JUDGMENT
M.R. Calla, J.
1. Learned Addl. City Sessions Judge, Court No.2, Ahmedabad rendered the judgment and order dated 27.4.89 in Sessions Case No.266 of 1987 acquitting all the accused persons of charge under Sec.29 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’) but held all of them guilty under Sec. 21 of the NDPS Act and sentenced each of them to R.I. for 10 years and a fine of Rs.1 lakh and in default to further undergo 1 year R.I. The three convicts, namely, Bharat Girjashanker Raval, Bansi Rupaji Chauhan (Darji) and Mangalsing Bhansing Rajput preferred Criminal Appeals Nos.363, 300 and 325 of 1989 challenging the conviction and sentence, as aforesaid, before this Court. The concerned Customs Authority also filed Criminal Appeal No.956/90 against the part of the same judgment and order whereby the three accused have been acquitted of the charge under Sec.29 of the NDPS Act. When all these Appeals were listed before Division Bench on 29.12.99, it was noticed that Criminal Appeal No.363/89 as had been filed by Bharat Girjashanker Raval had already been decided by the Division Bench (Coram: K. J. Vaidya and M.H. Kadri, JJ – Per Vaidya, J) by judgment and order rendered on 5.10.95 and the Appeal was allowed, the conviction and sentence of the appellant in the said Appeal was set aside and he was acquitted. Thus the three Criminal Appeals against the judgment and order dated 27.4.89 passed by the Addl. City Sessions Judge in Sessions Case No.266/87, which remained pending were these three Appeals i.e. Criminal Appeals Nos.300 and 325 of 1989 and Criminal Appeal No.956/90. The Division Bench on consideration of the following cases:-
(i) Ali Mustaffa Abdul Rahman Moosa v/s. State of Kerala, reported in AIR 1995 SC 244 : 1995 SCC (Cri.) 32.
(ii) Mohmadkhan Rasulkhan Pathan v. State of Gujarat, reported in 1998 (1) 39-1 GLR 445.
(iii) State of Punjab v. Balbir Singh, reported in AIR 1994 SC 1892.
(iv) D.B. Thakur v. State, reported in 1996 (1) GLR 219.
(v) Raghbir Singh v. State of Haryana,reported in 1996 SCC (Cri.) 266.
(vi) State of Punjab v. Labh Singh, reported in 1996 SCC (Cri.) 103.
(vii) State of Punjab v. Baldev Singh, reported in J.T. 1999 (4) SC 595.
(viii) Ravishankar Bhhagvatiprasad v. State of Gujarat in Criminal Appeal No.774 of 1995. found that one of the concerned officers in the case at hand was the Superintendent of Central Excise and Customs, a Gazetted Officer and, therefore, it would not be necessary to ask the accused as to whether he wanted to be searched in presence of any Gazetted Officer or a Magistrate i.e. to say requirement of Sec.50 of the NDPS Act could not be said to be necessary for being explored at the time of search. It was, therefore, ordered that there are conflicting and different views of the different Benches of this Court and the matter required consideration by a larger Bench. Paras 4,5 and 6 of the order dated 29.12.99 passed by the Division Bench are reproduced as under:-
“4. In the present case one of the concerned officers being the Superintendent of Central Excise and Customs, a Gazetted Officer, it would not be necessary to ask the accused as to whether he wanted to be searched in presence of another Gazetted Officer or a Magistrate, that is to say requirement of section 50 of the NDPS Act could not be said to be necessary for being explored at the time of search.
5. IT WOULD, THEREFORE, APPEAR THAT THERE ARE CONFLICTING AND DIFFERENT VIEWS OF THE DIFFERENT BENCHES OF THIS COURT AS AFORESAID IN THE FIELD AND THE MATTER WOULD REQUIRE CONSIDERATION BY A LARGER BENCH.
6. Since the appeals are quite old, office is directed to place the same before the Hon’ble the Acting Chief Justice forthwith for passing appropriate order for making reference as aforesaid.
Date:29/12/1999 (M.S. Parikh, J.)
(H.K. Rathod, J.)”
2. Accordingly in terms of the order passed by the Hon’ble Chief Justice on 26.4.2000, these matters have been listed before us. It was given out by the learned A.P.P. that Shri Mangalsing Bhansing Rajput i.e appellant in Criminal Appeal No.300/89 has expired.
3. Sec.50 of the NDPS Act is reproduced as under:-
“50. conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41,Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) 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).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.”
In sub-section (1) of Sec.50 the words used are “officer duly authorised under Section 42”. Sec.42 provides for the power of entry, search, seizure and arrest without warrant or authorisation and says that “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 the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Revenue, Drugs Control, Excise, Police or any other Department of a State Government as is empowered in this behalf by general or special order of the State Government, 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 or any document or other article which may furnish evidence of the commission of such offence 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 any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.”
4. Under Sec.42(2) it has been provided that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. When such an officer is also to search any person under the provisions of Sec.41, which provides the power to issue warrant and authorisation, Sec.42 as above or Sec.43 i.e. power of seizure and arrest in public places, he is under an obligation if the person so requires, to take such person without unnecessary delay to the nearest Gazetted officer of any of the Departments mentioned in Sec.42 or to the nearest Magistrate. It is, therefore, clear that the officer duly authorized under Sec.42 is under a statutory obligation to take the person to be searched to the nearest Gazetted Officer of any other Department mentioned in Sec.42 or to the nearest Magistrate. Now it is very clear from the reading of Sec.42 that an officer authorised under Sec.42 in a given case may be a Gazetted Officer also and yet in Sec.50 itself or elsewhere in the Act, it has not been mentioned that where such an officer authorised under Sec.42 himself be a Gazetted Officer he need not to discharge the obligation, as aforesaid i.e. to take the person to be searched to another Gazetted officer of any other Department mentioned in Sec.42 or to the nearest Magistrate. It may also be noticed that under Sec.50(3) the Gazetted Officer or the Magistrate before whom any such person is brought and such Gazetted Officer or Magistrate sees no reason or ground for search, may forthwith discharge the person but otherwise shall direct that search be made. We find that sub-section (3) confers a very valuable right on the person to be searched inasmuch as he can be discharged by the Gazetted Officer or the Magistrate before whom he is brought by the Officer, who is authorised under Sec.42 and who is about to take his search. We also find that the Gazetted Officer under sub-section (3) of Sec.50 need not be an officer authorised under Sec.42 and thus Scheme of Sec.50 itself makes a clear distinction between the Gazetted Officer who may be authorised under Sec.42 and who is about to search any person as mentioned in Sec.50(1) and the Gazetted Officer mentioned in sub-section (3) of Sec.50. So far as the Gazetted Officer who may be authorised under Sec.42 and who is about to search any person proceeds only when he has made up his mind to go with the search of the person. Whereas the Gazetted Officer or the Magistrate before whom such person is to be brought as required by Sec.50(2), considers for himself as to whether there is any reason or ground for search and if he does not find any such reason or ground he may discharge the person forthwith. Such a right of the person, who is about to be searched and who may be discharged forthwith before the Gazetted Officer or the Magistrate under Sec.50(3), cannot be made to be defeasible and defeated by saying that the requirement of Sec.50(2) is not to be followed when the officer authorised under Sec.42 himself is a Gazetted Officer.
5. For the reasons aforesaid and keeping in view the scheme of the Act and the provisions there under, particularly Sections 50, 41, 42 and 43 it is transparently clear that even if the officer authorised under Sec.42 who is about to search a person is a Gazetted Officer, he has to discharge the obligation under Sec.50(2) so as to take the person about to be searched, before any other Gazetted officer or Magistrate and merely because such Officer authorised under Sec.42 himself is a Gazetted Officer is not a valid ground to dispense with the requirement of Sec.50(2) so as to enable another Gazetted officer or Magistrate to examine as to whether the person sought to be searched is required to be discharged forthwith or the search is actually required to be made.
6. We would have certainly gone into details of the above mentioned eight cases in Para 1 of this order on the basis of which the Division Bench while passing the order dated 29.12.99 has opined that there are conflicting and different views of the different Benches of this Court and that, therefore, the matter requires consideration by a larger Bench, but we find that this discussion in detail is not necessary in view of the latest pronouncement of the apex court in the case of Ahmed v. State of Gujarat, reported in JT 2000 (9) SC 416, wherein the apex court has held in no uncertain terms that to ensure fairness in the search itself and for compliance of Sec.50 of the Act, no differentiation can be made whether the search is being made by the empowered officer, who obviously is an officer of Gazetted rank or the authorised officer who may be a subordinate officer to whom the empowered officer authorises. In the case before the Supreme Court, the search itself had been made by a Gazetted Officer, who had been examined as P.W.2 in the trial and the argument was raised that whereas he himself was a Gazetted officer, there was no question of compliance of Sec.50 of the Act. The Supreme Court considered the same question, which is the subject matter of this reference i.e. whether when a search is made by a Gazetted Officer, is it obligatory for the prosecution to inform the accused of his right to be searched before a Gazetted Officer or before a Magistrate, as provided under Sec.50 of the Act? The relevant portions of the judgment of apex court in Ahmed v. State of Gujarat (Supra) where this question has been answered are as under i.e. Part of Paras 4, 5 and 6 of the Judgment.
“A combined reading of the provisions of Section 42 and Section 50 would make it crystal clear that whenever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf, then if the person to be searched requires to be taken to a gazetted officer or the nearest magistrate, the same must be complied with and failure of compliance of the same would constitute an infraction of the requirements of the provision of Section 50, which would ultimately vitiate the conviction. For the purpose of complying with the provisions of Section 50, no differentiation can be made on a plain reading of the language used in Section 50, depending upon the officer who is going to search the person concerned. In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another gazetted officer or the magistrate and that right cannot be taken away, merely because the officer going to search happens to be a gazetted officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the Legislature has enacted the safeguard contained in Section 50 to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable. It is in this connection, it would be appropriate to extract the observations made by a three Judge Bench of this Court in the case of Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat, (JT 1995 (3)SC 489 = 1995 (3) SCC page 610).
“It is to be noted that under the NDPS Act, punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extent to Rupees two lakhs, and the Court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of providing his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it “for the possession of which he fails to account satisfactorily”. Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the Legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a gazetted Officer or a magistrate. We endorse the finding in Balbir Singh case that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a gazetted officer or a magistrate.”
5. In the aforesaid judgment, not only the decision of this Court in Balbir Singh’s case to the effect that the provisions of Section 50 are mandatory, has been endorsed but also, it further indicates that it obliges the Officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a gazetted officer or a magistrate. In the case in hand, the evidence of PW1 indicates that even though the obligation of the officer had not been discharged by way of informing the accused of his right to demand that the search be conducted in the presence of a gazetted officer or a magistrate but the accused himself wanted to be searched before another gazetted officer or a magistrate but that was not acceded to. It is not necessary to notice several decisions of this Court, holding the provisions of Section 50 to be mandatory and we would notice the recent Constitution Bench decision on the point. In the case of State of Punjab v. Baldev Singh. (JT 1999 (4) SC 595 = 1999(6) SCC 172), this question was considered and answered by the Constitution Bench by holding that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a gazetted Officer or a magistrate and the failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. It was further held that if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a gazetted officer or a magistrate, the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence of the accused based solely on recovery made during that search bad.
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6. In view of the aforesaid conclusions of the Constitution Bench, the submission of Mr. M. N. Shroff, appearing for the State-respondent, that the requirement of compliance of Section 50 will not arise, if a search is going to be made by an empowered officer, who happens to be a gazetted officer, is devoid of any substance inasmuch as this Court in not uncertain terms has held 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. In view of the aforesaid position of law and in view of the evidence of PW1, as indicated in the earlier part of this judgment, the accused himself having wanted to be searched before a gazetted Officer or a magistrate and the same having been denied, there cannot be any doubt that failure on the part of the prosecution in complying with the provisions of Section 50, renders the recovery of illicit article suspect and vitiates the conviction and sentence of the accused, since the conviction in the case in hand is based solely on the alleged possession of Charas, which was recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.”
7. We have already expressed our view in Para 4 and 5 of this order about the effect and scope of Sec.50 and the Scheme of the Act and as to the obligation of the Gazetted Officer (who is about to search a person) to take the person to be searched before another Gazetted Officer or Magistrate in detail and we can not do better than what has been laid down by the apex court in the judgment, as aforesaid, the excerpts of which we have quoted hereinabove. We, therefore, find that it is not at all necessary for us now to dilate further on this aspect so as to resolve the different and conflicting views in the decisions rendered by this Court in the eight cases mentioned under Para 1 and in Bench order dated 29.12.99. The question stands concluded by the judgment of the Supreme Court, as above, and the reference is answered accordingly.
8. Since the reference was made to the larger Bench only for the limited purpose of resolving the conflict on the above referred question and, therefore, having answered the reference, we direct that these Appeals may be placed before the concerned court for hearing.
