IMPORTANT POINT
Consent letter not sufficient compliance of section 50, NDPS Act.

Judgment

1. This appeal is directed against the concurrent judgments of the courts below whereby the appellant has been sentenced to undergo 10 years R.I. and to pay a fine of rupees one lakh and in default to undergo RI for two years for having violated the provisions of Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act').

2. The facts of the case are as under:

During the course of a joint Naka held on the 4th January, 1999 by a party comprising officials from the Customs Preventive Staff, the Punjab Police and the CIA Staff, Majitha, set up at the T-crossing near Saki Bridge, Ajnala, a Maruti car bearing registration No. PB-02-P-5595 was seen coming from the opposite side at about 9.40 a.m. There were three occupants in the car and two of them taking advantage of the thick fog at that time ran away whereas the third one, the appellant Nirmal Singh, was apprehended by PW.4 Prem Singh-Superintendent Customs. PW.4 disclosed his identity to the appellant and told him that as he was suspected to be in possession of some narcotic, he should give his option as to whether he wished to be searched before a Magistrate or a Gazetted Officer. The appellant stated that he would be satisfied if he was searched in the presence of a Gazetted officer. Khazan Singh and Sarup Singh were also called as public witnesses. On a search of the appellant's person two packets of brown powder each weighing 1 kilogram were found lying in his lap. The powder was tested with the aid of a drug testing kit and was found to be heroin. Samples of 5 grams were drawn from each packet and after the samples had been homogenized, they were sent to the laboratory for analysis. The Chemical Examiner in his report opined that the seized articles were indeed heroin.

3. During the course of the investigation the appellant also made a confession under Section 108 of the Customs Act admitting his guilt. The matter was ultimately sent up for trial after the completion of the investigation. Sarup Singh and Khazan Singh, the independent witnesses, were given up as having been won over by the appellant. The prosecution accordingly placed primary reliance on the statement of PW.1 Jagtar Singh, Inspector of Customs and PW.4 Prem Singh and the confession of the appellant made to him as also the circumstantial evidence in the case. The accused was also examined under Section 313 of the Cr. P.C. and he stated that he had been roped in on account of his animosity with Swaran Singh-DSP and his brother Kartar Singh-SP as he had been involved in the murder case of their brother, Ranjit Singh. He also produced several witnesses in defence.

4. The Trial Court, on a consideration of the evidence, held that the case against the appellant had been proved beyond doubt more particularly as he had made a confession to PW.4 which was admissible in evidence as PW.4 was not a police officer. It was also found that the provisions of Section 50 of the Act had been complied with as Ex. P.A., a consent memo, had been drawn up prior to the search. The Trial Court accordingly convicted and sentenced the appellant, as already mentioned above. The conviction and sentence has been confirmed by the High Court.

5. Before us, Mr. Sanjay Jain, the learned counsel for the appellant, has raised primarily two arguments based on the judgments of this Court. The first is Vijaisingh Chandu Bha Jadeja vs. State of Gujarat (2011 (1) SCC 609). In this case it has been observed by the Constitution Bench that the provisions of Section 50 of the Act postulated that before a search was made of a person suspected of carrying a narcotic he should be informed of his right that he had an option of being searched in the presence of a Gazetted Officer or a Magistrate and that merely because a consent memo had been drawn up whereby he had chosen to be searched before the Magistrate or a Gazetted Officer (on the option given to him by an authorized officer) would not