IMPORTANT POINT
Provisions contained in the N.D.P.S. Act being penal in nature, all requirements laid down therein must be complied with strictly.

Order

Delay condoned.

Leave granted.

1. One of the questions which arises for consideration in this appeal is as to whether Shri Lal Chand No. 8 I.O. P.P.Pandoh(P.W.10) was bound to make the accused-appellant aware that he had also a right to be searched before a Magistrate or a gazetted Officer.

2. In State of Punjab Vs. Baldev Singh,1 (1999) 6 SCC 172, a Constitution Bench of this Court has clearly held that the accused has a right to be made aware thereof. Having regard to the Miranda clause as enunciated by the Supreme Court of the United States of America in Miranda Vs. Arizona,2 384 US 436, the Constitution Bench held that, although, such communication itself may not necessarily be made in writing but as far as possible such communication should be made in the presence of some independent and respectable persons witnessing the arrest and search.

It was opined:

“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 Magistrate would cause prejudice to an accused.”

3. A three-Judge Bench of this Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat,3 (2007) 1 SCC 433 noticed the aforementioned dicta laid by the Constitution Bench in Baldev Singh(Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted officer or a Magistrate.

4. The Bench, however, was of the opinion that some more clarification is necessary as to whether such communication of the right of the accused could be taken in evidence by way of oral evidence of the officer concerned.

5. In this case it is accepted at the Bar that the search memo or any other document do not show that the appellant was made aware of his right to be searched before a gazetted officer or a Magistrate.

6. From the deposition of P.W.10-I.O.P.P. Pandoh, it appears that he had merely given an option to the appellant to be searched either by himself or in presence of a Magistrate or a gazetted Officer.

7. No evidence has been adduced to show that the appellant was communicated of his right either to be searched in presence of a Magistrate or a gazetted officer on the one hand and by an empowered officer on the other.

8. Recently, this Court in Noor Aga vs. State of Punjab and Anr.,4 2008(9) SCALE 681, categorically, held that as the provisions contained in the N.D.P.S.Act are penal in nature, all requirements laid down therein must be complied with strictly, stating:

“149. Section 50 of the Act provides for an option to be given. This Court in Baldev Singh(supra) quoted with approval the decision of the Supreme Court of United States in Miranda Vs. Arizona [(1966) 384 US 436} in the following terms :

“The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be right, just and fair.”

150. Justness and fairness of a trial is also implicit in Article 21 of the Constitution.

151. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial.

152. The courts, in Order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling