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2002(7) Supreme 389
SUPREME COURT OF INDIA
(From Gujarat High Court)
Umesh C. Banerjee & B.N. Agrawal, JJ.
Bharatbhai Bhagwanjibhai -Appellant
versus
State of Gujarat -Respondent
Criminal Appeal No. 312 of 2002
Decided on 29-10-2002
Counsel for the Parties :
For the Appellant : N.N. Keshwani, Advocate.
For the Respondent : Mrs. Hemantika Wahi and Ms. Any Dubey, Advocates.
Held : Section 50 categorically lays down that if the search is to be conducted by an officer duly authorised under Section 42 and the search is about to be conducted under the provisions of Sections 41, 42 or 43, the concerned officer does owe a duty to intimate the person to be searched that if the latter so requires, he would be taken to the nearest Gazetted Officer or to the nearest Magistrate for the purpose of having the search in their presence. But in the event of a situation otherwise, as in the contextual facts, viz., the accused person on seeing the patrolling police party started running, which created a suspicion in the mind of the concerned officer, who thereafter intercepted him and then in the presence of Panchas effected a search, question of compliance with the safeguards as prescribed under Section 50 of the Act would not arise. (Para 8)
This Court went on to observe that a combined reading of the provisions of Sections 42 and 50 would make it crystal clear that wherever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf, then if the person to be searched requires to be taken to a gazetted officer or the nearest Magistrate, the same must be complied with and failure to comply with the same would constitute an infraction of the requirements of the provisions of Section 50, which would ultimately vitiate the conviction and it is on this score this Court relied upon the plain and categorical language used by the legislature in Section 50. The decision in Ahmed (supra) does not lend any credence to the submissions in support of the appeal. The High Court in fact recorded a categorical satisfaction as regards the acceptance of evidence as credible and trustworthy and we also do not find any reason to record a different opinion in regard thereto. On the wake of the aforesaid, we are not inclined to interfere with the order of the High Court. As such this appeal fails and is dismissed. (Paras 10 & 11)
JUDGMENT
Banerjee, J.-The Statement of Objects and Reasons of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act") categorically records the inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain look at the provisions of the Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safe-guards provided under the Statute so as to be in tune therewith.
2. At this juncture, however, it would be convenient to advert to the contextual facts briefly : The factual score records that on 23rd January, 2000, Inspector Mr. Katara along with two Head Constables and four Constables was on patrolling duty and whilst on duty at the bus stand at Chowk in Upleta at about 3.00 p.m. it was noticed that the accused on seeing the police started running. This undue movement however aroused the curiosity and as such accused was intercepted and upon having the presence of two Panchas was searched which however led to the disclosure of small size plastic bag containing Charas of about 12 gms. in weight. The inspector lodged a complaint at about 1630 hours and necessary entries were made in the records. The substance found in the plastic bag was forwarded to the Forensic Science Laboratory for opinion and all necessary formalities thereafter were complied with culminating into the filing of the charge-sheet. The learned Sessions Judge framed the charge against the accused who pleaded not guilty and as a matter of fact in his statement under Section 313 Cr.P. Code, the appellant has stated that the evidence stands created, as he was not aware of any such incident as noticed above. The learned Sessions Judge, however, on the basis of available records convicted the accused person and sentenced as noticed earlier. The High Court, however, confirmed the conviction as well as sentenced the accused to suffer rigorous imprisonment for 10 years and a fine of Rs.1.00 lakh with a default clause as well.
3. The principal contention raised that since the deterrent punishments are prescribed under the NDPS Act, the legislature has taken care to incorporate several provisions in Chapter V of the Act and as interpreted by this Court, the provisions are mandatory in nature and non-compliance therewith would completely vitiate the trial. It is on this score it has been contended in support of the appeal that by reason of the factum of ascertainment of the wishes and desires of the accused as regards the search and seizure and that being a mandatory requirement and there being admitted non-compliance therewith, question of either maintaining the guilt of the accused person by the Additional Sessions Judge or confirmation thereof by the High Court would not arise. In this context Section 50 has been very strongly emphasised, which we feel it convenient to set out along with Sections 51 and 57 on which the appellant also laid strong emphasis. The said provisions read as below:
"50. Conditions under which search of persons shall be conducted.-(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer m
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