REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1513 OF 2008
(Arising out of S.L.P. (Crl) No.4628/2007)
Man Bahadur ...Appellant
Versus
State of H.P. ...Respondent
O R D E R
Delay condoned.
Leave granted.
(1) One of the questions which arises for consideration in this appeal is as to
whether Shri Lal Chand No. 8 I.O. P.P.Pandoh(P.W.10) was bound to make the
accused-appellant aware that he had also a right to be searched before a Magistrate
or a gazetted Officer.
(2) In State of Punjab Vs. Baldev Singh -(1999) 6 SCC 172, a Constitution
Bench of this Court has clearly held that the accused has a right to be made aware
thereof. Having regard to the Miranda clause as enunciated by the Supreme Court of
the United States of America in Miranda Vs. Arizona-384 US 436, the Constitution
Bench held that, although,such communication itself may not necessarily be
made
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in writing but as far as possible such communication should be made in the presence
of some independent and respectable persons witnessing the arrest and search.
It was opined:
” 57 On the basis of the reasoning and discussion above, the
following conclusions arise:
(1) That when an empowered officer or a duly authorised officer
acting on prior information is about to search a person, it is imperative for him to
inform the person 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 may not necessarily be in writing.
(2) That failure to inform the person concerned about the
existence of his right to be searched before a gazetted officer or Magistrate would
cause prejudice to an accused.”
(3) A three-Judge Bench of this Court in Vijaysinh Chandubha Jadeja Vs. State
of Gujarat – (2007) 1 SCC 433 noticed the aforementioned dicta laid by the Constitution
Bench in Baldev Singh(Supra) and in no uncertain terms opined that the accused must be
told of his right to be searched before a gazetted officer or a Magistrate.
(4) The Bench, however, was of the opinion that some more clarification
is necessary as to whether such communication of the right of the accused could be taken in
evidence by way of oral evidence of the officer concerned.
(5) In this case it is accepted at the Bar that the search memo or any other
document do not show that the appellant was made aware of his right to be searched before a
gazetted officer or a Magistrate.
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(6) From the deposition of P.W.10-I.O.P.P. Pandoh, it appears that he had
merely given an option to the appellant to be searched either by himself or in presence of a
Magistrate or a gazetted Officer.
(7) No evidence has been adduced to show that the appellant was
communicated of his right either to be searched in presence of a Magistrate or a gazetted
officer on the one hand and by an empowered officer on the other.
(8) Recently, this Court in Noor Aga Vs. State of Punjab and Anr.-
2008(9) SCALE 681, categorically, held that as the provisions contained in the
N.D.P.S.Act are penal in nature, all requirements laid down therein must be
complied with strictly, stating:
” 149. Section 50 of the Act provides for an option to be given. This Court
in Baldev Singh(supra) quoted with approval the decision of the Supreme Court of
United States in Miranda Vs. Arizona [(1966) 384 US 436} in the following terms:
” The Latin maxim salus populi suprema lex ( the safety of
the people is the supreme law) and salus republicae suprema
lex(safety of the State is the supreme law) coexist and are not
only important and relevant but lie at the heart of the
doctrine that the welfare of an individual must yield to that
of the community. The action of the State, however, must be
right, just and fair.”
150. Justness and fairness of a trial is also implicit in Article 21 of the
Constitution.
151. A fair trial is again a human right. Every action of the authorities
under the Act must be construed having regard to the provisions of the Act as also
the right of an accused to have a fair trial.
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152. The courts, in order to do justice between the parties, must examine
the materials brought on record in each case on its own merits. Marshalling and
appreciation of evidence must be done strictly in accordance with the well known
legal principles governing the same; wherefor the provisions of the Code of
Criminal Procedure and Evidence Act must be followed.
153. Appreciation of evidence must be done on the basis of materials on
record and not on the basis of some reports which have nothing to do with the
occurrence in question.
154. Article 12 of the Universal Declaration of Human Rights provides
for the Right to a fair trial. Such rights are enshrined in our Constitutional Scheme
being Article 21 of the Constitution of India. If an accused has a right of fair trial,
his case must be examined keeping in view the ordinary law of the land.
155. It is one thing to say that even applying the well known principles
of law, they are found to be guilty of commission of offfences for which they are
charged but it is another thing to say that although they cannot be held guilty on
the basis of the materials on record, they must suffer punishment in view of the
past experience of otherwise.”
(8) In the instant case, there has been even no substantial compliance of
Section 50 of the N.D.P.S. Act.
(9) For the reasons aforementioned, the impugned judgment of conviction
and sentence cannot be upheld. It is set aside accordingly. The appeal is allowed.
(10) Appellant is in custody. He shall be released forthwith unless required in
connection with some other case.
………………….J.
[S.B. SINHA]
…………………J
[ CYRIAC JOSEPH ]
New Delhi,
September 23, 2008.
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