Sahi Ram vs State on 5 August, 2016

[Cites 29, Cited by 0]

Rajasthan High Court - Jodhpur

Sahi Ram vs State on 5 August, 2016

Bench: Pankaj Bhandari

                                     1

     IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       AT JODHPUR

                         :: JUDGMENT :

S.B. CRIMINAL APPEAL NO.357/2015 Amba Lal Vs. The State of Rajasthan S.B. CRIMINAL APPEAL NO.456/2015 Baluram Vs. State of Rajasthan S.B. CRIMINAL APPEAL NO.455/2014 Sunil @ Arvind Vs. State of Rajasthan S.B. CRIMINAL APPEAL NO.915/2015 Sahi Ram Vs. The State of Rajasthan Date of Judgment : 05th August, 2016 P R E S E N T HON'BLE Mr.JUSTICE PANKAJ BHANDARI Mr.M.L.Bishnoi, Mr.B.Ray Bishnoi and Mr.Gaurav Ratnawat with Mr.R.S.Gill for the appellants. Mr.M.R.Pareek for NCB.

Mr.L.R.Upadhyay, Mr.O.P.Rathi PP for the State.

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1. The office was directed to permit all lawyers to give list of the cases, which they considered to be under the category, where provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') have not been complied with, and to list the same. In compliance thereof, these cases have come up before this Court.

2. Counsel for the appellants have placed reliance on Vijaysinh Chandubha Jadeja Vs. State of Gujarat, AIR 2011 SC 77, wherein the 2 Constitutional Bench of the Hon'ble Apex Court was dealing with the duty cast upon a Magistrate under Section 50 of the NDPS Act. The Apex Court in para 22 concluded as under:-

"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-

section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re: Presidential Poll, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to 3 the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance"

with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (2000 Cri LJ 3485) (supra) and Prabha Shanker Dubey (AIR 2004 SC 486) (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (1999 Cri LJ 3672) (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. If would neither be possible nor feasible to lay down any absolute formula in that behalf.

We also feel that though Section 50 gives option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and credit- worthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.

3. In Dilip Vs. State of M.P., (2007) 1 SCC 450, the Apex Court observed that since contraband 4 was recovered from scooter provisions of Section 50 might not have been required to be complied with so far as the search of scooter was concerned, but, keeping in view the fact that the person of the appellants were also searched, it was obligatory on the part of the officers to comply with the provisions of Section 50 of the NDPS Act.

4. In State of Rajasthan Vs. Parmanand & Anr. (2014) 5 SCC 345, the Apex Court in paras 15 & 19, observed as under:-

"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag is carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.

19. We also notice that PW 10 SI Qureshi informed the respondent that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be 5 searched before PW 5 J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S.Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated."

5. In Suresh Vs. State of M.P., 2012 R.Cr.D 611 (SC), the Court held that non-compliance of Section 50 of the NDPS Act would vitiate the conviction. Accused should be apprised of their legal rights.

6. Learned Public Prosecutor has placed reliance on Dehal Singh Vs. State of H.P., AIR 6 2010 SC 3594, wherein Apex Court has held that search of person under Section 50 does not include search from bag, briefcase, container etc. In Man Bahadur Vs. State of H.P., AIR 2009 SC 369, wherein it has been held that Section 50 applies when search is of person of accused, it has no application when seizure is from place inside house. In State of Rajasthan Vs. Balbir Khan, AIR 2009 SC 2642, it has been held that where recovery was from bags carried by appellant, plea that there was violation of Section 50 was held to be not tenable.

7. In the backdrop of the above, this Court would be dealing with facts of each appeal. Criminal Appeal No.357/2015(Amba Lal Vs. The State of Rajasthan) and Criminal Appeal No.456/2015 (Baluram Vs. State of Rajasthan):

8. These two appeals arise out of the judgment and sentence dated 31.03.2015 passed by the learned Special Judge, NDPS Act Cases, Pratapgarh in Sessions Case No.25/2010. Since both these appeals arise out of a common order, they are being dealt with together.

9. In brief, the facts of the case are that on 09.04.2010 at 2:00 p.m., Sub-Inspector Praveen Tak, SHO Rathanjana Police Station received a secret information that Amba Lal and Balu Ram have kept their Ford Icon car bearing registration No.RJ 27 CA 3034 in a remote place behind newly constructed Primary Health Centre, Bardia. The informant also informed that both the accused are 7 collecting opium from the villagers and are storing it in the car. Upon this information, the investigating officer after completing the formalities proceeded to the place where the vehicle was parked, witnesses were arranged for.

10. In the vehicle, a person was seen sitting on the driver seat. At that time, a motorcycle came near the car. The person driving the motorcycle was having a bag on his lap. The motorcycle driver gave the bag to the driver of the car. On seeing the police party, the motorcycle rider sat beside the driver of the car and tried to flee in the car. The name of the driver was accused-appellant Amba Lal and the person sitting beside him, was accused-appellant Balu Ram. Separate notices under Section 50 of the NDPS Act were given to both of them and the accused were informed that if they require, their search can be arranged before a magistrate or a gazetted officer. If they agree, the search could be conducted by the SHO. 15 kgs. of opium was recovered from beneath the driver seat and Rs.4,00,000/- was also recovered from accused Amba Lal. From under the seat of Balu Ram, a bag was recovered, which was containing 15 kgs. of opium.

11. After due investigation, challan was filed against the appellant and two other accused, and they were charged under Section 8/15 of the NDPS Act. The learned trial court, after recording the evidence of the witnesses, vide impugned 8 judgment, convicted the appellant under Section 8/15 of the NDPS Act. The court sentenced the present appellants with 20 years rigorous imprisonment and fine of Rs.10,00,000/- was also imposed, on non-payment of which, the appellants were to undergo further rigorous imprisonment of three years.

12. Aggrieved by the judgment and sentence passed against them, the appellants have preferred separate appeals.

13. The contention of the counsel for the appellants is that there is non-compliance of Section 50 of the NDPS Act. Section 50 of the NDPS Act, for ready reference, is being reproduced hereunder:-

"50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 of section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring home before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge 9 the person but otherwise shall direct that search be made.

    (4)    No female shall be searched by
    anyone excepting a female.
    (5)    When an officer duly authorised

under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Civil Procedure, 1973.

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

14. The thrust of the argument of the counsel for the appellants is that sub-section (1) of Section 50 provides that any officer duly authorised under Section 42 is required to take such person without delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest magistrate. It is contended that Section 50 nowhere provides for giving of an option by the investigating officer to the accused to be searched by the investigating officer, who himself happens to be a gazetted officer.

15. The attention of this Court has been drawn to State of Rajasthan Vs. Parmanand & Anr., (2014) 5 SCC 345, wherein while dealing with sub- section (1) of Section 50, the Apex Court has observed that the investigating officer could not have given a third option to the respondents when sub-section (1) of Section 50 of the NDPS Act does not provide for it, and if such option is given, the search conducted is vitiated, and the conviction of the respondents cannot be sustained.

16. Learned Public Prosecutor, on the other hand, has contended that commercial quantity of opium has been recovered from the possession of the appellants and on technical grounds, the order of conviction cannot be set aside. It is also contended that Section 50 of the NDPS Act would not be applicable as seizure is not from person of the accused but is from the car.

17. I have considered the rival contentions of the counsel for the parties.

18. It will be appropriate to deal with the evidence, which has been produced before the court with regard to the search.

19. PW-3 Kamal Chand, who accompanied the SHO, has stated that the accused-appellants were informed that if they wanted, they can be taken to the nearest magistrate and if they wish, the search can be conducted by the SHO himself. The accused appellants agreed to the search being conducted by the SHO.

20. PW-23 Praveen Tak, SHO, who has conducted the raid and search, has stated that he informed the accused that if they wish, they can be taken to the nearest magistrate or gazetted officer, or they can also be brought to that place. The third option of having the search conducted by he investigating officer himself was also given to the accused. The witness has further stated that on receipt of the consent from the accused appellant, search of Amba Lal, who was sitting on the driver seat, was conducted. Thereafter, from beneath of the driver seat, a bag was recovered, which was carrying 15 kgs. of opium. From the bag, Rs.4,00,000/- were also recovered. Thereafter, Balu Ram was searched and from his personal search, nothing was recovered. From beneath the seat of the car where he was sitting, a bag was recovered, which was also containing 15 kgs. of opium.

21. Ex.P.23 and Ex.P.24 are the notices under Section 50 of the NDPS Act given to accused Amba Lal and Balu Ram respectively. In both these notices, the option of getting the search conducted by the SHO is clearly mentioned. The relevant portion of which reads as under:-

^^vkidh tkek ryk'kh o vkids dCts'kqnk dkj dh ryk'kh yh tkuh gS vkidks ;g dkuwuh vf/kdkj gS fd mDr ryk'kh vki fdUgh fudVre eftLVªsV ;k l{ke jktif=r vf/kdkjh ds le{k fy;s tk ldrs gSa mUgsa ;gkWa cqykus dh O;oLFkk Hkh dh tk ldrh gS ;k vkidks muds ikl ysdj pywA vxj vki 12 pkgs rks mDr ryk'kh eq> ,l ,p vks izoh.k Vkd Fkkuk [kkatuk ls Hkh fyok ldrs gSA vr% mDr ryk'kh ckcr vki viuh lgerh izdV djsA^^

22. Thus, from a bare perusal of the evidence and the documents Ex.P.23 and Ex.P.24, it is evident that three options were given to the accused-appellants. Sub-section (1) of Section 50 of the NDPS Act does not provide for giving of the third option as held in State of Rajasthan Vs. Parmanand (supra).

23. State of Rajasthan Vs. Parmanand & Anr. (supra) was a case where the Sub Inspector Kureshi told the respondents-accused that he had to conduct their search. They were told about the provisions of Section 50 of the NDPS Act and they were also told that under sub-section (1) of Section 50 of the NDPS Act, they had a right to get their search in the presence of any nearest magistrate or any gazetted officer, or in the presence of Superintendent J.S. Negi of the raiding party. One written notice to that effect was given to them. On this notice, the appellants gave their consent in writing in Hindi, that they are ready to get themselves searched by Sub Inspector Kureshi in the presence of Superintendent J.S. Negi.

24. The Hon'ble Supreme Court in State of Rajasthan Vs. Parmanand (supra) at para 19 held as under:-

"19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S.Negi, the Superintendent, who was part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S.Negi by PW- 10 SI Qureshi. This, in our opinion, is again a breach of Section 50 of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S.Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S.Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50 of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50 of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated."

25. The Hon'ble Apex Court in State of Punjab Vs. Balvinder Singh, (1994) 3 SCC 299, has held 14 that Section 50 of the NDPS Act is mandatory and non-compliance thereof would vitiate the trial.

26. In State of Punjab Vs. Balvinder Singh (supra), the Hon'ble Supreme Court held that Section 50 of the NDPS Act is mandatory and non- compliance thereof would vitiate trial. In State of Himachal Pradesh Vs. Pirthi Chand, (1996) 2 SCC 37, the Hon'ble Apex Court held that breach of Section 50 does not affect the trial. There were divergent views on this aspect and, therefore, a reference was made to the Constitution Bench. Out of the three questions of law, which the Constitution Bench dealt with in State of Punjab Vs. Balvinder Singh (supra), the question which is relevant for the present case is whether it is the mandatory requirement of Section 50 of the NDPS Act that when an officer duly authorized under Section 42 of the NDPS Act is about to search a person, he must inform him of his right under sub- section (1) thereof of being taken to the nearest gazetted officer or nearest Magistrate. The conclusions drawn by the Constitution Bench, which are relevant for the case, are as under:-

"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 persons concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.

3. That a search made by an empowered officer, in prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act."

27. In the present cases alike facts of State of Rajasthan Vs. Parmanand (supra), the third option has been given in the notice given under Section 50 itself and the search has also been conducted by the SHO, who himself has received the information. No endeavour has been made by the Station House Officer to produce the suspect before the nearest magistrate or the gazetted officer. He has also not been informed about his valuable right that if the magistrate or the 16 gazetted officer do not find any reasonable grounds for search, they can discharge the accused forthwith. There being a violation of the mandatory provisions of Section 50 of the NDPS Act, the impugned judgment cannot be sustained.

28. The contention of counsel for the State that recovery is not from person therefore Section 50(1) would not apply in view of Dehal Singh Vs. State of H.P. (supra) and Man Bahadur Vs. State of H.P. (supra) has no force since in the present case, personal search was also conducted thus the case is covered by Dilip Kumar Vs. State of M.P., (2007) 1 SCC 450 and State of Rajasthan Vs. Parmanand (supra).

29. In Dilip Kumar Vs. State of M.P., (supra), heroine was recovered from bag, then personal search was conducted. The Apex Court held that if compliance of Section 50 of the NDPS Act has not been done, the accused is entitled to acquittal.

30. The learned trial court has overlooked these important flaws in the prosecution case.

31. Consequently, the impugned judgment deserves to be set aside and the appellants deserve to be acquitted. The appellants, if in custody, are directed to be released forthwith if not required in any other case. Each of the appellants to furnish personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each to the satisfaction of the trial court in compliance of 17 Section 437A Cr.P.C.

Criminal Appeal No.915/2015 (Sahi Ram Vs. The State of Rajasthan):

32. The accused-appellant Sahi Ram has preferred this appeal aggrieved by the judgment and sentence dated 19.08.2015 passed by the learned Special Judge, NDPS Act Cases, Sri Ganganagar in Sessions Case No.33/2011, whereby the learned trial court has convicted the accused- appellant under Section 8/18 of the NDPS Act and has sentenced him to undergo 14 years rigorous imprisonment and fine of Rs.1,50,000/-, and on non-payment to undergo further rigorous imprisonment for one year.

33. The factual matrix of the case are that on 24.06.2011, Richhpal Singh, SHO, Police Station, Suratgarh, District Sri Ganganagar received an information from the informant that the accused is having opium in a plastic bag and standing on the east gate of Bus Stand, Suratgarh. Notice under Section 50 of the NDPS Act was given to the accused, upon which he gave his consent to get himself searched from the seizure officer. As the accused was illiterate, a note was appended by an independent witness, Suraj Sharma and the accused put his thumb impression on the same. On search, a bag was found to contain 6 kg. 710 gms. of opium.

34. After investigation, challan was filed 18 against the present appellant. As many as 13 witnesses were produced on behalf of the prosecution and 36 documents were exhibited. Statement of the accused appellant was recorded under Section 313 Cr.P.C. in which he stated that he was illiterate and no notice was read over to him. The learned trial court after hearing the arguments convicted the appellant under Section 8/18 of the NDPS Act, aggrieved by which the present appeal has been preferred.

35. The contention of the counsel for the appellant is that notices under Section 50 and Section 52 of the NDPS Act were not read over to the accused. Admittedly, the accused is an illiterate. Therefore, the fact that the contents of the notices were read over to the accused, should have been mentioned in Ex.P.2 and Ex.P.4. It is also argued that the accused was not informed about the provisions of sub-section (3) of Section 50 of the NDPS Act. He was not intimated that if the magistrate or the gazetted officer, before whom he is taken, do not find any reasonable ground for search, they can forthwith discharge him. It is further argued that the notices given under Section 50 were not recovered from the possession of the accused when he was arrested. The other contention of the counsel for the appellant is that the site plan was not prepared on the same day.

36. Contra Public Prosecutor has contended 19 that the learned trial court has rightly held the appellant guilty and the sentence does not call for any interference. It is also contended that notice under Section 50 was not necessary as the search was made from the bag, which the appellant was carrying and that was not a search in person.

37. I have considered the rival contentions of the counsel for the parties.

38. PW-12 Richhpal Singh, who has received the information and has conducted the search, has admitted that the notices Ex.P.2 under Section 50 and Ex.P.4 under Section 52 of the Act were given to the appellant. It is also admitted that it has not been mentioned in the notices that the notices were read over and explained to the accused, and thereafter, he signed the same. In Ex.P.2, the following is mentioned "(A to B)":

^^eSaus uksfVl lqu o le> fy;k gS eSa esjh ryk';kh vkils djokus esa lger gwWa eSa i<+k fy[kk uk gksus ds dkj.k viuh lgefr LorU= O;fDr lwjt 'kekZ ls viuh bPNk ls fy[kok jgk gwWaA^^

39. Suraj Sharma, who has been examined as PW-1, has turned hostile. He, in his cross- examination, has admitted that Ex.P.1 to Ex.P8 were signed by him at the police station, and the noting "A to B" on Ex.P.2 and Ex.P.3 was done by him, as directed by the police. This witness has stated that he does not recognize the accused and has not seen him prior to that date.

40. The other witness, Rakesh Kumar PW-2, in whose presence the notice under Section 50 was given, has also been declared hostile by the prosecution.

41. PW-11 Rajesh Kumar has admitted that both these witnesses were not residents of the locality. He has also admitted that the site plan was not prepared on the same day.

42. PW-12 Richhpal Singh has also admitted that the personal search of the accused was also conducted. The witness has admitted that in the recovery memo Ex.P.8, FIR Ex.P.28, and in his police statement Ex.D.7, it is not mentioned that the accused-appellant was informed that if he wishes, his search can be conducted before a magistrate or a gazetted officer.

43. Considering the fact that the accused is an illiterate, it was the bounden duty of the seizure officer to have informed the accused of the valuable rights available to him under Section 50 of the NDPS Act. Both the independent witnesses have turned hostile and it is not mentioned in the notices under Section 50 and Section 52 of the NDPS Act, which have been exhibited as Ex.P.2 and Ex.P.4, that the contents of the notices were read over and explained to the accused-appellant, and that he has put his thumb impression on the same, after understanding the contents thereof.

44. It is also important to note that PW-12 Richhpal Singh has not mentioned that the accused 21 was informed of the provisions of sub-section (3) of Section 50 of the NDPS Act. Notice given under Section 50 was not recovered from the possession of the accused-appellant and thus, it is clear that he was not informed of the valuable rights available to an accused under Section 50 of the NDPS Act.

45. As per the judgment delivered by the Hon'ble Apex Court in 2011 Cr.L.R. 545 (supra), it is the bounden duty of the seizure officer to inform the accused of his option and endeavour should have been made by the prosecuting agency to produce the suspect before the nearest magistrate or the gazetted officer. The accused being illiterate, it was all the more necessary that he should have been informed about his right to get the search conducted before the magistrate or gazetted officer, and a heavy duty was cast upon the prosecuting agency to produce him before a magistrate, as he was not aware as to on what documents his thumb impressions were taken, being an illiterate. Since both the independent witnesses to the notices under Section 50 and Section 52 have turned hostile, and they have stated that these documents were got signed in the police station, therefore, these documents do not establish compliance of Section 50 of the NDPS Act.

46. Since PW-1 Suraj Sharma has stated that 22 on Ex.P.2 and Ex.P.3, he has put his noting upon being asked by the police personnel and he has even failed to recognize the present appellant, the contents of Ex.P.2 and Ex.P.3 cannot be considered to be a consent given by the present appellant, for having himself searched by the seizure officer.

47. PW-12 Richhpal Singh, in his examination- in-chief, has stated that the notice under Section 50 of the NDPS Act was given to the accused. The accused stated that he is illiterate and stated that he is ready to get himself searched by the seizure officer. The witness has only stated that a notice was given. He has not stated that the accused was orally informed that if he wants he can be produced before a magistrate or a gazetted officer. This witness has also not stated that he informed the accused about his right under sub- section (3) of Section 50 of the NDPS Act.

48. The prosecution has utterly failed to establish that the contents of the notice under Section 50 were read over and explained to the accused. The prosecution has also failed to establish that the protection provided under sub- section (3) of Section 50 of the NDPS Act, was also explained to the accused. That being so, it is a clear case where there is non-compliance of the provisions of Section 50 of the NDPS Act, as has been held by the Constitution Bench of the Hon'ble Apex Court in State of Punjab Vs. 23 Balvinder Singh (supra), (1999) 6 SCC 172.

49. The learned court below while dealing with the provisions of Section 50 of the NDPS Act, placing reliance on State of Himachal Pradesh Vs. Pawan Kumar, (2005) 4 SCC 350, has concluded that since search was not from the person of the accused, the provisions of Section 50 of the NDPS Act do not apply.

50. In Dilip Kumar Vs. State of M.P., (2007) 1 SCC 450, heroine was recovered from bag, then personal search was conducted. The Apex Court held that if compliance of Section 50 of the NDPS Act has not been done, the accused is entitled to acquittal.

51. In the present case in hand, Ex.P.2 is the notice given under Section 50 of the NDPS Act, wherein, it is mentioned that, "म र छप ल स ह, SHO PS तगढ़ क आपक प म दक पद र अफ म ह न क चन मझ मखब! ख़ समल# ह$ ! ज& ! !त आपक तल श( ल# & न( ह$ !".

Thereafter, in Ex.P.3 also, it is mentioned that "म र छप ल स ह SHO PS तगढ़ क &र य मखब! चन समल# ह$ क आपक प म दक पद र अफ म ह$ , आपक तल श( ल# & न( ह$ !". In notice under Section 52 of the NDPS Act, which is Ex.P.4, it is mentioned that "आपक कब+ 6 ककल 710 24 ग म अव$ध अफ म ! मद हई ह$ !". Similarly, in the arrest memo Ex.P.5, it is mentioned that, "& म तल श( ल# गई त ! मद अफ म व पहन हय प शच त क अल व उ क पहन( शर क &! १९६० रपय नगद व ददए गय न दर 52 NDPS Act क क !न पतत, व पर क ! य( &! म@ म ! इल न ककय 2626 ज& म BSNL क स म ह$ , गल म@ च द# क त !(+, ! य@ ह र क अगल# म@ एक अगठF प(ल ध त समल#, न दर क उ क &! म@ ह# हन ददय गय , व असGयकत क प समल!". Thus, this is a case where in the notice itself, the SHO informed the accused that as per his information, the accused is having opium with him and that he is to be searched. In Ex.P.3 also similar noting was made. In the notice given under Section 52 of the NDPS Act, recovery of 6 kgs. 710 gms. of opium has been made from the possession of the accused, was mentioned. In the arrest memo Ex.P.5 also, it is mentioned that the accused was arrested and from his possession, alongwith opium, some cash and notice under Section 52 of the NDPS Act was recovered. It is no doubt true that Section 50 would apply only in the matters where there is personal search and when there is recovery from some container, bag or brief case, Section 50 of the NDPS Act would not be 25 applicable.

52. As per the documents referred hereinabove, it is apparent that on personal search, the contraband is said to have been recovered. Thus, the decision in Dilip Kumar Vs. State of M.P., (2007) 1 SCC 450 would be applicable in this case, and thereby, the compliance of Section 50 of the NDPS Act becomes mandatory. The learned court below has failed to appreciate the contents of the documents Ex.P.2 to Ex.P.5.

53. The failure to inform the accused, who is an illiterate person, about existence of his right to be searched before a magistrate or a gazetted officer, has caused prejudice to the accused, and therefore, the accused-appellant is entitled to acquittal.

54. Consequently, the present appeal is allowed. The impugned judgment and sentence passed against the accused-appellant is set aside. The appellant is acquitted of the offences, he has been charged with. The appellant, if in custody, is directed to be released forthwith if not required in any other case. The appellant to furnish personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each to the satisfaction of the trial court in compliance of Section 437A Cr.P.C.

Criminal Appeal No.455/2014 (Sunil @ Arvind Vs. State of Rajasthan):

55. The appellant has preferred this appeal aggrieved by the judgment and sentence dated 27.05.2014 passed by the learned Special Judge, NDPS Act Cases No.2, Chittorgarh in Sessions Case No.7/2014 (43/2009), whereby the court has convicted the appellant under Sections 8/15 and 8/18 of the NDPS Act.

56. The factual matrix of the case are that on 25.03.2009, Mithulal, SHO, Bhadsoda received an information that Prakash @ Pappu Bishnoi and Sunil Bishnoi would be carrying poppy husk in red maroon coloured Scorpio Jeep bearing registration No. GJ 10 T 8587. As the secret information was reliable, the information was noted in Roznamcha and the information of which was given to the senior officers. Thereafter, barricading was done and the red maroon coloured Scorpio Jeep was stopped. Sunil was driving the vehicle and Prakash @ Pappu was sitting beside him. Notice under Section 50 of the NDPS Act was given to both of them. 3 kgs. 500 gms of opium and 15 bags containing 335 kgs of poppy husk were recovered. The challan was filed against the accused persons. The accused denied charge, on which the prosecution examined 27 witnesses. As many as 45 documents were exhibited on behalf of the prosecution. The statements of the accused were recorded under Section 313 Cr.P.C. No defence evidence was produced on behalf of the appellant.

57. The trial court, after considering the 27 arguments, has convicted the present appellant under Sections 8/15 and 8/18 of the NDPS Act and for both the offences has sentenced him to undergo 12 years rigorous imprisonment and fine of Rs.1,20,000/- has been imposed upon him, on non- payment of which to undergo further one year's rigorous imprisonment. The court has directed that the sentence will run concurrently. Aggrieved by which the present appeal has been preferred.

58. The contention of the counsel for the appellant is that the provisions of Section 50 of the NDPS Act have not been complied with. The third option of getting the search done by the seizure officer has been given, which is in violation of Section 50 of the NDPS Act. In this regard, reliance has been placed on State of Punjab Vs. Balvinder Singh, (1994) 3 SCC 299.

59. The contention of the counsel for the appellant further is that mudda maal have not been produced before the court in the self same condition. The attention of this Court has been drawn towards the statement of PW-27 Mithulal, relevant portion of which reads as under:-

^^uksV%& tks dqfy;k cksjs tIr fd;s oks la[;k esa 15 gS tks ckn uequk fudkys tkus ds i'pkr~ Fkkus ls U;k;ky; ifjlj esa yk;s x;s gS tks {kfrxzLr voLFkk esa gS ftl ij dksbZ lhy phV ugha yxh gqbZ gS vkSj ekdZ Hkh ugha gS o mlesa ls MksMk pqjk fudy jgk gSA tks vkfVZdy 34 ls 48 gS ftu ij dksbZ phV 28 ugha fpidh gqbZ gSA ;s ogh cksjs gS tks eSaus eqyfte ls tIr fd;s FksA^^

60. The attention of this Court has also been drawn towards Ex.P.8, which has been given to the present appellant-Sunil, wherein following has been mentioned:-

^आपक व आपक कब& शद &(प सक रपय क तल श( लन( ह$ ! vki mDr ryk'kh fdlh fudVre eftLVªsV ;k fdlh jktif=r vf/kdkjh ls fyokuk pkgrs gks rks mudks cqykus dh O;oLFkk dh tk ldrh gSA vxj vki pkgs rks ;g ryk';kh eu~ ,l ,p vks feB~Bwyky ls Hkh fyok ldrs gSA ;g vkidk dkuquh vf/kdkj gSA^^

61. The contention of the learned Public Prosecutor is that on the secret information, commercial quantity of poppy husk and opium has been recovered and minor discrepancies should be overlooked and the conviction order passed by the learned trial court deserves to be upheld.

62. I have considered the arguments advanced before me.

63. From the statement of PW-27 Mithulal, it is explicitly clear that the articles 34 to 48 produced before the court were not having chits and seals. This witness, in his cross-examination, has admitted that articles 34 to 48 do not have any mark so as to establish that the articles 29 seized pertain to the present case. Thus, it is a case of non-production of mudda maal before the court in the self same condition and is covered by the judgment in the cases of Jitendra & Ors. Vs. State of Madhya Pradesh 2003-2004 Cr.Law Reporter SC (Suppl.) 699., Noor Agha Vs. State of Punjab & Ors., AIR 2009 SC (Supp.) 852, Ashok @ Dangra Jaiswal Vs. State of M.P. AIR 2011 SC 1335 and Alladin Vs. State of Rajasthan, 2016 (1) Cr.L.R. (Raj.) 521.

64. As far as non-compliance of Section 50 of the NDPS Act is concerned, from a perusal of Ex.P.8 notice given under Section 50(1) of the NDPS Act, it is clear that the accused was informed that if he wishes, he can be taken to a nearest magistrate or a gazetted officer, and if he wishes, he can get his search done before the SHO Mithulal. Thus, it is a clear case where the third option has been given to the accused- appellant. Section 50(1) of the NDPS does not provide for giving of third option, as has been held in State of Rajasthan Vs. Parmanand & Anr., (2014) 5 SCC 345.

65. In State of Rajasthan Vs. Parmanand & Anr. (supra), the Hon'ble Apex Court has held that if third option is given, which is against the provisions of Section 50 of the NDPS Act and the accused is entitled to acquittal.

66. The learned trial court has ignored the ground of non-production of muddamaal on the 30 ground that the samples and 15 bags have been produced.

67. To my mind, it was the bounden duty of the prosecution to produce the muddamaal in self same condition, producing of articles without seal, chits and marks and the admission of PW-27 Mithulal that the articles 34 to 48 produced in Court were not having any marks to establish that they were of this case, was sufficient to conclude that the muddamaal was not produced in the self same condition. The learned trial court has also not considered that third option was given by the SHO in notice given under Section 50 of the Act.

68. In totality, there has been violation of sub-section (1) of Section 50 of the NDPS Act and the benefit is bound to go to the appellant. Further the mudda maal seized from the appellant have not been produced before the court in the self same condition and therefore, the entire seizure is not established.

69. Consequently, the appeal deserves to be allowed and the sentence and conviction passed against the appellant under Sections 8/15 and 8/18 of the NDPS Act deserves to be set aside. The appellant, if in custody, is directed to be released forthwith if not required in any other case. The appellant to furnish personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each 31 to the satisfaction of the trial court in compliance of Section 437A Cr.P.C.

In the result the appeals bearing nos. 357/2015,456/2015,455/2014,915/2015 are allowed. The sentence and conviction passed against the appellants are quashed and set aside. The appellants if are in custody are directed to be released forthwith if not required in any other case. The appellants shall furnish personal bond of Rs. 50,000/- each with two sureties of Rs. 25,000/- each to the satisfaction of the learned trial court in compliance of Section 437-A within the period of two months.

(PANKAJ BHANDARI), J.

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