Criminal Appeal No.97 of 2011

10th July, 2015.

Petitioner Counsel: Ms. MISBAAH A. SOLKAR, Mr. AMIN SOLKAR
Respondent Counsel: Smt. V.R. BHONSALE

Cases Cited:
State of Punjab Vs. Baldev Singh, 2009 ALL SCR (O.C.C.) 363=(1999) 6 SCC 172 [Para 13,14,16,19]
Vijaysinh Chandubha Jadeja Vs. State of Gujarat, 2010 ALL MR (Cri) 4023 (S.C.)=2010 ALL SCR 2655 : (2011) 1 SCC 609 [Para 13,15]
State of Rajasthan Vs. Parmanand & Anr., 2014 ALL MR (Cri) 1475 (S.C.) [Para 13,16]
State of Punjab Vs. Balbir Singh, 2012 ALL SCR (O.C.C.) 15=(1994) 3 SCC 299 [Para 16]
State of Himachal Pradesh Vs. Pirthi Chand, (1996) 2 SCC 37 [Para 16]
Kalema Tumba Vs. State of Maharashtra, (1999) 8 SCC 257 [Para 16]
State of Himachal Pradesh Vs. Pawan Kumar, 2004 ALL MR (Cri) 3475 (S.C.)=(2005) 4 SCC 350 [Para 16]
Dilip & Anr. Vs. State of Madhya Pradesh, 2007 ALL MR (Cri) 823 (S.C.)=(2007) 1 SCC 450 [Para 16]
Union of India Vs. Shah Alam, 2009 ALL SCR 2214=(2009) 16 SCC 644 [Para 16]

JUDGMENT

JUDGMENT :- The Appellants, original accused Nos.1, 4 and 5 have questioned the correctness of the judgment and order dated 7th January, 2011 passed by the Special Judge, Solapur in Special Case No.24 of 2007 thereby convicting them for an offence punishable under Section 20(b) (ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing them to suffer rigorous imprisonment for ten years each and to pay a fine of Rs.1 lac each. In default of payment of fine, the Appellants have been ordered to suffer further rigorous imprisonment for one year each. Along with the Appellants who are the original accused Nos.1,4 and 5, the original accused No.3-Smt. Hasina Subramanyam Karwi is also convicted and sentenced for the same term. As far as the original accused No.2 Subramanyam Karwi is concerned, the record discloses that the trial against him was separated. The original accused No.6 namely Pirappa H. Kurma has been acquitted by the Trial Court from the offences charged against him. Thus, in the present Appeal, the original accused Nos.1,4 and 5 respectively are the Appellants.

2. The facts which give rise to and are necessary to decide the present Appeal can in brief be stated as under :

(i) PW-2 - Popat Borate, Police Constable, then attached to Jail Road Police Station, Solapur was deputed for patrolling duty on 18th April, 2007 from Market Yard to Tulzapur Naka between 8.00 a.m. to 12.00 noon and from 5.00 p.m. to 9.00 p.m. He was on duty in the Market Yard Chowk located on Hyderabad to Pune National Highway No.9 at about 9.00 a.m. to 9.15 a.m. At that time, he observed an Indica car of ash colour, proceeding from Hyderabad end, towards Pune having registration No.MH-04-C/8637. He got suspicion about the said car and directed the driver to stop the car. The driver of the said Indica car instead of halting his vehicle under the directions of the police, accelerated the car and proceeded ahead. Police Constable More was present at the spot with P.W.2- Popat Borate. P.W.2 Borate and Police Constable More chased the said car on a motorcycle. The said car was halted at the speed-breaker at Shelgi cross road by the police. The driver was asked to take the car on one side of the road. P.W.2 Borate and Police Constable More checked the car and found four persons including a driver and a lady in the said car. They have also noticed a small child with the said lady. They found a bundle in a carry bag just below the front seat adjacent to the driver. As the contents of the said bag were green colour, police suspected it to be Ganja. After checking of the said car, the said Police Constables noticed three bundles below the back seat of the car and three bundles inside the dickey of the said car.

(ii) Police Constable Borate immediately sent a message on telephone to Police Inspector Shri Narnawar and also to the police station. P.W.6 - Vilas Narnawar was on duty at Jail Road Police Station on 18th April, 2007. He received a phone call from Police Constable More about chasing of a car, its halting and the persons who were apprehended at the relevant time. On receipt of information, he entered the same in the station diary at serial No.19 at 9.15 a.m. P.W.6 - Narnawar immediately informed the said incident orally to Shri Pawar, Assistant Police Commissioner Division-1, Deputy Commissioner of Police Shri Budhwant and Senior Police Inspector Shri Ingale Patil. The Police Inspector along with other police officers reached to the said spot. After reaching to the spot, ACP Pawar informed the persons present in the car about search to be taken in his presence of the car. He also informed them that he himself is a Special Executive Magistrate and whether search of the car was to be taken in his presence or any other Magistrate. The persons in the car i.e. the accused persons declined the said offer to allow the search of the car. In the said search 145 kgs. of Ganja was found. From the said 145 kgs Ganja, P.W.6 P.I. Vilas Naranwar took two samples of 500 gms each for sending it to the Forensic Laboratory and remaining Ganja was sealed in a jute bag. P.W.6 also took search of the accused persons and found two mobile phones and cash of Rs.3,200/- in their possession. The same came to be seized by effecting panchanama which is at Exhibit 49.

(iii) P.W.1 - Police Sub Inspector Prabhakar More lodged First Information Report after receipt of information from Police Inspector Narnawar which was registered as C.R. No.3107/2007 under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the N.D.P.S. Act) against the accused persons. P.W.6 after recording statements of the witnesses, and after receipt of report from Chemical Analyzer/FSL, submitted the charge-sheet before the Special Court at Solapur. The Special Court framed charge below Exhibit-3. The said charge was read over and explained to the accused persons in vernacular language to which they denied, pleaded not guilty and claimed to be tried. The defence of the accused persons was of total denial. The defence of the Appellant No.3 - original accused No.5 is that he was a paid passenger from Bidar to Thane in the said vehicle. That he was going to visit his daughter, however, two policemen stopped the said vehicle, discussed something with the driver of the said car about illegal carrying passengers and thereafter by applying force the police man took passenger of the said car to the police station. It was his further case that no Ganja was found in the said car. The learned Trial Court after recording the evidence and after hearing the parties to the said Special case was pleased to convict the Appellants as stated herein above.

3. Heard Miss. Solkar, the learned Counsel for the Appellants and Smt. V.R. Bhonsale, the learned APP for the State and with the help of respective counsel, I have also carefully gone through the entire record made available of the present case.

4. The learned Counsel for the Appellants submitted that in the present case the Investigating Officer and/or Agency has clearly violated the mandate of Section 50 of the N.D.P.S. Act. She further submitted that the appraisal of right to an accused person, as contemplated under Section 50 of the N.D.P.S. Act is an indefeasible right in favour of the accused persons which has not been explained to the accused persons by P.W.6. She further contended that the alleged appraisal given by P.W.6 i.e. empowered officer before taking the search of the car was a joint appraisal which is also bad in law. She also contended that the search of the original accused No.3 was not taken by any lady police officer which is a serious violation of Section 50(4) of the N.D.P.S. Act. She, therefore, submitted that in view of serious omissions on the part of the police authorities, has rendered the conviction and sentence of the Appellants herein, as unsustainable. She, therefore, urged before this Court that the present Appeal may be allowed and the Appellants may be acquitted from all the charges.

5. The learned APP for the State on the other hand supported the impugned judgment and order and contended that there is substantial compliance of Section 50 of N.D.P.S. Act and in view thereof, there is no need to interfere with the judgment and order passed by the Special Court. She, therefore, urged before this Court that the present Appeal may be dismissed.

6. At the outset, it is to be noted here that P.W.3 namely Dhanraj Rachetti, the panch witness to the seizure and appraisal of the right under Section 50 to the accused persons did not support the prosecution case. In his cross-examination by the learned APP, no useful material has been extracted. The evidence of this witness is of no use at all to the prosecution.

It is further to be noted here that P.W.4 - Kailas Jaiswal, is the original owner of the said Indica car in which alleged contraband i.e. 145 kgs. of Ganja was seized by the police as stated herein above. In his cross-examination, he has admitted that his name was not entered in the RC Book by the R.T.O. He has admitted that he was not having any document to show that he was the owner of Indica car. He also admitted that he is not the owner of the said Indica car. He has admitted that accused No.4 Santosh was his driver on the said car.

7. P.W.5 is Sunita Ausekar, Police Constable attached to Jail Road Police Station, Solapur. She is a carrier of the articles to the FSL (Chemical Analyser's Office) Pune. It appears that the evidence of this witness is formal in nature and in her cryptic cross-examination, no useful material has been brought on record by the accused persons.

8. Thus, the prosecution case rests mainly on the evidence of P.W.1 PSI More, then attached to Jail Road Police Station, Solapur, who recorded the F.I.R. P.W.2 - Popat Borate, Police Inspector then attached to Jail Road Police Station, Solapur and who first got suspicion about the car and subsequently chased it and P.W.6 - Vilas Narnawar, Police Inspector, then attached to Jail Road Police Station, Solapur.

9. P.W.1 - Prabhakar More, PSI, then attached to Jail Road Police Station, Solapur in his testimony has stated that, on 18th April, 2007 when he was on duty, Police Inspector Narnawar (P.W.6) called him and told that Police Constable Borate (P.W.2) and Police Constable More have chased one Indica car at National highway No.9 and substantial quantity of Ganja was found in the said car and requested him to take action in respect of the same. P.W.6 Narnawar gave information of the case to Assistant Police Commissioner Division-1, the Executive Magistrate and Senior Police Inspector Shri Ingale Patil attached to Jail Road Police Station and also to the Inspector of Weight and Measurement. The information to the Inspector of Weight and Measurement was given in writing. The panch witnesses were called through Police Constables and thereafter police patil went to the spot which was situated at National Highway No.9. They saw Indica car of ash colour and Police Constables Borate and More were present near the said car. He has further stated that ACP Pawar and Police Inspector Ingale Patil also came there. There were some persons present in the said car. ACP Pawar informed the said persons the purpose of search of the car. ACP Pawar asked the accused persons whether they are intending to take search before the Executive Magistrate, the accused persons declined the said offer. That the accused persons also declined to take search of the police personnel and panch witnesses. That search was taken of the accused persons. That during the search in all nine bundles were found inside the car containing Ganja. The entire quantity of Ganja was weighed of 145 kgs along with carry bag. Pure weight of Ganja was about 141 kgs and 900 grams. After completing the formalities, P.W.1 - PSI More lodged a complaint with Jail Road Police Station on behalf of the State. The said complaint is at Exhibit 25.

In the cross-examination of this witness at the instance of accused Nos.1 and 2, he has admitted that the Assistant Commissioner of Police and his Senior Police Inspector came at the spot at about 10.35 a.m. That the process to take search commenced at about 10.35 a.m. That the Police Constable took out bundles of Ganja from the car. In the further cross-examination at the instance of accused Nos.3 and 4, this witness has admitted that he cannot state the number of staff with the said Inspector.

10. P.W.2 - Popat Borate, the Police Constable was attached to Jail Road Police Station and was deputed on patrolling duty on 18th April 2007. P.W.2 is the witness who was suspicious about the movement of the car wherein the accused persons were travelling and after chasing the car, stopped it and informed the higher authorities on phone immediately. The facts narrated by P.W.2 - Popat Borate in his examination-in-chief have already been briefly stated in paragraph No.2(i) herein above and the repetition of the same has been avoided here for the sake of brevity in the matter. In his testimony, P.W.2 has further stated that after apprehending the car and the accused persons therein, he sent phone message to Police Inspector Narnawar. He has further stated that at around 10.30 a.m. the police officers and police staff came there. He told them about the fact and thereafter they again checked the said car. That the next procedure was completed by superior police officers. In the cross-examination an omission to the effect, that he suspected about the car and therefore, he asked the driver to stop the car, the driver did not stop the vehicle and proceeded ahead, has been brought on record. P.W.2 in his cross-examination has further admitted that Senior Police Inspector Ingale Patil, Assistant Commissioner of Police and some other police came on the spot within 15-20 minutes after reaching of Police Inspector Narnawar.

11. P.W.6 is Vilas Narnawar, Police Inspector then attached to Jail Road Police Station, Solapur. P.W.6 in his testimony has stated that at about 9.00 a.m. he received phone from Police Constable More that one Indica car bearing No.MH-04-C/8637 has been stopped by him and P.W.2 - Borate at Shelgi Cross Road. That he thereafter effected the entry of the said information in the station diary at Sr. No.19 at about 9.15 a.m. He immediately informed about the aforesaid incident to the Assistant Commissioner of Police, Division No.1 Shri Pawar, Deputy Commissioner of Police Shri. Budhwant and Senior Police Inspector Shri Ingale Patil orally as well as in writing. He thereafter sent letter along with Police Constable to the Inspector of Weight and Measures. The said letter is at Exhibit 46. That after doing the necessary preparation, he went to the spot. That he proceeded towards the spot at about 10.15 a.m. and reached there within 10-15 minutes. He saw the car and Police Constables More and Borate were present near the said car. He saw that two male persons were present on the front seat and one female and two male persons were on the rear seat of the car. That at the same time, ACP Pawar and Senior Police Inspector Ingale Patil also reached at the spot. ACP Pawar told the persons present in the car that he also is a Special Executive Magistrate and whether the search of the car was to be taken in his presence or any other Magistrate. The accused told that the car may be searched in his presence i.e. in the presence of ACP Pawar and need not call any other Magistrate. That Shri Pawar i.e. Special Executive Magistrate asked the persons present in the car whether they want to take search from the raiding party. The persons present in the car told that they do not want to take search of any person. ACP Pawar asked the names of the persons present in the car. P.W.6 has further stated that he himself, the panch witnesses and his staff started to take search of the vehicle. They noticed Ganja in a plastic bag of blue colour which was kept below the seat which was adjacent to the driver seat. They found three bags below the seat of backside of the car and also found bags in the dickey of the said car. That Shri Nakat, Weight and Measures Inspector was present on the spot. They weighed all the bags with the help of Shri Nakat. The entire quantity of Ganja including the bags was weighing 145 kg. and the weight of the bags was found to be 3 kgs and 100 gms. That the net weight of Ganja was found to be 141 kg and 900 gms. They collected samples of 500 gms. each from the said Ganja and completed the procedure of sealing the entire quantity of Ganja. The remaining Ganja was kept in two jute bags and the same were sealed. That the raiding party took search of the accused persons. They found two mobile phones and cash of Rs.3,200/- in their possession. They seized the mobile phones and cash amount from them. They also seized the bed-sheet. They prepared the Panchanama of all the aforesaid facts. The said Panchanama is at Exhibit 49. P.W.6 in his further testimony has stated about the steps from registration of the crime by P.W.1 -PSI More till the completion of investigation and submission of charge-sheet before the Special Court.

In the cross-examination P.W.6 has admitted that ACP Pawar and Senior Police Inspector reached on the spot at 10.30 a.m. The Assistant Commissioner of Police made enquiry with the accused for about 5-10 minutes. That about 10-12 persons gathered on the spot after reaching of Assistant Commissioner of Police and Senior Police Inspector. This witness in his cross-examination has admitted that he had not filed any written report with the Senior Police Inspector Ingale Patil regarding the incident. That he had not given any written report to the Senior Police Inspector Ingale Patil in respect of search of Ganja. He has admitted that he had not given any notice in writing to the accused regarding their personal search. He has further admitted that if a search of a lady is to be taken, it should be taken in the presence of a lady panch witness. A further admission was given that he did not call any lady panch witness at the time of the personal search of the lady accused i.e. accused No.3.

12. The learned counsel for the Appellants contended that in the present case there is clear violation of the provisions of Section 50 and also Section 50(4) of the N.D.P.S. Act. As far as violation of Section 50(4) of the N.D.P.S. Act is concerned, it mandates that, no female shall be searched by anyone except a female. Here in the present case, in view of the admission given by P.W.6 that he did not call any lady panch witness at the time of taking search of accused No.3 - Hasina Karvi, it appears that Section 50(4) has been violated by P.W.6. However, as the said original accused No.3 - Smt. Hasina Karvi is not Appellant before this Court, I leave the said point to be considered at appropriate stage in the appeal preferred by Smt. Hasina Karvi.

13. The learned counsel for the Appellants in support of her contention that Section 50 of the N.D.P.S. Act has been violated in the present case has relied upon three decisions of the Supreme Court namely:

(i) State of Punjab v. Baldev Singh reported in (1999) 6 SCC 172 : [2009 ALL SCR (O.C.C.) 363];

(ii) Vijaysinh Chandubha Jadeja v. State of Gujarat reported in (2011) 1 SCC 609 : [2010 ALL SCR 2655 : 2010 ALL MR (Cri) 4023 (S.C.)];

(iii) State of Rajasthan v. Parmanand and another reported in 2014 ALL MR (Cri) 1475 (S.C.).

14. A Constitution Bench of the Supreme Court in the case of State of Punjab v. Baldev Singh, [2009 ALL SCR (O.C.C.) 363] (supra) In paragraph Nos. 13, 24, 25, 26, 32 and 57 has held as under :

"13. Vide Section 51, the provisions of the Code of Criminal Procedure, 1973, shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Thus, the NDPS Act, 1985 after incorporating the broad principles regarding search, seizure and arrest etc. in Sections 41, 42, 43, 49 and 50 has laid down in Section 51 that the provisions of the Code of Criminal Procedure shall apply insofar as they are not inconsistent with the provisions of the NDPS Act. The expression "insofar as they are not inconsistent with the provisions of this Act" occurring in Section 51 of the NDPS Act is of significance. This expression implies that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under NDPS Act also except to the extent they are "inconsistent with the provisions of the Act". Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity."

"24. It would, thus, be seen that none of the decisions of the Supreme Court after Balbir Singh's case have departed from that opinion. At least none has been brought to our notice. There is, thus, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad."

"25. To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with."

"26. 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 the veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of Illicit Drugs and Narcotic Substances. Personal search, more particularly for offences under the 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 person concerned to exercise that right under Section 50 because after Maneka Gandhi v. 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 a "fair" , just or reasonable procedure. We are 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 the presence of a Gazetted Officer or a Magistrate, if he so requires, would place any premium on ignorance of the law. 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."

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

"57. On the basis of the reasoning and discussion above, the following conclusions arise :

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;

(2) That failure to inform the person concerned about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(3) That a search made, by an empoweredofficer, 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 official concerned 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 a 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 safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial;

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the person concerned of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;

(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 and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case."

15. The next decision relied upon by the learned counsel for the Appellants is also by a Constitution Bench of the Supreme Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, [2010 ALL SCR 2655 : 2010 ALL MR (Cri) 4023 (S.C.)] (supra), wherein the Supreme Court has further clarified the mandate of Section 50 of the N.D.P.S. Act. The Supreme Court in paragraph Nos.24 and 29 has held thus :

"24. Although the Constitution Bench in Baldev Singh case did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce."

"29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."

16. The third decision relied upon by the learned counsel for the Appellants is in the case of State of Rajasthan v. Parmanand and another (supra) wherein the Supreme Court after taking into consideration the decisions in the cases of State of Punjab v. Balbir Singh (1994) 3 SCC 299 : [2012 ALL SCR (O.C.C.) 15]; State of Himachal Pradesh v. Pirthi Chand (1996) 2 SCC 37; State of Punjab v. Baldev Singh (1999) 6 SCC 172 : [2009 ALL SCR (O.C.C.) 363]; Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257; State of Himachal Pradesh v. Pawan Kumar (2005) 4 SCC 350 : [2004 ALL MR (Cri) 3475 (S.C.)], Dilip & Anr. v. State of Madhya Pradesh (2007) 1 SCC 450 : [2007 ALL MR (Cri) 823 (S.C.)] and Union of India v. Shah Alam (2009) 16 SCC 644 : [2009 ALL SCR 2214], in paragraph No.14 has held thus :

14. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated."

17. Thus, it is clear from the aforesaid decisions of the Supreme Court that firstly, the right under Section 50 of the N.D.P.S. Act is an indefeasible right and the said right has to be apprised to the accused persons independently by the empowered officer. A joint appraisal of the said right is prohibited. It has further been held that failure to give such information i.e. appraisal of the right by the empowered officer to the accused persons individually would not vitiate trial, but render recovery of illicit article suspect and vitiate the conviction and sentence, if recorded only on the basis of possession of such illicit article. It has been further held that the provisions of Section 50 of the N.D.P.S. Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case, he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate would cause prejudice to the accused and render the recovery of illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during the search conducted in violation of the provisions of Section 50 of the Act. As stated earlier, it has been further held that the omission made, not only vitiates the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would require his conviction and sentence unsustainable.

18. Thus after taking into consideration the entire evidence available on record, it is clear that P.W.3 Dhanraj Rachetti, the panch witness in whose presence the seizure of contraband was effected did not support the prosecution case about the appraisal of right of accused persons under Section 50 and seizure of the contraband and therefore, it was imperative on the part of P.W.6 to lead cogent evidence in support of its case while basing conviction of the Appellants.

19. In the present case, the conviction of the Appellants has been based on the basis of the possession of the contraband i.e. the commercial quantity of Ganja. A close scrutiny of the evidence of P.W.1, P.W.2 and P.W.6 reveals that the accused persons were not at all informed by P.W.6 who is the Investigating Officer i.e. an empowered officer as contemplated under Section 42 of the N.D.P.S. Act, the right enshrined under Section 50 of the said Act. The said right under Section 50 has not at all been informed and/or apprised to the accused persons by P.W.6. P.W.6 in his examination-in-chief has stated about the information given by ACP Pawar i.e. the Special Executive Magistrate to the accused persons about he being the Special Executive Magistrate and whether the search of the car was to be taken in his presence or any other Magistrate only. Firstly, the said information was given to the accused persons jointly and not independently even though while taking search of a car appraisal as contemplated under Section 50 of the N.D.P.S Act was not mandatory. P.W. Nos.1, 2 and 6 in their evidence has no where stated about the mandatory information which was to be given to the accused persons independently. P.W.6 in his evidence has specifically stated that he has taken search of the accused persons and seized the mobile phones and cash of Rs.3,200/- from their possession. P.W.6 has in his evidence nowhere stated that he apprised the accused persons from the said car about their valuable right as contemplated under Section 50 of the N.D.P.S. Act which was mandatory in nature before taking their search. The Appellants herein have been convicted only on the basis of possession of the commercial quantity of the contraband i.e. Ganja. After taking into consideration the entire evidence available on record, I am of the considered view that P.W.6, the Investigating Officer (empowered officer) has failed to comply with the mandatory directions embodied in Section 50 of the N.D.P.S. Act and therefore, the conviction and sentence of the Appellants has rendered unsustainable in view of the Constitution Bench judgment of the Supreme Court in the case of State of Punjab v. Baldev Singh, [2009 ALL SCR (O.C.C.) 363] (supra).

20. In view of the above, the Criminal Appeal is allowed and the conviction and sentence imposed upon the appellants by judgment and order dated 7th January 2011 in NDPS Special Case No.24 of 2007 by the Special Judge, Solapur is hereby quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Fine, if any paid by the Appellants, be refunded to them. Since the Appellants are in jail, they be released forthwith, if not required in any other case.

Appeal allowed.