Delhi High Court
Azeem Hussain vs State Of Delhi on 23 November, 2009
Author: V. K. Jain
Bench: V.K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.492/1999
Reserved on: 28th October, 2009
% Date of Decision: 23rd November, 2009
# AZEEM HUSSAIN ..... Appellant
! Through: Mr. K.B. Andley, Sr. Adv.
with Mr.Shamikh, Adv.
Versus
$ STATE OF DELHI ..... Respondent
^ Through: Mr. R.N. Vats, APP
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
: V.K. JAIN, J.
1. This is an appeal against the Judgment dated 9th August, 99 and Order On Sentence dated 11th August, 1999, whereby the appellant was convicted under Sections 21 of NDPS Act and was sentenced to undergo RI for 10 years and to pay a fine of Rs. 1,00,000/- or to undergo RI for 1 year in default of payment of fine.
2. The case of the prosecution, in brief, is that on 13.6.97, the appellant was apprehended at Bus Stand, Welcome, G.T. Road, pursuant to a secret information received by the Crl.A.492/1999 Page 1 of 13 police. A notice under Section 50 of NDPS Act was given to him offering him to be searched before a Gazette Officer or a Magistrate. The offer having been declined, the appellant was searched by the police officials and 60 gms of smack was recovered from the right site pocket of his pant.
3. The prosecution examined 9 witnesses in support of its case. 2 witnesses were examined in defence. PW-8 SI Prem Chand has stated that on 13.6.97, he received an information that a person named Azeem, who indulged in sale of smack would be coming to bus stand G.T. Road, Welcome, to supply smack. He thereupon organized a raiding party and reached the spot. Some passersby were requested by him to join the raiding party, but, no one agreed. At about 3.20 pm, the appellant was apprehended while sitting on the bus stop. Notice under Section 50 of NDPS Act, Ex. PW-1/A, was given to him explaining to him that they had information that he was having smack in his possession and if he so desired, his search could be conducted before a Gazette Officer or a Magistrate. The appellant, however, declined the offer. PW-8 also offered his own search to the appellant, which was declined by him. Thereafter, he searched the appellant and found one polythene packet of yellow colour from the right side pocket of his pant. It contained one sheet of transparent colour containing light brown colour powder. On smell, he could make out that it was smack. He Crl.A.492/1999 Page 2 of 13 examined the substance with the help of a testing kit and found it to be smack. 5 gms of the smack was taken as sample. The remaining smack was put in a different polythene. The parcel containing sample was give Mark A, whereas the parcel containing the remaining substance was given Mark B. Form CFSL was filed and both the parcels were seized after being sealed with the seal of PCK. The same seal was also put on CFSL form.
4. The deposition of PW-8 has been corroborated by PW- 1 Ct. Nar Singh, PW-2 Ct. Rudramani. The sample from Malkhana of the Police Station to CFSL also was taken by the PW-2 Ct. Rudramani and was deposited there with seals intact on it. PW-3 HC Bhagwat Dayal was the Moharer Mal Khana with whom the case property was deposited and by whom the sample was sent to CFSL on 11th July, 1997.
5. In his statement under Section 313 Cr.P.C., the appellant denied the alleged recovery from him and stated that during those days, he was working in a factory located at Z-2- 2/180 from where he was lifted and falsely implicated in this case.
6. DW-1 Sarbar Ali has stated that the appellant was working his tailoring show and that on 13th June, 1997 he was taken by a police official with him. When he did not return, they went to Police Station Welcome and at about 5.30 pm, the Crl.A.492/1999 Page 3 of 13 appellant was told that he was in custody of the Crime Branch. DW-2 Qamar Ahmad has stated that on 13th June, 1992, the appellant had lunch with him and then they went for Namaj at about 1.30 or 1.45 pm. Later on, he was told that the appellant was in custody of the police.
7. The impugned judgment has been assailed by the learned counsel for the appellant only on the grounds that there was breach of the provision of Section 42 and Section 50 of the NDPS Act.
8. In my view, the provisions of Section 42 of NDPS Act are not attracted in this case as the appellant was arrested at a bus stand. This issue came up for consideration before the Hon‟ble Supreme Court in Ravindran vs. Superintendent of Customs (2007) 6 SCC 410. In that case, the appellant was arrested at a bus stand pursuant to an information that he was carrying drug with him. The Hon‟ble Supreme Court observed that the appellant was not searched and arrested in exercise of power of arrest, search and seizure under Section 42 of the Act which applies to a case where the officers concerned on information received, or having reason to believe from personal knowledge that any offence has been committed in relation to any drug or psychotropic substance etc. and which is kept or concealed in any building, conveyance or enclosed place may, between sunrise and sunset, enter into and search any building, Crl.A.492/1999 Page 4 of 13 conveyance or place. Noticing that the arrest and seizure took place at a bus stand and not in any building, conveyance or enclosed place, the Hon‟ble Supreme Court held that the case was covered by Section 43 of the Act which did not acquire information to be taken down in writing and similarly, there was no requirement that the officer concerned must send a copy thereof to his immediate official superior within 72 hours. In view of the above referred authoritative pronouncement of the Hon‟ble Supreme Court, there is no merit in the contention that there was breach of the provisions of Section 42 of the NDPS Act.
9. Section 50 of NDPS Act which requires a authorized officer to take a person about to be searched under the provisions of Section 41, 42 and 43 of the Act, if such person so requires to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate, without unnecessary delay, has been subject matter of interpretation by the Hon‟ble Supreme Court in a number of cases.
10. In State of Punjab vs. Baldev Singh 1999 (6) SCC 172, an argument was raised that the accused suspect is merely to be informed as to whether he prefers to be searched in the presence of the Magistrate or the Gazetted Officer and that it is not necessary that he should be informed of his right under Crl.A.492/1999 Page 5 of 13 Section 50 of the NDPS Act. This plea was negatived by the Constitution Bench holding inter alia as under:
"We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, if he so requires, would place any premium on ignorance of law. The argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a `reasonable, fair and just procedure'."
"57. (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 concerned person 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 concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;" (emphasis added)
11. In Beckodan Abdul Rahiman vs. State of Kerala 2002 SCC (Cri) 791, the accused was asked "whether I should search him in the presence of senior officers of a gazetted officer". It was held that the provisions of Section 50 of NDPS Act had not been complied with as the accused had not been given any option as to whether he wanted to be searched in the Crl.A.492/1999 Page 6 of 13 presence of a Gazetted Officer or a Magistrate. It was held that the accused was not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate.
12. In Vinod vs. State of Maharashtra, the Trial Court noticed that both in the complaint and in the panchnama it was mentioned tht prior to search of his person an understanding was given to the original appellant that if he desires, his search will be taken in the presence of an Executive Magistrate or a Gazetted Officer and the appellant replied in the negative. However, in the course of evidence PW-87 Bapu Bhosle did not state this fact and the two panch witnesses who were also signatories to the panchnama did not support the case of the prosecution. The Hon‟ble Supreme Court held that:
"Before conducting the search the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or a Gazetted Officer for the purpose of the search but inform him of his right in that behalf under the law."
13. In K. Mohanan vs. State of Kerala (2000) 10 SCC 222, the Hon‟ble Supreme Court inter alia observed as under:
"If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW-1 has done in this case was to Crl.A.492/1999 Page 7 of 13 seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 was not complied with."
14. In Smt. Arisa Begum Vs. The State in Crl.A. No.3/2001, decided on 12th January, 2009, the appellant was informed that if she so wished her search could be conducted in the presence of the Government officer or a Gazetted officer and the arrangement could be made for the same. A learned Single Judge of this Court held that there was a breach of provisions of Section 50 of NDPS Act.
15. In Joseph Fernandez vs. State of Goa 2000 (1) SCC 707, a Three-Judges Bench of Hon‟ble Supreme Court dealt with a case in which the searching officer informed the accused that "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was in substantial compliance with the requirement of Section 50 of the NDPS Act. The Court did not agree with the contention that there was non- compliance with the mandatory provisions, contained in Section 50 of NDPS Act.
Crl.A.492/1999 Page 8 of 13
16. In Prabha Shankar Dubey v. State of M.P. (2004) 2 SCC 56, the following information was conveyed to the accused:-
"By way of this notice, you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by any gazetted officer or by a Magistrate?"
This was held to be substantial compliance of Section 50 of the NDPS Act. The Hon‟ble Supreme Court took the view that whether the requirement of Section 50 has been met is a question which is to be decided on the fact of each case and there cannot be any sweeping generalization and/or a straitjacket formula. The Hon‟ble Supreme Court held that no specific words are necessary to be used to convey the existence of the right. It was further held that the accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer even though there is no specific form. It was felt that the use of word „right‟ at relevant places in the decision of Baldev's case (supra) seems to be to lay effective emphasis that it is not by the grace of the officer, the choice has to be given but more by way of the right in the suspect at this stage to be given such a choice and inevitable consequences that have to follow by transgressing it. The Hon‟ble Supreme Court was of the view that a line or a word in judgment cannot be read Crl.A.492/1999 Page 9 of 13 in isolation or as if interpreting the statutory provisions, to impugn a different meaning to the observations.
17. In Krishna Kanwar vs. State of Rajasthan (2004) 2 SCC 608, this question again came up for consideration before the Hon‟ble Supreme Court and it was noted that there is no specific form prescribed or initiated for conveying the information required to be given under Section 50 of the NDPS Act. The Hon‟ble Supreme Court inter alia held as under:
"What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of one of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait- jacket formula."
18. In Vijaysinh Chandubha Jadeja vs. State of Gujarat (2007) 1 SCC 433, a Three Judges Bench of the Hon‟ble Supreme Court noticing the above referred conflicting decisions of the Supreme Court felt that the matter requires some clarification by a larger Bench. During the course of argument, I was informed that the larger Bench has not been constituted as yet.
Crl.A.492/1999 Page 10 of 13
19. I now examine the notice given to the appellant in the light of the above referred decisions on the subject. The notice given to the appellant, if translated in English, reads as under:-
"Azim Hussain, S/o Hashmat Husain, R/o Z-II/180, Welcome, Delhi.
"You are vide this notice informed that we have information that you have smack with you and your search is to be carried out. If you so want, a gazetted officer or a Magistrate can be arranged for your search."
The appellant gave a written reply to the notice which, if translated in English, reads as under:-
"I have understood the notice. I do not want my search to be conducted before a Magistrate or a gazetted officer. You can conduct my search."
20. In his statement under Section 313 Cr.P.C., the appellant denied the notice given to him and took the stand that the reply was obtained forcibly on a blank paper. Thus, this is not the case of the appellant that though the notice Ex. PW-1/A was given to him, he did not understand it as a communication of his right to be searched before a Magistrate or a gazetted officer or that he took it as an act of grace by or choice of the Authorized officer. He does not say that had he been explicitly told that he had a right to be searched in the presence of a Magistrate or a gazetted officer, he would have opted for search in the presence of a Magistrate or a gazetted officer. Crl.A.492/1999 Page 11 of 13
21. When a person is told that if he so desires, a Magistrate or a police officer can be arranged for his search, he is thereby given an option, at his choice, to be searched in the presence of a gazetted officer or a Magistrate. Once this option was conveyed to the appellant, the choice rested with him to decide whether to seek search before a gazetted officer/Magistrate or to get himself searched by the Authorized officer. If he chose not to seek search before a Magistrate/gazetted officer, despite having an option to do so, no fault can be found with the search conducted by the Authorized officer. The notice given to the appellant coupled with the written reply given by him, when examined in the light of his statement under Section 313 Cr.P.C., leads to the conclusion that there was substantial compliance with the provisions of Section 50 of NDPS Act and the appellant chose not to avail the option given to him, despite his having an opportunity to do so. As noticed by the Hon‟ble Supreme Court in the case of Prabha Shankar Dubey (supra) whether requirement of Section 50 has been complied with or not is to be decided on the facts of each case and there cannot be any general formula to be applied in such cases. In case of Prabha Shankar Dubey (supra), the appellant was asked whether he would like to be searched by any gazetted officer or a Magistrate. In the present case, the notice given to the Crl.A.492/1999 Page 12 of 13 appellant was much more explicit as he was told that if he so desires a gazetted officer or a Magistrate can be arranged for his search. Therefore, applying the decision of the Supreme Court in the case of Prabha Shankar Dubey (supra), it cannot be said that there was breach of the provisions of Section 50 of NDPS Act in this case. The notice given to the appellant in the case of Vinod (supra) as well as the notice given to the appellant in the case of Beckodan Abdul Rahiman (supra) was different from the notice given in this case. In neither of these cases, the appellant was told that a Magistrate or a gazetted officer could be arranged for his search, if he so desired. Therefore, decisions in this case are of no help to the appellant. The notice given to the appellant in the case of K. Mohanan was also different from the notice given to the appellant in this case. Therefore, that judgment also does not apply to the facts of this case.
22. For the reasons given above, I hold that there has been no breach of the provisions of the Section 42 or Section 50 of the NDPS Act. No other submission was made by Shri K.B. Andley, learned senior counsel for the appellant. The appeal therefore has no merit and is hereby dismissed.
(V.K.JAIN) JUDGE NOVEMBER 23, 2009/bg Crl.A.492/1999 Page 13 of 13