AI Drafter 
TaxTMI 
TaxTMI 
2012 (11) TMI 1073
X X X X Extracts X X X X
X X X X Extracts X X X X
....olice station to search for the accused in connection with Crime No. 151 of 1998 registered under Sections 302 and 201 of IPC. In the process of searching, when they came to Khatkya Tiraha, they saw that one Maruti Car was coming from the side of Beenaganj. When they tried to stop that car, the driver tried to run away but they stopped the car and found three persons sitting in it. On being asked about their names, they informed their names as Pramod, Suresh and Dinesh @ Pappu. (b) Under suspicious circumstances, Panchas Shri Lal and Rup Singh were called from the 'Tiraha' and consent of all those persons was sought for their personal search and they gave their consent. After conducting the search, Panchnama was prepared. During search, they found that each of the appellants was having polythene bag in their possession which contained white colour substance and on its physical test, it was found "opium". The SDO (P), Radhogarh was informed about the incident. On weighing, all the three bags were contained 825 gms, 820 gms and 800 gms of "Opium". Samples of 25 gms were taken separately from each of the packets and the contents were sealed. Thereafter, the vehicle was also s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ave been fully complied with and prayed for dismissal of the appeal. 5) Since the only question pertains to compliance of Section 50 of the NDPS Act, it is useful to refer the same: "50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be sear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ccused, 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 the 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 the law and may have the effect of unconscionably compromising the administrat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "Even then the searching officer informed him that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate". This according to us is in 'substantial compliance' with the requirement of Section 50. We do not agree with the contention that there was non-compliance with the mandatory provision contained in Section 50 of the Act." By saying so, after finding no reason to interfere with the conviction and sentence passed on the appellant therein, dismissed his appeal. 7) In Prabha Shankar Dubey vs. State of M.P., (2004) 2 SCC 56, a two Judge Bench of this Court again considered the object of Section 50 of the NDPS Act. The Bench also extracted the conclusion arrived at in Baldev Singh's case (supra). After adverting to those conclusions and relying on the expression "substantial compliance" as stated in Joseph Fernandez's case (supra) rejected the plea that there was non-compliance with the requirement of Section 50 of the NDPS Act and consequently dismissed the appeal. 8) After the decision in Joseph Fernandez's case and Prabha Shankar Dubey's case, on the one hand and Krishna Kanwar (Smt.) @ Thakuraeen vs. State of Rajasthan, (2004) 2 SCC 608....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. [Emphasis supplied] 28. We shall now deal with the two decisions, referred to in the referral order, wherein "substantial compliance" with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise 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 insofar 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 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. 30. As observed in Presidential Poll, In re: (SCC p. 49, para 13) "13. ... It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law mak....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ects gave their consent for their personal search by me, the P.S. In-charge, and they also agreed for search of the car by me. Panchnama regarding consent for search has been prepared in the presence of the 'Panchas'. [Emphasis supplied] Sd/- Signature of suspects Sri Lal Sd/- Suresh Sd/- Pramod Kumar T.I. of Bh....