- (1.) I. M. Quddusi, J. The present ap peal has been filed against the judgment and order dated 1-8-1994 passed by the 1st Additional Sessions Judge in Special Case No. 28 of 1993 convicting and sentencing the appellant to undergo for ten years RI under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
(2.) ACCORDING to the prosecution case on 20-8-1993 at about 5. 50 p. m. the Station Officer of P. S. Babina, district Jhansi namely, R. P. Yadav alongwith Head Constable Ramesh Prasad Tiwari and other police constables were returning after making investigation in case Crime No. 182 of 1993, under Sections 395 and 397, IPC. The appellant was seen coming from Kasba Babina towards the curve of In-dogulf factory. When he saw the police Jeep he left the road and started taking fast steps. He was chased thereafter by the lice party and caught him on the field, is name was asked who told his name Javed son of Mohd. Rizavee, R/o. Kalina Kumbha Road, Santa Cruz, Bombay. His search was taken in the presence of police personnels and a polythene packet con taining Charas was recovered from the front right pocket of Jeans. He could not show any licence for that. The appellant told the police party that his grand-father namely, Yahiya Khan was a retired soldier who lives at Shastri Nagar and the appel lant has came from Bombay to save his life. The recovered charas was sealed in the same packet and a recovery memo was prepared on the spot, no public witness could be taken as the arrest was made all of a sudden. In the recovery memo prepared by the S. O. the sentence mentioned was that the S. O. asked the accused to call fop the Magistrate but he denied saying that he has faith on him. On the basis of the said recovery memo a case under Sections 18 and 20 of Narcotic Drugsand Psychotropic Substances Act, 1985, as case Crime No. 204 of 1993 was registered against the appellant on 20-8-1993 at 7. 15 p. m. and the inves tigation was handed over to one S. I. , B. L. Gautam who thereafter went to the house of Mohd. Yahiya Khan, R/o. Shastri Nagar, P. S. Babina in the presence of witnesses Om Prakash Yadav son of Ram Chandra, R/o. 83, Punjabi Colony, Batnna and Rajesh Gupta son of Ram Sevuk Gupta, R/o. 1162/1, Kabari Ba/ar, Babina but no objectionable articles could covered form his house and nothing was taken into possession by the police and a search memo was prepared to this effect. There after charge-sheet was submitted and the appellant was charge sheeted under Sec tion 20 Narcotic Drugs and Psychotropic Substances Act, 1985. In this case the ques tion of consideration is that when the ap pellant was running with an intention to save himself and was chased by the police party, how the S. I. know that he had nar cotic drugs and psychotropic substances in his possession and as such he may be intimated to take his search in the presence of a Magistrate. Further in the search and recovery memo a short sentence in the last has been mentioned only to the effect that the S. O. asked the appellant to call for the Magistrate but it does not show as to a what stage the S. O. asked the appellant to call for the Magistrate. It has not been indicated therein that before taking search he was asked to call for a Magistrate for the purpose of taking search. Moreover Sec tion 50, Narcotic Drugs and Psychotropic Substances Act provides that when any officer is about to search any person under the provisions of Sections 41,42 and 43, if he so requires, without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Sec tion 42 or with the nearest Magistrate but in the instant matter the S. O. has stated that he asked the appellant to call for a Magistrate at the spot by him which is improbable as neither the Section 50 of the Act provide so nor it is probable to call for a Magistrate at the spot by the S. O. instead of taking the appellant to the nearest Magistrate. One more thing is for con sideration that Section 50 provides that to take the accused if he so requires to the nearest Gazetted Officer or any of the department mentioned in Section 42 or to the nearest Magistrate but in the instant matter only a reference of Magistrate has been indicated with a vague language and no reference regarding any gazetted of ficer as already said has been made and such it was a partial offer, moreover no witness from public was obtained or tried to be obtained before taking search of the appellant. The prosecution produced two witnesses who participated in the alleged search of the appellant namely R. P. Yadav, S. O. , fw-1 and Head constable 134 Ramesh Prasad Tripathi PW-2 but none of the witnesses stated in their statements that the offer was made to the appellant to take his search in the presence of a Gazetted Officer also. In view of this the offer was a partial one which violated the letter and spirit of Section. Inthematterof Mohinder Kumar v. State of Panaji, Goa, AIR 1995 SC1157:1995 JIC 1025 (SC ). It was held that if the mandatory requires were not adhered to, the accused will be entitled to be acquitted. Further in the matter of Saiyad Mohd. Saiyad Umar Saiyed v. State of Gujarat, JT 1995 (3. ). S. C 489; 1995 JIC 659 (SC ). The Hon'ble Supreme Court has observed that if the procedure mandated by Section 50 is not followed, the Court is duty bound to con clude that; (a) the accused had the benefit of protection of Section 50 affords ; that, therefore, (b) in possession of articles which are illicit under the NDPS Act is not established; that (c) the precondition for his having to satisfactorily accounted for such possession has not been met; and to acquit the accused. Learned Additional Government Advocate has pointed out that the case law laid down by Hon'ble Supreme Court in the matter of State of Punjab v. Jasveer Singh and others, 1996 JIC 262 (SC), the evidence collected in breach of require ment inadmissible and the prayer on the basis thereof does not get vitiated. In the instant matter also the evidence collected in breach of mandatory requirement can not be turned as inadmissible but unfor tunately the search taken at the initial stage in the absence of army public evidence, Magistrate or a Gazetted Officer of any of the departments mentioned in Section 42 of the Act cannot be termed (sic) as a legal search and hence cannot be used as evidence for the reasons indicated above.
(3.) IN the matter of State of Punjab v. Balbir Singh, JT 1994 (2) SC 108; 1995 JIC 382 (SC ). The Hon'ble Supreme Court has held that 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 depart ments 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 be 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 per son. 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 submission is whether the person who is about to be searched should be 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 that right has been conferred, it must naturally be presumed that it is im perative 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. Tour, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would im part much more authenticity and credit-worthiness to the proceedings while equal ly providing as 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 his right. It was further observed thus: "the warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual is court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any as surance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faceted with a phase of the adversary system that he is not in the presence of persons acting solely in his interest. ";