- (1.) A. B. Srivastava, J. On a reference by a learned Single Judge (Hon'ble G. S. N. Tripathi, J.) the following has been referred to this bench for decision: "whether the ruling Sewa Ram v. State, reported in 1992 (29) ACC Page 586 lays down the correct position of law or not?"
(2.) SINCE the aforesaid referred to us arises in connection with a bail application moved in a criminal appeal against connection, only short facts are required to be men tioned. The accused appellant was prosecuted before the Additional Sessions Judge, Varanasi for offence under Section 21 (1) of the Narcotic Drugs and Psychotropic Substan ces Act, 1985 (hereinafter reference as the Act) on the allegation that while on patrolling duty on April 12, 1992, the Station Officer, Police Station Luxa, District Varanasi, alongwith other members of the force, on getting suspicious about the movement of two persons caught hold of them at about 3. 30 P. M. The arrested persons gave out their names as Ashok Kumar Singh and Suraj. On search of their person from the possession of Ashok Kumar five packs of heroin and from the Co-accused ten packs of heroin were recovered. A recovery memo was prepared, the recovered article was duly sealed and after registering a case and usual investigation, charge-sheet was submitted which led to the trial and conviction of both the accused persons. The Criminal Appeal No. 728 of 1993, was preferred by appellant Ashok Kumar inter alia on the ground that there was not compliance made of Sections 42 and 50 of the N. D. P. S. Act. His bail application was pressed on merits as well as on the ground of non-compliance of Sections 42 and 50 of the N. D. P. S. Act. Reliance was placed in this regard on Sewa Ram v. State, 1992 ACC (29) page 586, decided by Hon'ble IS. Mature, J. on April 9, 1992, to the effect that provisions of Sections 42 and 50 of N. D. P. S. Act are mandatory, and it was urged in support of the bail application that once it is proved that there is non-compliance of the mandatory provisions of the rules, the entire conviction is bound to the set aside and this point cannot be deferred till the stage of final adjudication either by the trial Court or by the appellate Court. The learned Single Judge noticed that in Hakim Singh v. Union Territory of Chan digarh, 1988 Cr. LJ 558 the Punjab and Haryana High Court has held the said provisions to be mandatory and violation thereof to cause immense prejudice to the accused. A slightly different note was made by the Bombay High Court in Lawrence D. Suiza v. State of Maharashtra, 1992 Cr. LJ 399 to the effect that in a given case reasonable explanation could be given showing that no prejudice had been caused and in Wilfred Joseph v. State of Maharashtra, 1990 Cr. LJ 1034, it has been held that there is nothing in Section 50 of the N. D. P. S. Act to suggest that Police Officer was duty bound to inform the accused that if he so desires, he shall be searched in the presence of Gazetted Officer or Magistrate. Noticing further that in Banka Das. v. State of Orissa, 1993 Cr. LJ 442, the Orissa High Court has also taken a similar view, and also considering the scheme of the Act, the learned Single Judge has differed with the observations made by Hon'ble I. S. Mathur, J. in Sewa Ram's case (Supra), to the effect that, in view of the fact that there are a large number of illiterate people in India who are not aware of their legal rights and provisions of law, therefore, it is mandatory under Section 50 to inform the person to be searched that he had a right to wait till the search is made before a Magistrate under sub-section (1) thereof, and similarly as and when an information is received that must be invariably noted down in Section 42 irrespective of the circumstances, place and time in which it is received, and the moment it is found that there is non- compliance of any of these mandatory provisions, the prosecution case must crumble down.
(3.) THE learned Single Judge has taken the view that the provisions of Section 42 (1) regarding taking down information in writing is not mandatory rather it is directory, to be followed as far as possible and its breach would not necessarily result in failure of prosecu tion. As regards Section 50 the duty to take the person to be searched to the nearest Gazetted Officer or the nearest Magistrate is cast upon the Officer taking search, only when the person to be searched makes a request for the same. If he does not so require, no such duty is cast upon him. In view of this opinion, the learned Single Judge has referred the question aforesaid to a larger bench. We have heard Sri S. P. S. Raghav, the learned Counsel for the appellant and the learned Government Advocate on behalf of the State.;