TaxTMI 
TaxTMI 
2017 (12) TMI 1511
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....liance of provisions of Section 50(1) of the Act. It would be profitable for the court before proceeding to consider the submission made at the bar to narrate the facts that have emerged from the record. They are as follows;- 3. The raiding team consisted of P.W. 5, who was then posted as Circle Officer, Kudra. It was so on getting information about the transportation of the narcotic /psychotropic substance in the vehicle, a request was made to P.W. 5 to be present with the raiding team. P.W. 5 has specifically deposed to this effect. The aforesaid factum has not been disputed by the defence. According to the prosecution case, when the vehicle was about to be intercepted by the raiding team while moving towards Mohania, the appellant driving the vehicle took a U-turn and drove back to Kudra. The vehicle was, however, intercepted on the highway when he deserting the vehicle attempted to flee away but on chase apprehended by the raiding team. The person of the appellant was searched in presence of P.W. 5 and other members of the raiding team, whereby, a mobile and some sim cards were recovered. A seizure memo was drawn, which was signed by the witnesses to the seizure as well as P.W....
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....able, a presumption in law arises with respect to the culpable mental state of the accused as provided under Section 35 of the Act and with regard to the possession of the illicit article/contraband substance. Faced with this presumption in law raised against the appellant, materials on record placed by the defence including the statement of the appellant made under Section 313 of Code of Criminal Procedure, do not emphatically, rebut the same. In this regard, he placed the evidence of P.W. 3 (informant), P.W. 5 (Magistrate) and P.W. 6 ( the Investigating Officer), wherein, they are consistent with regard to the compliance of other formalities required under the Act. It is a case, where, the samples drawn from the packets recovered from the vehicle along with the accused were produced before the learned court below on the following day. Nothing has been shown by the defence to discredit their evidence. Under order of the trial court, samples were drawn in presence of the Judicial Magistrate, which was sent to two laboratories by the Judicial Magistrate, which are Exts. 8 and 8/1. The F.S.L. report submitted by the F.S.L., Patna, (Ext. 9) unerringly established that the samples draw....
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....e was also present along with Investigating Officer at the time of production in the court. 8. P.W. 6 is the Investigating Officer in this case and his evidence also disclosed that the investigation of this case was handed over to him and he has produced the appellant and co-accused along with copy of F.I.R, confessional statement and the sealed seized articles in Court. His evidence further shows that he prayed for preparation of samples and as per order of District & Sessions Judge, one Judicial Magistrate was deputed and in his presence, the samples were prepared and photography of the said process was also done. The aforesaid samples were sealed and countersigned by the Magistrate and marked as A1 - A2 and Y1 -Y2, which were sent to FSL Patna and Kolkata. This witness has also stated that he has recorded the statement of witness Raj Kumar Chaubey, who had stated before him that dickey of red colour Hyundai car was searched in his presence and ganja/contraband articles were recovered. His evidence also shows that report of F.S.L. has been received after submission of charge-sheet, which he has submitted in the Court. 9. P.W. 5 is the Circle Officer in this case and his evidenc....
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....vidence of Circle Officer (P.W. 5) is not of much relevance as his evidence was recorded in this case after lapse of two years from the date of occurrence , hence some discrepancy is bound to occurr due to long gap. 13. Learned counsel for the appellant has mainly confined his argument on no n compliance of Section 50(1) of the Act, which provides that before search of a person, authorities concerned are bound to inform the person to be searched about his right to be searched in presence of a Magistrate or Gazetted Officer and in absence of any Magistrate, his right to be produced before the Magistrate for his search. In this context, he has relied upon a five Judge Benc h Judgment in the case of State of Punjab v. Baldev Singh reported in AIR 1999 Supreme Court 2378, in which it was held that non - compliance of the above provision shall vitiate the conviction. Submission of learned counsel for the appellant is that in this case also, though seizure of ganza is from dickey of the car but person of the appellant has been searched, which would appear from seizure list Ext. 2. as such the requirement of compliance of Section 50(1) of the Act, is necessary in the facts of the present....
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....cer 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. 16. On plain reading of Section 50 of the Act, it appears that the safeguard or protection to be searched in presence of Magistrate or Gazetted Officer has been incorporated in Section 50 of the Act, to ensure that persons are only searched with a good cause. The Hon"ble Apex Court, while considering the application of Section 50 of the Act, in the case of State of Punjab v. Baldev Singh (supra) has observed in para -53 and 55 as follows:- "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 evide....
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.... 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 50 have 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 Se....
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....substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior 18. In view of the same, this matter was again referred in the case of Karnail Singh v. State of Haryana reported in (2009) 8SCC 539, wherein, it has been held that "Through this amendment the strict procedural requirement as mandated by Baldev Singh's case was avoided as relaxation and fixing of the reasonable time to send the record to superior official as well as exercise of Section 100 of CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance of Section 50 by Baldev Singh's case was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonablene....
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....andate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well." 20. Considering the aforesaid discussion, so far Section 50 of the Act, is concerned, it appears to be mandatory in nature when the....
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....nt 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 sign....
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....te or Gazetted Officer. In the present case recovery of contraband is from the dickey of the car, however, person of the appellant has also been searched and as such submission of learned counsel for the appellant that in the above circumstance non compliance of provision of Section 50 of the Act vitiate the conviction of the appellant as though a Circle Officer was present there and there is nothing available on record to show that they have informed the accused person about his statutory right to be searched before a Magistrate or Gazetted Officer. Hon"ble Apex Court in a recent decision in the case of Dilbagh Singh v. State of Punjab reported in 2017 (1) PLJR 294 (SC), dealing with a case of similart nature, in which persons of the accused was also searched and the search yielded currency of 225/- Rs. and 125/- Rs. Respectively, the Hon"ble Court after considering the Judgments in the case of State of Punjab v. Baldev Singh (supra) and Vijaysinh Chandubha Jadeja vs. State of Gujarat (supra), in which compliance of Section 50, was held to be mandatory, has observed in para - 13 as follows:- "(13) Whereas the conditions under which, the search as contemplated in Section 50 are l....
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....n - compliance of Section 50(1) does not appear to be convincing and is certainly of no help, whereas, there are sufficient cogent, consistent and reliable materials available on record with regard to recovery of commercial quantity of ganja/psychotropic addictive substance from the dickey of the car. It further appears that procedure prescribed under Section 52(A) has also been followed as well as the fact that the remaining of the samples were also produced in the Court, marked as material Ext. M-1. In view of the discussions made above, it appears that there is indeed compliance of Section 52 (A) of the Act and so far compliance of Section 50(1) of the Act is concerned, in the facts and circumstances of the case, same is not required whereas there are consistent evidence available on record to show the recovery of Ganja from the dickey of the car as such, there is presumption of culpable state of mind under Section 35 of the Act against the appellants and also a presumption under Section 54 of the Act for recovery of contraband articles and no satisfactory explanation or evidence has been brought on record to rebut the aforesaid presumption. 26. In this case appellant has been ....