Delhi High Court
Surinder Singh vs The State (Delhi Admn.) on 21 August, 1997
Equivalent citations: AIR1998DELHI140
JUDGMENT Anil Dev Singh, J.
1. The appellant has been convicted under section 15 of the N.D.P.S. Act (for short 'the Act') by Shri Kuldip Singh, Additional Sessions Judge, vide his order dated January 19,1993. By a subsequent order dated January 20, 1993 the petitioner has been sentenced to undergo ten years rigorous imprisonment and has been directed to pay a fine of Rs.1,00,000/-.
2. On December 9, 1989 at about 4.35 P.M. the appellant was intercepted at the I.S.B.T. by the Investigating Officer SI Ram Sewak (PW-5), ASI Om Prakash and Constables Raj Pal and Rameshwar. On the search of the petitioner he was found in possession of 30 kgs. of poppy powder.
3. This appeal raises a short point. The question to be determined is whether the petitioner was given notice under section 50 of the Act before his search was effected by the Investigating Officer. The learned Additional Sessions Judge has held that the prosecution was able to prove that a notice under section 50 of the Act was given to the appellant.
4. Learned counsel for the appellant submits that the finding of the learned Additional Sessions Judge is against the material on record. I have gone through the evidence on record. PW-3 Constable Rameshwar Singh stated that the accused was asked if he would like to be taken before a Gazetted Officer in connection with his search. PW-3 does not say that the appellant was informed by the Investigating Officer that he could be searched before a Magistrate as well. He no where states that any written notice under section 50 of the Act was given to the appellant. The witness merely talked of an oral limited option not in confirmity with the provisions of section 50 of the Act. On the other hand, PW-5 SI Ram Sewak and PW-8 Vishwa Nath deposed to the effect that a notice under section 50 of the Act was given but the same was torn by the appellant. If that was so, a question arises as to why the torn pieces of the notice were not produced at the trial. It is the duty of the prosecution to prove beyond reasonable doubt that the provisions of section 50 of the act were complied with by the Investigating Officer before conducting the search of the accused. In case a notice in accordance with section 50 of the Act was given to the appellant there was no reason why PW-3 Constable Rameshwar Singh failed to state that a written notice was given to the appellant. Rather he referred to a partial oral option given to the appellant. Thus, on this point there is a serious contradiction between the statement of PW-3 on the one hand and PW-5 and PW-8 on the other which makes the claim of the prosecution to have given a notice in conformity with section 50 of the Act doubtful. Therefore, in my view the prosecution has failed to prove that the Investigating Officer before the search of the appellant gave a notice in accordance with the provisions of section 50 of the Act. If the prosecution fails to establish the compliance with the mandatory provisions of section 50 of the Act, then the benefit of non-compliance must go to the accused. The Supreme Court in the case of State of Punjab Vs. Balbir Singh, , has held that under section 50 of the Act a duty is cast upon the officer about to make a search of the accused to intimate to him that if he so requires he would be taken before the nearest Gazetted Officer or the nearest Magistrate for the purpose of making search in their presence. In this regard, the Apex Court has laid down as under:-
"One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised officer while conducting the search, affects the prosecution case. The said provision (Section 50) lays down that any officer duly authorised under Section 42, who is about to search any person under the provisions of Sections 41, 42 and 43, shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest magistrate and if such requisition is made by the person to be searched, the concerned authorised officer can detain him until he can produce him before such gazetted officer or the magistrate. After such production, the gazetted officer or the magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that search be made. To avoid humiliation to females, it is also provided that no female shall be searched by anyone except a female. The words "if the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a gazetted officer or a magistrate and thereafter the search would be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a gazetted officer or a magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a gazetteer officer or a magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of is right."
5. In Saiyad Mohd. Saiyad Umar Saiyed & others Vs. The State of Gujarat, , the Supreme Court held that it is imperative on the part of the officer about to make a search of an accused to inform the person to be searched of his right under section 50 of the Act. It has been further held that cogent evidence has to be produced by the prosecution to show that the accused was made aware of such a right otherwise the presumption under section 114, Illustration (e), of the Evidence Act will not come to the rescue of the prosecution.
6. In view of the above said discussion, the conviction and sentence of the appellant as recorded by the learned Additional Sessions Judge by his above said orders is set aside.
Accordingly, the appellant is acquitted of the charge u/s 15 of the N.D.P.S. Act and is directed to be released forthwith in case he is not needed in connection with some other case.
An intimation of this order be sent to the Superintendent, Central Jail, Tihar, New Delhi.