K.S. Gupta, J.
1. This appeal by Shakil Ahmad @ Pappu and Wasim Ahmad, accused-appellants is directed against the judgment dated 28th April 1997 and order dated 1st May 1997 of an Additional Sessions Judge convicting them under Section 20 of the Narcotic Drugs and Psychotropic Substance Act (for short the 'Act') and sentencing to RI for 10 years and pay a fine of Rs. 1 lac each. In default of payment of fine, appellants are further to undergo RI for one year.
2. Case of the prosecution is that on 27th January 1994 at about 10.30 AM, a secret informer intimated Inspector J.S. Rana (PW-8) that Shakil Ahmed, Wasim Ahmed and Kamal Babu who are having charas in huge quantity, would pass through Irwin Hospital in Ambassador car No. UP-53-B-9458 between 11.00 to 12.00 noon. After recording this information in the DD at No. 11, PW-8 intimated about it to ACP H.L. Manaktala, PW-5. On direction of PW-5 a raiding party was organized by PW-8 wherein HC Ram Bahu, PW-7, HC Jai Bhagwan, PW-6, W.HC Ved Wati, Constable Vinay Kumar, Arvind Kumar, Raj Kumar and Datar Singh were included. All of them Along with informer left in vehicle Nos. DL-1/CC-4416 and DL-2CC-2086 and reached the chamber of Minto Road and Jawahar Lal Nehru Marg around 10.45 AM where nakabandi was made. 4/5 persons were requested to join raid but they left expressing their inability without disclosing their names and addresses. It is further alleged that at about 11.25 AM at the pointing out of informer said Car No. UP-53B-9458 while coming from the side of Irwin hospital, was chased. After overtaking the car which was being driven by Kamal Babu, PW-8 got it stopped near Ajmeri Gate Chowk opposite UP Roadways Bus stop. Shakil Ahmed and Wasim Ahmed, appellants were sitting on the back seat of car. All the three were apprised of secret information by PW-8. Thereafter notices in writing under Section 50 of the Act Exs. PW-5/A, Ex. PW-5/B and Ex. PW-5/C were served on them. Appellants and Kamal Babu declined to be searched either before a Magistrate or Gazetted officer. On search of Kamal Babu being taken by PW-8, charas contained in a polythene packet was recovered from the right side lower pocket of his coat. On weighment charas came out to be 500 grams out of which 50 gram separated as sample. Shakil Ahmad @ Pappu, appellant handed over a packet after taking it out from the front right side of pocket of his coat to PW-8. On weighment, charas contained in the packet came out to be 500 grams out of which 50 grams was separated as sample. Wasim Ahmad, appellant also handed over a momi bag containing charas to PW-8. On weighment, charas contained in the bag came out to be 2 kgs out of which 200 grams was separated as sample. Packets of sample and remaining charas were separately packed and sealed with the seal of JSR by PW-8. On checking the said car, 77 kgs of charas concealed at different places was further recovered. One kg of charas was separated there from as sample. Sample and remaining charas were also converted into separate parcels and sealed with the seal of JSR. CRCL forms were filled up and seal of JSR also affixed thereon. Since appellants and Kamal Babu had committed offence under Sections 20 and 25 of the Act, rukka Ex. PW-8/A was prepared by PW-8 and on the basis thereof FIR (carbon copy Ex. PW-3/A) was registered. Recovered charas was seized vide memo Ex. PW-5/D. Samples were sent to CRCL for analysis and as per reports Exs. PW-6/DA, PW-6/DB and PW-6/DC they gave positive test for charas. After completing investigation, chargesheet under said sections was filed against the appellants and Kamal Babu.
3. In their statements under Section 313 Cr. P.C. the plea taken by both the appellants is of plain denial.
4. To bring home the charges under Sections 20 and 25 of the Act, the prosecution examined 8 witnesses in all including ACP H.L. Manaktala, PW-5, HC Jai Bhagwan, PW-6 and HC Ram Bahu, PW-7 and Inspector J.S. Rana, PW-8, alleged witnesses of recovery. After repelling the objection raised on behalf of appellants regarding non-compliance of provisions contained in Sections 42(1), 50 and 57 of the Act, believing the statements of said witnesses of recovery and disbelieving the defense taken by appellants, they were convicted and sentenced in the manner noted above. Offence under Section 25 was, however, held to have not been made out against them.
5. In this appeal controversy mainly centres around the non-compliance/compliance of the provision contained in Section 50 of the Act. Before adverting to the submissions advanced on behalf of both the sides, it would be profitable to reproduce the contents of notices served under said Section 50 on the appellants. Ex. PW-5/A is the notice pertaining to Shakil Ahmad @ Pappu while Ex. PW-5/C to Wasim Ahmed, appellant. Both these notices are in vernacular and identical. Omitting immaterial portion, notice Ex. PW-5/A reads as under:-
'Aap Shakil Ahmed @ Pappu S/o Ashik Dat Khan R/o Bakshipur, Gorakhpur, PS Kotwali Gorakhpur, District Gorakhpur, UP, ko suchit kiya jata hai ki police ke pas itlah hai ke apke kabje me najayaj charas hai tatha police charas ke liye apki talashi lena chahti hai. Agar aap chayan to pahle police ki talashi ley sakte hai tatha apni khud ki talashi agar aap chayan to kisi Magistrate Anya GO ke samaksh karva sakte hai jiske liye intijam kiya ja sakta hai. Ukt tehrir ke sambandh me aapko padh kar suna diya tatha samjha diya gaya hai.'
6. Relying on the decision in K. Mohanan v. State of Kerala, , the contention advanced by Sh. D.C. Mathur for appellants was that the notices Ex. PW-5/A and PW-5/C as they stand, cannot be treated as communicating to the appellants that they had a right under law to be searched in the presence of a Gazetted officer or Magistrate. On the other hand, it was urged by Sh. Anil Soni for State that the notice in question were in substantial compliance of the requirement of Section 50. In support of the submission, reliance was placed on the decision in Joseph Fernandez v. State of Goa, : 2000CriLJ3485 . To be noted that K. Mohanan's case (supra) was rendered by a two Judge Bench on 27th October 1999 while that of Joseph Fernandez's (supra) by a three Judge Bench of Supreme Court on 5th October 1999. Although K. Mohanan's case was decided later in point of time, but it does not notice Joseph Fernandez's case. In Joseph Fernandez's case the offer made by the searching officer to the accused/appellant was 'if you wish you may be searched in the presence of a Gazetted officer or Magistrate' and this offer was held to be in substantial compliance with the requirement of said Section 50. As may be seen from discussions made in Paras 4 to 7 in K. Mohanan's case (Page 223) before the search of appellant-accused was conducted, he asked whether he required to be produced before a Gazetted officer or a Magistrate for the purpose of search and the appellant answered in negative; that noticing the law enunciated in the decision in State of Punjab v. Baldev Singh, : 1999CriLJ3672 by a Constitution Bench it was held that said offer could not be treated as communicating to the appellant that he had a right under law to be searched in the presence of a Gazetted officer or Magistrate within the meaning of Section 50 and conviction and sentence of appellant were, thus, set aside. It will not be out of place to mention that in Joseph Fernandez's case also reference has been made of Baldev Singh's case (supra). Evidently, ratio in both the said cases in irreconciable and for settling which of them is to be preferred, particularly paras 25 and 55 of Baldev Singh's case (supra) wherein ambit and scope of Section 50 was directly in issue, need be referred. Para 25 runs as under:-
'To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequence that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strength the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted officer or a Magistrate so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50.'
Para 55 runs as follows:-
'55. 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 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 concerned person about the existence of his right to be searched before a Gazetted officer or a Magistrate would cause prejudice to an 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;
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, thereforee, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair;
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial;
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50 An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act;
(9) That the judgment in Pooran Mal's case : [1974]93ITR505(SC) cannot be understood to have laid down that an illicit article seized during the search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case : AIR1995SC244 correctly interprets and distinguishes the judgment in Pooran Mal's case : [1974]93ITR505(SC) and the broad observations made in Pirthi Chand's case : 1996CriLJ1354 and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case.'
7. As per the ratio of above decision, in a case of prior information the accused has a right under Section 50(1) of the Act of being informed that he can be taken to nearest GO or a Magistrate for the purpose of search and this valuable safeguard has to be duly complied with/observed. Words 'duly' or 'due' connote not in substance but exact. Thus, K. Mohanan's case which is more in consonance with Baldev Singh's case has to be followed in deciding this appeal. In terms of aforesaid notices Ex. PW-5/A and Ex. PW-5/C the appellants were asked that a Magistrate or GO could be arranged for taking their search if they so required and this offer cannot be treated as communicating to the appellants that they had a right under law to be searched before any of the said authorities. That being so, following the ratio in K. Mohanan's case the conviction and sentence of the appellants deserve to be set aside.
8. In the result, appeal is allowed, judgment and order under appeal are set aside and appellants are acquitted of the charge under Section 20 of the Act.