JUDGMENT
E.S. Da Silva, J.
1. This appeal is directed against the judgment and order of the learned Special Judge, N.D.P.S. Court, Mapusa, dated 4th March, 1993, in Special Criminal Case No. 23/92, whereby the appellant/accused (hereinafter called “the accused”) was convicted for offences under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter called “the Act”) and sentenced to undergo ten years of Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- , or, in default, to undergo further one year Rigorous Imprisonment.
2. The accused was charged on the ground that on 16th November, 1991, at about 8 p.m. at Blue Bird Restaurant, Vagator, he was found in possession of 46 gms. of charas without any licence or document, in contravention of section 8 of the Act and further, on the said date at about 9.20 p.m. when the search was conducted in his room, he was found in possession of 62 grams of charas, also without licence, in terms of section 8 of the said Act.
3. The accused pleaded not guilty to the charge and he has stated that the charas seized was not his as it belonged to others, because in the same house some more people were also living. The learned Judge after recording the evidence of the prosecution witnesses found the appellant guilty of the said offence and sentenced him accordingly.
4. The brief facts of this case are that on the aforesaid day of 16th November, 1991, at about 6.30 p.m., P.S.I. Sunita Sawant alongwith her raiding party which included two panchas, namely Jagannath Maratha Udapi and Raya Mandreker, besides other police personnel, started from Mapusa Police Station for a general checking of drugs at Calangute, Baga, Anjuna and Vagator. At about 8.30 p.m. when they reached near Blue Bird Restaurant at Vagator, they saw the accused smoking Chilum and thereupon they approached him and disclosed their identity. According to the prosecution, the accused was informed that he would be searched for drugs as they had got reasonable belief that he was suspected to be in possession of drugs. It is the further case of the prosecution that after complying with the necessary formalities, the P.S.I. Sunita told the accused that if he so desired he could be searched in the presence of a Magistrate or any Gazetted Officer. At the same time, the Police party offered themselves for being searched. However, the accused replied in the negative. Thereupon, the P.S.I. arranged and conducted the personal search of the accused in her presence and during the search a bundle of black coloured sticks wrapped in a polythene paper which appeared to be charas, were found in the right hand side pocket of a jacket, which he was wearing. The substance was weighed and found to be 46 gms. of which a sample of 10 gms. was separated and put in an envelope that was packed and sealed. The remaining quantity of 36 gms. was also put in a different envelope and also packed and sealed. Both the panchas and the P.S.I. signed the envelopes. The Chilum found in the mouth of the accused was also attached and put in another polythene bag and packed in polythene envelope and sealed and the same was signed by the panchas. Thereafter, the accused was asked to produce his passport and he stated that the same was in his room. After the panchanama and narration of these facts was recorded, a copy of it was given to the accused, who then led the Police party to his room in order to produce the passport. When they reached the room, the accused took a key which was with him and opened the lock of the room door. There also, the Police party offered themselves to be searched, but the accused declined to search them. The accused thereafter produced his pass-port and on being asked whether there were any more drugs in the room he removed a small pink and black coloured nylon bag which was hung to a hook behind the door. When the bag was opened, some black sticks wrapped in a polythene paper, all in one bundle, which were similar to those attached from the accused earlier at the Blue Bird Restaurant, were found. There was also a Chilum in the bag. The black coloured sticks which looked like charas were weighed and found to be 62 gms. out of which 10 gms. were separated as a sample and put in an envelope, packed and sealed for the purposes of testing. The remaining quantity was also wrapped under separate envelope and both the envelopes were again signed by the parties. The Chilum found in the bag was also separately wrapped and sealed. The attachment of the passport as well as of the seized charas and Chilum were there after recorded.
5. Mr. J.P. D’souza, learned Counsel for the appellant, has vehemently contended that apart from gross violation of sections 50 and 42(1) of the Act, practically almost all other relevant sections of the relevant statute had been breached by the Investigation Officer in this case, namely its sections 52(c), 52(3), 52(4), 52-A, 55 and 57, besides the above mentioned sections 50 and 42(1). He further stated that section 100 of the Criminal Procedure Code has been also violated in this case by the Investigating Officer. So far the main grievance of non-compliance of sections 50 and 42(1) is concerned, it was submitted by the learned Counsel that with regard to the non-compliance of section 50, prior to the personal search of the accused at the Blue Bird Restaurant, there is nothing on record to show that the accused was told or given an opportunity of being bodily searched in the presence of a Gazetted Officer or a Magistrate.
6. Section 50 of the Act which refers to conditions under which search of persons shall be conducted, provides in its sub-section (1) that when any officer duly authorized under section 42 is about to search a person under the provisions of sections 41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer or to the nearest Magistrate.
Sub-section (2) prescribes that if such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). It thus follows that the mandate of the said provision is required to be strictly observed by the officer intending to search a suspect of possessing drugs by informing him of his right to be searched in the presence of a Gazetted Officer, or a Magistrate. If the suspect desires that his search should be taken in the presence of a Gazetted Officer or Magistrate then the Searching Officer is to make arrangements for getting the search done before such authority. The provision is meant to ensure genuineness and reliability to the proceedings so as to make the prosecution case fully proved. Therefore, it is compulsory on the part of the Investigating Officer to enable the suspect/accused to exercise his option to be searched in the presence of a Magistrate. This being the position, it appears that the provisions of section 50 is to be held as mandatory and any violation of the section is likely to render the prosecution and trial vitiated.
7. It is true that in the instant case, there is some internal oral evidence by the prosecution witness, as contended by Mr. Bhobe, learned Public Prosecutor, pointing out that such option might have been given to the accused. The testimony of P.W.2 Raya Mandrekar, who in his examination does not make any mention of any warning given by the Investigating Officer so as to enable the accused to get himself searched in the presence of a Gazetted Officer or Magistrate, shows that however, during his cross examination he made a statement, at the instance of the learned Counsel for the accused himself, that it was true that P.S.I. Sunita informed the accused that if he so desired his personal search could be conducted before a Magistrate. The said witness thereupon asserted that the said warning was given by Sunita before the commencement of the search. Similarly, P.W.5, P.S.I. Sunita Sawant, who is the Investigating Officer in this case, has stated in her examination-in-chief that when the raiding party accosted the accused, after he was informed about the fact of suspicion of possession of drugs and that they were members of the police party, the accused was also told that if he desired he could be searched in the presence of a Magistrate or Gazetted Officer, which he declined. However, we are of the view that this type of evidence namely the oral statements of the prosecution witnesses during the trial, cannot be just believed or accepted as sufficient to fulfil the spirit of the legal mandate in the absence of a contemporary record of the search panchanama pointing out and/on record, unmistakably establishing the strict compliance with the peremptory and imperative mandate of the aforesaid provision of section 50 of the Act.
8. In the case of State of Punjab v. Balbir Singh, , the Supreme Court while dealing with section 50 of the Act has expressly emphasized that the words, “if the person to be searched so desires”, are important. It was further observed that in the context in which the right of a person to be searched before a Gazetted Officer or Magistrate has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right, if he so requires, to be searched before a Gazetted Officer or a Magistrate. The Court also made it clear that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or Magistrate, if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an 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. Therefore, it is to be taken as an imperative requirement on the part of the officer intending to be searched to inform the person to be searched of his right that if he so chooses he will be searched in the presence of a Gazetted Officer or Magistrate. Thus, to that extent the provision of section 50 is mandatory.
9. Similarly, the non-compliance of section 42(1) read with its proviso, to the extent that admittedly the entry of the raiding party in the residence of the accused was effected after sun set and before sun rise, appears to be acknowledged by the prosecution in the absence of any record or evidence to show that the search conducted by the raiding party to the house of the appellant allegedly between sun set and sun rise was carried out only after the Searching Officer’s belief of urgency having been recorded in writing and immediately communicating it to his Superior Officers.
10. In this respect, section 42(1) of the Act which regulates the power of entry, search, seizure or arrest, without warrant or authority, prescribes that any officer referred to in section 41(2), if he has reason to believe, from personal knowledge or information given by any person and taken down in writing, that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed ….. is kept or concealed in a building ….. may, between sun rise and sun set, enter into and search any such building. The proviso to this section states that if such officer has reason to believe that the search warrant or authorisation cannot be obtained without affording opportunity for concealment of evidence or facility for the escape of an offender, he may enter and search such building at any time, between sun set and sun rise, after recording the grounds for his belief. Sub-section (2) provides that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso, he shall forthwith send a copy thereof to his immediate official superior.
11. In the instant case, admittedly, there was no Gazetted Officer present at the time the raiding party searched the said premises. The evidence shown that only an A.S.I. was present. Thus, even assuming personal knowledge on the part of the searching officer, in such circumstances it seems that only a Gazetted Officer or an officer authorised by him would be entitled to enter the house to seize drugs and this also, after sun rise and before sun set. Therefore between sun set and before sun rise, permission in writing of a Gazetted Officer was to be secured by the raiding party which has actually carried on the raid in the residence of the appellant No. 1 admittedly after 8 p.m. If the searching officer believed or felt at that juncture that there was no time for him to secure a competent warrant or permission from the Gazetted Officer, he was required to record the ground of his belief as to why it was not possible for him to obtain such permission. Further such a record was to be forthwith sent or conveyed to his superior officials. In this regard, the Supreme Court in the aforesaid case of Balbir Singh, has clearly expressed that recording of that belief is no doubt mandatory, although the non-transmission or conveyance of this written record with regard to that belief to his superior officials is not vitiating the seizure if an explanation can be given for failure in complying with this requirement. In the instant case, we are satisfied that nothing of this sort appears to have been done by the Investigating Officer and this being the position it is compelling to conclude that the search of the accused’s house by the raiding party after sun set was thoroughly bad in law thus vitiating the trial.
12. In this connection we may again usefully extract the observations of the Supreme Court in the aforesaid Balbir Singh’s case wherein in so many words the Court has affirmed the mandatory nature of the provision. It was held as follows:-
“Under section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building, etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.”
To this extent the provision is mandatory and contravention of the same would affect the prosecution case and vitiate the trial. Further, the Court ruled that under section 42(2) such empowered officer who takes down any information in writing or records the grounds under the proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent the provision is also mandatory. But if there is delay, whether it was undue or whether the same has been explained or not, will be a question of fact and such failure may amount only to an irregularity.
13. Further, from the evidence on record it is seen that the prosecution has also thoroughly failed to establish the exclusive possession of the appellant with regard to the searched premises wherein he was purportedly residing since there is no dispute that the said house or residence was being occupied by other foreigners, who were living therein.
14. We are, therefore, of the opinion that on both these counts, namely, violation of sections 50 and 42(1) as well as the absence of proof of exclusive possession of the premises searched, the prosecution is bound to fail and, in our view, we are not required either to deal with the other contentions raised by learned appellant’s counsel or even go into the merits of the prosecution case.
15. In the result the appeal succeeds and is hereby allowed. The judgment and order of the learned Special Judge dated 4th March, 1993, are accordingly quashed and set aside. The appellant/accused is directed to be set free if he is not required in any other case.