S. K. RAJU @ ABDUL HAQUE @ JAGGA versus STATE OF WEST BENGAL on 5 September 2018

[2018] 10 S.C.R. 731

S. K. RAJU @ ABDUL HAQUE @ JAGGA

v.

STATE OF WEST BENGAL

(Criminal Appeal No. 459 of 2017)

SEPTEMBER 05, 2018

[DIPAK MISRA, CJI, DR. D. Y. CHANDRACHUD AND

INDIRA BANERJEE, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –s.20(b)(ii)(c) – Recovery of 1.5 kgs of Charas from accused-appellant – PW2, on receipt of information that a drug dealer wouldbe in vicinity of a club, sought permission to organize the raid –After grant of permission, raiding party reached the spot andintercepted appellant walking on the road – Before conductingsearch, option was given to the appellant whether he wished to besearched before the gazetted officer or the magistrate – Appellantopted for gazetted officer – When PW-4-gazetted officer arrived,he once again confirmed if he wanted to opt for search by magistrate– Appellant consented to search in presence of PW-4-gazetted officer– Thereafter, PW-4 also gave liberty to the appellant to searchPW-2-raiding officer which appellant did and found no narcoticsubstance from the person of raiding officer – On search of theappellant in the presence of PW-4, a bag was recovered from theappellant carrying 1.5 kgs of charas, and Rs. 2,400/- cash wasrecovered from the pocket of the appellant’s trouser – Convictionof appellant by courts below – Plea of appellant that there wasnon-compliance of s.42 and s.50 of the Act – Held: Plea notsustainable – The appellant was walking along the Garden Road –He was intercepted and detained immediately by the raiding partyin front of the club, which was not a building, conveyance or anenclosed place – The place of occurrence was accessible to thepublic and fell within the ambit of the phrase “public place” in theexplanation to s.43 – Therefore, s.42 had no application – Beforethe appellant’s search was conducted, both PW-2 and PW-4 ondifferent occasions apprised the appellant of his legal right to besearched either in the presence of a Gazetted Officer or a Magistrate– The options given by both PW-2 and PW-4 were unambiguous –Merely because the appellant was given an option of searching

731

A

B

CD

E

F

G

H

APW-2 before the latter conducted his search, would not vitiate thesearch – The search of the appellant was as a matter of factconducted in the presence of PW-4, a gazetted officer, in consonancewith the voluntary communication made by the appellant to bothPW-2 and PW-4 – Thus, there was strict compliance with therequirements of s.50(1) of the Act.B

Narcotic Drugs and Psychotropic Substances Act, 1985 –s.42 – Essential requirement – Held: Compliance with s.42, includingrecording of information received by the empowered officer, is notmandatory, when an offence punishable under the Act was notcommitted in a building, conveyance or an enclosed place.

C

Narcotic Drugs and Psychotropic Substances Act, 1985 –s.43 – When attracted – Held: s.43 is attracted in situations wherethe seizure and arrest are conducted in a public place, which includesany public conveyance, hotel, shop, or other place intended foruse by, or accessible to, the public.

D

Dismissing the appeal, the Court

Conclusion

HELD: 1. An empowered officer under Section 42(1) isobligated to reduce to writing the information received by him,only when an offence punishable under the Act has beenEcommitted in any building, conveyance or an enclosed place, orwhen a document or an article is concealed in a building,conveyance or an enclosed place. Compliance with Section 42,including recording of information received by the empoweredofficer, is not mandatory, when an offence punishable under theAct was not committed in a building, conveyance or an enclosedFplace. Section 43 is attracted in situations where the seizure andarrest are conducted in a public place, which includes any publicconveyance, hotel, shop, or other place intended for use by, oraccessible to, the public. The appellant was walking along thePicnic Garden Road. He was intercepted and detainedGimmediately by the raiding party in front of Falguni Club, whichwas not a building, conveyance or an enclosed place. The placeof occurrence was accessible to the public and fell within the ambitof the phrase “public place” in the explanation to Section 43.Section 42 had no application. [Paras 7, 8] [741-C-F]

Vijaysinh Chandubha Jadeja v State of Gujarat(2011) 1 SCC 609 : [2010] 13 SCR 255 – relied on.

State of Himachal Pradesh v Pawan Kumar (2005) 4SCC 350 : [2005] 3 SCR 417 ; Dilip v State of MadhyaPradesh (2007) 1 SCC 450 : [2006] 9 Suppl. SCR 390– referred to.

2.1 Strict compliance with Section 50(1) by the empoweredofficer is mandatory. Section 50, however, applies only in the caseof a search of a person. PW-2 conducted a search of the bag ofthe appellant as well as of the appellant’s trousers. Therefore,the search conducted by PW-2 was also of the appellant’s person.Since the search of the person of the appellant was also involved,Section 50 would be attracted in this case. Accordingly, PW-2was required to comply with the requirements of Section 50(1).As soon as the search of a person takes place, the requirementof mandatory compliance with Section 50 is attracted, irrespectiveof whether contraband is recovered from the person of thedetainee or not. It was, therefore, imperative for PW-2 to informthe appellant of his legal right to be searched in the presence ofeither a gazetted officer or a magistrate. Before the appellant’ssearch was conducted, both PW-2 and PW-4 on different occasionsapprised the appellant of his legal right to be searched either inthe presence of a gazetted officer or a magistrate. The optionsgiven by both PW-2 and PW-4 were unambiguous. Merely becausethe appellant was given an option of searching PW-2 before thelatter conducted his search, would not vitiate the search.[Paras 10, 11] [745-A-B; 747-F-G; 748-B-C]

2.2 The option given to the appellant of searching PW-2 inthe case at hand, before the latter searched the appellant, did notvitiate the process in which a search of the appellant wasconducted. The search of the appellant was as a matter of factconducted in the presence of PW-4, a gazetted officer, inconsonance with the voluntary communication made by theappellant to both PW-2 and PW-4. There was strict compliancewith the requirements of Section 50(1) as stipulated by this Courtin Vijaysinh. [Para 11] [748-D-E]

A

B

C

DE

F

G

A

B

C

D

E

F

G

H

A

B

C

DE

F

G

A

B

C

D

E

F

G

H

Abdul Rashid Ibrahim Mansuri v State of Gujarat(2000) 2 SCC 513 : [2000] 1 SCR 542 ; Directorateof Revenue v Mohammed Nisar Holia (2008) 2 SCC370 : [2007] 12 SCR 906 ; State of Rajasthan v JagrajSingh (2016) 11 SCC 687 : [2016] 4 SCR 451 ; MylaVenkateswarlu v State of Andhra Pradesh (2012) 5 SCC226 ; State of Rajasthan v Parmanand (2014) 5 SCC345 : [2014] 3 SCR 522 ; Namdi Francis Nwazor vUnion of India (1998) 8 SCC 534 ; State of Punjab vBaldev Singh (1999) 6 SCC 172 : [1999] 3 SCR 977 ;Narayanaswamy Ravishankar v Assistant Director,Directorate of Revenue Intelligence(2002) 8SCC 7 : [2002] 3 Suppl. SCR 121 ; Krishna Kanwar(Smt) Alias Thakuraeen v State of Rajasthan (2004) 2SCC 608 : [2004] 1 SCR 1101 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 459 of 2017.

From the Judgment and Order dated 19.02.2016 of the High Courtat Calcutta in C.R.A. No. 590 of 2014.

S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OFWEST BENGAL

Anil Kaushik, Ms. Arunima Dwivedi, Rajinder Singh, AbhishekMishra, Akash Bhardwaj, Advs. for the Appellant.

Suhaan Mukerji, Ms. Astha Sharma, Harsh Gursasani, AbhishekManchanda, M/s PLR Chambers And Co., Advs. for the Respondent.

The Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J. 1. Thepresent appeal, by special leave, is directed against a judgment dated 19February 2016 of a Division Bench of the Calcutta High Court. TheHigh Court upheld the conviction of the appellant by the AdditionalSessions Judge (“ASJ”) and Special Court under the Narcotic Drugsand Psychotropic Substances Act 1985 (“the Act”). On 15 February2014, the ASJ had convicted the appellant of an offence punishable underSection 20(b)(ii)(C) of the Act. The appellant was sentenced to 14 yearsof rigorous imprisonment and directed to pay a fine of Rs 1,40,000.

2. The facts of the case are as follows. On 15 November 2011,Sub-Inspector Prasanta Kr. Das, Narcotics Cell, DD (PW-2) receivedinformation that a drug dealer would be in the vicinity of Tiljala FalguniClub, 138B/1, Picnic Garden Road, near Tiljala Police Station to supplynarcotic drugs in the afternoon. PW-2 sought permission from theAssistant Commissioner of Police, Anti-Narcotics Department, DD toorganize a raid (Exhibit-2). Permission was granted by the superior officeron the same day and a raiding team consisting of PW-2 and others reachedthe spot at about 12.50 pm. At around 1.40 pm, the source of theinformation pointed out to the appellant who was coming along PicnicGarden Road. The appellant was intercepted and detained immediatelyby the raiding party in front of Falguni Club. The appellant was informedabout the reasons for his detention and the identities of the raiding partywere disclosed to him. Subsequently, the appellant also disclosed hisidentity to the raiding party. PW-5 was one of the two independentwitnesses who agreed to be a witness to this search. The appellant wasinformed about his legal right to be searched either in the presence of amagistrate or a gazetted officer (Exhibit-3). The appellant opted for beingsearched by a gazetted officer. A gazetted officer, Inspector JoysurjaMukherjee (“PW-4”), arrived on the scene at about 3.20 pm. He providedthe appellant with a “second option”. The appellant was asked byPW-4 whether he wished to be searched in the presence of a gazettedofficer or a magistrate (Exhibit-4). Once again, the appellant consented A

B

C

DE

F

G

H

A

B

C

DE

F

G

H

Ato be searched in the presence of a gazetted officer. PW-4 then inquiredof the appellant whether he wanted to search PW-2 before the latterwould carry out his search. The appellant agreed to search PW-2 beforehis own search was carried out by PW-2. No narcotic substance wasrecovered from the person of PW-2. PW-2 recovered nineteen “deepbrown / blackish broken rectangular sheets” from a black polytheneBpacket which was inside a biscuit colour jute bag, which the appellantwas carrying in his right hand. The sheets were tested by PW-2 on thespot with the help of a test kit. The substance was found to be charas.The substance was also weighed using a weighing scale. The appellantwas found to be in possession of 1.5 kilograms of charas. Cash amounting Cto Rs. 2,400/- was recovered from the trouser of the appellant.

3. Learned counsel for the appellant has argued that there wasnon-compliance with Section 42 of the Act. After PW-2 was intimatedabout the appellant’s arrival, he sought permission from the AssistantCommissioner of Police, Anti-Narcotics Department. Upon receipt ofDthe letter of permission from the Assistant Commissioner, PW-2 proceededto the place of the occurrence. PW-2 admitted in his cross-examinationthat he was aware of the gravity ofthe need for compliance with Section42. However, apart from a letter seeking permission to act on theinformation which was addressed to a superior officer, he did not (it wasurged) diarise it elsewhere. Learned counsel urged that PW-2 had notEcomplied with the mandatory requirements of Section 42, as a result ofwhich the trial stood vitiated. He has relied on the following decisions ofthis Court to buttress the submission: Abdul Rashid Ibrahim Mansuriv State of Gujarat(“Mansuri”),[1 ]Directorate of Revenue vMohammed Nisar Holia(“Holia”)[2] and State of Rajasthan v JagrajFSingh (“Jagraj”).[3]

4. Learned counsel for the appellant also submitted that Section50 has also not been complied with. According to him, not only was thebag of the appellant searched, but a search of the person of the appellantalso resulted in the recovery of cash in the amount of Rs. 2,400/- fromGthe left pocket of his trouser. Hence, it was urged by the learned counselthat though Section 50 was mandatorily required to be complied with,there was a breach of observance. Since the appellant was merely givenan ‘option’ by PW-2 and PW-4 to be searched before agazetted officer 1 (2000) 2 SCC 513 2 (2008) 2 SCC 370H 3 (2016) 11 SCC 687

3 (2016) 11 SCC 687

and was not informed that it was his legal right to be searched before agazetted officer or a magistrate, the search was, it was urged, vitiated.On this aspect, learned counsel for the appellant has relied on the followingjudgments of this Court: Myla Venkateswarlu v State of AndhraPradesh(“Venkateswarlu”),[4 ]State of Rajasthan vParmanand(“Parmanand”)[5] and Namdi Francis Nwazor v Union ofIndia(“Namdi”).[6]

On the other hand, the learned counsel appearing on behalf of therespondent-State has supported the judgment of the High Court and thelegality of the conviction. He argued that since the search was carriedout in a public place, this casefalls solely within the ambit of Section 43and compliance with Section 42 was not necessary. Learned counselfor the respondent-State also urged that Section 50 is not attracted whenthe search involves the search of a bag or an article belonging to aperson.

5. Section 42 of the Act deals with the power of entry, search,seizure and arrest without warrant or authorization. It reads thus:

“42. Power of entry, search, seizure and arrest without warrantor authorisation.—

(1) Any such officer (being an officer superior in rank to a peon,sepoy or constable) of the departments of central excise, narcotics,customs, revenue intelligence or any other department of theCentral Government including para-military forces or armed forcesas is empowered in this behalf by general or special order by theCentral Government, or any such officer (being an officer superiorin rank to a peon, sepoy or constable) of the revenue, drugs control,excise, police or any other department of a State Government asis empowered in this behalf by general or special order of theState Government, if he has reason to believe from personalknowledge or information given by any person and taken down inwriting that any narcotic drug, or psychotropic substance, orcontrolled substance in respect of which an offence punishableunder this Act has been committed or any document or otherarticle which may furnish evidence of the commission of such 4 (2012) 5 SCC 226

5 (2014) 5 SCC 345

6 (1998) 8 SCC 534

A

B

C

D

EFG

H

A

B

C

D

E

F

G

H

offence or any illegally acquired property or any document orother article which may furnish evidence of holding any illegallyacquired property which is liable for seizure or freezing or forfeitureunder Chapter VA of this Act is kept or concealed in any building,conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;(b) in case of resistance, break open any door and remove anyobstacle to such entry;

(c) seize such drug or substance and all materials used in themanufacture thereof and any other article and any animal orconveyance which he has reason to believe to be liable toconfiscation under this Act and any document or other articlewhich he has reason to believe may furnish evidence of thecommission of any offence punishable under this Act or furnishevidence of holding any illegally acquired property which is liablefor seizure or freezing or forfeiture under Chapter VA of this Act;and (d) detain and search, and, if he thinks proper, arrest any personwhom he has reason to believe to have committed any offencepunishable under this Act:

Provided that in respect of holder of a licence for manufacture ofmanufactured drugs or psychotropic substances or controlledsubstances granted under this Act or any rule or order madethereunder, such power shall be exercised by an officer not belowthe rank of sub-inspector:

Provided further that if such officer has reason to believe that asearch warrant or authorisation cannot be obtained withoutaffording opportunity for the concealment of evidence or facilityfor the escape of an offender, he may enter and search suchbuilding, conveyance or enclosed place at any time between sunsetand sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing undersub-section (1) or records grounds for his belief under the provisothereto, he shall within seventy-two hours send a copy thereof tohis immediate official superior.”

Section 43 of the Act confers powers on the empowered officerto seize a substance and arrest a suspect in a public place. It providesthus:

“43. Power of seizure and arrest in public place.—Any officer ofany of the departments mentioned in section 42 may—

(a) seize in any public place or in transit, any narcotic drug orpsychotropic substance or controlled substance in respect of whichhe has reason to believe an offence punishable under this Act hasbeen committed, and, along with such drug or substance, any animalor conveyance or article liable to confiscation under this Act, anydocument or other article which he has reason to believe mayfurnish evidence of the commission of an offence punishable underthis Act or any document or other article which may furnishevidence of holding any illegally acquired property which is liablefor seizure or freezing or forfeiture under Chapter VA of this Act; (b) detain and search any person whom he has reason to believeto have committed an offence punishable under this Act, and ifsuch person has any narcotic drug or psychotropic substance orcontrolled substance in his possession and such possession appearsto him to be unlawful, arrest him and any other person in hiscompany.

Explanation.— For the purposes of this section, theexpression “public place” includes any public conveyance,hotel, shop, or other place intended for use by, or accessibleto, the public.” [Emphasis supplied]

6. We are unable to accept the submission madeby the learnedcounsel for the appellant that Section 42 is attracted to the facts of thepresent case. In State of Punjab v Baldev Singh(“Baldev Singh”),[7]Chief Justice Dr A S Anand speaking for a Constitution Bench of thisCourt, held:

“The material difference between the provisions of Section 43and Section 42 is that whereas Section 42 requires recordingof reasons for belief and for taking down of informationreceived in writing with regard to the commission of anoffence before conducting search and seizure, Section 43

7 (1999) 6 SCC 172

A

B

C

D

E

F

G

Adoes not contain any such provision and as such while acting underSection 43 of the Act, the empowered officer has the powerof seizure of the article etc. and arrest of a person who isfound to be in possession of any Narcotic Drug orPsychotropic Substances in a public place where suchpossession appears to him to be unlawful.” [EmphasisBsupplied]

In Narayanaswamy Ravishankar v Assistant Director,Directorate of Revenue Intelligence,[8] a three judge Bench of thisCourt considered whether the empowered officer was bound to complywith the mandatory provisions of Section 42 before recovering heroinCfrom the suitcase of the appellant at the airport and subsequently arrestinghim. Answering the above question in the negative, the Court held:

“In the instant case, according to the documents on record andthe evidence of the witnesses, the search and seizure took placeat the airport which is a public place. This being so, it is theDprovisions of Section 43 of the NDPS Act which would beapplicable. Further, as Section 42 of the NDPS Act was notapplicable in the present case, the seizure having been effected ina public place, the question of non-compliance, if any, of theprovisions of Section 42 of the NDPS Act is wholly irrelevant.”

E

In Krishna Kanwar (Smt) Alias Thakuraeen v State ofRajasthan,[9] a two judge Bench of this Court considered whether a policeofficer who had prior information was required to comply with theprovisions of Section 42 before seizing contraband and arresting theappellant who was travelling on a motorcycle on the highway. AnsweringFthe above question in the negative, the Court held:

“Section 42 comprises of two components. One relates to thebasis of information i.e.: (i) from personal knowledge, and (ii)information given by person and taken down in writing. Thesecond is that the information must relate to commissionGof offence punishable under Chapter IV and/or keeping orconcealment of document or article in any building,conveyance or enclosed place which may furnish evidenceof commission of such offence. Unless both the components 8 (2002) 8 SCC 7

9 (2004) 2 SCC 608; Rajendra v State of M.P., (2004) 1 SCC 432

H

S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OFWEST BENGAL [DR. D. Y. CHANDRACHUD, J.]

exist Section 42 has no application. Sub-section (2) mandates,as was noted in Baldev Singh case that where an officer takesdown any information in writing under sub-section (1) or recordsgrounds for his belief under the proviso thereto, he shall forthwithsend a copy thereof to his immediate official superior. Therefore,sub-section (2) only comes into operation where the officerconcerned does the enumerated acts, in case any offence underChapter IV has been committed or documents etc. are concealedin any building, conveyance or enclosed place. Therefore, thecommission of the act or concealment of document etc. mustbe in any building, conveyance or enclosed place.” [Emphasissupplied]

7. An empowered officer under Section 42(1) is obligated toreduce to writing the information received by him, only when an offencepunishable under the Act has been committed in any building, conveyanceor an enclosed place, or when a document or an article is concealed in abuilding, conveyance or an enclosed place. Compliance with Section 42,including recording of information received by the empowered officer, isnot mandatory, when an offence punishable under the Act was notcommitted in a building, conveyance or an enclosed place. Section 43 isattracted in situations where the seizure and arrest are conducted in apublic place, which includes any public conveyance, hotel, shop, or otherplace intended for use by, or accessible to, the public.

8. The appellant was walking along the Picnic Garden Road. Hewas intercepted and detained immediately by the raiding party in frontof Falguni Club, which was not a building, conveyance or an enclosedplace. The place of occurrence was accessible to the public and fellwithin the ambit of the phrase “public place” in the explanation to Section43. Section 42 had no application.

9. The cases relied on by the learned counsel for the appellantwill also not apply in the context of the facts before us. In Mansuri, anauto-rickshaw driver was intercepted by police personnel. Four gunnybags of charas were recovered from the auto-rickshaw. The policeofficer who had prior information about transportation of some narcoticsubstance, had neither taken down the information before carrying outthe seizure and arrest, nor apprised his superior officer. He contendedthat the action taken by him was under Section 43 and not Section 42.

A

B

C

DE

F

G

H

A

B

C

DE

F

G

H

ARejecting the argument of the State, this Court held that compliancewith Section 42 was required as the auto-rickshaw was a private vehicleand not a public conveyance as contemplated under Section 43. Similarly,in Jagraj, contraband was recovered from a jeep which was interceptedby police personnel on a public road after receiving prior information.The police officer who had received the information, admitted to notBtaking it down in writing, contending that Section 43 would be applicable.Rejecting the argument of the State, this Court held that the jeep whichwas intercepted, was not a public conveyance within the meaning ofSection 43 and compliance with Section 42(1) was therefore mandatory.In Holia, Mandrax tablets were recovered from the hotel room of theCrespondent. The information wasnot reduced to writing by the officerwho had first received the information. The State claimed that compliancewith Section 42 was not required as the hotel was a public place. Rejectingthe submission of the State, this Court held that while a hotel is a publicplace, a hotel room inside it is not a public place. This Court held thus:

D“Section 43, on plain reading of the Act, may not attract the rigoursof Section 42 thereof. That means that even subjective satisfactionon the part of the authority, as is required under sub-section (1) ofSection 42, need not be complied with, only because the placewhereat search is to be made is a public place. If Section 43 is tobe treated as an exception to Section 42, it is required to be strictlyEcomplied with … It is also possible to contend that where asearch is required to be made at a public place which isopen to the general public, Section 42 would have noapplication but it may be another thing to contend thatsearch is being made on prior information and there would Fbe enough time for compliance of reducing the informationto writing, informing the same to the superior officer andobtain his permission as also recording the reasonstherefore coupled with the fact that the place which isrequired to be searched is not open to public althoughsituated in a public place as, for example, room of a hotel,Gwhereas hotel is a public place, a room occupied by a guestmay not be. He is entitled to his right of privacy. Nobody,even the staff of the hotel, can walk into his room without hispermission. Subject to the ordinary activities in regard to maintenance and/or housekeeping of the room, the guest is entitledto maintain his privacy.” [Emphasis supplied]

There is hence no substance in the first submission.

10. Section 50 of the Act deals with conditions under which searchof persons shall be conducted. It states:

“50. Conditions under which search of persons shall beconducted.—

(1) When any officer duly authorised under section 42 is about tosearch any person under the provisions of section 41, section 42or section 43, he shall, if such person so requires, take such personwithout unnecessary delay to nearest Gazetted Officer of any ofthe departments mentioned in section 42 or to the nearestMagistrate.

(2) If such requisition is made, the officer may detain the personuntil he can bring him before the Gazetted Officer or the Magistratereferred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom anysuch person is brought shall, if he sees no reasonable ground forsearch, forthwith discharge the person but otherwise shall directthat search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reasonto believe that it is not possible to take the person to be searchedto the nearest Gazetted Officer or Magistrate without the possibilityof the person to be searched parting with possession of any narcoticdrug or psychotropic substance, or controlled substance or articleor document, he may, instead of taking such person to the nearestGazetted Officer or Magistrate, proceed to search the person asprovided under section100 of the Code of Criminal Procedure,1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officershall record the reasons for such belief which necessitated suchsearch and within seventy-two hours send a copy thereof to hisimmediate official superior.”

A

B

C

D

E

F

G

H

A

According to Section 50(1), an empowered officer shouldnecessarily inform the suspect about his legal right, if he so requires, tobe searched in the presence of a gazetted officer or a magistrate. InVijaysinh Chandubha Jadeja v State of Gujarat(“Vijaysinh”),[10] aConstitution Bench of this Court interpreted Section 50 thus:

B“The mandate of Section 50 is precise and clear, viz. if the personintended to be searched expresses to the authorised officer hisdesire to be taken to the nearest gazetted officer or the Magistrate,he cannot be searched till the gazetted officer or the Magistrate,as the case may be, directs the authorised officer to do so … Inview of the foregoing discussion, we are of the firm opinion thatCthe object with which right under Section 50(1) of the NDPS Act,by way of a safeguard, has been conferred on the suspect, viz. tocheck the misuse of power, to avoid harm to innocent personsand to minimise the allegations of planting or foisting of false casesby the law enforcement agencies, it would be imperative on theDpart of the empowered officer to apprise the person intended tobe searched of his right to be searched before a gazetted officeror a Magistrate. We have no hesitation in holding that in so far asthe obligation of the authorised officer under Sub-section (1) ofSection 50 of the NDPS Act is concerned, it is mandatory andrequires a strict compliance. Failure to comply with the provisionEwould render the recovery of the illicit article suspect and vitiatethe conviction if the same is recorded only on the basis of therecovery of the illicit article from the person of the accused duringsuch search. Thereafter, the suspect may or may not choose toexercise the right provided to him under the said provision … WeFare of the opinion that the concept of “substantial compliance”with the requirement of Section 50 of the NDPS Act introducedand read into the mandate of the said Section in Joseph Fernandez(supra) and Prabha Shankar Dubey (supra) is neither borne outfrom the language of Sub-section (1) of Section 50 nor it is inconsonance with the dictum laid down in Baldev Singh’s caseG(supra).”

The principle which emerges from Vijaysinh is that the conceptof “substantial compliance” with the requirement of Section 50 is neitherin accordance with the law laid down in Baldev Singh, nor can it be H 10 (2011) 1 SCC 609

S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OFWEST BENGAL [DR. D. Y. CHANDRACHUD, J.]

construed from its language. [Reference may also be made tothe decisionof a two judge Bench of this Court in Venkateswarlu]. Therefore,strict compliance with Section 50(1) by the empowered officer ismandatory. Section 50, however, applies only in the case of a search ofa person. In Baldev Singh, the Court held “on its plain reading, Section50 would come into play only in the case of a search of a person asdistinguished from search of any premises, etc.” In State of HimachalPradesh v Pawan Kumar (“Pawan Kumar”),[11] a three judge Benchof this Court held that the search of an article which was being carriedby a person in his hand, or on his shoulder or head, etc., would not attractSection 50. It was held thus:

“In common parlance it would be said that a person is carrying aparticular article, specifying the manner in which it was carriedlike hand, shoulder, back or head, etc. Therefore, it is not possibleto include these articles within the ambit of the word “person”occurring in Section 50 of the Act …After the decision in BaldevSingh, this Court has consistently held that Section 50 would onlyapply to search of a person and not to any bag, article or container,etc. being carried by him.”

In Parmanand, on a search of the person of the respondent, nosubstance was found. However, subsequently, opium was recoveredfrom the bag of the respondent. A two judge Bench of this Courtconsidered whether compliance with Section 50(1) was required. ThisCourt held that the empowered officer was required to comply with therequirements of Section 50(1) as the person of the respondent was alsosearched. [Reference may also be made to the decision of a two judgeBench of this Court in Dilipv State of Madhya Pradesh][12]. It was heldthus:

“Thus, if merely a bag carried by a person is searched withoutthere being any search of his person, Section 50 of the NDPS Actwill have no application. But if the bag carried by him is searchedand his person is also searched, Section 50 of the NDPS Act willhave application.”

Moreover, in the above case, the empowered officer at the timeof conducting the search informed the respondent that he could besearched before the nearest Magistrate or before the nearest gazetted 11(2005) 4 SCC 350

12(2007) 1 SCC 450

AB

C

D

E

F

G

H

Aofficer or before the Superintendent, who was also a part of theraiding party. The Court held that the search of the respondent was notin consonance with the requirements of Section 50(1) as the empoweredofficer erred in giving the respondent an option of being search beforethe Superintendent, who was not an independent officer. It was heldthus:B

“We also notice that PW 10 SI Qureshi informed the respondentsthat they could be searched before the nearest Magistrate or beforethe nearest gazetted officer or before PW 5 J.S. Negi, theSuperintendent, who was a part of the raiding party. It is theprosecution case that the respondents informed the officers thatCthey would like to be searched before PW 5 J.S. Negi by PW 10SI Qureshi. This, in our opinion, is again a breach of Section 50(1)of the NDPS Act. The idea behind taking an accused to the nearestMagistrate or the nearest gazetted officer, if he so requires, is togive him a chance of being searched in the presence of anDindependent officer. Therefore, it was improper for PW 10 SIQureshi to tell the respondents that a third alternative was availableand that they could be searched before PW 5 J.S. Negi, theSuperintendent, who was part of the raiding party. PW 5 J.S.Negi cannot be called an independent officer. We are notexpressing any opinion on the question whether if the respondentsEhad voluntarily expressed that they wanted to be searched beforePW 5 J.S. Negi, the search would have been vitiated or not. ButPW 10 SI Qureshi could not have given a third option to therespondents when Section 50(1) of the NDPS Act does not providefor it and when such option would frustrate the provisions of SectionF50(1) of the NDPS Act. On this ground also, in our opinion, thesearch conducted by PW 10 SI Qureshi is vitiated.”

The question which arises before us is whether Section 50(1)was required to be complied with when charas was recovered onlyfrom the bag of the appellant and no charas was found on his person.GFurther, if the first question is answered in the affirmative, whether therequirements of Section 50 were strictly complied with by PW-2 andPW-4.

11. As evidenced by Exhibit-3, a first option was given to theappellant. PW-2 informed him that it was his legal right to be searched H

either in the presence of a magistrate or in the presence of a gazettedofficer. The appellant was then asked to give his option by indicatingwhether he wanted to be searched by a magistrate or a gazetted officer.The appellant indicated that he wanted the search to be carried out inthe presence of a gazetted officer. When PW-4 arrived, he wasintroduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of himagain, whether he wanted to be searched in the presence of a gazettedofficer or in the presence of a magistrate. The appellant reiterated hisdesire to be searched in the presence of a gazetted officer. Before thesearch of the appellant commenced, the gazetted officer asked theappellant whether he wanted to search PW-2 before his own searchwas carried out by PW-2. The appellant agreed to search PW-2 beforethe latter carried out his search. On conducting the search, only personalbelongings of PW-2 were found by the appellant. On the search of theappellant in the presence of the gazetted officer, a biscuit colour jute bagwas recovered from the appellant, and Rs. 2,400/- cash in thedenomination of 24 notes of Rs. 100/- each was found in the left pocketof the appellant’s trouser. When the bag was opened, a black polythenecover containing nineteen rectangular broken sheets of a blackish / deepbrown colour weighing 1.5 kilograms was recovered. The sheets weretested and were found to be charas.

PW-2 conducted a search of the bag of the appellant as well as ofthe appellant’s trousers. Therefore, the search conducted by PW-2 wasnot only of the bag which the appellant was carrying, but also of theappellant’s person. Since the search of the person of the appellant wasalso involved, Section 50 would be attracted in this case. Accordingly,PW-2 was required to comply with the requirements of Section 50(1).As soon as the search of a person takes place, the requirement ofmandatory compliance with Section 50 is attracted, irrespective of whethercontraband is recovered from the person of the detainee or not. It was,therefore, imperative for PW-2 to inform the appellant of his legal rightto be searched in the presence of either a gazetted officer or a magistrate.From Exhibit-3, it can be discerned that the appellant was informed ofhis legal right to be searched in the presence of a magistrate or a gazettedofficer. The appellant opted for the latter alternative. Exhibit-4 is a recordof the events after the arrival of PW-4 on the scene. After the arrival ofPW-4, the appellant was once again asked by him, whether he wished to AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

Abe searched in the presence of a gazetted officer or a magistrate. Thiswas the second option which was presented to him. When he reiteratedhis desire to be searched before a gazetted officer, PW-4 inquired of theappellant whether he wished to search PW-2 before his own searchwas conducted by PW-2. The appellant agreed to search PW-2. Onlythe personal belongings of PW-2 were found by the appellant. It wasBonly after this that asearch of the appellant was conducted and charasrecovered. Before the appellant’s search was conducted, both PW-2and PW-4 on different occasions apprised the appellant of his legal rightto be searched either in the presence of a gazetted officer or a magistrate.The options given by both PW-2 and PW-4 were unambiguous. MerelyCbecause the appellant was given an option of searching PW-2 beforethe latter conducted his search, would not vitiate the search. InParmanand, in addition to the option of being searched by the gazettedofficer or the magistrate, the detainee was given a ‘third’ alternative bythe empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to theDintent of Section 50(1).The option given to the appellant of searchingPW-2 in the case at hand, before the latter searched the appellant, didnot vitiate the process in which a search of the appellant was conducted.The search of the appellant was as a matter of fact conducted in thepresence of PW-4, a gazetted officer, in consonance with the voluntaryEcommunication made by the appellant to both PW-2 and PW-4. Therewas strict compliance with the requirements of Section 50(1) as stipulatedby this Court in Vijaysinh.

12. As we have already held that Section 50 was attracted in thepresent case, we do not need to decide on the applicability of Namdi toFthe facts of the present case. We have held that Section 50 was compliedwith. Having regard to the above position, we do not find any merit inthe appeal.

13. The Criminal Appeal shall accordingly stand dismissed.

G

Devika Gujral

Appeal dismissed.

H