1.The conviction and sentence imposed against the first accused in S.C. No. 1053/2012 on the files of the Additional Sessions Court -II, Kollam (Special Judge under the Narcotic and Psychotropic Substances Act, 1985 (hereinafter, referred to as, the 'NDPS Act') as per the judgment dated 30.03.2015 are under challenge in this criminal appeal filed at the instance of the first accused/appellant. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.
2. Heard the learned counsel for the appellant/first accused and the learned Public Prosecutor in detail. Perused the judgment impugned and the records of the Additional Sessions Court.
3. In this case, the prosecution alleges commission of offences punishable under Section 8(c) as well as Sections 20(b)(ii)(B) and 29 of the NDPS Act by accused Nos. 1 and 2, on the premise that on 31.05.2011, PW1, the Excise Inspector of Chathanoor Range, while conducting patrol duty, searched the 1st accused and found him in conscious possession of 1.4 kg of ganja.
4. The learned Special Judge proceeded with trial, after framing charges for the said offences. During trial, PW1 to PW3 were examined, Exts.P1 to P13 and MO1 to MO6 were marked on the side of the prosecution. On the side of defence, Ext. D1 series, FIR in Crime No. 328/2005 of Kottiyam Police Station and connected records were tendered in evidence. The learned Special Judge evaluated the evidence and found that the first accused had committed offence punishable under Section 20(b)(ii)(B) read with Section 8 of the NDPS Act, while acquitting the second accused for the said offence. Accordingly, he was convicted and sentenced as under:-
“32. Hence, the 1st accused is sentenced to undergo Rigorous Imprisonment for a term of 1(one) year and he is also sentenced to pay a fine of Rs.10,000/-, and in case the accused did not remit the fine amount, he shall undergo further rigorous imprisonment for a period of 30 days. The records involved in this case reveal that the accused has undergone detention from 01.06.11 to 03.08.11 and hence he is entitled to get set off to that extent in the substantive term of imprisonment imposed against him, as envisaged u/s 428 of the Code.
33. MO1 & 2 being narcotic substance, they shall be subjected to destructions through the Drugs Disposal Committee. The office is directed to intimate the Chairman of Drugs Disposal Committee for the said purpose. MO5 gold ornaments shall be given to the 1st accused and if he is not claiming the same within a reasonable period, it shall be disposed of as per rules. The other material objects, being valueless articles shall be destructed. The direction as to the destruction or disposal of the material objects shall be deferred till the period of time allowed for preferring appeal expires, and in the event of appeal, until it is disposed of.”
5. The learned counsel who appeared for the appellant/first accused raised two main contentions to unsustain the verdict impugned. The first point argued is that the detecting officer failed to comply Section 42 of the NDPS Act in the matter of furnishing the information he got recorded as Ext.P1, to his immediate superior. Secondly, the non-compliance of Section 50 of the NDPS Act, before body search also is alleged. According to the learned counsel for the appellant/first accused, insofar as the compliance of Section 42 of the NDPS Act, the Apex Court considered the same in the decision reported in Karnail Singh v. State of Haryana [(2009) 8 SCC 539] and held in paragraph No. 17 as under:-
“17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42 from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.”
6. It is also argued that even though PW2, the Gazetted Officer was brought to conduct body search on the accused, information was given regarding the right to be searched before a Magistrate or a Gazetted Officer before jointly and the same is non-compliance of Section 50 of the NDPS Act.
7. Opposing this contention, the learned Public Prosecutor placed decision of the Apex Court reported in Firdoshkhan Khurshidkhan v. State of Gujarat [2024 KHC 8197], contending that here the search was from a public place, where Section 42 has no application as the search and seizure of contraband from a pubic place is within the ambit of Section 43 of the NDPS Act. In the above decision, the Apex Court held in paragraph No. 18 as under:-
“18. S. 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of S. 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of S. 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected.”
8. According to the learned Public Prosecutor, since Sections 43 and 50 of the NDPS Act have been complied by securing the presence of PW3, the Gazetted Officer, the contentions raised by the learned counsel for the appellant/first accused to unsustain the verdict would not succeed and accordingly, he pressed for confirmation of the verdict impugned.
9. In view of the rival submissions, the points arise for consideration are:
1. Whether the Additional Sessions Court is justified in finding that the first accused committed the offence punishable under Section 20(b)(ii)(B) read with Section 8 of the NDPS Act?
2. Whether the impugned verdict would require interference?
3. Order to be passed?
10. Point Nos. 1 to 3:- Going through the evidence of PW1, PW1 deposed that on 31.5.11, when he was conducting patrol duty along with his men, a person who did not reveal his identity informed him over mobile phone, that the accused persons were conducting sale of ganja near the stair case of Adichanalloor public library. The informant gave the details of the accused persons, including their name, dresses worn by them and the other matters required to identify them. Then PW1 rushed to the spot after recording the information as per Ext.P1 and intimating the matter over mobile phone to his immediate official superior (PW3). When they reached near the public library, it was noticed that the first accused was handing over something from a yellow plastic cover held by him to the second accused and he in turn attempted to give the same to another person, who in turn handed over a currency note. On seeing the prosecution team, that accused persons attempted to ran away from the scene and the officials prevented both the accused. Then, in the presence of the witnesses, a small packet held by the second accused was taken and inspected by PW1, it was found that it contained ganja. Thereafter he intimated both of them that they had the right to get the presence of a Magistrate or Gazetted Officer for their body search and accordingly PW1 secured the presence of PW3 at 6.05 p.m and in the presence of PW3, he underwent self body search and thereafter he conducted the body search of the first accused, after verifying his identity. On inspection of the plastic cover held by him, it was revealed that it contained 210 small packets of ganja wrapped in newspaper pieces. On further search on the body of the 1st accused, it was found that a white plastic cover was tied on his hip and the said cover also contained ganja. Since the first accused confessed that a gold chain and a ring worn by him were purchased by the money obtained from the sale of ganja he had seized the same also. He also recovered Rs.260 from the pocket of the first accused as he admitted that it was obtained by the sale of ganja. He further confessed that he got ganja from Kottarakkara through a person whose identity was not known. When ganja obtained from the yellow packets was weighed it was found 800 gm and the ganja obtained from white plastic cover was 600 gm. He drew a sample from the mixture of the contents of these two packets as 'A' sample and the sample as well as the remaining ganja were sealed, labelled and seized as per usual procedure. He affixed his personal seal, the impression of which was shown in Ext. P2 mahazar as well, on these packets.
11. PW1 deposed further that, when the body of the second accused was searched, nothing offensive was found. The second accused confessed to PW1 that he was assisting the first accused in the sale of ganja and he was getting Rs.500/- per day as profit from the first accused. The ganja recovered from the second accused was 25 gm and the same was also sealed, labelled and seized as 'B' sample. He further seized 210 newspaper bits along with the two large bits which were used for wrapping ganja held in the hip pocket. He also separately seized the gold ornaments and money recovered from the first accused. After this, he arrested both the accused, after preparing Ext.P3 series arrest memo and notice. PW1 prepared Ext.P2 mahazar stating all these facts which was attested by the officers accompanied him, the independent witnesses and PW3. He further deposed that he had recorded Exts.P4 & P5 confession statements of the accused persons, respectively, in which they affixed their signatures. He had prepared Ext.P6 series search list in respect of the materials seized by him. PW1 identified ganja recovered from the yellow plastic cover as MO1, the sample packets returned from forensic science laboratory as MO2 series, 210 newspaper pieces as MO3 series, white plastic cover used for wrapping ganja as MO4, gold ornaments as MO5 series and yellow plastic cover and the slips affixed on the packets as M06 series. According to PW1, thereafter he prepared Ext.P7 crime and occurrence report and he had registered the case as NDPS crime No.16/11 of Excise Range, Chathannoor. As per Ext.P8 property list, he produced the recovered articles before the court on 1.6.2011. He also prepared Ext.P9 series test memo and forwarding note which contains the seal and impression of seal used by him for sealing the seized articles. The list of documents produced by him is marked as Ext.P10. According to him, as per Ext. P11, he had reported the matter of arrest and seizure of ganja to his immediate official superior, as per Section 57 of the NDPS Act and PW3 acknowledged the receipt of the same in that document itself. Ext. P12 is the site plan prepared by village officer. It was through PW1, Ext.P13 FSL, report was marked. PW1 deposed about the recovery and the investigation conducted by him which led to filing of final report in this case.
12. An independent witness to the seizure of contraband was examined as PW2 on the side of the prosecution. PW2 deposed that at 5.00 p.m., on 31.5.2011, he saw the accused persons at Kottiyam INTUC Junction. According to him, the weight of the ganja seized from them would come more than 1 kg and PW1 prepared Ext.P2 mahazar in this regard, and he had put signatures in Ext.P2 and in the labels affixed on the MOs. In cross-examination, he stated that he was residing 3 km away from that place and he also stated that he could not remember the date on which the birthday of Prophet was celebrated in the previous year.
13. PW3, the Excise Circle Inspector and a gazetted officer deposed that on 31.5.2011, PW1 contacted him over his department mobile phone and requested his presence for conducting body search of the accused persons and accordingly he reached the place of occurrence at 6.05 p.m and witnessed the body search. He testified that he had witnessed the recovery effected. He also fully supported the version of PW1, after his arrival at the place of occurrence.
14. Alleging non-compliance of Section 42(2) of the NDPS Act, the decision in State of Haryana v. Jarnail Singh [AIR 2004 SC 249] was submitted before the Special Court and the learned Special Judge addressed the same in paragraph No. 17 and observed as under:-
“17. One of the main contentions of the learned defence counsel in this case is that there is non-compliance of Sec.42(2) of the NDPS Act since PW1 did not sent a copy of the information recorded as per Sec.42(1) to his immediate official superior. In order to substantiate that the non-compliance of the said provision would vitiate the trial, he relied on the decision rendered in State of Karnataka v. Dondusa: 2010 KHC 857, Kishan Chand v. State of Haryana: 2012 KHC 4755, Ibrahim Mansuri v. State of Gujarat: 2000 (2) SCC 813 and Karnail Singh v. State of Haryana: 2009 (8) SCC 539. However, on a bare reading of Sec.42 of the NDPS Act, it is evident that the procedure provided in that provision is required to be complied with only in a case where the empowered officer is intending to conduct a search or seizure in any building conveyance or enclosed place and not when he intends to make seizure in a public place. Sec.43 deals with the procedure to be followed in such cases. Unlike Sec.42(2) of the NDPS Act Sec.43 does not contemplate that such information should be taken down in writing and it should be sent to the immediate official superior. As rightly pointed out by the learned public prosecutor this was explained in detail by the Hon'ble Supreme Court in State of Haryana v. Jarnail Singh (Supra).”
15. Thereafter, the learned Special Judge also addressed the tamper proof collection and forwarding of the contraband before the Forensic Science Laboratory by Ext. P9 series forwarding note and found that Section 43 of the NDPS Act was complied and in such a case, there is no mandate to comply Section 42 of the NDPS Act.
16. When the finding of the learned Special Judge that here Section 43 of the NDPS Act would apply and Section 42 has no application, as the recovery was from a public place, it is relevant to refer the decision in Firdohshkhan Khurshidkhan's case(supra). In fact, as held by the Apex Court in paragraph No. 18, Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure would be effected from a public place, the provisions of Section 43 of the NDPS Act would apply. Here the seizure of contraband evidently from a public place where Section 42 has no application as the seizure is governed under Section 43 of the NDPS Act. Thus the learned Special Judge is right in holding that compliance of Section 42 of the NDPS Act not necessary in the instant case. Holding so, the contention in this regard raised by the learned counsel for the appellant/1st accused is set at rest.
17. Coming to the contention raised by the appellant/1st accused in the matter of non-compliance of Section 50 of the NDPS Act, first of all, it is relevant to refer Section 50 of the NDPS Act, which reads as under:
“50. Conditions under which search of persons shall be conducted:-
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).
(3) The Gazette 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.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.”
18. The mandate of Section 50 is clear from the legislative intent itself that, 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 Magistrate or nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. So it is discernible from the phraseology of the Section that for search of a person, Section 50 to be complied and if search is otherwise, Section 50 has no application. In this connection a recent decision of the Apex Court reported in [2023 KHC OnLine 6891 : 2023 KHC 6891 :2023 (6) KHC SN 34 :2023 (2) KLD 625 :2023 INSC 878 : 2023 Live Law (SC) 856 :2023 SCC OnLine SC 1262 :2023 (4) KLJ 918 : 2023 KLT OnLine 1988 :AIR 2023 SC 5164 :AIR OnLine 2023 SC 818 : 2024 (1) KLT SN 212023 KHC 6891], Ranjan Kumar Chadha v. State of Himachal Pradesh, is having relevance where the Apex Court considered the impact of Section 50 of the NDPS Act with reference to earlier judicial pronouncements and finally held that any recovery made from source other than the body would not warrant compliance of Section 50 of the NDPS Act and non-compliance necessarily is of no significance in such cases. In Ranjan Kumar Chadha‘s case (supra), referring the Constitution Bench decision in [1999 (3) KLT SN 4 :1999 (6) SCC 172 :AIR 1999 SC 2378 :1999 CriLJ 3672] State of Punjab v. Baldev, in paragraph No.49 it has been held as under:
“49. Thus, the Constitutional Bench in express terms laid down that although the non-compliance of S.50 may not vitiate the trial yet would render the recovery of the contraband doubtful and may vitiate the conviction of the accused. The emphasis laid by the Court is on illicit articles seized from the "person of an accused" during the search conducted in violation of safeguards provided in S.50 of the NDPS Act. In other words, according to Baldev Singh (supra), the provisions of S.50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.”
It was held in paragraphs 63, 64 and 97 as under:
“63. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under S.50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. We are of the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even If the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that "I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with S.50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted officer or Magistrate and I may be searched by the empowered officer." This would lend more credence to the compliance of S.50 of the NDPS Act. In other words, it would impart authenticity, transparency and credit worthiness to the entire proceedings. We clarify that this compliance shall henceforth apply prospectively.
64. From the aforesaid discussion, the requirements envisaged by S.50 can be summarised as follows: -(i) S.50 provides both a right as well as an obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect. (ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer.(iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate.(iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.(v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of S.50.
……………
97. Accordingly, S.50 was read to be understood as applicable only to the personal search of a person and that would not extend to search of a vehicle or a container or a bag. The language of S.50 was interpreted to include search in relation to a person and not to a search of premises, vehicles or articles.”
19. As regards to compliance of Section 50 of the NDPS Act, 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 nearest Gazetted Officer or to a Magistrate. In the decisions reported in [(1999) 6 SCC 172], State of Punjab v. Baldev Singh and [(2011) 1 SCC 609], Vijaysinh Chandubha Jadeja v. State of Gujarat, the Apex Court held that the authorised officer has an obligation to take a person to the nearest gazetted officer or to a Magistrate.
20. In Baldev Singh’s case (supra), the Supreme Court had left open the issue of whether the obligation of the authorized officer to inform the suspect of his right to be searched in presence of a magistrate or Gazetted officer was directory or mandatory, but the issue was settled by a constitution bench of the apex court in Vijaysinh Chandubha Jadeja’s case (supra). In the latter judgment, it was held as under:
"We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."
In Arif Khan @ Agha Khan, the Additional Sessions Judge and High Court had both held that the suspect/accused had been informed of his legal right to be searched in presence of the magistrate or Gazetted officer, which was declined by him in writing, and therefore there was compliance with section 50 of the NDPS Act. The conviction of the accused, which was based on the search carried out by the authorised officer under section 50, was therefore held to be justified.”
21. The matter had earlier been authoritatively settled by another five-Judge Bench of the Apex Court in Vijaysinh Chandubha Jadeja v. State of Gujarat (supra) where the Apex Court considered the question as under:
“The question that arose before the Supreme Court was whether Section 50, NDPS Act casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the Section 50?”
While answering the question. The Apex Court held as under:
“It is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
The concept of "substantial compliance" is neither borne out from the language of Section 50(1) nor it is in consonance with the law laid down in Baldev Singh case, (1999) 6 SCC 172.
The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so.
Failure to "inform" the suspect about the existence of his said right would cause prejudice to him. Failure to comply with Section 50 would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Any other interpretation of the provision would b make the valuable right conferred on the suspect illusory and a farce.
In order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered officers, the safeguards provided by the legislature have to be observed strictly. The object of Section 50(1), NDPS Act is to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies.
The insertion of sub-sections (5) and (6) in Section 50 does not obliterate the mandate of Section 50(1) to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate.
Although by the insertion of sub-sections (5) and (6) in Section 50 by Act 9 of 2001, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub-sections, even in such cases a safeguard against any arbitrary use of power has been provided under sub-section (6).
The flexibility in procedural requirements in terms of the two newly inserted sub-sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, Section 50(6) makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of Section 50(5), to his immediate superior officer, within the stipulated time, which b exercise would again be subjected to judicial scrutiny during the course of trial.
Though Section 50 gives an option to the empowered officer to take such d person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.”
22. The law emerges from the decisions in that Baldev Singh’s case (supra), Vijaysinh Chandubha Jadeja v. State of Gujarat (supra) and in Ranjan Kumar Chadha‘s case (supra) is that, it is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. In cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that "I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with Section 50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted officer or Magistrate and I may be searched by the empowered officer." This would lend more credence to the compliance of Section 50 of the NDPS Act.
23. In the instant case, as regards to the non-compliance with Section 50 of the NDPS Act, as contended by the learned counsel for the appellant/first accused, the said contention cannot be sustained even for a moment, as after informing the accused of their right to be searched in the presence of a Gazetted Officer or a Magistrate, the Investigating Officer secured the presence of PW3, a Gazetted Officer, before conducting the body search of the accused. PW3 deposed that PW1 contacted him through the departmental mobile phone and requested his presence for conducting the body search of the accused persons. Accordingly, he reached the place of search at 6.05 p.m., witnessed the body search, and the recovery was effected in his presence. In fact, the evidence of PW3 regarding his presence as the Gazetted Officer during the body search had not been shaken in cross-examination and in such view of the matter, the contention raised by the learned counsel for the appellant/first accused that there was non-compliance with Section 50 of the NDPS Act cannot be sustained.
24. Here the evidence of PW1 to PW3 would substantiate the recovery of 1.4 kg of ganja from the conscious possession of the appellant/first accused and thereby, the learned Special Judge is right in finding that the appellant/first accused committed offence punishable under Section 20(b)(ii)(B) read with Section 8 of the NDPS Act, while acquitting the second accused. Therefore, the conviction does not require any interference.
25. Coming to the sentence, the learned Special Judge shown leniency in the matter of sentence and limited the same for a period of one year and to pay a fine of Rs. 10,000/-. Since the sentence imposed is very reasonable, the sentence also does not require any interference.
26. In the result, this Criminal Appeal fails and is accordingly dismissed. Resultantly, the conviction and sentence are confirmed.
27. The bail bond executed by the appellant/first accused shall stand cancelled. The order suspending sentence and granting bail to the appellant/first accused stands vacated, with direction to the appellant/first accused to appear before the Special Court (Additional Sessions Court-II), Kollam, forthwith to undergo the sentence, failing which the Special Judge is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Additional Sessions Court-II, Kollam, for compliance and further steps.
