IMPORTANT POINT
For compliance of provisions of Section 50 of NDPS Act, stress is on adoption of a reasonable, fair and just procedure and no specific words are necessary to be used to convey existence of the right.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50-Recovery of 200 grams of opium from possession of appellant-Conviction on testimony of police officials though two punch witnesses did not support prosecution version-Appeal-Alleged non-compliance of Section 50 of the Act as mere asking accused whether he would like to be searched by Gazetted Officer or Magistrate was not sufficient compliance-Whether requirements of Section 50 had been met was a question which was to be decided on facts of each case-Fair play and transparency in the process of search is to be given primacy-No specific words are necessary to be used to convey existence of right-What the concerned officer was required to do was to convey about the choice the accused had-There was sufficient compliance of requirements of Section 50 of the Act in the case.
       Held : It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under Section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of one of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula. Section 50 does not involve any self-incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transparency in the process of search has been given the primacy. (Paras 7 and 8)
       As has been highlighted in Baldev Singh s case (supra) it has to be seen and gauzed whether the requirements of Section 50 have been met. Section 50 in reality provides for additional safeguards which are not specifically provided by the statute. The stress is on the adoption of a reasonable, fair and just procedure. No specific words are necessary to be used to convey existence of the right. In the case at hand the information was conveyed in the following manner :
       "By way of this notice you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by any gazetted officer or by a magistrate".
       In response to the aforesaid intimation each of the accused gave in writing as follows :
       "Sir, I have no objection, if your search me or my scooter".
        Sd/- Sd/-
       Ram Vilas Prabhashankar
       3.11.1998 3.11.98
        Sd/-
        at 14.20 P.M.
        Thana Shahjaibad
        at 14.25 P.M.
        Thana Shahjaibad".
        (Para 9)
       What the concerned officer is required to do is to convey about the choice the accused had. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. The use of the word right at relevant places in the decision of Baldev Singh s case (supra) seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the suspect at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it. (Para 11)

JUDGMENT

Arijit Pasayat, J.-These two appeals relate to the common judgment rendered by a learned Single Judge of the Madhya Pradesh High Court at Jabalpur Bench upholding conviction of the appellants (hereinafter referred to as the accused by their respective names) for commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ). In addition to custodial sentence of 10 years, a fine of Rs. 1,00,000/- was imposed.

2. Prosecution version as unfolded during trial is as under :-

On 3.11.1998 S.B. Shrivastava (PW-6) received information that two persons in possession of opium were going on scooter No. M.P.-04-R-7693 from the side of new jail to Gandhi Nagar. This information was recorded at Serial No. 216 in Roznamcha and transmitted to the C.S.P. as per Ex. P-1. The accused persons were stopped and apprised through the notices Ex.P-10 and Ex.P-11 that if they so desire, can be taken to a Magistrate or a gazetted officer for search. They opted to be searched by him. On their search 200 grams of opium was found on the "person" of each of them. It was seized as per seizure memos Ex. P-4 and Ex.P-6. Samples of 10 grams each were taken and sealed. The seized opium in sealed condition was deposited in Malkhana of the police station. The crime was registered as per Ex.P-12. The information relating to search and arrest of the accused persons was sent to the superior officer on 5.11.1998 as per Ex.P-2. The sealed samples were sent to the Forensic Science Laboratory and as per report Ex.P-14, the commodity which was seized was found to be opium. The accused persons pleaded not guilty. Their defence was that they have been falsely implicated.

3. The trial Court held that the testimony of the investigating officer to be reliable and unbreakably supported by the Onkar Singh Kushwaha (PW-1) and Rajindra Singh Yadav (PW-3)-Police Constable, who accompanied him though the two panch witnesses Ramesh (PW-4) and Yakoob Khan (PW-5) did not support the prosecution version. The trial Court held that there was full compliance with the statutory requirements contained in Sections 42, 50, 55 and 57 of the Act and, therefore, convicted and sentenced the appellants as afore-noted. Appeals before the High Court as indicated at the threshold did not bring any relief to the accused-appellants.

4. In support of the appeals, learned counsel appearing for the accused-appellants mainly focused on alleged non-compliance with the requirements of Section 50 of the Act. According to them, mere asking the accused as to whether they would like to be searched by the Gazetted Officer or the Magistrate is not sufficient compliance of the requirements embodied in Section 50 of the Act. By merely asking them what is to be done is seeking their opinion and not making them aware of their right. Great emphasis is laid on certain observations made by a Constitution Bench in State of Punjab v. Baldev Singh (1999(6) SCC 172). With reference to the questions that were formulated for determination in Baldev Singh s case (supra), it was submitted that the sanctity that is attached to the compliance with the requirements has to be culled out from references made to the principles under the Preventive Detention Laws, The Fifth Amendment to the American Constitution and the imperative and obligatory nature of the duty as indicated in D.K. Basu v. State of West Bengal (1997(1) SCC 416). The Act provides stringent measures attached for infraction. That itself brings in the necessity to ensure strict compliance with the requirements. What has been done in the instant case is not in any way compliance with the requirements as there was no specific information given about the right. It is pointed out that in some cases, this Court has said that substantial compliance would be sufficient which is against the settled position in law that in respect of penal statutes substantial compliance will not be suffici

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2003 Supreme(SC) 1216

IMPORTANT POINTFor compliance of provisions of Section 50 of NDPS Act, stress is on adoption of a reasonable, fair and just procedure and no specific words are necessary to be used to convey existence of the right.

Cases Referred (6)

IMPORTANT POINT
For compliance of provisions of Section 50 of NDPS Act, stress is on adoption of a reasonable, fair and just procedure and no specific words are necessary to be used to convey existence of the right.