ABDUL SHAKOOR AND ANOTHER vs STATE OF UTTARAKHAND

Sudhanshu Dhulia, J. (Oral)

The above two criminal appeals of the appellants arise out of a common judgment dated 02.12.2011 Â Â Â Â Â Â Â Â Â Â Â passedb y

      the      Additional       Sessions Judge/First Fast Track Court, Nainital in Special Sessions Trial No. 18 of 2010

and Special Sessions Trial No. 19 of 2010, whereby the learned Additional Sessions Judge/First Fast Track Court, Nainital convicted the appellants

under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (from hereinafter referred to as the “NDPS Actâ€) and has sentenced

both the appellants to undergo rigorous imprisonment for a period of ten years with a fine of Rs.1,00,000/- (Rupees One Lakh Only) each and one

year simple imprisonment in case of default in payment of fine.Â

Brief facts of the case are that on 02.01.2010 at about 4:00 pm, a police party, consisting of Station Officer - Bheem Bhaskar Arya, Constable -

Santosh Kumar, Constable - Jeevan Lal and Driver - Pooran Singh Dangwal were on a routine patrol duty. This police party apprehended two persons

(the present appellants before this Court), who were carrying handbags on their shoulders. They were apprehended at the check post at Dhanachulli

band. It is alleged that the appellants looked suspicious, and caught the attention of the police party due to their demeanour. Both were apprehended at

a place which was barely 40 to 50 meters from the checking spot. On being questioned, they said that they are carrying “Charas†in their

handbag. The first information report further states that once it was known to the police party that it is now a case under the Narcotics Act, both the

appellants were informed that if they want to be searched before a Magistrate or a Gazetted Officer and if they say do, then the Magistrate or the

Gazetted Officer can be called on the spot. On this information, both the appellants replied that since they have already been caught, they may be

searched by the police party itself as they have full faith in them.Â

In any case, once the appellants agreed for their search, as is the case of the prosecution, the police party requested the nearby shopkeepers i.e. Sri

Pal Charu Bhatt and Sri Puran Singh to be the witnesses of the search, but none of them extended their cooperation. Out of the two appellants, one is

Iqbal, S/o late Shri Mohammad Gaffar, R/o Sarai Bibi, Thana - Shashni Gate, District- Aligarh, Uttar Pradesh who was carrying a black colour bag on

his shoulder in which two plastic packets, one of 2Kg and other of 1.5 Kg “charas†were found. The other person told his name as Abdul

Shakoor, S/o Late Mohammad Ismayal, R/o Junglegadi, Thana, Delhigate, District Aligarh, Uttar Pradesh and was carrying a blue colour bag on his

left shoulder. When the bag was opened, it was, inter alia, found that he was having 2Kg “charas†like material. When they were asked whether

they have a valid licence for carrying such material, the answer was in the negative. Weighing measures were procured from nearby shopkeepers and

thereafter the contraband which was recovered from Iqbal was weighed as 2Kg and 50 grams from one packet and 1Kg 400 grams from other

packet i.e. total 3Kg 450 grams and the contraband recovered from Abdul Shakoor was weighed as 1Kg 900 grams. The first information report

further states that two samples were procured of 50 grams each which were kept in separate sealed packets. The first information report further

states that the information that such a material has been procured in a search was informed to the superior authorities immediately thereafter. In usual

course, thereafter, charge-sheet was filed against the appellants. Consequently, charges were framed against the appellants by the Trial Court on

02.07.2010.

The prosecution in order to prove its case examined as many as six witnesses.Â

Out of these witnesses, PW1- Bheem Bhaskar Arya, PW2-Santosh Kumar and PW4- Manohar Lal are the main witnesses and the other

witnesses are formal witnesses, and all of them have supported the case of the prosecution.

The counsel for the appellants Sri Akhil Kumar Sah and Sri Mangal Singh Chauhan (Amicus Curiae) have submitted that admittedly mere

possession of narcotics is a penal offence. All the same, a case of “possession†of narcotic, is not made out against the appellants in the present,

is what they would like to argue. The entire focus of the argument of the learned counsel for the appellants is therefore on “possession†of

narcotics and submissions have been made primarily on this aspect, that as per the law, the appellants cannot be said to be in possession of narcotics.

Learned counsel for the appellants Mr. Akhil Kumar Sah and Mr. Mangal Singh Chauhan have emphasized that admittedly when a personal search

was made, it was absolutely mandatory that the search should have been made in accordance with the law and the procedure as laid down in Section

42 read with Section 50 of the NDPS Act. Sections 42 and 50 of the NDPS Act read as under:-

“Section 42. Power of entry, search, seizure and arrest without warrant or authorisation.â€"(1) Any such officer (being an officer superior in rank

to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central

Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or

any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other 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, or controlled substance in

respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the

commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally

acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or

enclosed place, may between sunrise and sunset,â€

(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) seize 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or

freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable

under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted

under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for

the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any

time between sunset and sunrise after recording the grounds of his belief.

(2) 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 within seventy-two hours send a copy thereof to his immediate official superior.

Section 50. Conditions under which search of persons shall be conducted.â€

(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.Â

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest

Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic

substance, or controlled 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.

(6) After a search is conducted under subsection (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.â€​Â

The Narcotic Drugs and Psychotropic Substances Act is a special Act enacted by the Parliament as our Legislatures came to the conclusion that

the general law was not good enough to tackle the menace of the illicit drugs, particularly Narcotic Drugs and Psychotropic Substances. This Act

which came in the year 1985 has very stringent measures. First and foremost is as to the presumption of a culpable mental state. The provision under

Section 35 of the NDPS Act is an exception carved out in case of the Narcotic Drugs and Psychotropic Substances Act. Section 35 of the NDPS Act

reads as under:-

“Section 35. Presumption of culpable mental state.â€" (1) In any prosecution for an offence under this Act which requires a culpable mental state

of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no

such mental state with respect to the act charged as an offence in that prosecution.Â

Explanation.â€"In this section “culpable mental stateâ€​ includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when

its existence is established by a preponderance of probability.â€​ Â

In view of the above provision, it becomes extremely necessary as the mere possession of a Narcotic Drug and Psychotropic Substance has

become an offence, therefore the procedure as laid down for search, seizure and arrest, particularly in Sections 42 and 50 of the NDPS Act, for

which we are presently concerned, should be strictly followed. Â

The seminal decision as to how the search has to be conducted is given by the Constitution Bench of the Hon’ble Apex Court in the case of

State of Punjab Vs. Baldev Singh, reported in (1999) 6 SCC 172, wherein ten guidelines have been given by the Hon’ble Apex Court in the form

of its conclusion which are contained in paragraph 57 of the above judgment, which reads as under:-

“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 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 the 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 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 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 the

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 person concerned of his rights

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 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 case correctly interprets and distinguishes the judgment in Pooran Mal case and the broad observations made

in Pirthi Chand case and Jasbir Singh case are not in tune with the correct exposition of law as laid down in Pooran Mal case.â€Â Â

           (emphasis provided)

Sub-section (5) and sub-section (6) were inserted in Section 50 of the NDPS Act in the year 2001.

The question would be to what extent the mandatory provisions given in Section 50 of the NDPS Act, particularly sub-section (1) of Section 50 of

the NDPS Act gets diluted by the above amendment. This matter has been dealt by another Constitution Bench of the Hon’ble Apex Court in the

case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, reported in (2011) 1 SCC 609. The Hon’ble Apex Court in the above judgment after

considering the two sub-sections i.e. subsection (5) and sub-section (6) of Section 50 of the NDPS Act and the effect of it has come to the conclusion

as such and said that “the flexibility in procedural requirements in terms of the two newly inserted subsections can be resorted to only in emergent

and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, sub-section (6) of Section 50 of the NDPS Act makes

it imperative and obligatory on the authorized officer to send a copy of the reasons recorded by him for his belief in terms of sub-section (5), to his

immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trialâ€​.Â

Therefore, the amendment in Section 50 of the NDPS Act does not mean that the mandatory provision given in sub-section (1) of Section 50 of

the NDPS Act goes away.

What is the import of the expression “if such person so requires†in sub-section (1) of Section 50 of the NDPS Act has been dealt with in the

case of State of Punjab Vs. Baldev Singh, reported in (1999) 6 SCC 172 in paragraph 15, which reads as under:-

“15. What is the import of the expression “if such person so requires†he shall be taken to the nearest gazetted officer or Magistrate and his

search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the person

concerned to require his search to be conducted before a gazetted officer or a Magistrate, the empowered officer is under an obligation to inform him

that he has such a right? Learned counsel appearing for the State of Punjab as also the learned counsel appearing for the State of Gujarat argued that

it would not be proper to read into the provisions of Section 50, any legislative intent of prescribing a duty on the part of the empowered officer to

inform the suspect that if he so requires, the search would be conducted before a gazetted officer or a Magistrate, as the case may be. According to

the learned counsel, the view expressed in State of Punjab v. Balbir Sigh laying down that it is obligatory on the part of such an officer to so inform the

person to be searched or if such person requires, failure to take him for search before the gazetted officer or the Magistrate, would amount to

noncompliance with the provisions of Section 50 and would affect the prosecution case and vitiate the trial requires reconsideration. As a matter of

fact, the order of the referring Bench itself centres around whether there is any requirement of Section 50, making it obligatory for the empowered

officer, who is about to search a person, to inform him of his right of being taken to the nearest gazetted officer or nearest Magistrate for making the

search if he so requires. Learned counsel for the parties, however, agree that in case the obligation to inform the suspect of his right to be searched

before the gazetted officer of a Magistrate is read as a duty cast on the empowered officer, then failure to give information regarding that right to the

suspect would be a serious infirmity amounting to denial of a valuable right to an accused and would render his conviction for an offence under the

NDPS Act bad and unsustainable.â€​Â

In other words, “if such a person so requires†would have a meaningful expression only when such a person has been informed of his

“rightâ€! In other words, he should be informed that it is his right under the law to be searched before a Magistrate or a Gazetted officer, as the

case might be. Â

It is not the requirement of law that the affected person is merely “informedâ€. Such a person must be properly “informed†of his rights

and once he has been informed of his rights and he expresses a desire to be searched before a Magistrate or a Gazetted officer, then this must be

complied with. Â

In the present case, this Court finds that it is not the case of the prosecution that the search party had informed the appellants about their

“rightsâ€. They were merely “informedâ€, in a routine manner. It was never informed to them that a search before a Magistrate is their right

under the NDPS Act, although it is an extremely valuable right of an accused. This right has to be a meaningful right and not a mere formality.

Learned counsel for the State would argue that the requirement of Sections 42 and 50 of the NDPS Act would only come in case of a personal

search. In this case, “Charas†was recovered from the handbag of the appellants and the search of handbag is not a personal search. Therefore,

Sections 42 and 50 of the NDPS Act would not be attracted.

Learned counsel for the appellants Mr. Akhil Kumar Sah and Mr. Mangal Singh Chauhan would argue that even though “Charas†has been

recovered from the handbag, but it is a case where personal search was made and once the personal search is made then irrespective of the fact that

“Charas†was recovered from the handbag or not from the person of the accused, compliance of Sections 42 and 50 of the NDPS Act would be

mandatory. Learned counsel for the appellants would rely upon paragraph 15 of the decision of the Hon’ble Apex Court in the case of State of

Rajasthan Vs. Parmanand and another, reported in (2014) 2 SCC (Crl) 563, which reads as under:-

“15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no

application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case,

Respondent 1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of

Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of

the NDPS Act will have application.â€​Â

There is another aspect of this matter which is that in this case, information that the appellants can be searched before a Magistrate was not given

to each of the individual but joint information was admittedly given, which is again bad, and does not fulfill the requirement of law. According to the

learned counsel for the appellants, the facts of this case are similar to the case of

State of Rajasthan Vs. Parmanand and another, reported in (2014) 2 SCC (Crl) 563, where such a search has been held to be bad. Reference is made

to paragraph nos. 16, 17 and 18, which read as under:-

“16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that

the respondents were informed that they have a right to be searched before the nearest gazetted officer or the nearest Magistrate or before PW 5

J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the

accused person, in writing, of his right under Section 50 (1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there

was no individual communication of right. A common notice was given on which only Respondent 2 Surajmal is stated to have signed for himself and

for Respondent 1 Parmanand. Respondent 1 Parmanand did not sign.

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 the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab

and Haryana High Court in Paramjit Singh and the Bombay High Court in Dharmaveer 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 2 Surajmal

has signed for himself and for Respondent 1 Parmanand. Respondent 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 authorised Respondent 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 1 Parmanand and search of person of the

respondents is, therefore, vitiated and resultantly their conviction is also vitiated.â€​

Both the appellants are elderly persons (about 65 years of age) and are extremely poor. This can be very well gauged from the fact that this Court

on 13.10.2017 and 15.12.2017 had granted bail to the appellants considering that they have already spent more than five years in jail but they could not

be released as they could not manage to get a surety for themself.

The admitted facts of the case are that both the appellants are illiterate persons and are around 65 years of age. Both of them are in jail for the

last 8 years and are in early 70s. The FIR itself as well as the examination-in-chief of PW-1 and PW-3 clearly reveals that the appellants were not

informed that it is their right to be searched before a Magistrate or a Gazetted officer. They were informed merely in a routine manner to which they

gave their consent. The consent given by the appellants is again not an independent consent. Neither, were they asked this question separately (i.e. of

search being done before a Magistrate), nor is there any reply on record which may reflect any independence of mind. It is a document written by the

police party which bears thumb impressions of both the appellants.Â

Therefore, it is my considered view that the search, it ought to have been conducted in letter and spirit of Sections 42, 43 and 50 of the NDPS Act,

has not been conducted in the required manner.

Consequently, both the appeals succeed and are hereby allowed. The conviction and sentence imposed on the appellants by the trial court vide

order dated 02.12.2011 is hereby set aside. The appellants who are presently in jail shall be released forthwith, unless they are wanted in some other

case.

Let the lower court record be sent to the court concerned.

The concerned Jail authority where the appellants are presently lodged shall inform the release of the appellants, or as the case might be, to the

Registrar General of this Court promptly.