T.S. Doabia, J.
1. The appellants in these three appeals stand convicted for having committed offences punishable under Sections 20 and 22 of the Narcotics Drugs and Psychotropic Substances Act 1985. They have been directed to undergo rigorous imprisonment for a period of 10 years and pay a fine of rupees one lakh each. In default of payment of fine they are to further undergo rigorous imprisonment for a period of two years each. They were also convicted under Section 22 of the Act of 1985 and each of them were to undergo rigorous imprisonment for a period of 10 years and to pay a fine of rupees one Lakh each. In default of payment of fine they were to further suffer rigorous imprisonment for two years. Both the sentences were to run concurrently.
2. The prosecution story in brief is that on 6-8-1989 at 6 p.m. Parshotam Lal appellant was standing under Balol Bridge near Miran Sahib, Tehsil R.S. Pura, Jammu. Chaman Lal appellant was also there. They were found standing therein supicious circumstances. Officials of the Customs Department and the department of Intelligence Bureau had prior information regarding some illegal activities of certain persons. When these officials reached near Balol Bridge, appellant Parshottam Lal and Chaman Lal tried to run away. They were apprehended by the Customs Officials. On search of Parshotam Lal, appellant 1 Kg. of Heroin was recovered. Both of them were taken into custody, Chaman Lal appellant made a statement that he had purchased the seized heroin from one Darshan Singh appellant herein. It is the prosecution case that on next day the custom party took Chaman Lal appellant to the residence of Darshan Singh appellant. His residential house is situate at Sanjay Nagar, Digiana, Jammu, Darshan Singh appellant was not found in the house. The customs authorities along with Chaman Lal proceeded towards Bari Brahmaria on Jammu Pathankot National Highway. Near Army Camp they found the appellant Darshan Singh coming from the opposite direction. He was on a horse cart. He was stopped there by the customs officers. They through Chaman Lal introduced themselves as the prospective purchasers of Heroin. After Darshan Singh appellant was got convinced with the Customs Officers as the prospective purchasers, he told them to reach his house. At about 10.40 a.m. on 7-8-1989 Darshan Singh appellant reached his house. Meantime the Customs Authorities had cordoned the residence of appellant Darshan Singh, Darshan Singh wanted the amount in advance. The Customs Officials however, convinced him that they would first like to see the sample. If the quality is good then they would make further purchase. Initially Darshan Singh was reluctant but he was pursuaded at least to give the samples. The appellant informed the Customs Officials that the heroin is lying in an Almirah. On this information being available to the Customs Officials a signal was given to the staff deployed by the Customs Department. All of them entered the house. They disclosed their identity. Darshan Singh appellant was nabbed. Three packets of Heroin weighing 3 Kg was seized from the shelf of the Almirah. This Almirah was in the wall of the room. The seizure memo was prepared on the spot. The appellant is said to have confessed his guilt and made a statement before the Customs Officials. This in nutshell is the prosecution story.
3. With a view to support this version, the prosecution examined 11 prosecution witnesses, namely, PW1 Sadhu Singh, the then Superintendent Customs, (2) PW Subash Trisal, Inspector Customs, (3) PW Ajay Kapai Inspector Customs (4) PW Bachan Lal, constable Customs (5) PW Bhupinder Singh, Inspector Customs, (6) PW Yogesh Chander Inspector Customs; (7) PW G.M. Sharma, Inspector Customs (8) PW Kuldeep Singh Constable Customs, (9) PW Rajinder Nath, Havalda, (10) PW Swaran Lal Constable Customs and (11) PW S.K. Razdhan, Scientific Assistant, Forensic Science Laboratory, Jammu.
4. PW 1 Sadhu Singh stated that in the month of August, 1989 he was posted as Superintendent Customs at R.S. Pura. He stated that he had received information on 5-8-1989 that two persons would be bringing heroin near Balol Bridge, Miran Sahib. It was precisely for this reason that an ambush was Lald on 6-8-1989. The ambush party was accompanied by Subash Trisal, Ajay Kapai, Bachan Lal, Swaran Lal, Kuldeep Chander and Yogesh Chander constables. Besides Intelligence Bureau party included S.M. Koul, V.S. Sharma, Kuldeep Singh, S.S. Saini, Mohinder Singh and Soda Mai. It was at about 7 p.m. they found two persons standing near the bridge. This witness directed Subash Trisal and Ajay Kapai, Inspectors to go to these persons. Then the said two inspectors started talking to those persons. Out of two persons one Chaman Lal who was present in the Court was duly recognized. The other person Parshotam Lal was not present in the Court on the date when the statement of this witness was recorded. When the customs party had engaged Chaman Lal and Parshotam Lal in conversation, they became suspicious. They wanted to run away. They were apprehended by two Inspectors. There was some scuffle also. Parshotam Lal was in possession of a Packet. When he was questioned regarding the contents of this packet he informed that this contained cloth. He further stated that he was waiting for a bus as he wanted to reach Jammu Later on when Sadhu Singh PW disclosed his identity then the two accused informed him that the packet contained heroin. This was roughly 1 Kg in weight. Two accused persons were brought along side a jeep belonging to the Customs Department. This was par at the road side. On inquiry being made these two persons informed Sadhu Singh PW that this packet was made available to them by one Darshan Singh R/O Digiana, Jammu. The packet in question as indicated above was taken possession of. This bore the mark of 'Najib Ullah' in Urdu script and mark of two elephants 719'. When the packet was opened, sample was taken out of it. After that it was sealed. Signatures of Parshotam Lal and Chaman Lal accused appellants and those of Inspectors V.S. Sharma were obtained. The recovery memo was prepared by Subash Trisal, Inspector.
5. After seizure, it is stated that the two appellants made statements. These were reduced in writing. These were in Hindi script. The statement made by Parshotam Lal is marked as Ex PW -SS/2. Both the appellants were taken into custody. Further evidence which was given is with regard to the factum of having visited the house of Darshan Singh. This happened on 7-8-1989. This witness had directed Inspector Ajay Kapai and Subash Trisal to accompany Chaman Lal accused and represent themselves as prospective purchasers. Some assurance was given to Chaman Lal that in case he is in a position to get some 'heroin' seized then steps would be taken with a view to let him off. As noticed above Darshan Singh was not in his house. Two persons then proceeded towards Darshan Singh. On the way they found Darshan Singh near Parmandal Morh. The two Inspectors were introduced by him as the prospective purchasers to Darshan Singh. At that point of time Inspectors and Chaman Lal were riding on a motor-cycle. They returned along with Darshan Singh. A deal was struck. Darshan Singh was pursuaded to show the sample of the packet kept by him. When it became clear to the Inspectors that Darshan Singh was in possession of Heroin, signal was given to the raiding party. Darshan Singh is said to have brought 3 Kgs of 'Heroin'. This was seized. This bore the same marking which was bearing by one packet which was taken possession of from Parshotam Lal, appellant. The seizure memo was signed by the witness and also by Darshan Singh appellant. This was marked as Ex. PW SS-/3. Sample was also taken. This was sealed separately. Statement of Darshan Singh was recorded and his signatures were obtained. This was marked as Ex PW SS/4. All the accused persons were thereafter taken into custody.
6. Subash Trisal is the Inspector in the Customs Department. He appeared as PW 2. He stated that as per the orders of the Superintendent of Customs he had accompanied the raiding party. This witness accompanied by Ajay Kapai went near Balol Bridge. He found that after some time two persons came there. He called them. One of them was Parshotam Lal. He was having a packet in his hand. When he was questioned regarding the contents of the packet, he tried to run away. They were howerver, caught. The two appellants disclosed that it contained 'Heroin'. They were taken near the jeep, and the 'Heroin' in question was sealed. Earlier to this samples were also taken and sealed. This witness also testified to the fact that on the next day they had gone towards the house of Darshan Singh on a motor cycle. Darshan Singh was not there. Then they proceeded towards Bari Brahmana. It was near Parmandal Morh, Chaman Lal appellant informed the witness that Darshan Singh was going towards his house on a 'Rehra'. On this Chaman Lal introduced the witness to Darshan Singh. It was represented that he is a prospective customer. On this Darshan Singh asked this witness to follow to his residence. At the residence a deal was struck. With a view to materialise the deal, this witness informed that they would first like to see the sample. When Darshan Singh felt satisfied with the witness along with other being in fact a prospective purchaser, he brought out the Heroin from an almirah. At this point of time signal was given t6 the raiding party. They raided the house of the appellant Darshan Singh and recovery of three packets of 'Heroin' was made.
7. The other prosecution witness is PW Ajay Kapai. He appeared as PW 3. He has narrated the story in the same manner in which PW 2 Subash Trisal has narrated the story. He has corroborated the version as given by PW 2.
8. PW Bachan Lal is a Constable. He has stated that on 6-8-1989 at 6 p.m. he came towards Balol Bridge along with the customs party. There Parshotam Lal and Chaman Lal were seen. They were brought near the jeep by the raiding party. This witness however, was unable to remember as to who was in possession of the packet. This witness also testified to the fact that on the next day, the raiding party went to the house of Darshan Singh.
9. PW Bhupinder Singh's statement is to the same effect as that of PW Bachan Lal.
10. PW Yogesh Chander is another witness. He stated that he accompanied the raiding party on 6-8-1989. He has given the account of what happened on the Balol Bridge.
11. PW G. M. Sharma is a witness regarding the events which took place on 7-8-1989. He was member of the raiding party, which raided the house of Darshan Singh. He testified to the effect that it was Subash Trisal and A. Koul who went along with Chaman Lal on a motor-cycle. He also testified to the fact that they returned after 10 minutes on a motor-cycle. It was further stated that Sadhu Singh, Supdt. Customs showed this witness the house which was cordoned by them.
12. PW Kuldeep Kumar has appeared in the witness box. He has corroborated their stand. He is a witness of what happened on 7-8-1989 at the house of Darshan Singh. Similar are the statements of PWs Rajinder Nath and Swaran Lal.
13. PW S.K. Razdhan is Scientific Assistant, Forensic Science Laboratory, Jammu. He has stated that he examined the contents of the packet containing heroin, sent by Superintendent Customs and the same were subjected to chemical examination and revealed the presence of Diamorphine (Heroin).
14. Statements of the appellants/accused were recorded under Section 342, Cr.P.C. They denied the allegations levelled against them.
15. From the narration of facts given above, it had become apparent that so far as appeal (Cr. Appeal No. 16/1992 and 18/ 1992) preferred by Parshotam Lal and Chaman Lal are concernd they deal with one set of occurrence. So far as appeal preferred by Darshan Singh that deal with another set of occurrence. However, when these are looked from a broader prospective then they are linked with each other and if the totality of the circumstances are taken note of then these can be treated part of one and the same criminal act. The facts noted above be summarised as under :-
(i) That the Customs Department and the I.B. Department had some information that some persons are indulging in the trade of illicit drug trafficking and had been some illicit substance with them and they were likely to deal with these items at a place near Balol Bridge, Miran Sahib, Jammu ;
(ii) that the Officials of the aforementioned departments had gone to the aforementioned place;
(iii) that the party consisted of the Officers, named above;
(iv) that two persons, i.e. Parshotam Lal and Chaman Lal appellants came there. They were apprehended by Inspectors Subash Trisal and Ajay Kapai;
(v) that there was a scuffle with the two appellants;
(vi) that Parshotam Lal appellant had a packet with him when Parshotam Lal was asked to indicate as to what was there in the packet it was stated that this contained clothes and was waiting for a bus to go to Jammu;
(vii) That when PW Sadhu Singh disclosed his identity to the appellants then they informed him that Packet contained 1 Kg of 'Heroin'.
(viii) that both the appellants were brought near the jeep, which was parked near the road;
(ix) That Chaman Lal then informed that the packet in question was brought from one Darshan Singh who happened to be the appellant in Cr. Appeal No. 17 of 1992.
(x) That the packet bore the mark 'Najib Ullah' in Urdu script and mark of two elephants;
(xi) that the packet was sealed and two of the appellants were taken in custody;
The above are the events which took place on the evening of 6th August, 1989.
What happened on 7-8-1989 may also be noticed in brief.;
On information having been given by Chaman Lal appellant, the Officers of the Excise Department went to the house of Darshan Singh. Darshan Singh was not present. They proceeded towards Bari Brahmana. On their way they found that Darshan Singh was going in the opposite direction. He was on a horse cart. It was at this place that Chaman Lal appellant introduced the Officials of the Customs Department as the prospective customers. Darshan Singh was pursuaded to sell the illicit drug and narcotic substance to the appellant. Initially he was reluctant. Then he agreed to sell. These drugs and narcotic substance were lying in his house. When they reached the house of Darshan Singh, he disclosed that these illicit drugs and narcotic substance are lying in his house. The raiding party which had surrounded the house of Darshan Singh reached there after a signal was given to them and thereafter the three packets of Heroin were recovered from the residence of Darshan Singh.
The counsel appearing for Parshotam Lal appellant has urged;
(i) That there was non-compliance of Section 42 of 1985 Act. According to him the information which was received by the Customs and the I.B. Department was not reduced into writing;
(ii) That before the search was conducted the appellant-Parshotam Lal was not informed regarding his rights available to him under Section 50 of 1985 Act. It is urged that he should have been informed that he has a right to be searched before a Magistrate or a Gazetted Officer. This having not been done the conviction would be vitiated by the law Lald down by the Supreme Court of India in the case of State of Punjab v. Balbir Singh 1999 (6) SCC 173.
(iii) that there was non-compliance of Section 57 of 1985 Act. It is urged that report regarding seizure and arrest was not notified within the next 48 hours. It is urged that a full account should have formed part of the report which is supposed to be sent in terms of Section 57.
(iv) that there was non-compliance of Section 55 in as much as the samples In questions were not left in the custody of the police officer as envisaged under Section 55.
(v) that the expert, namely, Sh. S.K. Razdan who examined the seized articles has not expressed an opinion that the sample was of heroin.
(vi) that the precautions in the matter of putting seal were not given due regard.
16. In addition to the submission of counsel appearing for the appellant Parshotam Lal, the counsel appearing for appellant Chaman Lal has urged that there is non-compliance of Section 52(A) in as much as there was no empowered officer for the seizure of the articles and the articles seized was not dealt with in terms of Section 52(A), 2 (A), (B) and (C). It is urged that there being no primary evidence, therefore, the conviction cannot be sustained.
17. Learned counsel has referred to the case State of Punjab v. Jasbir Singh (1996) 1 SCC 288. It is urged that when the searching officer acts on prior knowledge of the contraband being carried by some body, he is obliged to inform the person to be searched of his right to be taken to the nearest Magistrate or Gazetted Officer. If it is not done then it would be bad. Reliance has also been placed on the case reported as Saiyad Mohd Saiyad Umar Saiyad v. State of Gujarat (1995) 3 SCC 610 : 1995 Cri LJ 2662. Reference has also been made to the decision reported as the State of Punjab v. Baldev Singh (1999) 6 SCC 172 : 1999 Cri LJ 3672.
18. It has also been urged that the statement made to a Police Officer cannot be looked into for the purpose of recording conviction. It is urged that the officer of the Customs Department are Police Officers. Even if they are not wearing Uniform they would continue to enjoy the status of a Police Officer and therefore, any statement which is confessional in nature cannot be relied upon for the purpose of recording conviction.
19. While examining the scope of Section 50 of the Narcotic Drugs and Psychotropic Substances Act 1985 (also referred to as the 1985 Act), a Constitution Bench of the Supreme Court of India has observed 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. The failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail the protection which is inbuilt in Section 50. Similarly, if the person concerned requires, onbeing 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 of 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. It was also observed that the further question is as to whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with, it was said that strictly speaking it does not arise in the context in which the protection has been incorporated in Seciton 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not but bearing in mind the purpose for which the safeguard has been made, it was held that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be search before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right , it would render his conviction and sentence unsustainable. The protection provided in Section 50 to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible. It cannot be disregarded by the prosecution except at its own peril.
20. The above questions came to be considered because there was divergence of opinion between different benches of the Supreme Court with regard to the ambit and scope of Section 50 of the 1985 Act. In the case of State of Punjab v. Balbir Singh reported as (1994) 3 SCC 299 : 1994 Cri LJ 3702 and number of other cases it was held that failure to observe the safeguards, while conducting search and seizure as provided by Section 50 would render the conviction and sentence of the accused illegal. However, in the State of Himachal Pradesh v. Prithi Chand (1996) 2 SCC 37 : 1996 Cri LJ 1354 and in State of Punjab v. Labh Singh (1996) 5 SCC 520 : 1996 Cri LJ 3996 relying upon the judgment in case Pooran Mal v. Director of Inspection (Investigation) (1974) 1 SCC 345 : AIR 1974 SC 348 a discordant note was struck and it was held that evidence collected in a search conducted in violation of Section 50 of the Act of 1985 did not become inadmissible in evidence under the Evidence Act. On account of this difference of the opinion the whole issue was re-examined in State of Punjab v.Baldev Singh (1999) 6 SCC 172 : 1999 Cri LJ 3672. Ultimately, what was concluded in paragraph 57 is being reproduced below :
1. That when an empowered office 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 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 triad 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 provision 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, therefore, 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 Official concerned 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 the judicial process may come under a 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 the 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 the 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 person concerned 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 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 case (AIR 1974 SC 348) cannot be understood to have Lald down that an illicit article seized during a 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 case correctly interprets and distinguishes the judgment in Pooran Mal case and the broad observations made in Prithi Chand case and Jasbir Singh case are not in tune with the correct exposition of law as Lald down in Pooran Mal case.
21. From the perusal of the above conclusion, it becomes apparent 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 of being taken to a nearest Gazetted Officer or the nearest Magistrate for making the search. Such information may not necessarily be in writing. If there is failure to inform the person concerned about the existence of his right to search in the manner indicated above, then this would cause prejudice to the accused. If search is made not on prior information, without informing the person of his right, then this may not vitiate the trial.
22. A perusal of judgment in State of Punjab v. Baldev Singh 1999 Crt LJ 3672 (SC) (supra) also makes it clear that the requirement to comply with Section 50 is there only in case of a search of a person as distinguished from search of any premises etc. What is said in paragraph 12 is being reproduced below :
On its plain reading. Section 50, would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person, during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.
Some other decisions be also noted.
23. In the case C. Ali v. State of Kerala (1999) 7 SCC 88 : 2000 Cri LJ 3181 it has been held that requirement of informing the accused of his right to be searched in the presence of a Gazetted Officer or a Magistrate is mandatory, Non-compliance thereof vitiates the trial. See also Kalayath Nassar v. State of Kerala (1999) 7 SCC 309 : 2000 Cri LJ 817.
24. In Babu v. State of Kerala (1999) 8 SCC 499 : AIR 1999 SC 3861 a packet containing a certain quantity of brown sugar was recovered by Police from the person of the accused without informing him of his right to be searched in the presence of a Magistrate or a Gazetted Officer. Such omission on the part of the Police Officer concerned, it was held, would vitiate the consequential conviction and sentence passed against the accused.
25. In Mohd. Hussain Farah v. Union of India (2000) 1 SCC 329 : 1999 Cri LJ 4303, the DRI Officer apprehended the appellant on receiving information that appellant who was involved in an earlier case under the Act and who had jumped fail was staying in a hotel under a false name. The DRI Officer had no information that accused had kept or concealed heroin in the hotel room. They conducted search in the room only with a view to find out whether there was any incriminating article in that room. In the course of such search heroin was recovered. It was not put to the prosecuting witnesses necessary authorisation for the purpose of carrying out the search. No such point was taken before the trial Court. The point was taken for the first time before the High Court. It was observed that there was no substance in the contention that search of the hotel room was made at 9.30 pm. and that it had continued upto 2.00 a.m. and therefore, there was breach of Section 42 of the Act as the Officer had not recorded any grounds as required by that provision.
26. Requirement of informing the person of his right under Section 50 to be searched in presence of a Gazetted Officer or a Magistrate, is applicable only to the search of the person and not to the search of his baggage. The baggage of a foreigner arriving in India, which was found to contain heroin. It was held that the search of the baggage of a foreigner arriving in India, which was found to contain heroin did not attract Section 50. Thus in Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257 : 2000 Cri LJ 507 it was observed that only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a Gazetted Officer or a Magistrate. The reason given was that search of baggage is not the same thing as search of the person himself. If a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it, it cannot be said that it was found from his person.
In view of the above, it is concluded :
(i). If prior information is available then the person to be searched is to be informed of his right of being searched in the presence of a Gazetted Officer or a Magistrate;
(ii) The information need not be in writing;
(iii) If the search is conducted in the absence of the information, then the search would be valid;
(iv) That an illicit article seized from the person of the accused during search in breach of the safeguard Lald down in Section 50, cannot by itself be used as evidence of unlawful possession of the contraband. This may be used in other proceedings;
(v) That it is imperative for the Investigating Officer 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 effective search on him. Failure to give such information would not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused;
(vi) Where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during the search conducted in violation of the provisions of Section 50 of the 1985 Act, this would be bad.
(vii) That the requirement of the right of a person to be informed would be applicable only if the person is to. be subjected to personal search and if the premises are to be searched then the safeguards provided under Section 50 would not be applicable.
(viii) Then again search would not be vitiated if something is recovered from a baggage or from a packet which is being carried by the accused. This is because a clear distinction has been made between search of the person and search of premises and again search of baggage, which includes packets carried by an accused.
27. From the perusal of the above para, it becomes apparent;
(i) that Section 50 would come into play only in case of a search of a person as distinguished from a search of any premises.
(ii) Search of baggage is different from search of the 'person' of an accused.
(iii) that if search is made without prior information as contemplated by Section 42 of the Act then the requirement of Section 50 are not attracted.
28. In the light of the above position of law, the appeal of Darshan Singh, appellant first be examined.
29. Accused/appellant Darshan Singh's house was searched in pursuance of information which was given by Chaman Lal and Parshotam Lal appellants, Illicit drugs were recovered from his house. Therefore, to say that the provisions of Section 50 would be attracted so far as Darshan Singh is concerned, is an argument which cannot be accepted.
30. The only question which would be required to be gone into in the case of Darshan Singh is as to whether the search in the premises of Darshan Singh satisfied the other requirements of lawdealing with search of the premises and seizure. In this regard it be seen that the search was conducted in terms of provisions contained in Section 100 of the Criminal Procedure Code. This was done by the raiding party. Search led to the recovery of three packets of 'Heroin'. Therefore, it cannot be said that so far as appellant Darshan Singh is concerned, there was failure to comply with the requirement of Section 50 of the Act. The argument raised by him would be of no avail.
31. The case of other two appellants Parshotam Lal and Chaman Lal be now examined,
32. The facts which have come on the record are crystal clear. The presence of two appellants Parshotam Lal and Chaman Lal was noticed by the Officials of the Customs Department and the I.B. Department. They were present near Balol Bridge, near Miran Sahib. Both of these were apprehended. Parshotam Lal appellant had a packet with him. He was asked to indicate as to what was contained in the packet. He first stated that the said packet contained clothes. When he was asked why he was standing near the culvert and when PW Sadhu Singh disclosed his identity Parshotam Lal accused/appellant disclosed that it contained Heroin.
33. The question arises that whether in these circumstances it was necessary to inform the two appellants that they are going to be searched. This is not a case where something was recovered, on a physical search of appellant Parshotam Lal. It was Parshotam Lal appellant who volunteered of his own and disclosed that packet contained Heroiri. If this be the position then no opportunity arose for the raiding party to give an option to the appellant Parshotam Lal as to whether he would like to be searched before a Gazetted Officer or a Magistrate or an empowered officer. The evidence which has come on the record indicates that when he of his own stated that the packet contained 'Heroin'. As indicated above this information became available not pursuant to the search but when Parshotam Lal appellant himself stated that the packet contained heroin.
34. The question arises whether in the facts and circumstances of the case was there any opportunity available with the empowered or duly Authorised Officer to inform the appellant regarding his right to be searched in the presence of a Gazetted Officer or a Magistrate.
35. The question of search would arise only if something was still in possession of the appellant. If Dictionary meaning of the word 'search' is taken note of then it would mean 'to examine the person or personal affects of in order to find something concealed especially a part of Police procedure'. In Black's Law Dictionary sixth Edition Page 1349 the term is defined as under :-
A. 'Search' implies prying into hidden place for that which is concealed and that the object searched for had been hidden or intentionally put out of the way merely looking at that which is open to view is not a search, People v. Harris 256 CA2d 455 : 63 Cal. Rptr 849, 852.
B. It consists of probing or exploring for something that is concealed or hidden from searcher; an invasion, a quest with some sort of force, either actual or constructive. People v. Carroll 12 III. App 3d 869 : 299 N.E 2d 134, 140.
* * * * * * * * * * * * * * * * * * *C. 'Search' to which the exclusionary rule may apply is one in which there is a quest for, a looking for, or a seeking out of that which offends against the law by law enforcement personnel or their agents. Vargas v. State Tax Cr. App 542 S.W. 2d 151, 153.
36. Again as observed in KalesmaTunila v. State of Maharashtra (1999) 8 SCC 257 : 2000 Cri LJ 507 & Mohd. Hussain Farah v. Union of India (2000) 1 SCC 329 : 1999 Cri LJ 4303, recovery from the baggage or packet is different from recovering in pursuance of search of a person. Therefore, I am of the view that in these circumstances no occasion arises for the raiding party to, give an opportunity to the appellant to inform them that they had a right to be searched in terms of Section 50 of the Act. Even otherwise this was not a case of search. This was a case of recovery made in pursuance of a statement made by them. This is one aspect of the matter. So far as the case of Chaman Lal appellant is concerned this is still on-worst footings. He was not in possession but he was dealing with the activities of drug trafficking.
37. Therefore, I am of the view :
i. that so far as Darshan Singh appellant! is concerned, In his case there was no requirement to comply with Section 50 of the Act. This was because the search was made from his residential premises and not from his person;
ii. that the evidence regarding search which had been relied upon by the trial Court and which has been proved beyond any shadow of doubt is sufficient to bring home the guilt to the accused.
iii. the question of compliance of Section 50 in this case would not arise.
iv. Nothing was recovered from the possession of appellant Chaman Lal and the question of search in his case would not arise. So far as Parshotam Lal appellant is concerned he stated before the Officials of the Customs Department that packet contained 'Heroin'. The question of his being searched in compliance of Section 50 of the Act could not arise.
38. In view of the above factual and legal position, it can safely be concluded that there was no breach of the provisions of Section 50 of the Act. If this be the position then the requisite presumption which arises in terms of Section 54 of the Act of 1985 would arise in this case. This provision is to the effect that when the prosecution has shown by evidence that an accused had dealt with the Narcotic Drugs or Psychotropic Substance or is in any way in physical custody of the same or is directly concerned with it the onus shift to the accused to prove beyond doubt that he did not knowingly possessed the said drugs or substance. If the accused failed to discharge his onus he is liable to be convicted and punished accordingly. In the present case as indicated above Narcotic Drug was found from the possession of Parshotam Lal. It was again found from the premises owned by Darshan Singh. It has again come on the record that Chaman Lal appellant was dealing with the contraband items and he would accordingly be guilty with the aid of Section 29 of the Act of 1985. Chaman Lal is the person who was accompanying Parshotam Lal appellant. He is again the person who was dealing with Darshan Singh. It was at his instance the Customs Officials came to know that Darshan Singh was keeping Narcotic drugs with him. As indicated in the beginning of the judgment, three appellants though apprehended in different situations were basically working in unison and therefore, all the appellants are liable to punishment, under the aforementioned Act.
39. Therefore, the argument raised by the learned counsel for the appellant which have been noticed at S.No. 1 (i) and (ii) of Page 11 of the judgment are necessarily to be answered against the appellants.
40. The further circumstance as to whether there was non-compliance of Section 52, 52-A, or for that matter Section 57 may also be gone into. Provisions of Sections 52, 52-A and 57 deal with the steps to be taken by the Officer after making arrest.
41. The provisions of Section 52 are not mandatory. The view expressed by the Supreme Court of India in AIR 1994 SC 1872 : (1994 Cri LJ 3702) can be cited with advantage. The same would be the position vis-avis Section 57 of the Act. Once this aspect of the matter becomes clear and the provisions of Sections 52, 52-A, 57 are found to be not mandatory then the argument raised and which are noticed at S. Nos. (iii) and (iv) also loose significance.
42. One of the argument which has been raised and which has been noticed at S. No. (v) is that Mr. S. K. Razdhan, who had examined the seized articles had not given a definite opinion. This argument has to be noticed and rejected for the two counts :
i) that appellants Nos. 1 & 2 admitted that the packet contained Heroin;
ii) again appellant No. 3 Darshan Singh disclosed to the Customs Officials that he is dealing with the contraband and is ready and willing to enter into a transaction with them, therefore, to say that what was seized was not a contraband item would be an argument which is hot to digest.
Again Mr. S.K. Razdhan, who is scientific Asstt. in the Forensic Science Laboratory and who had examined the contents of the packet gave a positive opinion that the sample did contain 'Diamorphene' (Heroin). If this be the position then even the argument raised at S. No. (v) also looses significance. The report bears the signature of the Chemical Examiner and fascimile of the seal of Chemical Examiner N.D.P.S. Central Laboratory. It satisfies the requirements to make it admissible under Section 510 of the Code of Criminal Procedure, without examining the Chemical Examiner as Lald down by the High Court of Punjab and Haryana in State of Punjab v. Nichhatter Singh 1982 Cri LJ 1197, which reads (at pp, 1199 and 1200 of Cri LJ) :
Section 293 of the Criminal Procedure Code lays down that any document purporting to be a report under the hand of a Government Scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceedings under this Code, may be used as evidence in any inquiry, trial or other proceedings under this Code. The use of the word 'document' can lead to this interference that not only the opinion of the Chemical Examiner but all that is stated in the report becomes admissible without formal proof. If this were not so, such practical difficulties would arise as would render the examination of the Chemical Examiner or some body from his office a dire necessity, and not only the position of the seal but even reference numbers of the communications received from the police would have to be proved by examining some witnesses so as to connect the material examined with the one sent for examination.
43. This view approved by the Division Bench of the same High Court in case Bhagwan Dass v. State of Punjab 1982 Cri LJ 2138, holding that (paras 14 and 15) :-
A reading of Section 293 of the Code, as also the corresponding provision of the earlier Section 510 plainly indicates the clear policy of the legislature to obviate the examination of expert witnesses in the context and making their reports admissible per se. Reference to Sub-sec. (3) would indicate that even where such an expert is summoned (unless expressly directed to appear personally) he may depute any other responsible officer working with him to depose about the same on his behalf. To read this provision so strangely as to make every (or any) person handling the sample of the office of the Chemical Examiner, as a necessary witness, would therefore, be in a way defeating the very purpose of the statute itself. It is plain that in practice it can hardly be possible to entrust all the samples to the Chemical Examiner himself or to the particular analyst, who may latter come to examine the same. Therefore, insistance upon obtaining the evidence or depositing of all employees of the Chemical Examiner's office, who would meanwhile be concerned with the same transmission of the sample originally received, may well render nugatory the purpose underlying Section 293 of the Code and inordinarily delay the conclusion of criminal trial, which, it is the policy of the law, to conclude expeditiously. Viewed from any angle, it seems to follow the Section 293 of the Code renders admissible the report of the Chemical Examiner as a whole, including the avernments with regard to the condition of the sample and the seal thereon and manner of its receipts
44. This applies to the facts of this case, since the appellant did not exercise their option to summon the Chemical Examiner, the report was rightly admitted in evidence.
45. Another argument which has been raised is that the Customs Officials before whom some statement is said to have been made by the appellant, are Police witnesses and therefore, this cannot be relied upon. This question be also examined. It be seen that first of all the Customs Officials do not fall within the category of Police witness and therefore, even if some statement is made to them which is confessional in any way this would not be hit by Section 25 of the Evidence Act.
46. Section 25 of the Evidence Act mandates that no statement of the accused recorded by a Police Officer in the course of investigation will be admissible in evidence. It has been vehemently urged that all officials who under Section 53 of N.D.P.S. Act have the power to investigate the offences under the Act are Police Officers irrespective of the department they belong or represent. However, this question is no longer res integra in view of the law Lald down by the Supreme Court in case Raj Kumar Karwat v. Union of India 1991 Cri LJ 97 : AIR 1991 SC 45 where after detailed reference to the various judgments on the point in issue, the Court upheld the judgment of the High Courts of Delhi holding that:
The important attribute of Police power is not only the power to investigate into the commission or cognizable offence but also the power to prosecute the offender by filing a report or charge-sheet Under Section 183 of the Code. That is why this Court has since the decision in Badaku Joti Savant 1966 Cri LJ 1353: (AIR 1966 SC 1746) accepted the ratio that unless an Officer is invested under any special law with powers of investigation under the Code, including the power to. submit a report under Section 173, he cannot be described to be a Police Officer under Section 25 Evidence Act. Counsel for the appellants, however, argued that since the Act does not prescribe the procedure for investigation, the Officer invested with power under Section 53 of the Act must necessarily resort to the procedure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under Section 173 of the Code. Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act all the powers of Chapter XII including the power to submit a report under Section 173 of the Code. But the issue is placed beyond the pale of doubt with a non obstante clause notwithstanding anything contained in the Code and proceeds to say in Clause (d) as under :-
36-A (d) A special Court, may upon a perusal of Police Report of the facts constituting an offence under this Act or upon a complaint made by an Office of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial'.
This Clause makes it clear that if the investigation is conducted by the Police it would conclude in a Police Report but if the investigation is made by an Officer of any other department including the CBI, the Special Court would take cognizance of the offence upon a formal complaint made by such Authorised Officer of the concerned Government. Needless to say that such a complaint would have to under Section 190 of Code. This clause, in view, view clinches the matter, we must, therefore, negative the contention that an Officer appointed under Section 53 of the Act other than a Police Officer is entitled to exercise 'all' the powers under Chapter XII of the Code, including the power to submit a report or charge-sheet under Section 173 of the Code. That being so the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier.
In view of the above discussion we are of the opinion that the view taken by the Delhi High Court in the impugned judgment which is in accordance with the view taken by the Allahabad High Court in Mahesh v. Union of India (188) IFAC 379 : 1988 All LJ 411 and the Gujarat (1988) 2 FAC 173 : 1989 Cri LJ 460 is unassailable and must be upheld.
47. The Officials of the Revenue Department are not Police Officers. As such statements made to then do not offend Section 25 of the Evidence Act. The High Court of Delhi in case Yudhister Kiimar v. State 1992 Drug cases 121 it has been held that:.so far as offence investigated by NCB under NDPC act are concerned it has been Laid down by the Supreme Court in case Raj Kumar Karwal v. Union of India 1901 DC 47 : (1990) 1 JT 503 (SC) : (1991 Cri LJ 97) that Officials of the Department of Revenue Intelligence are not Police Officers within the meaning of Section 25 of the Evidence Act. The same ratio will be applicable in my view to the officers of NCB. Therefore, the concept of a confession of the statement of a co-accused in cases under the NDPS Act, will not be available to the petitioner and if such statements are found worthy of reliance in the peculiar facts and circumstances of a case, a Court may solely rely upon them for returning conviction and sentence.
48. Independently of the above, it be seen that the statements which were made by the appellants are not confessional statements. These were statements in the nature of disclosure statements. These were made voluntarily. Again Darshan Singh appellant also stated that he can make available Heroin. Three packets were recovered from his house. If this be the situation then it cannot be said that the statements which were duly signed by the appellants are hit by Section 25 of the Evidence Act.
49. Thus looking from any point of view the arguments raised by the learned counsel for the appellant cannot be sustained.
50. In view of the above, these appeals are found to be without any merit and are dismissed.