SHARMA, J. - (1.) THE appellant was tried by the learned Special Judge, NDPS Cases, Jaipur for the offence under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"), as he was found in possession of 102 grams of smack on 5. 10. 1993. THE learned Special Judge, NDPS Cases, Jaipur, on considering the prosecution evidence and the material on record, arrived at a conclusion that the prosecution has been able to establish beyond reasonable doubt that smack was found from the pocket of the trouser of the accused appellant. THErefore, the learned Special Judge found the accused appellant guilty of having committed offence under Section 8/22 of the Act and accordingly, convicted the accused of the said offence and sentenced him to undergo rigorous imprisonment for 10 years with a fine of Rs. 1 lac, in default thereof, to further undergo simple imprisonment for 2 years.
(2.) FEELING aggrieved by the aforesaid judgment of conviction and sentence, the appellant has preferred this criminal appeal under Sec. 374 Cr. P. C. Learned counsel for the appellant has assailed the conviction inter alia on the ground that there was only partial compliance of the provisions of Section 50 of the Act. Referring to the memo, Ex. P2 initiating proceedings under Section 50 of the Act, learned counsel for the appellant has submitted that the officer empowered under Section 42 of the Act informed the accused of his right to have his search conducted in the presence of C. O. , Kotwali, who was present there or in the presence of a Magistrate, who was present there or in the presence of a Magistrate. According to him, this partial option does not meet the requirements of mandatory provisions of Section 50 of the Act. Learned counsel submitted that the learned trial court has erred in not taking into consideration this legal issue as to the effect of partial option. It is well settled that when any officer duly authorised under Section 42 of the Act is about to search a person, he is bound to inform the person concerned of his legal right to have his search conducted either in the presence of a Magistrate or in the presence of a Gazetted Officer. The question as to the effect of non-compliance of the provisions of Sec. 50 came up for consideration before the Hon'ble Supreme Court in catena of decisions. In State of Punjab vs. Balbir Singh (1), the Apex Court held that failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate would amount to non compliance of Sec. 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial.
(3.) IN State of Punjab vs. Baldev Singh and others (2), the Constitution Bench of the Supreme Court after considering number of cases including Balbir Singh's case have held that It is imperative for the investigating officer to inform the suspect, orally or in writing, about his right to be searched before a gazetted officer or a Magistrate. Failure to give such information may not vitiate the trial but render the recovery of illicit article illegal and vitiate the conviction and sentence if recorded only on the basis of possession of such illicit article. The Hon'ble Court further held that if the person so informed requires to be searched before a gazetted officer or a Magistrate, the empowered officer is obliged to comply else it would render the search and conviction solely based on it bad. In the aforesaid case, the Constitution Bench have considered the various questions relating to interpretation of Section 50, the oblitgatory character of the provisions therein and the consequence of the non-compliance with the requirements. On a detailed discussion of the various contentions raised and the previous decisions of the Apex Court in the matter, their Lordships of the Constitution Bench held as under : " To be searched before a gazetted officer or a Magistrate, if the suspect to requires, in an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and crediworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of the Magistrate or a gazetted officer, at the time of the intended search. The Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with. " In para 57 of the Judgment, the conclusions arrived at by the Constitution Bench have been summed up as below : (1) "that when an empowered officer or duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the 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 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. (3) That a search made, by an empowered officer, on 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 illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. " ;