R.K. Batta, J.
1. The appellant was tried for possession of 87.500 gms of brown sugar worth Rs. 87,500/-, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short, the 'NDPS Act'). The prosecution case, in brief, is that on prior information which was reduced into writing in the Station Diary, the police party along with panchas, went near Kamalbaba Durgah, Nagpur and accosted the appellant from whose personal search, 12.500 gms of brown sugar valued at Rs. 12,500/- was recovered besides cash of Rs. 9758/-. After the said recovery, the appellant was interrogated and he disclosed that he would point out brown sugar in the house and accordingly, he was taken to the house and from a cupboard, he took out one polythene packet as also cash. The said polythene packet contained 75 gms of brown sugar besides a sum of Rs. 2800/-. The samples were taken and forwarded to the Chemical Analyser who reported that heroin (diacetyl morphine) is detected in both the samples.
2. The prosecution examined in all six witnesses in support of the charge. The learned Special Judge (NDPS) accepted the prosecution evidence relating to recovery of brown sugar from the person as also from the house of appellant and held the appellant guilty under Section 21 of the NDPS Act. On conviction, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. one lakh, in default, to suffer further rigorous imprisonment for two years. The period of detention undergone during the investigation and trial was set off in terms of Section 428 Criminal Procedure Code. The appellant challenges the conviction and sentence imposed by filing this appeal.
3. The learned Advocate for the appellant substantially and mainly urged two points before me. The first contention advanced by him is that insofar as recovery from person is concerned, the safeguard under Section 50 of the NDPS Act have not been complied with inasmuch as the appellant was not informed of his right to get the search conducted in the presence of gazetted officer or the magistrate. In this connection, my attention has been drawn to notice under Section 50(1) of the NDPS Act (exhibit 55); evidence of P.W. 5 Dr Sitaram Joshi, a pancha witness and evidence of PW 6 Wasudeo Sidam, Police Inspector who conducted the raid. Reference to the same shall be made at the time of discussion of the matter on merits. The second contention advanced by the learned Advocate for appellant is that insofar as recovery from the house is concerned, the prosecution has failed to prove that the house either belongs to the appellant or that the same was in occupation of the appellant and in the absence of proof of the same, recovery cannot be used as against the appellant in order to sustain the conviction. Learned Advocate for the appellant has placed reliance on number of rulings on this aspect with which I shall deal at a later stage while discussing the case on merits.
4. Learned APP, on the other hand, urged before me that there is substantial compliance of the provisions of Section 50 of the NDPS Act in view of the notice (exhibit 55) as also depositions of pancha witness PW 5 Dr Joshi and PW 6 Sidam who have stated that the appellant was apprised of his right to be searched before the gazetted officer or the magistrate. In respect of recovery from the house, it is urged by learned APP that the evidence of pancha witness, Dr Joshi (PW 5) and that of Police Inspector Sidam (PW 6) proves that the said recovery is made from the house of appellant and that there is no reason as to why the said recovery should be disbelieved. Learned APP has also placed reliance on number of rulings to which reference shall be made hereinafter.
5. Though, according to the prosecution case, there were two distinct recoveries, that is to say, one from the person of the appellant while he was near Kamalbaba Durga and the other from his house which is at some distance from the place where the appellant was searched, yet a combined charge was framed by the learned Special Judge, NDPS. The charge reads as under :--
'That, you above named accused on or about 31-12-1992 at about 8.15 a.m. at Mominpura, near Kamal Baba Durgah, Nagpur was found in possession of brown sugar weighing 87 gram and 500 mg. worth of Rs. 87,500/- and cash of Rs. 12,558/- amount of sale proceed of brown sugar, without having any valid licence, permit or authorisation and thereby committed an offence punishable under Section 21 of N.D.P.S. Act, within my cognizance.
And, I hereby direct that, you above named accused be tried by me on the said charge.'
In the charge, there is neither any specific reference to the recovery of part of brown sugar from personal search nor there is reference to recovery of the balance brown sugar from the house of appellant. In my considered opinion, the charge has thus caused serious prejudice to the appellant.
6. Be that as it may, coming to the challenges advanced by the learned Advocate for appellant, I shall first deal with the challenge relating to the recovery from the person of the appellant. This recovery, admittedly, was made on prior information and the police party had gone along with the panchas. Section 50(1) of the NDPS Act provides that when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 and 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, The law in this respect is well settled and no longer res-integra. The requirement under Section 50 is that the accused must be apprised of the fact that he has a right to get his personal search conducted before the Gazetted officer or the Magistrate. The Apex Court in State of Punjab v. Balbir Singh, : 1994CriLJ3702 has laid down that the provisions of Section 50 of the NDPS Act are mandatory. The Apex Court in this respect has laid down-
'On prior information, the empowered officer or authorised officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer 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 Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.' ..........
'It is an imperative requirement on the part of the officer intending to search 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 a magistrate. Thus the provisions of Section 50 are mandatory.'
7. The Apex Court has further laid down in State of Punjab v. Baldev Singh etc. etc. : 1999CriLJ3672 to the following effect :--
'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 concerned person of his right under Sub-section (1) of Section 50 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 concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to 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 the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.'
it has been pointed out by the Apex Court in the aforesaid judgment that failure to inform the accused about existence of his right to get search before a Gazetted officer or a Magistrate would cause prejudice to the accused.
8. In this judgment, the Apex Court did not express any opinion as to whether the provisions of Section 50 of the NDPS Act are mandatory or directory, but it was held that failure to inform the person concerned of his right to get search conducted before a Gazetted Officer or a Magistrate would render the recovery of illicit article suspicious and render the conviction and sentence of the accused as bad and unsustainable in law.
9. In this respect, learned APP has placed reliance on the judgment of the Apex Court Beckodan Abdul Rahiman v. State of Kerala 2002 All MR (Cri.) 1591 However, the said judgment does not in any manner help the prosecution. This judgment lays down that the safeguards laid down under Section 50 of the NDPS Act are intended to serve a duel purpose to protect a person from false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. If the empowered officer fails to comply with the requirements of the section, the prosecution is to suffer for the consequences.
10. In K. Mohanan v. State of Kerala, , upon which reliance was placed by learned Advocate for appellant, also it was held that before subjecting a person to search, the officer concerned must inform him of his right to be searched before a gazetted officer or a Magistrate and failure to do so would cause prejudice to such person. It was further observed that if the accused, who was subjected to search was merely asked whether he was required to be searched in the presence of a gazetted officer or a Magistrate, it cannot be treated as communicating to him that he had a right under law to be searched. It was further observed that if the accused is told that he had a right under law to have himself searched, what would have been the answer given by him, cannot be gauged at this distance of time. The said observation was made by the Apex Court in view of the fact that the main defence adopted by the appellant in that case at all stages was that Section 50 of the Act was not complied with.
11. Coming to the evidence on this aspect in the case under consideration, the prosecution case is that notice (exhibit 55) was given to the appellant under Section 50(1) of the NDPS Act. The said notice reads as under :--
'Notice under Section 50(1) of N.D.P.S. Act.
Date 31-12-1992.
To,
Mohammad Ismail son of Karim Patel Ansari, aged 27 years, residing near Kamal Baba Dargah at Mominpura, Police Station, Tahsil, Nagpur.
Under Section 50(1) of N.D.P.S. Act there is provision of takingyour personal search in connection with the intoxicant in the presence ofthe Executive Magistrate or Magistrate or Gazetted Officer of anydepartment of the State Government.
If you desire we can make arrangement of the same.'
This notice only speaks of a provision relating to personal search in the presenceof Executive Magistrate or Magistrate or Gazetted Officer as also that if theappellant so desired, arrangement could be made for the same. This notice, in myopinion, in the context and evidence on record, does not apprise the appellant ofhis right but only points out the existence of such provision. The accused must bemade aware of the right in clear, unambiguous and categorical terms that he has aright to get himself searched before the Gazetted Officer or the Magistrate andthat if he so desires he can be taken to a Gazetted officer or a Magistrate. Thenotice in question falls short of the requirement under Section 50(1) of the NDPSAct. Besides this, the pancha witness Dr Sitaram Joshi (PW 5) on this aspect hasstated that the police told the accused that search had to be taken and policeasked the accused whether he intended to offer the search before ExecutiveMagistrate. This deposition also does not convey that the appellant was apprisedof his right properly. In addition, it speaks of only search before ExecutiveMagistrate, but the requirement of law is, Gazetted Officer or Magistrate. P.W. 5Dr Joshi also states that appellant declined for the search. In the notice under Section 50(1) (exhibit 55), there is no whisper that the appellant had declined toexercise the said right even though the endorsement of the appellant was takenfor having received copy of the said notice. In case the appellant had declined toexercise such right, the said fact should have been incorporated in written notice(exhibit 55). In this respect, the Investigating Officer P.W. 6 Wasudeo Sidam hasstated that he had disclosed the purpose of search to the accused and asked theaccused whether he intended to offer search before Magistrate or GazettedOfficer and the accused told that it was not necessary. This again is not sufficientcompliance of the requirement under Section 50(1) of the NDPS Act since itdoes not, in fact, apprise the appellant of his right thereunder. The observationscontained in para 6 of the judgment of the Apex Court in K. Mohanan v. State ofKerala (supra) are squarely applicable to the facts of the case under considerationinsofar as compliance of requirement under Section 50 of the Act is concerned.
12. Learned APP has placed reliance on the judgment of this Court inNoorkhan @ Naru v. State of Maharashtra : 2002(3)MhLj13 in respect of her contention that in the light of evidence on record, therequirement under Section 50(1) of the NDPS Act has been duly complied with.
In my opinion, the observations made in this judgment are based upon the facts and circumstances of the case and the same cannot be applied mutatis mutandis to the facts of the case under consideration.
13. On account of non-compliance of the requirements of Section 50(1) of the NDPS Act, the recovery of the illicit articles becomes suspect and it vitiates the conviction and sentence since conviction and sentence is recorded only on the basis of possession of illicit article recovered from the person of the appellant during search conducted in violation of the provisions of Section 50 of the Act. The law laid down by the Apex Court in State of Punjab v. Balbir Singh (supra) in sub-paras (1), (2) and (3) of paragraph 55 squarely applies to the case under consideration. Therefore, the conviction of the appellant on the basis of recovery of illicit article from his possession cannot be sustained and is required to be set aside.
14. It may be mentioned here that the learned Special Judge, NDPS has in para 11 of the judgment stated that the Investigating officer is a Gazetted Officer and as such, there is compliance of Section 50(1) of the NDPS Act in the present case. This finding of the learned Special Judge, NDPS cannot fulfil the requirements of Section 50 of the Act inasmuch as P.W. 6 Wasudeo Sidam is Investigating Officer and the Gazetted Officer before whom the accused is to be taken for search in case the accused so desires, cannot obviously be the Investigating Officer himself, but has to be another Gazetted Officer. If the reasoning of the learned Special Judge, NDPS is accepted, it will have the effect of nullifying the provisions of Section 50 of the NDPS Act. The learned Special Judge has thus taken an erroneous view in respect of Section 50 of the Act when he has stated that there is compliance of Section 50 of the NDPS Act because the Investigating Officer himself is a Gazetted Officer.
15. Now, coming to the second challenge advanced by the learned Advocate for the appellant, it is necessary to look into the evidence. The prosecution case is that after recovery of illicit articles from the personal search of the appellant, appellant made disclosure under Section 27 of the Evidence Act which was reduced into writing that the brown sugar and sale proceeds are in the house and he will produce the same. According to the learned Special Judge, NDPS, this statement is not under Section 27 of the Evidence Act, but it is confession made by the accused/ appellant before independent panch witness Dr Joshi (PW 5). For this proposition, he has placed reliance on Abdul Razak @ Raja v. Sandip Kr. Dutta Gupta and Anr. 1989 (3) Crimes 272. In the said case, while dealing with a case under Section 20(b)(ii) of the NDPS Act, the Calcutta High Court found that confession had been made by the accused therein before Intelligence Officer under Section 53 of the NDPS Act and since the said officer was not a police officer, the confessional statement was admissible. The learned Special Judge, NDPS has totally misunderstood this judgment which was based upon the fact that the Intelligence Officer functioning under Section 53 of the Act was not a Police Officer on account of which fact the confession made to him was admissible. In the case under consideration, the statement was made by , the appellant before the Police Officer, P.I. P.W. 6 Wasudeo Sidam which was reduced into writing by him which is obviously hit under Section 25 of the Evidence Act but could only be used as disclosure under Section 27 of the Evidence Act and if there is recovery in pursuance of the same, the same could be used against the appellant. The learned Special Judge, NDPS erroneously held that the confession was made before an independent pancha witness Dr Joshi (PW 5). It is pertinent to note that this statement is alleged to have been made by the appellant in the presence of Police Officer Wasudeo Sidam (PW 6) who had, in fact, recorded that information in memorandum (exhibit 56).
16. Dr Sitaram Joshi (PW 5), a pancha witness, has not spoken anything as to what was stated by the appellant. He has merely stated that the accused/ appellant was asked whether any other property was with him and immediately exhibit 56 was prepared. He did not depose as to what was stated by the appellant which was recorded in the memorandum. He further stated that police entered the house of the accused and the accused took out a packet containing brown sugar. In cross-examination he stated that he did not know the owner of the house. In this context, statement of this witness that the police entered the house of the accused, does not have much significance. On this aspect, the Investigating Officer Wasudeo Sidam (PW 6) has stated that the accused told that brown sugar and the sale proceeds were in the house and he agreed to produce the same. He further stated that accused took them to a building and went into the bed-room and from one cupboard he took out a polythene bag containing brown sugar. He admitted during cross-examination that he had not enquired about the ownership and occupation of the building from where the property was produced by the accused in the Corporation record. He also stated that he did not record statements of adjoining occupants of the house. In case of recovery from the house, it is incumbent on the prosecution that the house from where recovery is effected, either belongs to the accused or that it was in his occupation. None of this has been proved by the prosecution. In this respect, learned Advocate for the appellant has relied upon the Judgment of the Apex Court in Mohd. Alam Khan v. Narcotics Control Bureau and Anr., : 1996CriLJ2001 wherein it has been held that where ownership and possession of the premises by accused from which contraband articles were seized is not established, accused is entitled to acquittal. In this case, the prosecution had failed to establish ownership and possession of the premises from where the contraband articles were seized as belonging to the appellant. The Apex Court in the said case found that no acceptable evidence was led by the prosecution to prove that appellant was owner and was actual owner of the said building. Learned APP has relied upon judgment of the learned single Judge of this Court in Yogesh Rambhau Vrkude v. State of Maharashtra 2002 All MR (Cri.) 1519 wherein it was held that the presence of the accused himself with his wife in the premises, was sufficient to raise inference that accused was in possession of the house. The observations made in the said judgment have to be read in context of that case. In that case, accused and his wife were found inside the house where the seizure was made and it is on the basis of these facts that the observations therein have been made. In the case under consideration, the appellant was first searched near Kamalbaba Durgah and subsequently, he was taken to a house from where the remaining contraband was recovered. The prosecution has not led any evidence worth the name to prove that the appellant was either in possession or owner of the said house from where the contraband was recovered. In this view of the matter, the said recovery cannot be fastened on the accused/appellant. Therefore, appellant is entitled to acquittal in respect of the seizure of the contraband from the house in question.
17. For the aforesaid reasons, the appeal is allowed. The conviction and sentence of the appellant recorded by the Special Judge, NDPS vide judgment dated 16-11-1996 in Special Criminal Case No. 17/93 is hereby quashed and set aside. The appellant is, therefore, ordered to be acquitted of the charge. He shall be set at liberty in case he is not required in any other case.