IMPORTANT POINT
Recovery of Charas – Violation of safeguard provided by Section 50 of NDPS Act, 1985 may vitiate prosecution case.

JUDGMENT :

(Abhay S. Oka, J.)

1. Heard learned counsel for the appellants and learned counsel for the respondent.

2. In the present appeals, the challenge is to the conviction of the appellants for the offences punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “NDPS Act”). The substantive sentence imposed on the appellants is ten years of rigorous imprisonment. The appellants were directed to pay a fine of Rs.1,00,000/- (Rupees One Lakh) and in default of payment of fine, to suffer rigorous imprisonment for two years.

3. It is not in dispute that the appellants have undergone the entire substantive sentence and a sentence for a period of six months in default of the payment of the fine. The High Court has upheld the order of conviction.

4. The first submission made by Mr. Ajit Sharma, learned counsel appointed as Amicus Curiae, is of the violation of the safeguard provided in Section 50 of the NDPS Act. He invited our attention to the evidence of Sanjay Singh (PW-4), a Police Officer who was present at the time of the seizure of the contraband. He also invited our attention to the cross-examination of the said witness in which the witness admitted that a consent letter was already prepared on which the signatures of the appellants were taken. However, he admitted that there is no mention in the consent letters that the appellants were informed that they have a right to say that their body search should be conducted before a Magistrate or a Gazetted Officer.

5. The case of the prosecution is that on the body search of the appellants, packets of charas were found. It is necessary for us to reproduce the relevant part of the cross-examination of Sanjay Singh (PW-4). The same reads thus:

“Consent-letter was prepared before taking search of accused, on which Exhibit Ka-1 is marked. There is no mention in this consent-letter that it is right of accused that they can give their body search before some Magistrate or Gazetted Officer. Recovery of material was made from body of the accused. Recovery was done at public place. There is no other arrest in memo, there is no independent witness, time of arrest is 12.10 O’clock. There is no mention of A.M. or P.M., but incident was of daytime. Information regarding arrival of accused persons from spy has not been mentioned anywhere beside the Memo. No information was done before arrest. Weight of material was done with electronic scale. I reached on police station Dhebrua at 14.55 O’clock. G.D. and F.I.R. was instituted together.” (underlines supplied)

6. Thus, it is an admitted position that in the consent letter, it is not mentioned that the appellants were informed about their right to insist that either a Magistrate or a Gazetted Officer remains present when their body search is conducted.

7. Learned counsel appearing for the appellants read over the consent letter at Exhibit Ka-1 which only records that the appellants had voluntarily agreed to a body search. Thus, the appellants were not informed about their right to be searched before a Magistrate or a Gazetted officer.

8. In view of the law laid down by a Constitution bench of this Court in Vijaysinh Jadeja vs State of Gujarat, (2011)1 SCC 609, it is crystal clear that there was a violation of the safeguard provided by Section 50 of the NDPS Act. In paragraphs 24 and 29 of its decision, the Constitution Bench held thus:

“24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudi