TaxTMI 
TaxTMI 
2004 (1) TMI 679
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....ur of them, namely, Shamshuddin, Smt. Krishan Kanwar, Mangi Lal and Nathu Singh were tried by District and Sessions Judge, Pratapgarh, who found accused Shamshuddin and Smt. Krishna Kanwar guilty of offences punishable under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act') and sentenced each to undergo rigorous imprisonment for 14 years and to pay a fine of Rs. 2 lakh with default stipulation. Nathu Singh and Mangi Lal (A-6 and A-7) respectively, were acquitted. Prosecution case as unfolded during trial is as follows: Prassan Kumar Khamesara (PW-16), Dy. S.P. Chhoti Sadri received information at about 8.30 p.m. on 5.7.1994 to the effect that on 6.7.1994 between 5.00 a.m. to 9.00 a.m., one Shamshuddin S/o Shakoor Khan, resident of Dharakhedi, shall be coming on a Rajdoot motorcycle, from Chittorgarh side and will be proceeding towards Udaipur, alongwith contraband heroin. The above information was not only recorded but also forwarded to S.P., Chittorgarh and Addl. S.P., Pratapgarh through Indermal (PW-9). Upon above information, Shiv Prasad (PW-14), Addl. S.P., Pratapgarh alongwith lady constable Smt. Vimla Chaudhary....
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....the presence of Kanhaiya Lal and Magni Ram, attesting witnesses, Rs. 33,000/-, an FDR of Rs. 20,000/- dated 30th May, 1994 issued by SBBJ Branch, Chetak Circle, Udaipur were recovered. Other household articles and jewellery were also recovered vide Exb.P-5. Shamshuddin also disclosed that the contraband heroin so seized from both the accused was purchased from Mangi Lal and Nathu Singh. This led to arrest of both of these persons, and upon their disclosure statement, their houses were also searched on 6.7.1994 from 4.00 p.m. to 6.00 p.m. 27 gms. heroin was recovered from the house of Mangi Lal whereas 225 gms. heroin was recovered from house of Nathu Singh. Seizure memos Exb.P-1 and P-2 respectively were prepared. Rs. 41,980/- were recovered from the house of Nathu Singh. Other necessary memos were prepared. After completion of investigation, charge sheet was placed. Accused persons pleaded innocence and in order to substantiate their plea examined seven witnesses. The Trial Court found two of the accused persons guilty, but acquitted Mangi Lal and Nathu Singh as noted above. Convicted accused persons preferred appeals before the High Court. State also filed an appeal questio....
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.... there is no violation of Section 42 as alleged. The requirements of Section 50 were complied with by intimating the accused of his option and choice and the existence of his right of being search by the police officer (PW-16) or by a gazetted officer. The accused opted to be searched by the police officer. So, there is no violation as alleged. So far as samples are concerned, the forensic laboratory report clearly indicates that the samples were received sealed and tags, seals were in tact and on analysis found to be heroin. It is seen that Exb.P-32 contains the secret information that was received by the Dy. S.P. (PW-16). Constable Indermal (PW-9) had categorically stated that he had taken the intimation to the S.P. and the Addl. S.P. The envelope was handed over to the S.P. at 9.00 p.m. and at 11.00 p.m. to the S.P. Pratapgarh and Chhoti Sadri. On the same day, at about 4.00 a.m. he returned to the police station. The Addl. S.P. has been examined as PW-14 and also presence of S.P. has been deposed by the witnesses. This clearly goes to show that there was receipt of information dispatched by Dy. S.P. PW-16. That being so, merely because particulars of the dispatch number were....
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....department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to ....
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.... concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-section (2) mandates as was noted in Baldev Singh's case (supra) that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place. The Trial Court and the High Court after analyzing the evidence have come to hold that there was compliance of Section 42(2) in the sense that requisite documents were sent to the superior officer. Though learned counsel for the appellant tried to submit that there was no definite evidence about sending copies of the requisite documen....
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....rson 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 articles suspect and vitiate the conviction and sentence of the accused. Where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act, it was illegal. It was further held that 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. In paragraph 32 of the judgment (at page 200) this position was highlighted. In para 57, inter alia, the following conclusions were arrived at: "(1) That when an empowered officer or a duly authorized 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 ....
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....edings, against an accused, notwithstanding the recovery of that material during an illegal search." It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under Section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of one of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula. Section 50 does not involve any self-incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently....