch witnesses. When the said bag was opened, it was noticed that it was having an inner compartment which was opened and it was found that two polythene bags containing some powder were kept in the said secret chamber. Those polythene bags were emptied on a piece of paper. Thereafter sample packets were taken for chemical analysis and remaining powder was packed in the packet. Sample packets as well as the bag containing remnants of the powder was packeted and sealed, a panchanama was drawn and the appellant was taken to police station building of Sahar Police Station. The same sample packets and the remaining packet were handed in possession of Shri. Menon who impressed his seal on it and kept those packets in his custody till sample packets were despatched per messenger for chemical analysis.

4. The appellant was arrested at 11.45 p.m. in the night between 12-12-1996 and 13-12-1996. After completion of the investigation a complaint was filed against the appellant in the Special Court. The chemical analysis of the samples disclosed that the said powder was containing diacetyl morphine.

5. The prosecution examined PW Issac, PW Gautam, Panch witness Balchandran, PW Menon, Chemical Analyzer Shri. Bhansal and PW Vinod Gopal Pillai, staff member of Sandeep Travels.

6. During the course of investigation, statement of appellant was recorded in view of provisions of Section 67 of the NDPS Act and that has been also relied upon by the prosecution as a piece of evidence against the present appellant.

7. The appellant set up the plea of innocence. He contended that he happens to be a resident of Kerala and had come to Mumbai for searching the job and when he was staying in a restaurant situated at Temkar Lane, one Kunhi Mohd. met him and promised him to seek an employment. After getting so acquainted with said Kunhi Mohd., the appellant got the passport, VISA through V.K. Travels from its office situated at Aluwalia Building, N.M. Joshi Marg, Byculla. The appellant contended that at initial trip, he flew to Mecca and returned back to India and went to Kerala. Thereafter again came to Mumbai and when he had come to Mumbai said Kunhi Mohd. asked him to go to Saudi Arabia with a packet which was containing riyals. Accordingly, flight ticket was arranged by said Kunhi Mohd. When the appellant was to fly by a flight scheduled at 1.20 a.m. and for that purpose was present in the premises of the airport, he was accosted, caught and falsely implicated in a false charge. He disowned that he was in possession of the said packet of the narcotic drug as alleged by the prosecution. He also contended that he did not give the said statement voluntarily. On the contrary the said statement was recorded by using coercion and compulsion on him.

8. The appellant also contended that the mandatory provisions of section 50 of the NDPS Act were not complied with. He contended further that the provisions of Section 42 of the NDPS Act were also not complied with. It is his case that the provisions of Section 52, 55 and 57 were also not complied with and non-compliance of all these provisions of NDPS Act resulted in miscarriage of justice and, therefore, the order of conviction and sentence recorded against him happens to be improper, incorrect and bad in law.

9. He prayed that the said order of conviction and sentence passed by the learned Additional Sessions Judge of Greater Mumbai be set aside and he be acquitted.

10. Ms. Katpitia, Counsel appearing for the appellant, by making reference to the evidence of PW Issac, Gautam and Balchandran submitted that there is no substance in the prosecution case that it was a chance detection. She pointed out that as soon as the appellant was accosted by PW Issac and not by Gautam, PW Issac without interrogating him, without asking the name of the appellant suddenly went to a long distance place for calling panch witness Balchandran who was knowing Malyalam. She submitted that when there was no conversation between PW Issac and the appellant, it is very strange that PW Issac should go for the purpose of calling none else but PW Balchandran who was at a distant place. She submitted that PW Issac could have called anybody from Customs Duty Free Shop which was at near distance to act as a panch witness. Even somebody could have been called from the proximate place in the said premises itself and there was no need for calling PW Balchandran. She submitted that panch witness Balchandran has been called under a false pretext that he was knowing Malyalam as well as the appellant-accused was knowing Malyalam. And therefore, it would have been proper and fair to call him as panch witness so as to see that whatever the appellant speaks would be heard and understood by panch witness Balchandran. She submitted that a show was made to show that the appellant was informed about the right which he was having in view of Section 50 of the NDPS Act by informing him that way in Malyalam, the language which he was understanding. She submitted that it is a false case that the said right was conveyed to him by informing him that way in Malyalam. She pointed out that had that been so, there would have been appropriate mention of that in the panchanama. She pointed out that panchanama does not mention even a line that the appellant was informed about such important right in Malyalam by PW Issac. According to her the panch witness Balchandran was under the influence of Issac and hence, he was specially called.

11. Shri. Thakur, Counsel appearing for Respondent No.1 and Shri. Gadkari, appearing for Respondent No.2, submitted that Balchandran was called as he was understanding Malyalam after Issac knew after preliminary interrogation that the appellant was understanding no other language but Malyalam. They submitted that little acquaintance with Balchandran and Issac would not make panch witness Balchandran a witness under the thumb of PW Issac. They submitted that there was no necessity of mentioning it in panchanama that the appellant was informed about his important right in view of provisions of Section 50 of NDPS Act. Shri. Thakur and Shri. Gadkari submitted that it was not necessary at all to inform him about that because the present case is not a case dependent on receipt of prior information but it was a chance detection case and in a chance detection case, it is not necessary that such person should be informed that he is having an important right in view of provisions of Section 50 of the NDPS Act of being searched in presence of any other gazetted officer or a magistrate.

12. Ms. Katpitia submitted that the prosecution itself is coming with the evidence that PW Issac told him that he could be searched before a gazetted officer or magistrate and at the same time informed him that PW Gautam was a gazetted officer present there. According to Ms. Katpitia, this was nothing but suggesting him that he should be searched before Shri. Gautam who was the member of the raiding party. According to her, said conduct of the members of raiding party vitiated the exercise of such important right by the appellant granted to him by provisions of Section 50 of the NDPS Act. She submitted that taking a gazetted officer as member of the raiding party and thereafter suggesting the accused that gazetted officer happens to be present in the raiding party is nothing but depriving such an accused of his important right granted by the provisions of section 50 and, therefore, the evidence collected by such search would not be available for the prosecution to bid for conviction against such an accused.

13. Shri. Thakur, Counsel appearing for Respondent No.1 and Shri. Gadkari, appearing for Respondent No.2, repelled these submissions by submitting that the exercise of the right by the appellant in context with the provisions of Section 50 does not get vitiated or prejudiced only because PW Issac had told him that PW Gautam who was the member of the raiding party was also a gazetted officer. He submitted that the prosecution evidence has not been damaged at all on this count.

14. Ms. Katpitia placed reliance on the judgment of the Supreme Court in Mohinder Kumar Vs. State of Panaji, Goa, reported in AIR 1995 SC 1157, where the facts of the case showed that PW-4 ASI Umesh Gaonkar while on patrolling duty in a jeep on the evening of January 20, 1990 reached Anjana Out-Pst at Village Vagator and after parking the jeep, he and the police party accompanying him except one Head-Constable reached the house bearing No.591 at Small Vagator and noticed two persons sitting in the verandah of that house and after seeing them they hurriedly entered in the house. The said act aroused suspicion of Sub-Inspector whereupon he and the police party went to the house and directed those two accused persons to stay where they were and asked the Head Constable to alert others and to arrange for panchas. On the arrival of the panchas he and his companions entered the house and questioned the accused persons. There they saw a white plastic bag lying by the side of the accused Mohinder Kumar and on search they found that the bag contained two polythene packets of charas like substance. Both the packets were attached, weighed and samples were taken. Even on such facts, the Supreme Court held that it was the duty of the members of the raiding party to adhere to provisions of Section 50 and to comply with the provisions which were mandatory. Failure to do so was resulting in failure of justice.

15. Shri. Thakur, Counsel appearing for Respondent No.1 and Shri. Gadkari, appearing for Respondent No.2, placed reliance on the judgment of the Supreme Court in the matter of Sajan Abraham Vs. State of Kerala, reported in 2002 SOL Case No.435, wherein the Supreme Court observed that in construing any facts to find, whether prosecution has complied with the mandate of any provisions, which is mandatory, one has to examine it with pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug, traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply, which the Courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such persons escapes from the clutches of law. The Court however while construing such provisions strictly should not interpret it so literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out. In that case the information was received by one Head Constable at 7 p.m. that the accused in that case was possessing a drug known as "Tidigestic" and three syringes for injecting the same on the road called Blue Tronics Junction, Palluruthy. The said Head Constable and two constables who were with him went with the information to the Sub Inspector of Police, Palluruthy Cusba Police Station who was coming by police jeep to that side. Hence, the information was given to him on the road and thereafter the said accused was raided and narcotic drug was seized from him. In that case it was a point of debate whether by not recording that information, provisions of Section 42 of the NDPS Act were violated and whether that was lethal to the fate of prosecution case. The Supreme Court in view of the facts and circumstances of the said case held in that case that the members of the raiding party could not have afforded to waste out the time which would have enabled the accused to escape. In that case the Supreme Court further held that by orally informing the accused that he was having an important right in view of provisions of Section 50 of NDPS Act of being searched before any other gazetted officer or magistrate. Compliance of Section 50 stands achieved by considering the opinion expressed by the High Court, Supreme Court found in that case that High Court had also after appreciating the evidence on record recorded a finding that there was compliance of provisions of Section 50 of NDPS Act. By placing reliance on this judgment of the Supreme Court, Shri. Thakur and Shri. Gadkari argued that keeping in view the facts and circumstances of the present case, there was no necessity of recording the information though it might have been received by PW Issac or PW Gautam. He submitted that in the present case no such information was ever received and the present one happens to be a chance detection.

16. Shri. Thakur and Shri. Gadkari further placed reliance on the judgment of the Supreme Court in Kalema Tumba Vs. State of Maharashtra and another, reported in Supreme Court Judgments on Narcotic Laws, 2000 page no.204. In the said decision arising out of Criminal Appeal No.317 of 1998 which was decided by the Supreme Court on 16-9-1998, the Supreme Court held in view of facts and circumstances of the said case that when the narcotic drug happens to be seized from baggage, the compliance of provisions of Section 50 is of no consequences. Shri. Thakur and Shri. Gadkari submitted that in the present case also the narcotic drug has been seized from the baggage and, therefore, compliance of section 50 is of no consequence.

17. Shri. Thakur and Shri. Gadkari also placed reliance on the judgment of the Supreme Court in the matter of Birakishore Kar Vs. State of Orissa, reported in 2001 Drugs Cases 337, wherein the Supreme Court held that when the accused was found sitting on a plastic bag which belonged to him and which contained poppy straw, compliance of section 50 was not important because it would come into play only in case of search of a person as distinguished from search of any premises etc.

18. The Full Bench of this Court has held in the matter of Ebanezer Adebaya @ Monday Obtor Vs. B. S. Rawat, Collector of Customs R & I, New Delhi and another, reported in 1996 (4) Bombay C.R. 185 : (1996(2) ALL MR 402) that provisions of Section 50 would not be applicable to a search of bag or baggage merely because the same is presumed to be in possession of the person even though it may be in the house or railway compartment or at airport. Section 50 also does not apply to a case of search of a place, conveyance or a house if the accused is physically present at the time of search.

19. In this context it is necessary to see as to what are the observations made by the Supreme Court in the matter of State of Punjab Vs. Baldev Singh, reported in 2000 (5) Bombay C.R. (SC) 236. The Supreme Court held in the said case that an illicit article seized from the person of the accused during the search conducted in violation of the safeguards provided in section 50 of the Act cannot be used as evidence to prove unlawful possession of contraband on the accused though any other material recovered during that search may be relied upon by the prosecution in other proceedings against the accused, notwithstanding recovery of the material during illegal raid.

20. In the matter of State of Punjab Vs. Baldev Singh, reported in JT 1999 (4) SC 595 which was decided by Constitution Bench of Five Judges on 21-7-1999, the Supreme Court dealt with the number of judgments of Supreme Court revolving around the provisions of Section 50 delivered by Supreme Court Benches of two or three Judges. While delivering the judgment in Baldev Singh's case reported in JT 1999 (4) SC 595, the Supreme Court considered the judgments in :-

(1) State of Punjab Vs. Balbir Singh,

(2) Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala,

(3) Saiyad Mohd. Saiyad Umar Saiyad and others Vs. State of Gujarat,

(4) Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi & Ors.,

(5) State of Himachal Pradesh Vs. Jasbir Singh & Others.,

(6) State of Punjab Vs. Labh Singh.

Supreme Court, Constitution Bench was dealing with Baldev Singh's case, as special reference was made to the said Constitution Bench for the purposes of sorting the conflict of the judicial view indicated by various judgments of the Supreme Court and, therefore, the Supreme Court while delivering the judgment in Baldev Singh's case dealt with the topic in a broader sweep. In Baldev Singh's case (supra) the Supreme Court held that "the Supreme Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy amongst persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care to see that all the safeguards provided in a statute are scrupulously followed. We are not able, to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order of acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed 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 unconscionably compromising the administration of justice. That cannot be permitted."

21. In Baldev Singh's case (supra), the Supreme Court, quoted the observations of the Supreme Court in D.K. Basu Vs. State of West Bangal, JT 1997 (1) SC 1 :-

"We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hardcore criminals like extremists, terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worse than the disease itself."

22. The observations of the Constitution Bench of Supreme Court in Baldev Singh's case will have to be taken as the pointer of guidance on the importance of compliance of provisions of Section 50 of NDPS Act. The Supreme Court Constitution Bench did not express the specific opinion whether the provisions of section 50 are mandatory or directory but expressed a specific opinion that failure to inform the concerned person of his right as emanating from sub-section (1) of Section 50 of the NDPS Act, may render the recovery of the contraband suspect and conviction and sentence of an accused bad and unsustainable in law. Therefore, it would be the duty of every Court to see whether the Investigating Agency had acted consistent with the provisions of law while effecting the seizure from the accused. It will have to be seen whether the procedure which was followed by the Investigating Agency in effecting the seizure and at the time of seizing the narcotic drug from such accused, the Investigating Agency was above board or not. To be searched before a gazetted officer or 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 consequences that may entail the possession of illicit articles under NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of punishment. The rationale behind the provisions is even otherwise manifest. The search before a gazetted officer or a magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. Thus, there is no justification for the empowered officer, who goes to search the person, on prior information, to effect search, without informing the concerned person of the existence of his right to have he being searched before a gazetted officer or a magistrate, so as to enable him to avail of that right. The safeguard or protection to be searched in presence of a gazetted officer or a magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search. In the said judgment Supreme Court has pointed out that severe punishment has been provided under the provisions of NDPS Act for mere possession of illicit drugs and narcotic substances. Therefore, personal search, more particularly for offences under NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in presence of a gazetted officer or a magistrate is a necessary sequence for enabling the concerned person to exercise that right under section 50 because after Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248, it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not "reasonable, fair and just" and when a statute itself provides for a "just" procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a gazetted officer or a magistrate, would be violative of the "reasonable, fair and just procedure" and the safeguard contained in section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be 'fair', just or reasonable procedure. The Supreme Court in that case further observed that in that case the Supreme Court was not persuaded to agree that reading into section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a gazetted officer or a magistrate, if he so requires, would place any premium on ignorance of law. It also held that the argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a reasonable, fair and just procedure.

23. Therefore, this Court will have to see with cautious eyes, with circumspective look towards the evidence adduced by the prosecution about the compliance of provisions of section 50 so far as the present case is concerned and with that cautious and watchful approach this Court will have to weigh the evidence on record, in the light of the submissions advanced by rival litigants.

24. The judgment in Mohinder Kumar's case (supra) has not been overruled by the judgment of the Supreme Court Constitution Bench in Baldev Singh's case (supra). Therefore, in view of the judgment of the Supreme Court in Mohinder Kumar's case and Baldev Singh's case, this Court will have to come to a conclusion that even in case of chance detection, the investigating agency is under obligation to inform the suspect that he is having an important right in view of provisions of section 50 to get himself searched before any other gazetted officer or a magistrate because as it has been held by the Supreme Court of United States of America in Mirada Vs. Arizona, 384 US 436 : 16 L Ed 694 (1966) :

"The Latin maxim salus populi supreme lex (the safety of the people is the supreme law) and salus republican supreme lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair."

In view of the principle that Ceaser's wife must be above board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty, a fundamental right of the citizen, the search was conducted. If that is done, then there would be credit worthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed.

25. Therefore it will have to be seen whether prosecution has proved in this case that it was a detection of drug on account of mere suspicion as a chance and, therefore, it would be necessary to see in the present case whether the investigating agency had come with a clean slate, straight forward approach and with straight shoulders in this case and here it would be relevant to see whether it was a chance detection, whether it was a detection on suspicion as contended by the prosecution, or it was a detection of prior information. Ms. Katpitia has submitted that in the present case if the evidence of PW Issac, panch witness Balchandran and PW Gautam is read together, none can come to a conclusion that the evidence of these witnesses is consistent with each other and it is showing that the prosecution is putting its case with fairness. She submitted that if it happens to be a chance detection or detection on suspicion as contended by the prosecution, there was no need of calling Balchandran, a Malyalam knowing panch witness from a long distance. According to her, without interrogation PW Issac, as his evidence shows, called the said person to act as a panch witness and the reason given for that happens to be that he was knowing Malyalam. It is her submission that what was the necessity of calling a panch witness when the appellant was accosted by PW Issac on suspicion ? How PW Issac could infer immediately that he was likely to get some contraband article from the bag which the appellant was holding in his hand. She pointed out further that immediately after the appellant was accosted, a written letter was given by PW Gautam for cancellation of the flight of the appellant. She raised a question as to how the investigating agency persons, namely, PW Gautam, PW Issac, Borkar and Bichhu were knowing that after search of the bag which the appellant was holding in his hand, they would be getting some contraband article stored in it and it would consume more time and, therefore, the appellant would not get the flight which was destined to fly at 1.20 a.m. in the night between 11-12-1996 and 12-12-1996. There is substance in her submission. Normally after a person being accosted after some interrogation he would be permitted to catch the flight for which he had come to the air port. That would not by itself necessitate cancellation of his flight by writing a letter and it would not take place before such bag happens to be opened by the members of such party accosting such person. In the present case it so happened and, therefore, there is reasonable ground to believe that it must have been on prior intimation and not on account of mere suspicion or by a chance as contended by the prosecution. It automatically leads to another important question which demands an answer and that is if that accosting was on prior information, where that information has gone? Question arises whether that was recorded, if so, where that information has gone ? If not recorded, why it was not recorded ? Ms. Katpitia has submitted that the said information was in respect of some other person and not about the present appellant and, therefore, the prosecution has suppressed the said information which was recorded. Though Mr. Thakur has made his best, he could not give a direct answer to this but attempted to divert the discussion to other point that it was not necessary at all to go for compliance of provisions of Section 50 of NDPS Act. The same course has been adopted by Shri. Gadkari also. They cannot be blamed for that because they have to put the case of their clients in the best way. But inherent infirmity in their case needs further probing, in the interest of justice for the purpose of ensuring that the process of law is above the board and the Court does not condone the attitude of prosecuting agency of giving go bye to legal provisions.

26. It has been submitted by Ms. Katpitia that there was no need of going to the place where Balchandran was standing for taking him to act as panch witness instead of searching for any other person from Free Duty Shop or other point of getting the presence of the persons in the said premises. It has been suggested by her during the course of her submissions that the panch Balchandran has been picked up because he was a man of thick acquaintance with PW Issac and both of them were Malyali speaking persons. After carefully perusing the evidence adduced by the prosecution, the criticism levelled by Ms. Katpitia on this point cannot be ignored.

27. It leads to another important aspect of the matter and that is about the discrepancy in the evidence of PW Issac, Gautam and Balchandran in respect of the said inner chamber of the bag which the appellant was holding in his hand and its opening. According to one version, the said inner chamber was required to be opened by cutting. Other version shows that it was required to be torn up and third version shows that it was opened by unscrewing the outer wrapper and inner wrapper. Ms. Katpitia submitted that the witness may be a person from Detective Squad or a panch witness. He is expected to speak consistent with the contents of the panchanama and they would speak so but the truthfulness of their version would be exposed by seeing as to how they answered on other points which are not documented in the panchanama. This Court finds substance in it. Because if the evidence of panch witness Balchandran is scrutinized, he has either exposed himself as a person speaking inconsistent with the evidence given by PW Issac or Gautam or a person showing ignorance about the important facets of the act in which he had participated as panch witness. Besides that, a question arises as to why there should be a discrepancy on important aspects when prosecution is claiming that all the three were present at the time of said panchanama and connected with it and they are the persons speaking the truth. When their evidence is discrepant on material aspect of their activities, the inference would be irresistible that the prosecution has not come with fair evidence on this point and that adds to the strength of the submission of the appellant's side that there was the information received by the members of the said Intelligence Squad about some other person and not the appellant and appellant has been made a scape goat and he has been falsely implicated in this case.

28. That makes it necessary to consider whether the appellant was found holding with bag or whether that bag was collected from Module II and not from the hands of the accused-appellant. The prosecution is strong on the point that the appellant was holding this bag. If that is so, and keeping in view the evidence which has been adduced in this case, the prosecution has contended that way, one will have to consider whether holding a bag by a person amounts to holding such an article on his person. The judgments on which Shri. Thakur has placed reliance do contemplate "baggage". The "baggage" means in normal parlance the luggage which has been kept ready for boarding. May be in the train, bus or flight. It is not used for indicating that a person happens to be holding a bag. For indicating that situation, the words which would be used in all probabilities would be "that particular person was holding a bag in his hand or on his person".

29. In Sanjan Abraham's case (supra), the Supreme Court has not given any specific finding whether possessing drug Tidigesic and three syringes by the accused happens to be holding on a person or otherwise. In Kalema Tumba's case the judgment revolved around "baggage". In Birakishore Kar's case the accused was found sitting on a plastic bag. The observations of the Full Bench of this Court in Ebanezer Adebaya's case (supra) are revolving around the proposition provisions of section 50 would not be applicable to a search of a bag or baggage merely because the same is presumed to be in possession of a person even though it may be in the house or railway compartment or at the air port.

30. In Ebanezer Adebaya's case (supra), the Full Bench after considering the ratio of the judgment of the Supreme Court in Mohinder Kumar's case concluded that to search any person means search of article on the person or body of the person.

31. The observations made by the Full Bench of this Court in Ebanezer Adebaya's case are eclipsed by the view taken by the Supreme Court in Ali Mustaffa Abdul Rahman Moosa's case (JT 1994 (6) SC 326).

32. This aspect has been elaborated further by the observations made by the Supreme Court in Ali Mustaffa's case (supra) wherein the Supreme Court's two Judges Bench held that the provisions of Section 50 are mandatory and non-compliance with the same would vitiate the conviction. It went further observing that the language of Section 50 is clearly and explicitly makes it obligatory on an authorised officer to inform the person to be searched of his right that if he so requires, he will be produced before a gazetted officer or a magistrate for search being conducted before them. While dealing with Ali Mustaffa's case, the Supreme Court considering the prosecution allegation that the said appellant was found possessing a bag from which charas was recovered. For giving the correct idea of facts, it is necessary to quote some portion from paragraph 2 of the said judgment which is as follows :-

"According to the prosecution case, on 12-10-1988 at about 11.15 p.m., the appellant was found in possession of 780 gms, of charas in the first class waiting room of the railway station at Quilon, PW-6 Ashok Kumar, Sub-Inspector of Police attached to the Quilon railway station on receipt of reliable information that a foreigner having charas in his possession was sitting at the Quilon railway station, went to the platform where PW-1 constable Nataraja Pillai was on patrol duty. Both PW-1 and PW-2 went to the first class waiting room. The appellant was found sitting there with a bag. On suspicion, he was questioned by PW-1 and PW-6. The appellant took out a small packet of charas from his bag and handed it over to PW-6. On further questioning and search, PW-6 recovered three big packets of charas from the bag which was in possession of the appellant. The seizure of charas was effected in presence of the witnesses on the spot itself and the contraband was taken into possession after making the mahazar. The other valuable articles which were with the appellant were also taken into custody, after preparing the recovery memo."

33. In Kalema Tumba's case (supra) the baggage was taken from Check in Section and it was having a tag fixed on it. In Birakishore Kar's case (2001 Drugs Cases 337), three Judges Bench of the Supreme Court concurred with the view taken by the Constitution Bench in Baldev Singh's case by holding that Section 50 would come into play only in case of a search of a person as distinguished from search of any premises, etc. In Birakishore Kar's case the said accused-appellant was found sitting on a plastic bag. In Gurbax Singh Vs. State of Haryana, reported in 2001 Drugs Cases 8, two Judges Bench of the Supreme Court held that Section 50 of NDPS Act would be applicable only in those cases where the search of the person is carried out. In that case the appellant-accused was noticed by PW-2 Ishwar Singh, SI who was patrolling at Karnal Railway Station for checking smuggling and other anti-social elements and at about 5.25 p.m. when Kalka passenger train arrived at Karnal from the side of Panipat and halted at platform No.1 and when he was checking a second class compartment, the said appellant-accused was found sitting in the compartment and became panicky and left the train from the door towards the side of engine carrying a katta (gunny bag) on his left shoulder. On suspicion, he was nabbed in presence of witness and it was found that he was carrying poppy straw weighing 7 k.g. in a polythene bag of white colour. After separating 100 gms by way of sample, sample and the residue as collected. While dealing with the applicability of Section 50 of the NDPS Act, the Court considered Kalema Tumba's case so also the judgment of the Supreme Court in State of Punjab Vs. Jasbir Singh 1996 Drugs Cases 404 and pointed out that in view of the judgment of the Supreme Court in Baldev Singh's case, the ratio of the judgment of the Supreme Court in Jasbir Singh's case (supra) stood overruled. In Gurbax Singh's case, the Supreme Court did not find it necessary to discuss this aspect further more because the Supreme Court observed in the following way :-

In the case of Baldev Singh (supra) the Constitutional Bench in (para 12) observed thus :-

"On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc."

"Further after considering various judgments, the Court held (in para 57) 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.

"In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right is extension of right conferred under Section 100(3) of the Criminal Procedure Code. Sub-Section (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant allow him free ingress thereto and afford all reasonable facilities for a search therein. Sub-Section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is searched under sub-section (3) a list of all things taken possession of shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provides under Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the N.D.P.S. Act would be applicable only in those cases where the search of the person is carried out."

34. Thus, these judgments of Supreme Court in cases cited by the Prosecutor appearing for Respondent No.1, does not help his cause as he wants. The ratio in Gurbax Singh's case has been declared as overruled by the observations made in Baldev Singh's case (supra). In Baldev Singh's case in paragraph 37, the Constitution Bench observed:-

"This view was reiterated in Jasbir Singh's case also. It appears that the earlier judgment in Ali Mustaffa's case was not brought to the notice of their Lordships in both the above cases."

This paragraph has a reference to paragraph 36 of the same judgment wherein the Constitution Bench made the observations in following way :-

"However, a later two-Judge Bench in Pirthi Chand's case (supra) relying upon Pooran Mal's case (supra), observed :-

"The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in Panchanama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected, i.e., Panchanama etc., nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into."

35. The Supreme Court further observed in paragraph 53 :-

"We, therefore, hold 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 by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case."

36. The Supreme Court further observed in paragraph 54 :-

"Thus, considered we are of the opinion that the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in 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."

37. In paragraph 55, the Supreme Court has pointed out its final conclusions. They are :-

(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 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 unconscionably compromising 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. 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 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 in Pooran Mal's case and the broad observations made in Pirthi Chand's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case.

The Supreme Court has in the said judgment pointed out in paragraph 56 that the above conclusions are not a summary of the judgment and have to be read and considered in the light of the entire discussion contained in the earlier part.

38. Therefore, this Court has taken care to point out all relevant facets of the observations made by the Supreme Court in respect of the search of a person and provisions of section 50 of the NDPS Act. This Court has also taken the care to mention the various observations made by the Supreme Court in relevant cases and in Baldev Singh's case (supra).

39. There was a debate on the point whether this Court should prefer the observations made by the Supreme Court in the judgment cited by Shri. Thakur for the prosecution or on the judgment cited by Ms. Katpitia for the appellant. Shri. Thakur placed emphasis on the judgments of the Supreme Court in Sajan Abraham's case, Gurbax Singh's case, Kalema Tumba's case, Birakishore Kar's case, Jasbir Singh's case and Kannaya Lal's case. Shri. Thakur submitted that these cases are recent cases. Ms. Katpitia placed emphasis on Ali Mustaffa's case, Baldev Singh's case, Abdul Rashid Ibrahim Mansuri's case, Namdi Francis Nwazor's case. She submitted that it is an accepted principle of jurisprudence that when there are judgments of Supreme Court expressing conflicting views, all subordinate courts have to give preference to the ratio expressed by the judgment of the Supreme Court larger Bench. She submitted that the conclusions drawn by the Supreme Court Constitution Bench in Baldev Singh's case is the last word on this point and, therefore, this Court should be guided in its judgment by the ratio of the judgment of the Supreme Court in Baldev Singh's case coupled with the ratio of the cases cited by her. For justifying her on this point, she cited the judgment of the Supreme Court in Mattulal Vs. Radhe Lal, reported in AIR 1974 SC 1596 wherein three Judges Bench of the Supreme Court held that when there are contradictory decisions of the Supreme Court - Former decision of a larger bench than the latter - Former decision should be followed. (The decision of larger bench). She also cited the judgment of the Supreme Court in the matter of the State of U.P. Vs. Ram Chandra Trivedi, reported in AIR 1976 SC 2547 wherein the Supreme Court observed that where the Court finds any conflict between the view expressed by larger and smaller benches of the Supreme Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case is to try to find out and follow the opinion expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law, is followed by the Supreme Court itself. Thus, this Court would prefer the view expressed by Supreme Court in Baldev Singh's case which approved the ratio of the judgment of the Supreme Court in Ali Mustaffa's case.

40. Touching this aspect of the matter, it would be necessary to point out that the sum and substance of the evidence of PW Issac, Gautam and Balchandran which would show that PW Issac and not Gautam must have received a prior information about possibility of finding of contraband article and at that time his colleague Bichhu must have been with him. If that is not so, there was no reason for PW Issac, Gautam and their colleague Bichhu to cancel the flight of the appellant by writing a letter. Had that not been the case, there was no necessity of going for cancellation of the flight of the appellant and calling a panch witness knowing Malyalam for remaining present for the search. Had that been a simple case of accosting, interrogating and thereafter getting satisfied and allowing the appellant to his flight, there would not have been any necessity of writing a letter of cancelling the flight of the appellant. In the absence of a prior information, they would not have formed an opinion that presence of the appellant would have been required for a longer time and in that case, the appellant would not be in a position to get the flight but would be arrested. It is pertinent to note that the appellant, as per the prosecution case, was accosted, near about 11.45 p.m. and the flight was scheduled at 1.20 a.m. Thus, there was sufficient time for the appellant to get the flight even in the case of some interrogation and even search of his baggage. That would not have taken more time which could have been required for drawing a panchanama in accordance with the procedure laid down by the relevant provisions of the NDPS Act and for further activities as contemplated by relevant provisions of NDPS Act.

41. Ms. Katpitia has criticized the attitude of the investigating agency in not producing the said prior information and of criticizing their attitude of not reducing the said prior information in writing. As it has been indicated by the Supreme Court in Baldev Singh's case, there was no necessity of writing such information on paper. Therefore, on that count itself, the members of the raiding party cannot be blamed. However, their conduct would be blamable for not stating before the Court in straightforward way that they had the prior information of the contraband article. They would be blamable for distorting the case on this point and coming with a theory that it was a case of chance detection or a detection on suspicion or a detection without there being a prior information. They are also blamable on other count which this court would be pointing out in further discussion at relevant stage. But so far as this aspect of the matter is concerned, even in view of the ratio of Baldev Singh's case (supra) the members of the raiding party were under an obligation to inform the appellant that he was having the right to be searched before any other gazetted officer or a magistrate in view of Section 50 of the NDPS Act. But they have not done so as law requires.

42. In number of cases Supreme Court has expressed its view that when the sentence is severe, the Court should be watchful in seeing that the investigation is in accordance with the provisions of law necessary to be followed. The Court should be watchful in seeing whether the members of the raiding party were scrupulously following the relevant provisions of law at the time of adopting the proceeding in searching the person concerned. The Court should be watchful to see whether evidence which has been collected by the prosecution is consistent with the provisions of law or whether it has been collected by the Investigating Agency by not following the necessary provisions of law. The Court should be also watchful to see whether such evidence is collected by giving a go-bye to necessary provisions of law and what was the reason for not following the important provisions of law which should have been followed. The Courts have to see whether non-compliance was a matter of casualness, negligence or ignorance or whether it was a deliberate attempt to give a go-bye to clean evidence for bidding a conviction.

43. When there is a prior information, and a panch has been specially called who knows the language of the accused, the procedure laid down by necessary provisions of law to be followed, has to be followed and if such raiding party does not follow that procedure, then, there would be reasonable ground to believe that there has been an attempt to give a go-bye to such important provisions of law to be followed for oblique purpose. Here, at this juncture, it would be pertinent to note that though the Supreme Court has observed in number of cases that it is obligatory on the part of the raiding party that they should inform such an accused of his important right which has been envisaged by provisions of Section 50 of the NDPS Act. That has to be done in straight forward manner and not by any other way which would be causing a serious or significant prejudice to the said entitlement of the accused. In the present case, as it has been pointed out by Ms. Katpitia in her submissions, the members of the raiding party informed the appellant that he was having a right to be searched before any other gazetted officer or a magistrate but at the same time informed him that PW Gautam present in the raiding party was a gazetted officer. Ms. Katpitia has submitted that it was an allurement given to the accused-appellant prompting him for expressing his no objecting for being searched in the presence of PW Gautam and not for asking to be searched before any other gazetted officer or magistrate. In number of cases the members of the raiding party are following this improper way of taking a gazetted officer connected with the Department to which the members of the raiding party belong. The intention behind providing such a right to such an accused who is to be searched, as indicated by provisions of section 50 of the NDPS Act, is to allow him to be searched before an independent gazetted officer or a magistrate who is not expected to have any connection whatsoever with the members of the raiding party. It is for the purpose of avoiding the partisanness and ensuring that such search should be through an impartial person and providing assurance of any other gazetted officer. It should not be in the nature of member of the raiding party or giving allurement to such an accused, while informing about his important right to him as indicated by provisions of Section 50 of the NDPS Act. If that is done in such way it would be stabbing the spirit of providing a safeguard to the accused as it has been provided by Section 50 of the NDPS Act. It would be impliedly dodging such an ordeal which is important for avoiding the prejudice to the defence by the accused or an important right of the accused provided by the relevant law. When the members of the raiding party follow such improper way, their evidence loses the credit worthiness and assumes suspiciousness.

44. At this juncture, it is again important to note that the panch witness Balchandran was called and the reason given by the prosecution is that he was knowing Malyalam as the present appellant happens to be a person knowing Malyalam. Ms. Katpitia has raised a question in her submission by saying that as to how PW Issac and Gautam were knowing before interrogating appellant that there would be narcotic drug found in the said bag which, as per the prosecution case, the appellant was possessing, without opening that bag. And again in that case, what was the necessity of panch Balchandran being called from the long distance. This submission is of substance if the evidence adduced by the prosecution is carefully scrutinized and other glaring defects and infirmities present in the prosecution evidence are considered in proper spirit.

45. Three versions are there in respect of the finding out that secret gap of chamber in the bag. One version is indicating that it was opened by cutting. Other version shows that it was torn and third version points out that the said gap of the chamber was noticed only after the screws were unscrewed. When it was so, the members of the raiding party knew that the search would be taking a long time and there would be necessity of a panch witness who knows Malyalam. However there was no interrogation done with the present appellant before panch witnesses were called. It is pertinent to note that it has come in the prosecution evidence, in the evidence of PW Issac and Gautam that the accused opened the said bag by a key which was in his possession. But panch witness Balchandran does not say that way in his examination-in-chief and there is no mention of that in the panchanama. It makes out a strong case that the accused might not have been the person giving that key to the members of the raiding party and might not have been the person opening the said bag and this "might not have been" has been confirmed and has been turned into "must not have been" by non-seizure of that key. Had he been the accused who opened the said bag from his key, the said key would have been definitely seized by the members of the raiding party and would have been produced as seized article at the time of preparing the panchanama and it would have been so mentioned in the panchanama as the article seized at the time of drawing the panchanama. But it is not so. It leads to another question as to then who opened it ? Whether the appellant-accused was really concerned with it or whether it was unclaimed bag and foisted on the accused and he has been falsely implicated in the present case as it has been submitted by his lawyer in her submissions.

46. The panch witness is not consistent with the evidence of PW Issac and Gautam on oath with other portion of the prosecution case excluding the aspect which has been indicated by documented panchanama. It also assumes importance on account of the discrepancy in the evidence of PW Issac and Gautam and panch witness Balchandran. It is not known as to why there should be a variance in the evidence of the panch witness in respect of the place where search was taken. Whether it was taken in Customs Dormentry or the spot where he was accosted was at a considerable distance.

47. The counsel appearing for the appellant has submitted that the appellant was not having any concern whatsoever with the said bag and has contended that the said bag has been foisted on him and he has been falsely implicated in this case. In that context she has emphasized that non straightforward approach of the prosecution witnesses while giving the evidence before the Court and more importantly not telling the truth about the fact that they had a previous information about the narcotic drug or about finding of the narcotic drug. In that context, she has also pointed out that without interrogating the accused-appellant, without opening the said bag, the secret chamber of it, what was the necessity of cancelling the flight of the appellant by writing a letter to the concerned airline authorities ? All these points are not satisfactorily explained by the prosecution and non-satisfactory explanation provided by the prosecution makes it very difficult for the Court to accept the prosecution evidence as truthful, reliable or above board. The learned trial Judge has not appreciated the evidence adduced by the prosecution keeping in view these important facets. The learned trial Judge has not probed the prosecution evidence, scanned the prosecution evidence in view of the points mentioned above. The cancellation of the flight has to be a fatal nail to the prosecution case and non-seizure of the key has to be a death nail to the prosecution case which the learned trial Judge has ignored. The learned trial Judge has also ignored as to what was the necessity of the prosecution witness to adopt evasive style while giving the evidence against the appellant and not coming with a straightforward breast on the points mentioned above creating a serious doubt about the reliability of the prosecution evidence.

48. After examining the evidence of prosecution witness on the point of seizure and allied points, this Court comes to another aspect of the case and that is as to how the narcotic drug after seizure by effecting the panchanama was stored. It has been kept in the custody of Shri. Menon, incharge of Narcotic Cell in NCCP Office, Ballard Estate. Ms. Katpitia submitted that the said narcotic drug has not been stored properly.

49. Mr. Thakur and Gadkari submitted that narcotic drug has been properly stored in proper custody and there has been no infringement of important provisions of NDPS Act. It is the submission of the defence counsel that the seal was permitted to be in the custody of Menon who was having the custody of the sample packets as well as the remaining packet and, therefore, he had ample opportunity of tampering with the contents of those packets. Mr. Thakur and Gadkari submitted that Shri. Menon has been authorised to have the custody of such drugs after seizure in view of the powers granted to concerned authority by provisions of NDPS Act. Be that as it is, but one thing has to be avoided and that is that the person who is having the custody of sample packets and remaining packet which is to be presented before the trial Court should not have the custody of the seals. By following such practice, the possibility of anybody tampering with the sample packet and the remaining packet cannot be overruled. NDPS Act has taken special care by pointing out that after the seizure has been effected, in normal course, the narcotic drug should be handed over in the custody of officer incharge of the nearest police station and he has to affix his own seal to those packets in addition to the seals used by the members of the raiding party affixed at the time of such seizure along with the panchanama. Therefore, the officer having the custody of sample packets and remaining packet should not have the custody of the seals which have been used by the members of the raiding party while effecting the seizure and drawing the panchanama. It is to be noted that in the Prevention of Food Adulteration Act, Bombay Prohibition Act at the time of sending the samples to Chemical Analyst, ballistic experts, precaution is always taken to see that such expert should get the samples as well as a forwarding letter bearing a specimen of seal impressed on the samples sent to him for examination separately. Those expressions of specimen seals are to be sent separately and those experts are expected to compare those seals by satisfying themselves that the seals are intact and no interference has been done with them. For the purpose of ensuring this safeness and credibility of the reports of such experts, maximum care has to be taken because in cases the reports of such experts are allowed to be admitted in evidence without such experts being examined. When the sentence provided is severe, the system should be beyond suspicion and above board.

50. The intention behind making a provision that the sample to be sent for examination and the remaining packets should be handed over to the custody of the officer in charge of the nearest police station by the members of the raiding party is that there should be a separation between the members of the raiding party and such an officer. The purpose of ensuring such separateness is for the purpose of avoiding the possibility of tampering with the samples and other packets by partisan persons who happen to be members of the raiding party. Another step in that direction is to keep the separateness of the seals and, therefore, such officer incharge of the police station is required to impress his seal on such packets. The intention behind it is also that the members of the raiding party should not get the opportunity of withdrawing the contents of the samples and to tamper with the contents of such packets. The good purpose, the safeguards created, assurance rendered gets frustrated by allowing such an officer to have the seals, in his possession or custody, which were used by the members of the raiding party by effecting the raid, search and panchanama. The prosecution evidence on this point suffers the infirmity which is significant.

51. Counsel for the appellant read out the statement of the appellant recorded in view of provisions of section 67 of the NDPS Act and has submitted that it is nothing but getting a confirmation of the acts done by members of raiding party at the time of such seizure, drawing of panchanama, sealing of the samples and other packets. She submitted that it is indirect way of getting admission from the accused which is violative of provisions of Section 67 of the NDPS Act as well as Article 20 sub-article (3) of the Constitution of India. Shri. Thakur and Shri. Gadkari by pointing out the judgment of the Supreme Court in the matter of K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, reported in (1997) 3 SCC 721 submitted that such statement is very much admissible in evidence and can be relied upon for basing the conviction. In that judgment the Supreme Court has considered the statement recorded in view of provisions of Section 108 and 135 of Customs Act, 1962. Section 108 of the Customs Act, 1962 (hereinafter referred to as "Customs Act" for convenience) speaks of power to summon any person to give evidence and produce documents and Section 135 speaks of evasion of duty or prohibition. The words which are used in Section 108 are specifically mentioning that the said power has been given to such officer for recording the evidence and is empowered to issue summons for asking said persons to give evidence before him. Sub-section (3) provides that all persons so summoned shall be bound to attend in person and to state the truth upon any subject, respecting which they are examined and thereafter sub-section (4) has provided that every such enquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code. Such is not the language used in Section 67 of NDPS Act. Section 67 needs to be reproduced adverbatim. It speaks :-

"Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of an enquiry in connection with the contravention of any provision of this Act :

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts and circumstances of the case;

Nowhere word "evidence" has been used. Nowhere it has been indicated that such person who is being examined by such an officer in view of Section 67 is bound to state the truth as it has been indicated by Section 108 of the Customs Act. It is pertinent to note that Section 67 starts with the title "Power to call for information, etc.-" Thus, the texture of Section 108 of the Customs Act and Section 67 of NDPS Act are different structurily and fundamentally. The words used in those sections are different and the meanings which they are to convey are different and the purpose is different. Those provisions cannot be treated to be at par, similar to each other or equivalent to each other. They are structurily and meaningfully different. It is important to note that Section 108 speaks of the power of such gazetted officer to summon the person whose attendance he considers necessary either to give evidence or to produce documents as he has been empowered to summon such person for giving evidence. Sub-section (3) is speaking that a person who has been so summoned has to state the truth before him upon any subject respecting which such person is being examined or is to be examined. Not only that, speaking a falsehood has been made an offence punishable under section 193 and section 228 of the Indian Penal Code and that examination has been treated to be a judicial proceeding. All these things are totally absent in Section 67.

52. Section 25 of the Indian Evidence Act 1872 provides non-admissibility of the confession recorded by police officer. Section 24 provides that confession caused by inducement, threat or promise, is irrelevant in criminal proceeding and the categories have been indicated when such confession becomes irrelevant in criminal proceedings.

53. An officer making enquiry in respect of commission of any offence punishable under the provisions of NDPS Act or making enquiry for knowing whether any provision of NDPS Act has been infringed or not, is entitled to collect such information from any person but he has to be within the four corners of the provisions which has been provided by section 67 of the NDPS Act. He is not to couch the said statement by such words which would make it equivalent to a confession or equivalent to the admission of the acts which prosecution is to prove in the trial in view of provisions of Indian Evidence Act. The system of couching it like a confession or statement of admission or statement of confirmations for exonerating the prosecution from its fundamental duty of proving its case has to be deprecated because it violates article 20 (3) of Constitution of India. But time and again such couching of words in such manner is being followed and it is being argued that it is admissible in evidence. That leads to a fallacy. It is likely to be argued that as accused has admitted everything in respect of seizure, panchanama, effecting of seal, performance of the acts for compliance of mandatory provisions, therefore, prosecution is exonerated from adducing the evidence for proving its case on those aspects of the case. If such statements are not to be deprecated then what for the prosecution should examine its witnesses for unfolding its case, and proving it as the criminal jurisprudence contemplates.

54. The provisions of Section 67 can be used for the purpose of knowing as from where the narcotic drug has been obtained by such person ?, who sold it to him, whether that was sold to him or handed over to him ? As to who is the main person of the racket. As to how such racket functions ? What amount has been paid for that ? What remuneration the said person is likely to get after doing the work of a carrier? All such questions and other questions can be asked legitimately for the purpose of going further and detecting a racket or detecting the source of the said narcotic drug. An enquiry can be legitimately made and questions can be legitimately asked to such person who may become later on an accused, about the root of narcotic drug, modus operandi of the gang operating behind it. The persons to whom the said narcotic drug was to be distributed and all other many things. But not the things which would get the admission from the accused about the things for which the prosecution has to adduce the evidence for trial for discharging its burden of proving the case. One gets afraid as to how long the cardinal principles of jurisprudence are to be molested by such investigating agencies. It is also travelling through the provisions of Article 20 sub-Article 3 and compelling such person to give evidence against him in indirect way.

55. Such statements cannot be used for corroborating that aspect of the prosecution case which the prosecution is obliged to prove by leading evidence. It can be used for corroborating on other auxiliary points by remaining away from the ambit of Article 20 sub-Article (3) of the Constitution of India and, therefore, the prosecution in this matter cannot take the advantage of the observations of the Supreme Court in K.I. Pavunny's case (supra).

56. But the fact remains that in this case, the investigating officer has used such device also for the purpose of getting the confirmation of their acts by recording the statement of the appellant by taking the recourse to section 67 of the NDPS Act. That reflects on bonafides of the prosecution and that adds to the strength of the criticism which has been levelled by the defence against the conduct of the prosecution witnesses who were not consistent with each other on the detection and seizure and effecting the seizure by panchanama. In this case, the said statement instead of strengthening the prosecution case damages it. Unfortunately the trial Judge has lost the sight of this aspect of the case while appreciating the evidence on record.

57. When the sentence provided is severe and the law has provided safeguards for making it sure that the investigating agency collects the evidence by remaining in four corners of the provisions of law, the trial Court is bound to be on guard and extremely conscious in appreciating the evidence so adduced against the accused and in that context all these questions would be relevant for ponderance and discussion. But the learned trial Judge has not gone for any discussion in its real sense. The learned trial Judge should have come to a conclusion that the prosecution did not prove it beyond a reasonable doubt that the said bag was found in possession of the appellant or the appellant was found holding that bag. The possibility of the said bag being foisted upon the appellant and the appellant being implicated for some other as a scape goat cannot be ruled out. As it has been mentioned by the Supreme Court in the case of Shivaji Sahebrao Bobade and another Vs. State of Maharashtra, reported in AIR 1973 SC 2622 in every criminal trial it is the duty of the prosecution to establish that the accused "must have" committed the offence and not "might have committed the offence". In this context, it would be relevant to consider the presumption which has been indicated by provisions of NDPS Act. Therefore, conclusions drawn by learned Judge against the appellant cannot be upheld.

58. Thus, the appeal stands allowed. The judgment and order of conviction passed by the learned Additional Sessions Judge against the appellant stands set aside. He stands acquitted. He be set at liberty if not required for any other enquiry, proceedings or trial. He be also not released if he happens to be convicted for any other crime and happens to be undergoing the sentence.

59. Parties to act on an ordinary copy of this judgment duly authenticated by the Private Secretary of this Court, after typing and typing mistakes are corrected.

Appeal allowed.