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CALCUTTA HIGH COURT
Satyabrata Sinha, G.R. Bhattacharjee & D.P. Sengupta, JJ.
Jadunandan Roy – Appellant
Vs.
The State of W.B. – Respondent
Cr. A. No. 193 of 1994
Decided On : October 13. 1999
Whether search of person shall be conducted in presence of Gazetted Officer or Magistrate - conditions under which search of person shall be conducted - mandatory provision of section 50 of NDPS Act not complied with - conviction cannot be sustained.
Fact of the Case:
The appellant was convicted under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of 13 sticks of charas. The prosecution case was that the appellant was intercepted at Howrah railway station platform No. 9 after the "Down Mithila Express" arrived and passengers were coming out of its compartments. On search, in presence of P.W.4 who is a Gazetted officer, 13 sticks of "charas" were recovered from the person of the appellant.
Finding of the Court:
The court held that the mandatory provision of section 50 of the NDPS Act was not complied with as the appellant was not informed about his valuable right to be searched in presence of a Gazetted Officer or a Magistrate, nor he was given any option to be searched in presence of such Gazetted Officer or a Magistrate. The court further held that mere presence of a Gazetted Officer in the raiding party is not sufficient compliance of section 50 of the Act. For strict compliance of section 50 of the Act a search must be conducted in presence of a Magistrate or a Gazetted Officer who is totally independent and is not in any way interested in the success of the raid.
Issues: Whether search of person shall be conducted in presence of Gazetted Officer or Magistrate - conditions under which search of person shall be conducted - mandatory provision of section 50 of NDPS Act not complied with - conviction cannot be sustained.
Ratio Decidendi: The court held that the mandatory provision of section 50 of the NDPS Act was not complied with as the appellant was not informed about his valuable right to be searched in presence of a Gazetted Officer or a Magistrate, nor he was given any option to be searched in presence of such Gazetted Officer or a Magistrate. The court further held that mere presence of a Gazetted Officer in the raiding party is not sufficient compliance of section 50 of the Act. For strict compliance of section 50 of the Act a search must be conducted in presence of a Magistrate or a Gazetted Officer who is totally independent and is not in any way interested in the success of the raid.
Final Decision: The appeal was allowed and the appellant was acquitted of the charges framed against him.
S.B. Sinha, ACJ.: Reference to this Bench has been made by one of us (G. R. Bhattacharjee, J) by an order dated 5.3.1999 as His Lordship doubted the correctness of the decision of a Division Bench of this Court in Ajoy Srivastava vs. State of West Bengal, reported in 1998 Cal. Cri. L. R. 417 opining that the search in presence of a Gazetted Officer would be in substantial compliance of the requirements laid down in section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985.
2. The case at hand raises a question as regard interpretation of section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the said Act'). The provisions which are relevant for decisions in this case are as follows :
"S.41. Power to issue warrant and authorization-(1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed.
(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence of any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to be live from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter-IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42.
42. Power of entry, search, seizure and arrest without warrant or authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being in officer superior in rank to a peon, sepoy of constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that. any Narcotic Drug or Psychotropic Substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concea
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