State of Delhi v. Babu Khan & Ors.

11. The Hon'ble Supreme Court in the case of K. Mohanan v. State of Kerala[1], had an occasion to consider the scope and ambit of Section 50 of the NDPS Act as to whether the accused is to be necessarily informed of his right to be searched in the presence of Magistrate or whether there can be an option given to him for his search being conducted in the presence of a Gazetted Officer or a Magistrate. In that case, the Hon'ble Supreme Court was dealing with the issue of whether the mandatory requirement of Section 50 of the NDPS Act was complied with or not. The appellant, in that case, was asked whether he was required to be produced before Gazetted Officer or a Magistrate for the purpose of search and the appellant therein answered in negative. The Hon'ble Supreme Court in order to ascertain the authenticity of the submission called for the original record and found that the recital is substantially correct. It is thus seen that in that case the appellant therein was asked whether he wanted to be produced before a Gazetted Officer or Magistrate to which his answer was „no‟.

12. The Hon'ble Supreme Court while placing reliance on its earlier pronouncement in the case of State of Punjab v. Baldev Singh[2], has held that if the accused, who was subjected to search, was merely asked whether he was required to be searched in the presence of Gazetted Officer or a Magistrate, the same cannot be treated as communicating to him that he had a right under law to be searched so. In view of the aforesaid fact, the Hon'ble Supreme Court concluded that there was non-compliance with Section 50 of the NDPS Act and consequently, in the absence of any other independent evidence to show that the appellant was in possession of the contraband article, he was acquitted.

13. In another decision of the Hon‟ble Supreme Court in S.K. Raju @ Abdul Haque @ Jagga v. State of West Bengal[3], wherein, the Hon‟ble Supreme Court was dealing with the issue as to whether Section 50(1) of the NDPS Act was required to be complied with when charas was recovered only from the bag of the appellant/accused therein and no charas was found on his personal search. In paragraph No. 22 of the said decision, it was noted that PW-2 conducted a search of the bag of the appellant in as well as of the appellant's trouser. It was found that the search was not only of the bag which the appellant was carrying but also of the appellant's person. Since the search of the appellant was also involved, therefore, the Hon'ble Supreme Court has held that Section 50 of the NDPS Act would be attracted in that case. It has been held that as soon as a search of a person takes place, the requirement of mandatory compliance with Section 50 of the NDPS Act is attracted irrespective of whether contraband has been recovered from the possession of the detainee or not. It has been held that it was imperative for the officer who had undertaken the search to inform the appellant of his legal right to be searched in the presence of either a Gazetted Officer or a Magistrate.

14. The Hon'ble Supreme Court in the case of Vijay Singh Chandubha Jadeja v. State of Gujarat[4] has held that Section 50 of the NDPS Act 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 made to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man as compared to any other officer. It would not only add legitimacy to the search proceedings but it may also verily strengthen the prosecution as well.

15. The Hon'ble Supreme Court in the case of Arif Khan @ Agha Khan v. The State of Uttarakhand[5], while considering various other pronouncements including the decision in the cases of Ashok Kumar Sharma v. State of Rajasthan[6] and Narcotics Control Bureau v. Sukh Dev Raj Sodhi[7] has held that the suspects may or may not choose to exercise the right provided to them under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate.

16. The Hon'ble Supreme Court in the case of Sanjeev v. State of Himachal Pradesh[8] was considering an appeal at the instance of the convict against the judgment of a High Court reversing the acquittal rendered in favour of the appellant by the trial court. One of the reasons by which the trial court acquitted the appellant, in that case, was that the police did not give any option to the appellant to be searched before a Magistrate or a competent Gazetted Officer. In paragraph No.10 of the said decision, the Hon'ble Supreme Court has noted that the arrest memo or other documents do not reflect that any option or choice was given to the accused before their personal search. It has been held in that case that the personal search did not result in the recovery of any contraband material but the non-compliance of the requirement of affording an option was one of the reasons which weighed with the trial court in disbelieving the case of the prosecution. In that case, the bag was carried to the vehicle. It is stated in paragraph No. 3 of that decision that when the police party had searched the other side of the Rora bridge, they found the appellant therein sitting by the side of the bone fire and the bag was lying on the ground near them. As the police put a searchlight towards the direction of the appellants, they tried to run away. The police party followed them and after having crossed a distance of about 100 metres, they were nabbed. Thereafter, a bag was also retrieved which was found to contain charas weighing about 1.[5] kg and the procedure for taking a personal search of the accused was followed. Under the aforesaid circumstances, the Hon'ble Supreme Court came to the conclusion that despite the personal search not resulting in recovery of any contraband material, there was non-compliance with the requirement of Section 50 of the NDPS Act. Hence, the order of conviction and sentence by the High Court was set aside and the order of acquittal recorded by the trial court was restored.

17. This court in the decision of Kamruddin v. State (NCT of Delhi)9, wherein, the appellant was searched but no recovery therefrom was found but the recovery from the bag which he was holding in his hand has been affected. The appellant was not informed about his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. What was informed to him, was that as if he desires, he can be taken to a Gazetted Officer or a Magistrate. Noncompliance with provisions under Section 50 of the NDPS Act was observed and the accused were acquitted.

18. In the present case, personal search of the accused Liyakat Ali, Shehzad Ali, Babu Khan and Shaukeen Ali was conducted. In this regard PW-6 SI Sunil Jain who was the In-charge of the raiding team deposed as under: “I told them that if they want their search can be conducted in the presence of a Gazetted Officer or a Magistrate, I also offered the search of all the police team members and also search of the official vehicle, prior to his search but all the accused refused all the offers. I also explained to them the meaning of Gazetted Officer and Magistrate….” PW-5 SI Avinash Singh who was a member of the raiding team deposed as under: “…. He told him that their search has to be conducted and if they want their search can be conducted in the presence of Gazetted Officer or Magistrate. He also offered his search and search of the raiding team members prior to their search. They were also told about the meaning of the Gazetted Officer and Magistrate….” PW-3 Head Constable Rajbir who was also a member of the raiding team deposed as under: “….SI Sunil Jain also told the accused persons that their search is to be conducted and if they wanted they could take search of the members of the raiding party and the official vehicle prior to their own search and further if they wanted they could get their search conducted in the presence of a Gazetted Officer or a Magistrate….”

19. The Hon‟ble Supreme Court in the decision of Myla Venkateswarlu v. State of A.P.10, acquitted the appellant for breach of Section 50 of the NDPS Act. In the said case, the police had prior information about the illegal sale of ganja at a particular place and thereafter, the police team apprehended the accused and recovered contraband from their pockets. During the trial, members of the police team deposed as under: -

15. PW 1 PC Shaik Khasim, who was, at the relevant time, attached to Tenali-III Town Police Station had apprehended the appellant, A-1 and A-2 on 5-1-2001. He stated that on 5-1-2001 at 6.15 p.m., Circle Inspector of Police took him in a jeep along with other police personnel to Chenchupeta Railway overbridge. They saw three persons sitting under the bridge. On seeing them, the said three persons started running away. They apprehended them and brought them to the Circle Inspector of Police. According to him, the appellant, A-1 and A-2 confessed that they were having ganja packets in their pockets. He has further stated that the Circle Inspector of Police asked them whether they wanted any other gazetted officer for their search and seizure in addition to him to which they replied that they did not want any other gazetted officer and the checking by the Circle Inspector of Police was sufficient for them. Thereafter, the Circle Inspector of Police checked their pockets and recovered ganja packets.

16. PW 2 SI Nageswara Rao was, at the relevant time, working as the Sub-Inspector of Police at Tenali-III Town Police Station. He was in the police party which apprehended the appellant, A-1 and A-2. He has corroborated PW 1 PC Shaik Khasim as regards the apprehension of the appellant, A-1 and A-2. He has stated that before conducting the search, the Circle Inspector of Police asked the appellant, A-1 and A-2 “about the intention to have another gazetted officer and they replied that they do not want any other gazetted officer for their search and seizure”. According to this witness, thereafter, the search was conducted and ganja packets were recovered from their possession. The Apex court held that from the testimonies of PW-1 and PW-2, it was clear that appellants were not communicated their right to have a search conducted in the presence of a Magistrate or a Gazetted Officer.

20. It is further evident from a perusal of the notice under Section 50 of the NDPS Act marked as Ex. PW3/A, Ex. PW3/C, Ex. PW3/E and Ex. PW3/G given to accused Liyakat Ali, Shehzad Ali, Babu Khan and Shaukeen Ali, that the accused/respondents had not been told that they may be brought before the nearest Gazetted Officer or Magistrate. It is indeed evident that the accused were arrested at about 3:45 PM. It is also evident that they were arrested from a spot near the Karkardooma Courts. In the Karkardooma Courts and the ACP‟s office in Krishna Nagar, a Gazetted Officer or Magistrate was available. Nonetheless, no attempt was made to bring the accused/respondents before any Gazetted Officer or Magistrate despite the availability of a Gazetted Officer or Magistrate. In this regard, statement of PW-6 SI Sunil Jain who was In-charge of the raiding team and PW-5 SI Avinash Singh who was member of the raiding team is reproduced hereinunder: - PW-6 SI Sunil Jain In-charge of Raiding Team “…. I had not called any Gazetted Officer to the spot, despite knowing this fact. The accused were not produced before any Gazetted Officer….” PW-5 SI Avinash Singh member of the raiding team “…. No Gazetted Officer or Magistrate were called by SI Sunil Jain. It is correct that no effort was made by SI Sunil Jain to produce the accused persons before a Gazetted Officer or a Magistrate….”

21. From the aforesaid deposition, and from the perusal of notice under Section 50 of the NDPS Act, it can be seen that the accused/respondents were not informed about their legal right to be searched before a Gazetted Officer or a Magistrate, what was merely informed to them, was that, if they desire, they can be taken to a Gazetted Officer or a Magistrate. It is obvious then that there is a difference between the communication of a legal right and that of an opportunity. What the officers did in the present case was the presentation of an opportunity to the respondents, an opportunity not necessarily having legal sanction. What was required, however, was the explanation of a legal right, that the respondents had a statutory right to enjoy.

22. On the basis of various pronouncements of the Hon'ble Supreme Court, and taking into consideration the observation of learned ASJ, this court finds that there is non-compliance of the provisions of Section 50 of the NDPS Act. The observations of learned ASJ in this regard are reproduced hereunder:

23. The Hon‟ble Supreme Court in the matter of State of Maharashtra v. Sujay Mangesh Poyarelar11 while considering its earlier pronouncements including the decision in the case of Chandrappa & Ors. v. State of Karnataka12 has held that the power of the appellate court in an appeal against acquittal cannot be said to be restrictive and the High Court has full power to reappreciate, review and reweigh at large the evidence on which the order of acquittal is relied and to reach its own conclusion on such evidence. Both questions of fact and of law are open to determination by the appellate court. It has also been held that nonetheless it is not correct to say that unless the appellate court in an appeal against acquittal under challenge is convinced, that the finding of acquittal recorded by the trial court is „perverse‟, it cannot interfere. If the appellate court on re-appreciation of evidence and keeping in view the well established principles, comes to a contrary conclusion and records a conviction, such conviction cannot be said to be contrary to law.

24. The Hon‟ble Supreme Court in the matter of Hakeem Khan & Ors. v. State of M.P.13 has again considered the powers of the appellate court for inference in cases where acquittal is recorded by the trial court. In the said 2008 9SCC475 (2007)4 SCC415 decision, it has been held that if the „possible view‟ of the trial court is not agreeable to the High Court, even then such „possible view‟ recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court.

25. In view of the aforesaid discussion, it is found that in the present case, the personal search of the accused/respondents was conducted but no recovery therefrom was found. The recovery from the bags which they were holding in their hands has been effected and there is non-compliance of the provisions of Section 50 of the NDPS Act.

26. Learned Additional Session Judge while passing the impugned judgement has made observations in paragraph No. 92 with regard to the conduct of the investigation officer and lapse in the investigation. In light of the fact and circumstances of the present case, it is pertinent to peruse the position of the law in this regard.

26.1. In the decision of State of West Bengal v. Mir Mohammad Omar & Ors.14 whereby, the Hon‟ble Supreme Court has directed the courts to ordinarily desist from castigating the investigation even while ordering acquittal.

26.2. In the decision of Testa Setalvad v. State of Gujarat15 whereby, the Hon‟ble Supreme Court in paragraph No. 9 has observed that the courts should not make remarks against individuals or authorities unless they are absolutely required for the matter to be decided. paragraph No.9 of the aforesaid is reproduced here below: “9. Observations should not be made by courts against persons and authorities, unless they are essential or necessary for decision of the case.

Rare should be the occasion and necessities alone should call for its resort. Courts are temples of justice and such respect they also deserve because they do not identify themselves with the causes before them or those litigating for such causes. The parties before them and the counsel are considered to be devotees and pandits who perform the rituals respectively seeking protection of justice; parties directly and counsel on their behalf. There is no need or justification for any unwarranted besmirching of either the parties or their causes, as a matter of routine.”

27. For the reasons stated above and relying on the observation of the Hon‟ble Supreme Court, the remark against the investigation agency at paragraph No.92 of the impugned judgement dated 12.12.2014 passed by the learned Additional Session Judge are not necessary and are hereby expunged.

28. Accordingly, this court is not inclined to take a different view other than the view which has already been taken by the court below. Hence, the appeal is dismissed along with pending application.

JUDGE JANUARY 20, 2023 UR