CRL.A./139/2017 of INNOCENT UZOMA Vs STATE

THE HIGH COURT OF DELHI AT NEW DELHI%Judgment delivered on: 14.01.2020

+CRL.A. 139/2017 & CRL. M. (BAIL) NO.1401/2018

INNOCENT UZOMA

versus

..... Appellant

STATE

..... Respondent

Advocates who appeared in this case:For the Petitioner: Mr. J. S. KushwahaFor the Respondent: Mr. Amit Gupta, APP for State.

CORAMHON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, JIntroduction

1.The appellant has filed the present appeal impugning judgmentdated 23.12.2016 passed by the ASJ, Special Judge (NDPS), SaketCourts, whereby the appellant was convicted under Section 21(b) of theNarcotics, Drugs and Psychotropic Substances Act, 1985 (hereafter the‘NDPS Act’) and Section 14(a) of the Foreigners Act, 1946. By an orderdated 26.12.2016, the appellant was sentenced to undergo four years ofrigorous imprisonment and fine of ₹50,000/- for the offence under Section 21 of the NDPS Act. And, in default of payment of the said fine,to undergo simple imprisonment for further period of three months.

He was further sentenced to undergo rigorous imprisonment for periodthree years and fine of ₹10,000/- for the offence under Section 14(a) of the Foreigners Act, 1946. And, in default of payment of the said fine,to undergo simple imprisonment for period of one month. Bothsentences were ordered to run concurrently.

2.The Trial Court had found that the appellant was guilty of beingfound in possession of 25 grams of cocaine. The principal controversyto be addressed in this appeal is whether the appellant’s searchconducted by police officials – which yielded 25 grams of cocaine –was not compliant with the provisions of Section 50 of the NDPS Act,as it was not conducted in the presence of Gazetted Officer/Magistrate.

Context

3.Briefly, the case of the prosecution is that on 04.06.2015, SI ShivDarshan Singh, Narcotic Cell, Crime Branch, Daryaganj was informedby secret informer that person namely Innocent, resident of the ArjunNagar area, is supplier of cocaine in Delhi and would be coming toSudarshan Marg, Gautam Nagar, Delhi between 06:30 pm and 07:00pm to supply cocaine. raiding party was constituted, which reachedthe spot at about 06:30 pm. At 06:55 pm, the informer pointed towardsthe accused who was wearing black t-shirt and green capris. When theaccused was 5-7 steps away from the police officials, he becamesuspicious and started going back. At this moment, he was apprehendedby the raiding team.

4.SI Shiv Darshan informed the accused that his search was goingto be conducted. He also explained to the accused his legal right to besearched before Magistrate or Gazetted officer. However, theappellant declined the offer of being searched before GazettedOffice/Magistrate. SI Shiv Darshan asked some passersby to join theproceedings, but none agreed. On search of the accused, semi-transparent polythene pouch tied with rubber band was recoveredfrom the left pocket of the accused’s capris.It contained whitecoloured substance. Upon testing using the field-testing kit, the saidsubstance, which weighed 25 grams, tested positive for cocaine.

5.Thereafter, SI Shiv Darshan prepared the rukka and sent HCSatyawan to PS, Crime Branch for registration of an FIR. Afterregistration of the FIR, investigation was assigned to SI Rajveer Singh.Investigation revealed that the appellant’s name was Innocent Uzoma.HewasaNigeriannationalandhadenteredIndiaonaseminar/conference visa, which was valid up to 19.11.2014. He hadoverstayed the term of his visa and was thus, an illegal migrant.

6.Charges for commission of offences under Section 21(b) of theNDPS Act and Section 14(a) of the Foreigners Act, 1946 were framedagainst the accused, to which he claimed not guilty. Accordingly, thematter was set down for trial.

7.The Trial Court found that the prosecution had established,beyond reasonable doubt, that the appellant was found in possession of25 gms of cocaine and thus, found him guilty of the offence under

Section 21(b) of the NDPS Act. Further, the Trial Court also found thatthe appellant was guilty of exceeding his stay in India beyond the termof the visa issued to him and therefore, was guilty of the offence underSection 14(a) of the Foreigners Act, 1946.

Evidence

8.The prosecution examined twelve witnesses, while the defencechose to not examine any witnesses.

9.HC Raj Kumar, PS Crime Branch deposed as PW-1. He statedthat on 04.06.2015, he was working as duty officer at Crime Branchfrom 08:00 pm to 08:00 am. At about 11:15 pm, HC Satyawan camealong with HC Sanjeev Kumar and rukka. The same was forregistration of FIR sent by SI Shiv Darshan. He, thereafter, lodged DDNo. 27 in this regard. On the basis of the rukka, he got computerizedFIR recorded. PW-1 then identified his endorsement on the same. In hiscross-examination, he stated that he started recording the FIR at 11:15pm and informed the FIR number to the SHO at the same time. Heconcluded recording the same at about 12:35 am.

10.HC Narender, Narcotic Cell, Daryaganj deposed as PW-2. Hedeposed that he had taken the sample parcels on 08.06.2015 and haddeposited the same with the FSL. The acknowledgement slip issued byFSL was handed over to him by HC Jag Narayan. In his cross-examination, he denied having been authorized by the inspector inwriting to collect the samples from the aforesaid MHC (M).

11.HC Jag Narayan, PS Crime Branch, Malviya Nagar deposed asPW-3. He deposed that at about 11:35 pm, Insp. Ravinder KumarSharma had called him along with register no. 19 to his office. He madeentry in the said register at serial no. 2319 and deposited the pullandain the malkhana. In his cross-examination, he stated that the SHO hadalready written the FIR number on the pullandas when PW-3 was calledby him at about 11:35 pm. He completed recording the requisiteinformation in register no. 19 at about 12:00 am.

12.Ct. Rajeev Kumar, Narcotics Cell, Crime Branch deposed as PW-4. He deposed that on 05.06.2015, the report under Section 57 of theNPDS Act regarding the seizure of the contraband and arrest of theaccused was received in his office and he made entry in the diaryregister vide Ex. PW4/C and Ex. PW4/D.

13.HC Satyawan, Sector-16, Rohini deposed as PW-5. He deposedthat on 04.06.2015, he was posted at Narcotic Cell, Daryaganj. He,along with other officials, constituted raiding party and left for thespot at about 05:30 pm. At the Shantivan red light and near AIIMSMetro Station, they requested passersby to join the raiding party,however, no one agreed to do so. After apprehending the accused, PW-5 stated that the accused was made aware of his legal rights and wasinformed that if he so wanted, his search would be conducted before aGazetted officer or Magistrate. SI Shivdarshan gave written noticeunder Section 50 of the NDPS Act to the accused. The accused informedthe team that he was illiterate and could not read and write. Thereafter,SI Shivdarshan recorded his response to the notice on the basis of

whatever was told to him by the accused. He stated that on search of theaccused, polythene bag was recovered which contained white powder,from the left side pocket of the accused’s capris. The same testedpositive for cocaine using the field-testing kit. It weighed 25 gms. In hiscross-examination, he stated that the secret information was given to SIShivdarshan at about 04:30 pm on 04.06.2015. The informer informedSI Shivdarshan that Innocent Uzoma used to supply cocaine only inSouth Delhi. However, the informer did not give any informationregarding the persons to whom the accused supplied the saidcontraband. In his cross-examination, he deposed that the informationof the contents of the notice under Section 50 of the NDPS Act wasinformed to the accused in English language. The said notice was givento the accused at about 07:30 pm. The same was prepared near the streetlight near the transformer. PW-5 stated that mobile phone wasrecovered from the left side pocket of the accused’s capris. He statedthat the seizure memo was not prepared in his presence, as he had takenthe tehrir for registration of the FIR. The rukka was prepared whilesitting on the footpath, where the accused was sitting with the policeofficials. PW-5 stated that he was not carrying his mobile phone thatday, but SI Shivdarshan was carrying the same. SI Shivdarshaninformed Inspector Vivek Pathak about the seizure and arrest at about07:15 pm.

14.HC Laxman Prasad, AHTU, Crime Branch, Sector-16, Rohinideposed as PW-7. He stated that on 04.06.2015 at about 04:25 pm, SIShivdarshan told him and HC Satyawan about the secret information

that the accused would come to the spot to supply cocaine. When theyreached the spot, they saw one Nigerian person coming from the side ofYusuf Sarai on foot wearing green coloured capris and black colouredt-shirt. The accused was apprehended by the raiding team at about 07:00pm. Thereafter, SI Shivdarshan introduced himself and other membersof the raiding party to the accused, who identified himself as InnocentUzoma. SI Shivdarshan informed the accused about his legal right to besearched before Gazetted officer or Magistrate. notice underSection 50 of the NDPS Act was prepared by SI Shivdarshan and acarbon copy of the same was given to the accused. Since the accusedwas illiterate, SI Shivdarshan read the contents of the same out to theaccused. The accused’s refusal was written on the said notice as wasdictated to SI Shivdarshan by the accused. PW-7 stated that thereafter,the accused’s search was conducted, consequent to which, transparentpolythene containing cocaine was found from the left side pocket of thecapris worn by the accused. In his cross-examination, PW-7 affirmedthat the IO had not asked any shopkeeper or permanent employee of theMetro Station to join the raid. He could not recollect whether mobilephone was recovered from the possession of the accused on his search.He stated that neither the raiding team nor the IO had their mobilephones with them, as they had left the same in the office. All documentswere prepared by the IO while sitting on the footpath.15.Inspector Vivek Pathak, STF, Malviya Nagar Crime Branchdeposed as PW-8. He deposed that at about 04:45, SI Shiv Darshanalong with an informer came to his office and thereafter, PW-8 was

informed that the accused would be coming to the spot to deliver aconsignment of Cocaine. In his cross-examination, PW-8 stated that theinformer had not disclosed the complete address of the accused. Hestated that during investigation, the accused was highly uncooperativeand even refused to disclose his address.

16.SI Shiv Darshan, STF, Crime Branch deposed as PW-10. Hedeposed that on 04.06.2015, he was posted at the Narcotics Cell, CrimeBranch, Daryaganj. An informer came in at about 04:30 pm and toldhim that the accused will deliver cocaine between 06:30 pm and 07:00pmatSudarshanMarg,GautamNagarbehindAIIMSnearTransformer, near Plot no. 112-A. He constituted raiding party. Onthe way, he had asked four to five passersby to join the proceedings, butnone agreed to do so. Thereafter, on the basis of information given bythe secret informer, they apprehended the accused at about 07:00 pm.PW-10, thereafter, informed the accused of his legal rights and his rightto be searched before Gazetted Officer or Magistrate. PW-10 statedthat the accused informed him that he can read and understand English,but cannot write the same. PW-10 then prepared notice under Section50 of the NDPS Act. On the accused being searched, 25 gms of cocainewas found in his pocket. Thereafter, HC Satyavan and HC SanjeevKumar left the spot at about 11:00 pm.

17.In his cross-examination, PW-10 stated that he had inquired fromthe secret informer as to who the accused used to supply Cocaine to inDelhi. He affirmed that none of the members of the raiding party werecarrying their phones on that day. Further, he stated that he prepared the

notice under Section 50 of the NDPS Act while sitting on the footpathand the seizure memo was prepared by him on the bonnet of the Gypsy,under the light of the electric pole. No mobile phone was recoveredfrom the possession of the accused.

18.SI Rajveer Singh, Parliament House Security deposed as PW-12.He deposed that on the intervening night of 04.06.2015 and 05.06.2015at about 01:15 am, HC Satyawan handed him computerized copy ofFIR No. 84/15 dated 04.06.2015 and an original rukka. In his cross-examination, he stated that he came to know about the case through HCSatyawan. He affirmed that no mobile phone was recovered from theaccused during his search.

Submissions

19.At the outset, Mr. Kushwaha, learned counsel appearing for theappellant clarified that he does not wish to contest the appellant’sconviction under Section 14(a) of the Foreigners Act, 1946. He statedthat the appellant was sentenced to three years of rigorous imprisonmentand fine of ₹10,000/- for committing the offence under Section 14 of the Foreigners Act, 1946 and the appellant has served the said sentence.He limited the challenge in the present appeal to the appellant’sconviction under Section 21(b) of the NDPS Act. He submitted thatalthough the appellant had almost completed the sentence awarded forthe commission of the said offence, the appellant, nonetheless, wishedto contest his conviction as he was not guilty of committing any suchoffence.

20.The learned counsel for the appellant has assailed the appellant’sconviction on, essentially, three grounds. First, that the public witnesseshad not been joined in the search and seizure proceedings, despite theraiding party having sufficient time to do so. He submitted that thisraised doubts as to the case set up by the prosecution. Second, therewere inconsistencies in the testimonies of various witnesses. It waspointed out that whereas PW 7 deposed that cocaine was recovered fromthe left pocket of the accused, PW 10 testified that cocaine wasrecovered from the right pocket of the half trousers worn by theappellant. In addition, PW 5 had deposed that mobile phone had beenrecovered from the left side pocket of the green coloured capris wornby the accused, but the same was denied by PW 10, in his cross-examination. Mr. Kushwaha also pointed out that according to PW 7,none of the members of the raiding team were carrying any mobilephones when they left the office. He submitted that it was impossible tobelieve that the entire raiding team would not carry any mobile phones.He submitted that investigation into the call details of the mobile phonesof the raiding team would disclose that they were not present at the spot,from where the appellant was allegedly apprehended. Third, hesubmitted that mandatary provisions of Section 50 of the NDPS Actwere not complied with, as the notice allegedly served did not state thata search before Gazetted Officer or Magistrate shall be arranged.Further, the search was not conducted in the presence of GazettedOfficer or Magistrate. He relied on the decision of the Supreme Courtin Arif Khan @ Agha Khan v. State of Uttarakhand: (2018) 18 SCC380 in support of his contention.

Discussion and Conclusion

21.This Court is not persuaded to accept that the appellant is liableto be acquitted on account of the inconsistencies in the testimony of thewitnesses. Whereas PW 7 had deposed that “one semi-transparentpolythene tied with rubber band was recovered from the left pocket ofthe Capri pant, containing some white powder”; PW10 stated, in hiscross-examination, that “he had checked both the pockets of greencoloured capri. Beside the contraband, there was purse in the rightside of the pocket”. Although on first blush, it does appear that there isa contradiction as to whether the contraband was recovered from theright pocket of the capris or the left pocket of the capris, worn by theappellant at the material time. However, on closer examination, it isapparent that there is no contradiction in the testimony of PW7 andPW10 in this regard. In his examination in chief, PW 10 had deposedthat “on the formal search the accused, on which one semi-transparentpolythene was recovered from the left pocket of Capri of accused, tiedwith rubber band containing white powder”. This is consistent with thetestimony of PW7. The statement made in the cross-examination mustbe read in its context. PW10 had clarified that he had checked both thepockets and besides the contraband, purse was recovered from theright pocket of the trousers worn by the appellant. This ought not to beread to mean that the contraband was recovered from the right pocketof the capris worn by the appellant.22.Insofar as the recovery of mobile phone is concerned, there isinconsistency in the testimony of PW 5 and other witnesses. PW 5 had

stated that mobile phone was recovered from the left side pocket ofthe capris worn by the appellant. However, PW 7 and PW 12 had deniedthat any mobile phone had been recovered from the appellant. PW 7, inhis cross-examination, stated that he could not recall whether anymobile phone had been recovered from the appellant. Althoughdiscrepancy in this regard cannot be ignored as being irrelevant, thisCourt is unable to accept that it raises any doubt as to the possession ofthe contraband (25 grams of cocaine) by the appellant at the materialtime.

23.Insofar as not joining any independent witnesses is concerned,there is considerable merit in this contention. It was apposite for theraiding team to include public witnesses. The testimony that certainpassersby at red light and at the spot were asked to join theproceedings does reflect the casual approach of the concerned officials.The raiding team had sufficient time to ensure that independentwitnesses are joined in the proceedings. The appellant was apprehendedfrom crowded spot and there were number of establishments nearbyand, thus, there would be no dearth of public witnesses. Having statedthe above, this Court is unable to accept that the testimonies of thepolice witnesses must be disregarded on account of not including ofpublic witnesses in the proceedings. The testimonies of the raiding team– H.C. Laxman Prasad (PW 7), H.C. Satyawa (PW 5) and SI ShivDarshan (PW 10) – are consistent with regard to recovery of cocainefrom the appellant. There is also no doubt that samples drawn from the

substances recovered were not tampered with and examination of thesame had revealed the substance to be cocaine.

24.The only question that remains to be addressed is whether theprovisions of Section 50 of the NDPS Act were complied with. Thelearned counsel appearing for the appellant had contended that thenotice under Section 50 of the NDPS Act served on the appellant wasdefective and further that the search was not conducted before aMagistrate or Gazette Officer.

25.The notice served on the appellant, inter alia, stated as under:-

“…. Before conducting your search it is your legal right that yoursearch could be taken before Magistrate or Gazetted officer forwhich arrangement can be made….”. Mr. Kushwaha contended that theuse of the word ‘can’ in the aforementioned sentence rendered thenotice defective and not compliant with Section 50 of the NDPS Act.He submitted that sub-section (1) of Section 50 of the NDPS Act usedthe word ‘shall’ and it was expressly indicated that the officerauthorized under Section 42 of the Act ‘shall’ take the person to thenearest Gazetted Officer or to the nearest Magistrate.

26.The aforesaid contention is unmerited. It is not disputed that theprovisions of Section 50 of the NDPS Act are mandatory and must bestrictly complied. The Supreme Court in The State of Punjab v. BaldevSingh: 1999 6 SCC 172 had explained that it is imperative that personproposed to be searched be informed of his right under Sub-Section (1)of Section 50 of the NDPS Act of being taken to the nearest Gazetted

Officer or the nearest Magistrate for conducing his/her search. In thepresent case, the notice issued under Section 50 of the NDPS Act (Ex.PW 5/A) clearly informed the appellant of such right. The use of theword ‘can’ in the statement ‘before conducting search it is your legalright that search can be conducted for which arrangement ‘can bemade’ instead of the word ‘shall’’ is irrelevant, because the appellantwas duly communicated that he had legal right to be searched beforea Magistrate or Gazetted Officer.

27.The next question to be addressed is whether there was non-compliance of the provisions of Section 50 of the NDPS Act as theappellant was not searched before Magistrate or Gazetted officer. Itis contended on behalf of the appellant that notwithstanding that theappellant had not opted to be searched before Magistrate or GazettedOfficer, it was, nonetheless, imperative that the search be conductedbefore Magistrate or Gazetted Officer and failure in this regardrendered the appellant liable to be acquitted of the offence of possessingcocaine, since the said charge rested solely on the allegation that thesearch of the appellant had revealed that he was in possession of 25grams of cocaine.

28.Before proceeding further, it would be relevant to refer to Section50 of the NDPS Act, which is set out below:-

“50. Conditions under which search of persons shall beconducted.—(1) When any officer duly authorised underSection 42 is about to search any person under theprovisions 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 ofthe departments mentioned in Section 42 or to the nearestMagistrate.

(2) If such requisition is made, the officer may detain theperson until he can bring him before the gazetted officer orthe Magistrate referred to in sub-section (1).

(3) The gazetted officer or the Magistrate before whom anysuch person is brought shall, if he sees no reasonable groundfor search, forthwith discharge the person but otherwiseshall direct that search be made.

(4) No female shall be searched by anyone excepting afemale.

(5) When an officer duly authorised under Section 42 hasreason to believe that it is not possible to take the person tobe searched to the nearest Gazetted Officer or Magistratewithout the possibility of the person to be searched partingwith possession of any narcotic drug or psychotropicsubstance, or controlled substance or article or document, hemay, instead of taking such person to the nearest GazettedOfficer or Magistrate, proceed to search the person asprovided under Section 100 of the Code of CriminalProcedure, 1973.

(6) After search is conducted under sub-section (5), theofficer shall record the reasons for such belief whichnecessitated such search and within seventy-two hours senda copy thereof to his immediate official superior.”

29.In State of Punjab v. Baldev Singh: 1999 6 SCC 172, theConstitution Bench of the Supreme had, inter alia, held as under: -

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

(1) That when an empowered officer or duly authorisedofficer acting on prior information is about to search aperson, it is imperative for him to inform the person

concerned of his right under sub-section (1) of Section 50of being taken to the nearest gazetted officer or the nearestMagistrateformakingthesearch.However,suchinformation may not necessarily be in writing.(2) That failure to inform the person concerned about theexistence of his right to be searched before gazettedofficer or Magistrate would cause prejudice to anaccused.

(3) That search made by an empowered officer, on priorinformation, without informing the person of his right thatif he so requires, he shall be taken before gazetted officeror Magistrate for search and in case he so opts, failure toconduct his search before gazetted officer or Magistrate,may not vitiate the trial but would render the recovery ofthe illicit article suspect and vitiate the conviction andsentence of an accused, where the conviction has beenrecorded only on the basis of the possession of the illicitarticle, recovered from his person, during searchconducted in violation of the provisions of Section 50 ofthe Act.

(4) That there is indeed need to protect society fromcriminals. The societal intent in safety will suffer if personswho commit crimes are let off because the evidence againstthem is to be treated as if it does not exist. The answer,therefore, is that the investigating agency must follow theprocedure as envisaged by the statute scrupulously and thefailure to do so must be viewed by the higher authoritiesseriously inviting action against the official concerned sothat the laxity on the part of the investigating authority iscurbed. In every case the end result is important but themeans to achieve it must remain above board. The remedycannot be worse than the disease itself. The legitimacy ofthe judicial process may come under cloud if the court isseen to condone acts of lawlessness conducted by theinvestigating agency during search operations and may alsoundermine respect for the law and may have the effect ofunconscionablycompromisingtheadministrationof

justice. That cannot be permitted. An accused is entitled toa fair trial. conviction resulting from an unfair trial iscontrary to our concept of justice. The use of evidencecollected in breach of the safeguards provided by Section50 at the trial, would render the trial unfair.

(5) That whether or not the safeguards provided in Section50 have been duly observed would have to be determinedby the court on the basis of the evidence led at the trial.Finding on that issue, one way or the other, would berelevant for recording an order of conviction or acquittal.Without giving an opportunity to the prosecution toestablish, at the trial, that the provisions of Section 50 and,particularly, the safeguards provided therein were dulycomplied with, it would not be permissible to cut short acriminal trial.

(6) That in the context in which the protection has beenincorporated in Section 50 for the benefit of the personintended to be searched, we do not express any opinionwhether the provisions of Section 50 are mandatory ordirectory, but hold that failure to inform the personconcerned of his right as emanating from sub-section (1) ofSection 50, may render the recovery of the contrabandsuspect and the conviction and sentence of an accused badand unsustainable in law.

(7) That an illicit article seized from the person of anaccused during search conducted in violation of thesafeguards provided in Section 50 of the Act cannot be usedas evidence of proof of unlawful possession of thecontraband on the accused though any other materialrecovered during that search may be relied upon by theprosecution, in other proceedings, against an accused,notwithstanding the recovery of that material during anillegal search.

(8) presumption under Section 54 of the Act can only beraised after the prosecution has established that the accusedwas found to be in possession of the contraband in searchconducted in accordance with the mandate of Section 50.

An illegal search cannot entitle the prosecution to raise apresumption under Section 54 of the Act.

(9) That the judgment in Pooran Mal case [(1974) 1 SCC345 : 1974 SCC (Tax) 114] cannot be understood to havelaid down that an illicit article seized during search of aperson, on prior information, conducted in violation of theprovisions of Section 50 of the Act, can by itself be used asevidence of unlawful possession of the illicit article on theperson from whom the contraband has been seized duringthe illegal search.

(10) That the judgment in Ali Mustaffa case [(1994) 6 SCC569 : 1995 SCC (Cri) 32] correctly interprets anddistinguishes the judgment in Pooran Mal case [(1974) 1SCC 345 : 1974 SCC (Tax) 114] and the broadobservations made in Pirthi Chand case [(1996) 2 SCC 37: 1996 SCC (Cri) 210] and Jasbir Singh case [(1996) 1 SCC288 : 1996 SCC (Cri) 1] are not in tune with the correctexposition of law as laid down in Pooran Mal case [(1974)1 SCC 345 : 1974 SCC (Tax) 114] .”

30.There is no dispute that it was necessary for an authorized officerto inform the person concerned, before he is searched, about his rightthat if he so requires, he shall be searched before Gazetted Officer ora Magistrate. Failure to comply with the same would render therecovery of the illicit articles suspect and vitiate the conviction of theaccused, if he is convicted only on the basis of possessing thecontraband recovered during the search conducted without informinghim of his rights.

31.In Vijaysinh Chandubha Jadeja v. State of Gujarat: (2011) 1SCC 609, the Constitution Bench of the Supreme Court considered thequestion whether compliance of Section 50 of the NDPS Act would be

sufficient. The Court answered in the negative and held that theobligations of the authorized officer under Section 50 (1) of the NDPSAct is mandatory and requires strict compliance. The relevant extract ofthe said decision is set out below:-

“29. In view of the foregoing discussion, we are of thefirm opinion that the object with which the right underSection 50(1) of the NDPS Act, by way of safeguard,has been conferred on the suspect viz. to check the misuseof power, to avoid harm to innocent persons and tominimise the allegations of planting or foisting of falsecases by the law enforcement agencies, it would beimperative on the part of the empowered officer toapprise the person intended to be searched of his right tobe searched before gazetted officer or Magistrate. Wehave no hesitation in holding that insofar as the obligationof the authorised officer under sub-section (1) of Section50 of the NDPS Act is concerned, it is mandatory andrequires strict compliance. Failure to comply with theprovision would render the recovery of the illicit articlesuspect and vitiate the conviction if the same is recordedonly on the basis of the recovery of the illicit article fromthe person of the accused during such search. Thereafter,the suspect may or may not choose to exercise the rightprovided to him under the said provision.

30. As observed in Presidential Poll, In re [(1974) 2 SCC33] : (SCC p. 49, para 13)

“13. … It is the duty of the courts to get atthe real intention of the legislature bycarefully attending [to] the whole scope ofthe provision to be construed. ‘The key tothe opening of every law is the reason andspiritofthelaw,itisthe animusimponentis, the intention of the law makerexpressed in the law itself, taken as awhole.”

31. We are of the opinion that the concept of “substantialcompliance” with the requirement of Section 50 of theNDPS Act introduced and read into the mandate of thesaid section in Joseph Fernandez [(2000) 1 SCC 707 :2000 SCC (Cri) 300] and Prabha Shankar Dubey [(2004)2 SCC 56 : 2004 SCC (Cri) 420] is neither borne out fromthe language of sub-section (1) of Section 50 nor it is inconsonance with the dictum laid down in Baldev Singhcase [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] .Needless to add that the question whether or not theprocedureprescribedhasbeenfollowedandtherequirement of Section 50 had been met, is matter oftrial. It would neither be possible nor feasible to lay downany absolute formula in that behalf.32. We also feel that though Section 50 gives an optionto the empowered officer to take such person (suspect)either before the nearest gazetted officer or the Magistratebut in order to impart authenticity, transparency andcreditworthiness to the entire proceedings, in the firstinstance, an endeavour should be to produce the suspectbeforethenearestMagistrate,whoenjoysmoreconfidence of the common man compared to any otherofficer. It would not only add legitimacy to the searchproceedings, it may verily strengthen the prosecution aswell.33. Accordingly, we answer the reference in the manneraforesaid. The appeals shall, now, be placed before theappropriate Bench for disposal.”

32.In terms of Section 50(1) of the NDPS Act where an officer isabout to search person under the provisions of Sections 41, 42 or 43of the NDPS Act, he shall, if such person requires, take such personwithout unnecessarily delay to the nearest Gazetted Officer or thenearest Magistrate. Whilst it is clear that the authorized officer isrequiredtotakethepersonconcernedtothenearest

Magistrate/Gazetted Officer if the person so requires; it is difficult tointerpret Section 50(1) of the NDPS Act to read that it is mandatory thatin all cases, search must be conducted before Gazetted Officer or aMagistrate. Clearly, if Section 50(1) of NDPS Act is read to mean thatit is necessary in all cases that search be conducted before Magistrateor Gazetted Officer, there would be no purpose in informing thesuspect of his right to be searched before such officers. The entire objectof informing the suspect, who is proposed to be searched, about his/herright is to enable him to exercise this right – the right to be searchedbefore Magistrate or Gazette Officer. In Vijaysinh ChandubhaJadeja (supra), the Supreme Court had also observed that theobligations of the authorized officer under Section 50(1) of the NDPSAct is mandatory and requires strict compliance. Failure to comply withthe said provision would render the recovery of the illicit article suspectand vitiate the conviction. However, the Court had also observed that“Thereafter, the suspect may or may not choose to exercise the rightprovided to him under the said proviso”.

33.In Ashok Kumar Sharma v. State of Rajasthan: (2013) 2 SCC67, the Supreme Court considered case where the authorized officerhad merely informed the accused (appellant therein) that he can besearched before any Magistrate or Gazetted Officer, if he so wished.The Supreme Court held that the same did not comply with themandatory procedure of Section 50 of the NDPS Act and, thus, vitiatedthe entire proceedings. The Court reasoned that the accused was onlyinformed that he could be searched before Magistrate or Gazetted

Officer if he so wished, however, the fact that the accused had rightunder Section 50 of the NDPS Act to be searched before the GazettedOfficer or Magistrate was not made known to him. The relevantextract of the said decision, is set out below: -

“7. We are in this case concerned only with thequestion whether PW 1, the officer who had conductedthe search on the person of the appellant had followedthe procedure laid down under Section 50 of the NDPSAct. On this question, there were conflicts of views bydifferent Benches of this Court and the matter wasreferred to five-Judge Bench. This Court in VijaysinhChandubha Jadeja [(2011) 1 SCC 609 : (2011) 1 SCC(Cri) 497] answered the question, stating that it isimperative on the part of the officer to apprise theperson intended to be searched of his right underSection 50 of the NDPS Act, to be searched before agazetted officer or Magistrate. This Court also heldthat it is mandatory on the part of the authorised officerto make the accused aware of the existence of his rightto be searched before gazetted officer or Magistrate,if so required by him and this mandatory provisionrequires strict compliance. The suspect may or may notchoose to exercise the right provided to him under thesaid provision, but so far as the officer is concerned, anobligation is cast on him under Section 50 of the NDPSAct to apprise the person of his right to be searchedbefore gazetted officer or Magistrate. The question,as to whether this procedure has been complied with ornot, in this case the deposition of PW 1 assumesimportance, which reads as follows:

“He was apprised while telling the reason ofbeing searched that he could be searchedbefore any Magistrate or any gazettedofficer if he wished. He gave his consent inwritten and said that I have faith on you,

youcansearchme.Fardregardingapprising and consent is Ext. P-3 on whichI put my signature from to and theaccused put his signature from to D. toF is the endorsement of the consent of theaccused and to is signature, which hasbeen written by the accused.”

The above statement of PW 1 would clearly indicate thathe had only informed the accused that he could besearched before any Magistrate or gazetted officer if heso wished. The fact that the accused person has rightunder Section 50 of the NDPS Act to be searched beforea gazetted officer or Magistrate was not made knownto him. We are of the view that there is an obligation onthe part of the empowered officer to inform the accusedor the suspect of the existence of such right to besearched before gazetted officer or Magistrate, if sorequired by him. Only if the suspect does not choose toexercise the right in spite of apprising him of his right,the empowered officer could conduct the search on thebody of the person.

8. We may, in this connection, also examine the generalmaxim ignorantia juris non excusat and whether in sucha situation the accused could take defence that he wasunaware of the procedure laid down in Section 50 of theNDPS Act. Ignorance does not normally afford anydefence under the criminal law, since person ispresumed to know the law. Undisputedly ignorance oflaw often in reality exists, though as generalproposition, it is true, that knowledge of law must beimputed to every person. But it must be too much toimpute knowledge in certain situations, for example, wecannot expect rustic villager, totally illiterate, poorman on the street, to be aware of the various laws laiddown in this country, leave aside the NDPS Act. Wenotice that this fact is also within the knowledge of thelegislature, possibly for that reason the legislature in its

wisdom imposed an obligation on the authorised officeracting under Section 50 of the NDPS Act to inform thesuspect of his right under Section 50 to be searched in thepresence of gazetted officer or Magistrate warrantingstrict compliance with that procedure.”

34.The above decision also makes it clear that the mandate ofSection 50(1) of the NDPS Act is to ensure that the authorized officerinforms the person proposed to be searched about his right to besearched before Magistrate or Gazetted Officer. The authorizedofficer is also obliged to take the concerned person (the suspect) to thenearest Gazetted Officer of any departments mentioned in Section 42 ofthe NDPS Act or to the nearest Magistrate, if such person so requires.In Vijaysinh Chandubha Jadeja (supra), the Supreme Court had alsoobserved that though Section 50 of the NDPS Act gives the option tothe empowered officer to take the person suspect either before thenearest Gazetted Officer or to Magistrate; in the first instance, anendeavor should be made to produce the suspect before the nearestMagistrate. This, obviously, would follow only ‘if the person sorequires’.

35.In view of the decisions as mentioned above, it is no longer resintegra that it is mandatory to comply with Section 50 of the NDPS Act.There is also no ambiguity as to manner in which Section 50 of theNDPC Act is required to be complied. Plainly, there is no requirementto conduct the search in the presence of Magistrate or GazettedOfficer, if the person proposed to be searched did not so desire, afterbeing informed of his right in this regard. The words “if such person so

requires” as used in Section 50(1) of the NDPS Act make it amply clearthat the person to be searched would be taken before Magistrate or aGazetted Officer, only if he so requires.

36.In terms of Sub-section (2) of Section 50 of the NDPS Act, theAuthorised Officer is empowered to detain the person proposed to besearched until he can bring him before the Gazetted Officer/Magistrate,as referred to in Sub-section (1) of Section 50 of the NDPS Act. Thewords “such requisition”, as mentioned in the opening sentence of Sub-section (2) of Section 50 of the NDPS Act, obviously refers to theperson proposed to be searched electing to exercise his right to besearched before Gazetted Officer / Magistrate.

37.This also is in conformity with the scheme that makes it amplyclear that if the person proposed to be searched requires that search beconducted before Gazetted Officer or Magistrate, the authorisedofficer is required to take such person to the nearest GazettedOfficer/Magistrate. In terms of Sub-section (3) of Section 50 of theNDPS Act, Gazetted Officer or Magistrate may discharge anyperson brought before him/her, if he/she finds no reasonable groundsfor conducting such search. Sub-section (5) and (6) were introduced inSection 50 of the NDPS Act by virtue of the Narcotics, Drugs andPsychotropicSubstances(Amendment)Act,2001enactedon27.09.2001 and came into effect from 02.10.2001. The said Sub-sections provided option to the authorised officer to search personnotwithstanding the said persons (suspect) requiring to be searchedbefore Magistrate/Gazetted Officer. However, the authorised person

could do so only if the conditions as specified under Sub-section (5) ofSection 50 of the NDPS Act were met, that is, if it is not possible to takethe person to be searched to the nearest Gazetted Officer/Magistratewithout the possibility of the person being searched parting with thepossession of any narcotic drugs, psychotropic substance or anycontrolled substance or article or document. In terms of Sub-section (6)of Section 50 of the NDPS Act, the authorised officer is also requiredto record reasons for his belief that necessitated him to search thesuspect without taking him to the nearest Gazetted Officer orMagistrate. Such reasons are required to be recorded within seventy-two hours of the search being conducted and copy of the same isrequired to be sent by the authorised officer to his immediate officialsuperior. Given the scheme of Section 50 of the NDPS Act, it is difficultto accept that it is mandatory to search suspect before Magistrate/Gazetted Officer, notwithstanding that the suspect does not so require,after he is apprised of his rights in this regard.

38.It is contended on behalf of the appellant that the Supreme Courtin Arif Khan @ Agha (supra) has expanded and amplified the sweep ofSection 50 of the NDPS Act. In that case, the prosecution claimed thatthe accused had admitted that he was in possession of Charas. Theaccused was apprehended and he was informed by the police personnelthat he has legal right to be searched in presence of gazetted officeror Magistrate, to which the accused replied that “he had faith in theraiding party” and consented to be searched by them. Thereafter, theraiding party searched the accused, which yielded Charas weighing

around 2.5 kilograms. The accused was charged, tried and found guiltyfor the offence under Section 20 of the NDPS Act. He was sentenced torigorous imprisonment for period of ten years and fine of ₹1,00,000/. The accused, thereafter, filed an appeal before the Uttarakhand HighCourt, which was dismissed. Aggrieved by the said decision of the HighCourt of Uttarakhand, the accused appealed to the Supreme Court. TheSupreme Court allowed the appeal and acquitted the appellant ofcommission of an offence under Section 20 of the NDPS Act. Therelevant extract of the said decision is set out below:-

“16. The short question which arises for consideration

in the appeal is whether the search/recovery made by thepolice officials from the appellant-accused of thealleged contraband (charas) can be held to be inaccordance with the procedure prescribed under Section50 of the NDPS Act.

17. In other words, the question that arises forconsideration in this appeal is whether the prosecutionwas able to prove that the procedure prescribed underSection 50 of the NDPS Act was followed by the policeofficials in letter and spirit while making the search andrecovery of the contraband “charas” from the appellant-accused.

18. What is the true scope and object of Section 50 ofthe NDPS Act, what are the duties, obligation and thepowers conferred on the authorities under Section 50and whether the compliance of requirements of Section50 are mandatory or directory, remain no more resintegra and are now settled by the two decisions of theConstitutionBenchofthisCourtin StateofPunjab v. BaldevSingh [StateofPunjab v. BaldevSingh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080]and VijaysinhChandubhaJadeja [Vijaysinh

Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC

609 : (2011) 1 SCC (Cri) 497].

19. Indeed, the latter Constitution Bench decisionrendered in Vijaysinh Chandubha Jadeja [VijaysinhChandubha Jadeja v. State of Gujarat, (2011) 1 SCC609 : (2011) 1 SCC (Cri) 497] has settled theaforementionedquestionsaftertakingintoconsiderations all previous case law on the subject.

20. Their Lordships have held in Vijaysinh ChandubhaJadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat,(2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] that therequirements of Section 50 of the NDPS Act aremandatory and, therefore, the provisions of Section 50must be strictly complied with. It is held that it isimperative on the part of the police officer to apprise theperson intended to be searched of his right underSection 50 to be searched only before gazetted officeror Magistrate. It is held that it is equally mandatory onthe part of the authorised officer to make the suspectaware of the existence of his right to be searched beforea gazetted officer or Magistrate, if so required by himand this requires strict compliance. It is ruled that thesuspect person may or may not choose to exercise theright provided to him under Section 50 of the NDPS Actbut so far as the officer is concerned, an obligation iscast upon him under Section 50 of the NDPS Act toapprise the suspect of his right to be searched before agazetted officer or Magistrate. (See also Ashok KumarSharma v. StateofRajasthan [AshokKumarSharma v. State of Rajasthan, (2013) 2 SCC 67 : (2013)1 SCC (Cri) 829] and Narcotics Control Bureau v. SukhDev Raj Sodhi [Narcotics Control Bureau v. Sukh DevRaj Sodhi, (2011) 6 SCC 392 : (2011) 2 SCC (Cri) 981].)21. Keeping in view the aforementioned principle oflaw laid down by this Court, we have to examine thequestion arising in this case as to whether the

prosecutionfollowedthemandatoryprocedureprescribed under Section 50 of the NDPS Act whilemaking search and recovery of the contraband “charas”from the appellant and, if so, whether it was done in thepresence of Magistrate or gazetted officer so as tomake the search and recovery of contraband “charas”from the appellant in conformity with the requirementsof Section 50.

22. In our considered view, the evidence adduced by theprosecution neither suggested and nor proved that thesearch and the recovery was made from the appellant inthe presence of either Magistrate or gazetted officer.

23. It is the case of the prosecution and which foundacceptance by the two courts below that since theappellant-accused was apprised of his right to besearched in the presence of either Magistrate or agazetted officer but despite telling him about his legalright available to him under Section 50 in relation to thesearch, the appellant-accused gave his consent inwriting to be searched by the police officials (raidingparty), the two courts below came to conclusion thatthe requirements of Section 50 stood fully compliedwith and hence the appellant was liable to be convictedfor the offence punishable under the NDPS Act.

24. We do not agree to this finding of the two courtsbelow as, in our opinion, search and recovery madefrom the appellant of the alleged contraband “charas”does not satisfy the mandatory requirements of Section50 as held by this Court in Vijaysinh ChandubhaJadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat,(2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] . This wesay for the following reasons:

24.1. First, it is an admitted fact emerging from therecord of the case that the appellant was not producedbefore any Magistrate or gazetted officer.

24.2. Second, it is also an admitted fact that due to theaforementioned first reason, the search and recovery of

the contraband “charas” was not made from theappellant in the presence of any Magistrate or gazettedofficer.

24.3. Third, it is also an admitted fact that none of thepolice officials of the raiding party, who recovered thecontraband “charas” from him, was the gazetted officerand nor they could be and, therefore, they were notempowered to make search and recovery from theappellant of the contraband “charas” as provided underSection 50 of the NDPS Act except in the presence ofeither Magistrate or gazetted officer.

24.4. Fourth, in order to make the search and recoveryof the contraband articles from the body of the suspect,the search and recovery has to be in conformity with therequirements of Section 50 of the NDPS Act. It is,therefore, mandatory for the prosecution to prove thatthe search and recovery was made from the appellant inthe presence of Magistrate or gazetted officer.

26. For the aforementioned reasons, we are of theconsidered opinion that the prosecution was not able toprove that the search and recovery of the contraband(charas) made from the appellant was in accordancewith the procedure prescribed under Section 50 of theNDPS Act. Since the non-compliance of the mandatoryprocedure prescribed under Section 50 of the NDPS Actis fatal to the prosecution case and, in this case, we havefound that the prosecution has failed to prove thecompliance as required in law, the appellant is entitledto claim its benefit to seek his acquittal.

27. In the light of the foregoing discussion, the appealsucceeds and is allowed. The impugned judgment is setaside. As consequence thereof, the appellant’sconviction is set aside and he is acquitted of the chargesin question.”

39.The petition filed by the prosecution seeking review of the said

decision was also dismissed by the Supreme Court.

40.The question that needs to be considered is whether Arif Khan @AghaKhan(supra)isanauthority fortheproposition thatnotwithstanding that the person proposed to be searched has, after beingapprised of his right to be searched before Gazetted Officer or amagistrate, declined the offer of being searched before GazettedOfficer or Magistrate; it is mandatory that he be searched before aGazetted Officer/Magistrate.

41.In Dharambir v. State: (2018) 254 DLT 354, the CoordinateBench of the High Court of Delhi held as under:

“44. It is undisputed, in the present case, that the searchof the appellant, and his car, were conducted by theraiding party, and not by the Magistrate or GazettedOfficer. Neither were the appellant and his car producedbefore any Magistrate or Gazetted Officer. The plea, ofthe respondent, that, as the appellant had been apprisedof his right to have himself, and his car, searched by theMagistrate or Gazetted Officer, and he had himselfagreed to be searched by the raiding party, the mandateof Section 50 stood fulfilled, though attractive, cannotsustain, as an identical plea, raised in similar facts,stands negated in Arif Khan (supra).

42.In Sikodh Mahto v. State: Crl.A. 660/2017 decided on06.06.2019, the co-ordinate bench of this Court of Delhi held ashereunder:

52. Insofar as the facts, essential for determination of thecontroversy in issue are concerned, the present casecannot be distinguished, in any manner, from Arif Khan

(supra). The only difference, on facts – which makes nodifference to the legal position – is that, in Arif Khan(supra), the appellant Arif Khan, on being queried,confessed to carrying charas, whereas the appellants, inthe present case, did not do so. In the present case, too,the alleged contraband charas was recovered from thebags of the appellants. In the present case, too, the searchof the bags, and the seizure of charas therefrom, waseffected by the raiding team, in the absence of anyMagistrate or Gazetted Officer. The witnesses, in thepresent case, have deposed that the I/O was not aGazetted Officer, and that no Magistrate or GazettedOfficer was contacted. The ratio decidendi of Arif Khan(supra), as contained in para 28 of the said decisionapplies, therefore, to the present case on all fours. Whileit is true that Vijaysinh Chandubha Jadeja (supra) wouldseem to suggest that, once the accused was offered theoption of having his search conducted in the presence ofa Magistrate or Gazetted Officer, and he declined theoffer, Section 50 stood complied with, Arif Khan(supra), after noticing Vijaysinh Chandubha Jadeja(supra), as well as the law laid down therein, holds,nevertheless, that, even where the accused – as in thatcase, and as in the present case – declined the offer underSection 50 of the NDPS Act, the raiding team was,nevertheless, required to have the search of the appellantconducted in the presence of Gazetted Officer orMagistrate. The said enunciation of the law binds me, byvirtue of Article 141 of the Constitution of India.”

43.The aforesaid decisions in Dharambir (supra) and SikodhMahto (supra) were delivered on 13.11.2018 and 06.06.2019,respectively. However, decision rendered by this Court prior to thesaid dates in Ram Gopal v. State: Crl. A. 676/2017, decided on16.10.2018 was not considered in the aforesaid decisions. In that case,the Court had noticed as under:-

“In Arif Khan (supra) on the facts of that case, the Courtfound that the mandatory procedure under Section 50 ofthe Act had not been satisfied. The said case was peculiaron its own facts and therefore, is distinguishable from thefacts of the present case. In the present case, theprosecution has been able to prove its case through thetestimonies of its witnesses and the documents producedon record.”

44.It is relevant to note that in Arif Khan (supra), the Supreme Courthad referred to the decision of the Constitution Bench in VijaysinhChandubha Jadeja (supra) and observed that the search and recoveryof the contraband made from the appellant in that case, did not satisfythe mandatory requirements of Section 50 of the NDPS Act, asenunciated by the Supreme Court in Vijaysinh Chanduba Jadeja(supra). It is, thus, apparent that the Court did not accept theprosecution’s case that the provisions of Section 50 of the NDPS Actwere complied with.

45.In the facts of the present case, the prosecution has establishedthat the appellant was apprised of his right to be searched before aMagistrate or Gazetted officer but he did not require that his search beconducted before the said persons.

46.In view of the above, the appeal is dismissed. The pendingapplication is also disposed of.

JANUARY 14, 2020pkv

VIBHU BAKHRU, J