Arun Kumar Bhattacharya, J.:— The hearing stems from an appeal preferred against the judgement and order of conviction and sentence passed by the ld. Judge, Special Court under the N.D.P.S Act, 6th Court, Barasat in case No. N-1/1999 on 23.8.2001

2. Shortly put, and shorn of details, the prosecution case is that on 23.12.1998 at about 7.00 hrs. while accused Harun Rasid holding a steel can in hand was waiting in front of premises No. 19, Sadhana Ausodhalaya Road, Dakshin Dari, Calcutta - 48 for selling heroin to different customers, acting on an intelligence a batch of Officers of NCB, EZU, Calcutta intercepted him, expressed their desire to search him as he was suspected to carry and sell heroin. On their offer for an option to be searched before a Magistrate or Gazetted Officer intimating that a Gazetted Officer of NCB was with the raiding party, the accused agreed to be searched before the Gazetted Officer of NCB. As a result of search after observing necessary formalities, 121 paper purias containing brown coloured powdered substance, a polythene packet containing similar brown coloured powdered substance, both believed to be heroin concealed in the said steel can and a sum of Rs. 190/- as sale-proceeds kept in the wearing trousers were recovered. After testing of a small quantity of the said powdered substance taken out from purias and polythene packet with the U.N.O Field Test Kit, it responded positive result. Samples were drawn for chemical test and articles recovered were inventorised and seized in presence of witnesses and Gazetted Officer. On a notice under section 67 of the Act being served the accused in his voluntary statement admitted his guilt. Hence, the above accused was charged under section 21 of the NDPS Act, 1985.

3. The defence case, as suggested to P.Ws and as contended by the accused person during his examination under section 313 Cr. PC, is that nothing was recovered from the possession of the accused and the names of witnesses to the alleged seizure are imaginary. He did not sign the consent letter. The alleged voluntary statement was recorded according to the will of the NCB Officers. The factum of the alleged incident is not true.

4. Six witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the ld. Court below found the above accused guilty under section 21 of the N.D.P.S Act, convicted him accordingly and sentenced him to undergo R.I for 10 years and to pay fine of Rs. one lakh i.d to R.I for one year.

5. Being aggrieved by, and dissatisfied with, the said order of conviction and sentence, the above convict has preferred the present appeal.

6. All that now requires to be considered is whether the ld. Court below was justified in passing the above order of conviction and sentence.

7. At the outset, it is worthwhile to point out that the procedure for trial of a warrant case instituted otherwise than on police report, laid down in sections 244-249 contained in Chapter XIX of the Code of Criminal Procedure, 1973 has not been followed. “The Code is a Code of Procedure and, like all procedural laws is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities …. If an accused is tried by a competent Court, if he is told and clearly understands the nature of the offence which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is “substantial” compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal (sic. venial) by the Code and the trial is not vitiated unless the accused can show substantial prejudice”, as was observed in Willie Slaney case reported in AIR 1956 SC 116 at 121. More or less similar is the observation in Iqbal Ismail case reported in AIR 1974 SC 1880 that if there be substantial compliance with the requirements of law providing the accused a full and fair trial in accordance with the principles of natural justice no order of a competent Court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. So, though the said procedure adopted by the Id. Court below cannot be said to affect the merit of the case or to have caused any prejudice to the accused and it is a curable irregularity under section 465 Cr. PC, it is desirable that when the Code prescribes a specific procedure to be followed in the trial, that procedure should not be ignored.

8. Mrs. Bhattacharya, ld. Counsel for the appellant, on referring three decisions State of Punjab v. Balbir Singh, reported in 1994 Cr. LJ 3702 (SC), Constitutional Bench decision State of Punjab v. Baldeb Singh, reported in 1999 Cr. LJ 3672 (para 55) and Namdi Francis Nwazor v. Union of India, reported in 1998 SCC (Cri) 1516, advanced argument contending that section 50 of the NDPS Act which is mandatory requires the searching officer to inform the person of his right to be searched before a Magistrate or Gazetted Officer but here as the said mandatory provision was not complied with, it vitiated the trial. Mr. Roy, ld. counsel for NCB, on the other hand, on citing the cases of Narayanaswami Ravi Shankar, reported in 2002 SCC (Cri) 1865, Kalema Tumba, reported in 1999 SCC (Cri) 1422, Gurbax Singh, reported in 2001 SCC (Cri) 426, State of Punjab v. Makhan Chand, reported in 2004 SCC (Cri) 830, Megh Singh v. State Of Punjab., reported in 2004 SCC (Cri) 58 and Md. Ismail, reported in 2004 C Cr. LR (Cal.) 263 contended that the mandatory provision of section 50 is not applicable here, as the illicit article was recovered from a steel can in the hand of the accused and not from his person.

9. Section 50 of the N.D.P.S Act embodies the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the authorized officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2), if such request is made by the suspected person, the Officer who is to conduct the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought before such Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate sees that there is no reasonable ground for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. Under sub-section (4), no female shall be searched by any one excepting a female.

10. In Balbir Singh case (supra) it was held that on prior information, the empowered officer or authorized officer while acting under section 41(2) or 42 or 43 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of the officer to inform the person to be searched, and failure to inform the person to be searched and failure to take him to the Gazetted Officer or the Magistrate would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. In Baldeb Singh case (supra) though the Constitutional Bench refrained from expressing any opinion as to whether the provisions of section 50 are mandatory or directory, it was expressed that it is imperative for an empowered or duly authorized officer acting on prior information to inform the concerned person of his right under sub-section (1) of section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. Such information may not necessarily be in writing, but the failure to inform the concerned person about the existence of his said right would cause prejudice to an accused, and failure to conduct his search before Gazetted Officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused.

11. In the present case, out of six P.Ws, P.W 1 is the complainant. P.W 2 being the Assistant Chemical Examiner of Customs House tested the samples of contraband articles and found the same to be heroin. P.Ws 3 to 6 being departmental officers were members of the raiding team consisting of about 10/12 persons. P.W 4 in the same tune of P.W 5 (Gazetted Officer) stated that they arranged for two independent witnesses from around the spot and offered the person in writing (Ext. 5) about his right to be searched by other Gazetted Officer or Magistrate, on informing that they have departmental Gazetted Officer with them. P.W 3 deposed that two local persons were called to witness the search and the accused was informed of his right to be searched before a Gazetted Officer accompanying them which is quite inconsistent with the above evidence of P.Ws 4 and 5. According to the evidence of P.W 6, they intercepted the accused and from one steel can containing 121 purias of brown coloured powder substance and one small polythene packet containing 20 gms. of heroin, and Rs. 190/- from the right side pocket of his pant could be recovered. It is his further evidence that offer in writing was given to the accused about his right to be searched before a Magistrate or Gazetted Officer. He is totally silent that the accused was informed that if he so desired he may be searched in front of departmental Gazetted Officer accompanying the raiding party. If the above evidence of P.W 6 is taken into account it stands that search was preceded by intimation to the accused of his right to be searched before a Gazetted Officer or Magistrate. If the evidence of P.W 3 is considered, it appears that the offer was given to the accused to be searched before their departmental Gazetted Officer which is not at all the requirement of section 50(1). Therefore, that the accused was informed of his right to be searched before a Magistrate or Gazetted Officer, as deposed by P.Ws 4 and 5 and is contradicted by P.Ws 3 and 6 is not buttressed by any independent witness.

12. While section 42 of the Act deals with the power of entry, search, seizure and arrest in any building, conveyance or enclosed place, section 43 relates to such power of seizure and arrest in any public place. Under section 51 of the Act the provisions of Cr. P.C shall apply as regards arrest, search, seizure etc. insofar as they are not inconsistent with any provisions of the Act. So, the provisions of sections 100 and 165 Cr. PC which are not inconsistent with the provisions of the Act are applicable for effecting search, seizure or arrest under the NDPS Act, as was held in Balbir Singh case (supra). The provisions of the said sections 100 and 165 Cr. PC which are mandatory, require calling of two or more independent and respectable inhabitants of the locality before conducting the search, while under sub-section (5) of the said section, the search shall be made in presence of those witnesses and seizure list prepared. The object of the provisions is to ensure an honest and genuine search and to prevent trickery by “planting” the things to be “found” at searches, and its provision should be strictly complied with, non-observance whereof renders the recovery highly suspicious. “Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. It is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to the innocent person is avoided and to minimize the allegation of planting or fabricating by the prosecution, section 50 is enacted” as was expressed in para 19 of Balbir Singh case (supra). We are not unconscious that on account of general reluctance of members of public to join in search for narcotic drugs, prosecution at times has to bank on official witnesses alone, and so the evidence of a witness is not to be thrown out on the ground of his being an official nor will it constitute fatal infirmity. But it is equally well-recognised rule of caution to look for independent corroboration to the testimony of official witnesses in such cases. Here, though two witnesses were associated with the alleged search and seizure, none of them has been examined nor has the reason for their non-examination been explained on behalf of the prosecution which in view of the said contradictory evidence of P.Ws 3 to 6 gives rise to a reasonable doubt in regard to the alleged recovery of contraband articles.

13. In the three Judges Bench decision in Namdi Francis Nwazor case (supra) it was expressed that on a plain reading of sub-section (1) of section 50 it is obvious that it applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to sub-section (4) of section 50 which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched, the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search ……..We must hasten to clarify that if that person is carrying a hand bag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of section 50 of the Act for the simple reason that it was not found on the accused person. In Baldeb Singh case (supra), the Constitution Bench just observed in para 12 that 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. Attention of the Court was not drawn to the above three Judges Bench decision in Namdi Francis Nwazor case (supra). In the three Judges Bench decision in Narayanaswami (supra) which involved recovery of contraband article from the bottom of a suitcase belonging to the appellant when the same was being transported from the international airport, there is nothing to indicate that the suitcase was in the hand of the appellant. Therefore, those two decisions are of no aid to the respondent NCB. In the two-Judges Bench decision in Megh Singh (supra), the fact is different, since the accused was apprehended while sitting atop gunny bags containing contraband articles. The cases of Kalema Turnba (supra), Gurbax Singh (supra) and Makhan Chand (supra) which involved recovery of illicit articles from baggage, gunny bag on left shoulder and tin box respectively were of two-Judges Bench decisions, where Namdi Francis case (supra) was not referred at all. It is well-settled that a co-ordinate Bench cannot differ from the decision of earlier Bench and the subsequent Bench finding itself unable to agree with earlier decision should refer earlier decision to a larger Bench, Union of India v. Godfrey Philips India Ltd., AIR 1986 SC 806. The said Namdi Francis case being of three-Judges decision will prevail, and as such the above contention of Mr. Ray is not sustainable. Therefore, non-compliance with the mandatory provision of section 50 of the Act vitiated the alleged search and seizure as also the conviction.

14. Mrs. Bhattacharya on referring to Saha v. State of Gujarat, 2000 C. Cr. L.R (SC) 449 and Full Bench decision of this Court in Jadunandan Roy v. State of West Bengal, 2000 CWN 373, next argued that Gazetted Officer within the meaning of section 50 must be a person other than the departmental Gazetted Officer of the raiding team. Mr. Ray, on the other hand, on citing a Division Bench decision of this Court in Md. Ismail @ Gultani v. State, 2004 C Cr. LR (Cal) 263, submitted that when PW 5 who is a Gazetted Officer was in the raiding team search and seizure in his presence was a sufficient compliance of the provision of section 50. A perusal of sub-section (1) of section 50 would reveal that if a person has to be searched and if he so requires, he shall have to be taken to the nearest Gazetted Officer or a Magistrate. In that case, under sub-section (2) search has to be deferred and the person may be detained until he is brought before the Gazetted Officer or the Magistrate. Under sub-section (3) the Gazetted Officer or the Magistrate shall discharge the person if he sees no reasonable ground for search, otherwise shall direct the search to be made. The word “Gazetted” finds place in sub-section (2) of section 41 of the Act under which only a Gazetted Officer of the Departments of Central Excise, Narcotics etc. empowered by the Central Govt. or State Govt. can either himself make an arrest or conduct a search or authorize an officer above the rank of peon, sepoy or constable to do so. Section 56 of the Act in mandatory terms requires the officers mentioned in section 42 to assist each other in carrying out the provisions of the Act, while section 59 provides for penalty of the negligent or reluctant officer unless he has a lawful excuse for failure to perform the duty entrusted on him. “The fundamental rule of interpretation is that the Court will have to find out the expressed intention from the words. But if, however, two constructions are possible, then the Court must adopt that which will ensure smooth and harmonious working and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-settled provisions of existing law nugatory, as was observed in Chandra Mohan case, reported in AIR 1966 SC 1987. In the present case, a glance to the evidence of PW 5 (Gazetted Officer) would reveal that he took active part in the matter of raid, search, seizure etc. If the “Gazetted Officer” of the concerned departments as mentioned in sub-section (2) of section 41 who has the power to arrest and search would have been the Gazetted Officer as mentioned in section 50, the language of section 50 would not have been framed in the manner as it now exists nor there would have been any necessity of taking the person to the nearest Gazetted Officer or Magistrate as provided in sub-section (1) nor the said Gazetted Officer [under section 41(2)] who himself can arrest, search and seize or has detained a person on prior information can be expected to shed biasness or to develop the same kind of neutrality or cold objectivity towards the issue under sub-section (3) of section 50. In Mahinder Singh case, AIR 1978 SC 851, it was observed “The dichotomy between administrative and quasi-judicial functions vis-a-vis the doctrine of natural justice is presumably obsolescent after Kraipak, AIR 1970 SC 150, in India……”. Similar is the view in SL Kapoor v. Jagmohan, AIR 1981 SC 136, observing “The old distinction between a judicial act and an administrative act has withered away and we have been liberated from the psittacine incantation of ‘administrative action’.” Natural justice which is sometimes used as “fair play” or “fairness” is applicable to the so-called “administrative” functions as well, for the rules of natural justice aim at securing justice or to prevent miscarriage of justice. The right of being searched before a Magistrate or Gazetted Officer is a valuable right of a person accused of an offence under the Act in view of the severity of the sentence which will be impaired if the departmental Gazetted Officer accompanying the raiding party is held to take decision under sub-section (3) of section 50. A search before a disinterested Gazetted Officer or Magistrate would impart much more authenticity and creditworthiness and would strengthen the prosecution story. If the said Gazetted Officer is of the concerned department who is vitally-interested in the prosecution, the said valuable right would become illusory and a farce. After discussing on different aspects of the matter, it was held in the Full Bench decision of this Court in Jadunandan Roy (supra) that a Gazetted Officer under the Act to search, seize and arrest and investigate the offences under the Act, is not entitled to take a decision under section 50(3) of the Act and any option given to the person concerned that he can be taken before such Gazetted Officer for a decision under sub-section (3) is against the spirit and letter of section 50 and does not conform to the requirement fair, just and non-arbitrary procedure established by law…….. From the language of the section it becomes evident that the legislature has taken a special care to see that search of the accused should be taken before an independent person who may be a Magistrate or Gazetted Officer. Such an independent person shall ensure that the accused should get all necessary protection guaranteed by the law. Taking a Gazetted Officer with the raiding party makes such officer indirectly interested in the success of the raid and such an officer can never be said to be an independent person. For strict compliance of section 50 of the Act a search must be conducted in presence of a Magistrate or a Gazetted Officer who is totally independent and is not in any way interested in the success of the raid. The decision in Md. Ismail @ Gultani (supra) of this Court, so referred to by Mr. Roy relied upon two-Judges Bench decision in M. Prabhulal case, reported in 2003 SCC (Cri) 2024, which stands for the proposition that where the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under section 41 and, therefore, it was not necessary to comply with section 42. The above decision in Prabhulal was passed in a different context and as such is distinguishable and cannot be said to have any bearing in the present case. That apart, when certain question is neither raised nor argued, a discussion by Court after pondering over the issue in-depth would not be a binding precedent, as was held in three-Judges Bench decision in Rajpur Ruda Meha v. Gujarat, AIR 1980 SC 1707. Moreover, it would be appropriate to reproduce the observation of the Division Bench in Ahmed v. State Of Gujarat., reported in 2000 C Cr. LR (SC) 449 at 456:

“In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another Gazetted Officer or the Magistrate and that right cannot be taken away merely because the officer going to search happens to be a Gazetted Officer, who has been empowered either by the Central Government or by the State Government by a general or special order”.

In the light of the above discussion, we are of the considered opinion that the Gazetted Officer contemplated in section 50 should be one other than that of the concerned department holding the raid for apprehending a person accused of an offence under the Act. In the present case, since the search was conducted in the presence of the departmental Gazetted Officer who played a vital role in the matter of search, seizure, arrest, recording of statement of the accused etc., the provision of section 50 of the Act cannot be said to have been duly complied with, for which the conviction is vitiated.

15. Mrs. Bhattacharya on referring to three Judges Bench decision in Raja Ram Jaiswal v. State Of Bihar , AIR 1964 SC 828 and Abdul Rasid v. Bihar, I (2001) CCR 281 (SC), contended that no reliance should have been placed by the ld. Court below upon the alleged voluntary confessional statement (Ext. 4), as in view of section 53 of the N.D.P.S Act statement recorded by NCB tantamounts to statement before police officer which is inadmissible being hit by section 25 of the Evidence Act. Mr. Roy on citing Rajkumar Karwal case, reported in AIR 1991 SC 45, submitted that unless an officer is invested under any special law with the powers of investigation under the Code of Criminal Procedure including the power to submit a report under section 173, he cannot be described to be “police officer” under section 25 of the Evidence Act, and as such the question of inadmissibility of the said voluntary statement in evidence does not arise. The test for determining whether an officer of Customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report under section 173 of the Code of Criminal Procedure. It is not claimed that the Customs Officer exercising power to make an enquiry may submit a report under section 173 of the Code of Criminal Procedure and thus judged by the test laid down in the five-Judges Bench decision in Badku Jyoti Savent's case, AIR 1966 SC 1746 it was held in another five-Judges Bench decision in Ramesh Chandra Mehta case, AIR 1970 SC 940, that a Customs Officer could not be deemed to be a police officer within the meaning of section 25 of the Evidence Act. So, the above contention of Mrs. Bhattacharya is not tenable.

16. As per evidence of PW 3, a notice under section 67 of the Act was served upon the accused who was taken in the office vehicle to their office where he made a voluntary statement (Ext. 4) which was recorded by him on the request of the accused. Though he stated that their Gazetted Officer N.C Patra (PW 5) requested him to take down the statement, there is no such evidence on the part of PW 5 that he requested PW 3 as above. The said statement does not indicate that it was explained and admitted by him to be correct. Though PW 3 claims to have cautioned the accused before recording the statement, there is no indication in this regard in the statement. It is a fundamental basic principle of criminal jurisprudence that caution must be administered to a person from whom a confessional statement is recorded that the same would be used against him in a judicial proceeding. It is also recognized as “Judges Rule.” In N.S.R Krishna Prasad case, reported in 1992 Cr. LJ 1888, it was held that unless the empowered authority under section 108 of the Customs Act administers the caution or the warning embodied under section 164(2) Cr. P.C before recording a statement of confessional nature, from the person summoned, the statement so recorded will be inadmissible in evidence for any purpose. Since no argument on the point was made by either side before this Court, we refrain from expressing our opinion as to the scope of applicability of section 164 Cr. PC to a proceeding under the NDPS Act. Nevertheless, when the said confession is retracted, as a rule of practice and prudence, it is not safe to act upon it without independent corroboration which is well-settled. In this connection, Pyare Lal case, reported in AIR 1963 SC 1094, may be referred to. In the case on hand, in view of non-compliance with the mandatory provisions of section 50 and contradictory evidence as discussed above, the confessional statement of the accused cannot be taken into consideration and as such is becoming of no aid to the prosecution.

17. In the light of the above discussion when the mandatory provisions of section 50 of the Act are found to have been violated thus rendering the alleged recovery of the contraband articles suspect, the prosecution cannot be held to have proved the charge beyond all reasonable doubt, and accordingly, the accused is found not guilty. As such, the present appeal be allowed and the order of his conviction and sentence be set aside. The accused be acquitted of the charge and be set at liberty and be released forthwith from custody if not required in connection with any other case.

18. Rs. 190/- alleged to have been recovered from the possession of the accused be returned to him after expiry of the period of preferring Special Leave Petition.

Bhaskar Bhattacharya, J.:— I agree.

Appeal allowed.

B.D