The main legal point established in the judgment is the significance of compliance with Section 50 of the NDPS Act for a lawful search and seizure process, and the inadmissibility of evidence obtained through an illegal recovery.

V.K. Jain, J.

Oral Judgement:

1. The case of the prosecution in nutshell is that on 21.9.2007, when the police officials were present at bus stand Punjabi Bagh, checking buses passing from there, the appellant before this Court got down from the bus. At that time he was carrying a box on his shoulders. An informer who was present on the spot, informed Inspector Ishwar Singh, one of the police officials referred above, that the appellant was going to supply ganja in the jhuggies and the box being carried by him contained ganja. On search of the trunk being carried by the appellant, 21 kg of ganja is alleged to have been recovered. This is also the case of the prosecution that before searching the trunk being carried by the appellant, a notice under Section 50 of NDPS Act was given to the appellant, who stated that he did not want the evidence to be created against him by calling the Magistrate or a Gazetted Officer and, therefore, no such person should be called.

2. Since the appellant pleaded not guilty to the charged framed against him, the prosecution examined as many as eight witnesses. One witness was examined in defence.

3. The complainant Inspector Ishwar Singh came in the witness box as PW1 and inter alia stated that he informed the appellant about his legal right to be searched in presence of a Gazetted Officer or a Magistrate, but he refused to exercise his right. This witness also proved the notice Ex.PW1/A given to the appellant under Section 50 of the Act.

4. The learned trial Judge vide the impugned judgment and order dated 5.4.2010 and 13.4.2010 respectively convicted the appellant under Section 20 of the Act and sentenced him to undergo RI for a period of ten years and to pay a fine of Rs. One lac and in default of payment of fine to undergo RI for two months. Being aggrieved, the appellant is before this Court by way of this appeal.

5. The only contention made by the learned counsel for the appellant is that since the notice purporting to be under Section 50 of the Act was given to the appellant, the said notice ought to have complied with the requirements of Section by intimating the appellant that he had a right to be search in presence of a Magistrate or a Gazetted Officer, but, what he was actually told was that he had an option to get searched in presence of a Gazetted Officer or a Magistrate and, therefore, the appellant did not come to know that it was his legal right to be searched in the presence of a Magistrate or a Gazetted Officer. This is her contention that the aforesaid defect in the notice rendered the recovery to be illegal.

6. The notice given to the appellant is Ex.PW1/A. If translated in English, it would read as under:

“You Rakesh @ Shanker son of Dev Narayan Sharma resident of Village Chiranjivpur PO Fateha, District Begusarai, Bihar are informed that the police party has an information that you have ganja with you in a steel trunk or box and you, therefore, are required to be search. If you so want, some Magistrate or a Gazetted Officer can be called for your search as well as of your box.”

7. In State of Delhi versus Ram Avtar @ Rama [2011(7) Scale 428, the notice given to the respondent in that case reads as under:

“Musami Ram Avtar urf Rama s/o late Shri Mangat Ram r/o 71/144, Prem Nagar, Choti Subzi Mandi, Janakpuri, Delhi, apko is notice ke tehat suchit kiay jata hai ki hamare pas itla hai ki apko kabje me smack hai aur apki talashi amal mein laye jati hai. Agar ap chahen to apki talashi ke liye kisi Gazetted Officer ya Magistrate ka probandh kiya ja sakta hai.”

The High Court, relying upon the decision of the Apex Court in State of Punjab versus Baldev Singh [(1994) 3 SCC 299], held that the aforesaid intimation did not specify the provisions of Section 50 of the Act. It was held that the intimation given to the respondent could not be treated as communicating to him that he had a right under law to be search before the aforesaid authorities and since the recovery itself as illegal,