Khem Chand Sharma, J.
1. This criminal appeal by appellant Salim arises out of the judgment dated 16.09.1999 passed by the Special judge (NDPS Cases), Jhalwar by which he has convicted the appellant under Section 8/18 of the Narcotics Drug and Psychotropic Substances Act, 1985 (for short, the NDPS Act) and sentenced him to undergo 10 years rigorous imprisonment with a fine of Rs. one lakh, in default of payment of fine, to further undergo one years' rigorous imprisonment.
2. The facts leading to the prosecution case are that, on 6.10.1998 Sarvshri Dharmendra Prasad Bhatnagar Inspector, Prabhu Dayal, Hardayal Singh and Shivraj all constables, Narcotics Department were the Members of Preventive Party. Under the leadership of PW.3 C.L. Verma, Superintendent, Office of the Dy. Commissioner Narcotic, Kota, all of them were engaged in checking the vehicles at Toll Tax Barrier, Aklera for the purposes of preventing smuggling of Narcotics Drugs and Psychotropic Substances.
3. At about 2.00 P.M., on 6.10.1998 Shri D.P. Bhatnagar, PW 7 by hand signal stopped a Roadways Bus which was moving towards Kota and apprised the Driver and Conductor of the Bus of the purpose of stopping.
4. Thereafter, Shri Bhatnagar and Shiv Raj entered the bus and found a person sitting on seat No. 18 in a suspicious condition. He brought down the person from the bus. He disclosed his name as Salim. Thereafter Bhatnagar disclosed his identity and informed that person of his right to be searched either in presence of a Magistrate or a Gazetted Officer and gave notice Ex.P.2 to that effect. Salim gave his consent to be searched by Shri Bhatnagar and put his signatures on the consent. On being searched, one white coloured plastic bag tied on his person in a yellow coloured cloth, which was further tied by red coloured string was found. On opening the bag, it was found to have contained with opium weighing 4 Kg., out of which two samples of 24 grams each were taken. The samples and remaining opium were sealed in separate packets. Seizure memo Ex.P.3 was prepared. Memo of specimen seal, Ex.P.6 was also prepared. The accused was arrested vide arrest memo, Ex.P.5. During search, one bus ticket was also recovered vide Ex.P.1. Thereafter, site plan Ex.P.4 was prepared. Shri Bhatnagar submitted a first information report to Shri C.L. Verma, Superintendent of Police, who in turn, authorised Shri Sita Ram to conduct the investigation and submit the complaint in the Court. Shri Bhatnagar also prepared Test Memo, Ex.P.10 and recorded the statement of accused, Ex.P.16. He deposited the samples and remaining opium in the Malkhana, the entry of which is Ex.P.14. Shri Amar Lal, Constable deposited the, sample in the Government Opium & Alkeloid Works, Neemach vide Ex.P.13. The report of the Chemical examination is Ex.P.12, which indicated the sample to be of opium having morphine to the extent of 6.35%. Shri C.L.Verma sent information of seizure of opium and arrest of accused under Section 57 of the NDPS Act vide Ex.P. 18 to the Deputy Narcotics Commissioner, Kota. Shri Sita Ram also recorded the statement (Ex.P.17) of accused.
5. After completion of investigation, Shri Sita Ram submitted a complaint against the accused under Section 8/18 of the NDPS Act in the court of Special Judge, NDPS Act cases, Jhalawar.
6. Learned Special Judge after hearing the arguments and on the basis of material on record, framed charge under Section 8/18 of the NDPS Act against the accused, to which he denied and claimed trial. During trial, the prosecution, in support of its case, examined as many as 8 witnesses and exhibited some documents. Thereafter the accused was examined under Section 313 Cr.P.C. He did not produce any witness in his defence. The trial of the case resulted conviction of the accused appellant and accordingly the learned trial court sentenced the accused as aforesaid. Hence the present appeal.
7. I have heard Mr. Biri Singh, counsel for the accused appellant and Mr. Bhanwar Bagri appearing on behalf of the Central Bureau of Narcotics and perused the impugned judgment and the record of the case.
8. In challenging the conviction, the first contention raised by the learned Counsel for the accused appellant was that the appellant is entitled to be acquitted only on the ground that there was non-compliance of the mandatory provisions of Section 50* of the NDPS Act. The prosecution has not been able to prove beyond reasonable doubt the compliance of Section 50 of the NDPS Act. He has submitted that it has not been established on the basis of prosecution evidence that the accused was given both options of being searched strictly in accordance with the provisions of Section 50 of the NDPS Act.
9. Before dealing with the question it would be profitable to notice the provisions of Section 50 the NDPS Act:
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 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.
10. The question that falls for determination is whether on the facts and in the circumstances of case as revealed from the evidence on record, search of the person of accused and the recovery of opium from his possession was vitiated on account of non-compliance with the requirement of Section 50 of the Act.
11. To come to a definite conclusion on the point whether or not there was compliance of the requirement of Section 50 of the NDPS Act, it would be necessary to have a glance at the evidence on record. In the present case, the only evidence in this regard is of PW 7 Shri D.P. Bhatnagar, Inspector, Narcotic Department. P.W.3 Shri C.L. Verma and PW.4 Shivraj have stated that PW.7 D.P. Bhatnagar, Inspector Narcotics informed the accused of his right to be searched in the presence of a Magistrate or a Gazetted Officer and gave notice Ex.P.2. The accused gave his consent to have his search conducted by Shri Bhatnagar and he put his signatures beneath the consent. Ex.P.2 is a printed form regarding the information under Section 50 the NDPS Act, in which some blank space is left for the purposes of recording the name and address of the suspect. What is relevant is, as to what transpired at the time of search and seizure of opium. Shri D.P. Bhatnagar PW.7 has stated in his statement that he informed the accused of his right to have his search conducted either in presence of a Magistrate or the Superintendent present on the spot. He then gave him option Ex.P.2, upon which accused gave his consent. He further stated that after the notice was being given, Salim said that he can take his search.
12. In view of above, can it be said to be the compliance of Section 50 of the NDPS Act. According to Mr. Bagri representing the department, it is established from the oral evidence that there was compliance of Section 50 of the NDPS Act. He has firstly relied upon a decision of the Apex Court in Pon Adithan v. Dy. Director Narcotics Control Bureau, Madras 1999 Cr.L.J. 3663, wherein it has been held that oral evidence of the witness conducting search is sufficient to establish compliance of Section 50 the NDPS Act.
13. He has also placed reliance on the decision of the Gujarat High Court in the case of Heru Lal Viraji Kumawat v. State of Gujarat (1999) CCR 604 (DB) and Mafaji Movataji Thakor v. State of Gujarat 1999 Cr.L.J. 1318, and submitted that Shri D.P. Bhatnagar, PW 7 was the empowered officer and, therefore, it was not necessary for him to follow the provisions of Section 50 of the NDPS Act. He submitted that if a search and seizure is conducted by an empowered gazetted officer himself it is not necessary to inform the accused of his right to be searched.
14. In Heru Lal's case, the Gujarat High Court held that the Gazetted Officer or any Officer higher in rank than that of the status of a Gazetted Officer empowered under the provisions of Section 42(1)(2) of the NDPS Act is not obliged to follow the provisions of Section 50 of the NDPS Act.
15. In Mafaji Movataji's case (Supra) the Division Bench of Gujarat High Court has held that the information as to the right to be searched by a Gazetted Officer need not be given if search and seizure is conducted by an empowered gazetted officer himself.
16. In Raghbir Singh v. State of Haryana : 1996CriLJ1694 relied upon by Mr. Bagri, their Lordships of the Supreme Court has observed that a person to be searched has an option only of being searched in presence of a Senior Officer. He has no further option of being searched in presence of either a Gazetted Officer or a Magistrate. Their Lordships further observed that it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available Gazetted Officer or a Magistrate.
17. On the other hand, Mr. Biri Singh has vehemently argued that the aforesaid authorities relied upon by the prosecution are of no help to the prosecution case in view of the law laid down by the Supreme Court. In his answer, controverting the law laid down by the Division Bench of the Gujarat High Court in the case of Heru Lal Viraji Kumawat v. State of Gujarat and in Mafaji Movataji v. State of Gujarat, referred to above, learned Counsel has placed reliance on a decision of the Apex Court in Ahmed v. State of Gujarat 2000 (3) Crimes 188 (SC), wherein their Lordships of the Supreme Court repelled the argument and held as under--
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 no 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.
18. Learned counsel for the appellant has referred to a latest decision of the Supreme Court in T. Hamza v. State of Kerala : 1999CriLJ4059 . In this case the facts were identical to those involved in the present case. In the cited case PW. 1 admitted that before searching the accused he did not ask him whether he should be searched, in the presence of a Gazetted Officer. On these facts, it was held that both the options should have been given and failure to give both options would be non-compliance of the provisions of Section 50 of the NDPS Act.
19. On a bare reading of the above provision, it is evident that the statute provides a reasonable safeguard to the accused before a search of his person is made by an officer authorised under Section 42 of the NDPS Act. The question as to the effect of non-compliance of the provisions of Section 50 came up for consideration before the Hon'ble Supreme Court in catena of decisions.
20. In State of Punjab v. Balbir Singh (supra), the Apex Court held that failure 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.
21. In State of Punjab v. Baldev Singh and Ors. : (1999)6SCC172 , the Constitution bench of the Supreme Court after considering number of cases including Balbir Singh's case have held that it is imperative for the investigating officer to inform the suspect, orally or in writing, about his right to be searched before a gazetted officer or a Magistrate. Failure to give such information may not vitiate the trial but render the recovery of illicit article illegal and vitiate the conviction and sentence if recorded only on the basis of possession of such illicit article. The Hon'ble Court further held that if the person so informed requires to be searched before a gazetted officer or a Magistrate, the empowered officer is obliged to comply else it would render the search and conviction solely based on it bad.
22. In the aforesaid case, the Constitution Bench have considered the various questions relating to interpretation of Section 50, the oblitgatory character of the provisions therein and the consequence of the non-compliance with the requirements. On a detailed discussion of the various contentions raised and the previous decisions of the Apex Court in the matter, their Lordships of the Constitution Bench held as under:
To be searched before a gazetted officer or a Magistrate, if the suspect so requires, in an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences 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 crediworthiness to the search and seizure proceeding. It would also verily strengthen 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 person concerned 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 person concerned 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 person concerned of his right of being searched in the presence of the Magistrate or a gazetted officer, at the time of of the intended search. The Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with.
23. In para 57 of the Judgment, the conclusions arrived at by the Constitution Bench have been summed up as below:
(1) 'That when an empowered officer or duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the 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 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 illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.
24. Recently in T. Hamza v. State of Kerala : 1999CriLJ4059 , after considering various previous cases and quoting the aforesaid observations of the Constitution Bench in Baldev Singh's case (supra), the Apex Court have held that since there was non-compliance of the provisions of Section 50(1) of the Act before effecting the search and seizure, the conviction of the appellant was unsustainable.
25. Testing the case in hand on the touch stone of the principles laid down in the above referred judgments of the Apex Court, the conclusion is inevitable that the requirements of the Section 50 the NDPS Act were not at all complied with before making the search of the person of the accused. The main witness to the search in the present case, which led to recovery of opium from accused Salim, PW.7 D.P. Bhatnagar has categorically stated that he gave option to the accused of being searched in presence of a nearest Magistrate or by the Superintendent, Central Bureau of Narcotics who was leading the raiding party. What is important is as to what transpired before the accused was searched. There cannot be better evidence than that of the person making search and seizure of the accused. Thus, it stands proved that the accused appellant was not at all made aware of his extremely valuable right to have his search conducted before a Magistrate or Gazetted Officer. Even in cases where search is made by a person who himself is a Gazetted Officer, it is obligatory on his part to inform the accused of his right to be searched before a Magistrate or a Gazetted Officer as provided under Section 50 of the NDPS Act, inasmuch as this right being an extremely valuable right which the legislature has clothed him with and has been incorporated in the Narcotics Act keeping in view the severity of sentence.
26. In Ahmed v. State of Gujarat 2000 (3) Crimes 188, a question similar to the present case came up for consideration before the Apex Court and there Lordships, following the judgment in Baldev Singh's case (supra) rejected the argument advanced on behalf of the State-respondent that the requirement of compliance of Section 50 will not arise, if search is going to be made by an empowered officer, who happends to be a gazetted officer and 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 a nearest Magistrate for making the search.
27. Similarly, in Badshah v. State 2000 Cr.L.J. 2119 the Delhi High Court relying upon the recent judgment of the Apex Court in T. Hamza v. State of Kerala (supra) has observed that the accused has to be informed of his right to be searched in presence of a Gazetted Officer or a Magistrate, and there has to be full compliance of Section 50 of the Narcotics Drugs and Psychotropic Substances Act and substantial or partial compliance would be violative of Section 50 of the NDPS Act. The observations of Delhi High Court fully applies to the facts and circumstances of the present case as in the present case also there was partial compliance of the provisions of Section 50 of the NDPS Act as has been observed herein above.
28. From the above discussion, it stands fully established that there was partial compliance of the requirements of the provisions of Section 50 of the NDPS Act and, therefore, failure to make full compliance of the above provisions renders the recovery of opium illegal.
29. Mr. Bagri, has also submitted that it is a case of chance recovery and therefore, compliance of the provisions of Section 50 is not essential. He has relied upon a decision of the Madhaya Pradesh High Court in Ishwar Singh v. State of Madhya Pradesh 2000 (2) Crimes 50.
30. From the facts of the prosecution case, it can safely be concluded that it was not a case of chance recovery. The preventive party was on duty and in the discharge of their duty, while searching the vehicles in order to prevent the smuggling of Narcotics Drugs and Psychotropic Substances, the preventive party found the accused sitting in the Bus in a suspicious condition, got him down from the Bus he then gave option as required under Section 50 of the NDPS Act.
31. Even for the sake of argument if it is taken to be a case of chance recovery, then too, compliance of the requirements of Section 50 of the NDPS Act is mandatory in the present case. I am fortified in my view by the following observations of the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 :
If a Police Officer without any prior information as contemplated under the provisions of NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
32. In the case in hand, PW 7 D.P. Bhatnagar, Inspector was an empowered Officer under Section 42 of the Act to take search and seize the contraband. Having found the accused in a suspicious condition, he immediately asked the Driver and conductor of the bus to become Motbirs and then gave option to the accused of having his search conducted. He had reason to believe that accused has committed an offence under the provisions of the NDPS Act and hence before proceeding further in the matter of investigation, he was required to give option under Section 50 of the NDPS Act.
33. There is yet another infirmity in the prosecution case, which also goes to the root of the case. PW.7 Shri D.P. Bhatnagar has deposed in his cross-examination that he destroyed the seal on the spot, which he used for sealing the samples. Surprisingly enough, the seal impression of the same seal was found affixed on the Malkhana Register, Ex.P.14. PW. 5 Shri Nathu Lal Sharma has stated in his statement that the samples were sealed by the Inspector in the office, but the specimen of such second seal was not affixed on Malkhana Register. That apart, while exhibiting the sample and packet of remaining opium in the trial Court, it was found that packet of remaining opium, Article-I was found to have contained the seal 'CBN Malkhana'. However, the sample which was received by the department after its chemical examination was having only the seal of the department over chit. Further, PW.7 D.P. Bhatnagar instead using his own seal, he used the seal of the department. All these circumstances create serious doubt about the seals having remained intact and undisturbed from the stage of seizure till the chemical examination and thus, the possibility of tampering with the seal and samples cannot be ruled out.
34. Lastly, from a perusal of record, I feel that two Motbirs driver and conductor of the bus have also not supported the prosecution version. They have deposed that the packet was lying on the inner carrier of the bus and the officials caught the accused because of suspicion. The prosecution has failed to produce any other independent witness so as to corroborate the statements of the departmental witnesses.
35. For all the reasons stated above, the conviction of the accused appellant under Section8/18 of the NDPS Act and the sentence imposed upon him for the same is hereby set-asid and the appeal stands allowed. The appellant is in jail, and he shall be released forthwith, if not wanted in any other case.