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State Of Rajasthan v. Parmanand And Another
Factual and Procedural Background
On 13-10-1997, Sub-Inspector P.N. Meena of the Office of the Narcotics Commissioner, Kota, received information that the two respondents would deliver about 10 kg of opium the following morning at Nangdi-Tiraha, Baran District, Rajasthan. Acting on this tip-off, Superintendent J.S. Negi formed a raiding party that, with two independent witnesses, intercepted the respondents at approximately 4:25 a.m. on 14-10-1997. Respondent 1 was carrying a gunny bag that was found to contain 9.6 kg of opium; the requisite samples were taken and both respondents were arrested.
The Special Judge (NDPS Cases), Chhabra, convicted Respondent 1 under Section 8 read with Section 18, and Respondent 2 under Section 8 read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), sentencing each to 10 years’ rigorous imprisonment and a fine of ₹10 lakh. The Rajasthan High Court allowed the respondents’ appeal (Criminal Appeal No. 788 of 1998) and acquitted them. The State of Rajasthan appealed to the Supreme Court, whose judgment is summarised here.
Legal Issues Presented
- Whether the mandatory safeguards under Section 50 of the NDPS Act were complied with during the search of the respondents and the bag containing the contraband.
- Whether a single, joint notice of the Section 50 right satisfies the statute’s requirement of an “individual” communication.
- Whether offering the accused a third option—search before a member of the raiding party who is a gazetted officer—meets the statutory standard of being taken to the “nearest” independent Magistrate or gazetted officer.
Arguments of the Parties
Appellant (State of Rajasthan)
- Contended that PW-10 SI Qureshi orally informed the respondents of their Section 50 rights and furnished a written notice, which Respondent 2 signed for both accused, thereby constituting valid compliance.
- Argued that independent panch witnesses were unfairly disbelieved by the High Court.
- Submitted that the High Court’s acquittal was perverse and should be set aside.
Respondents
- Maintained that the single “joint notice” under Section 50 was invalid because each accused is entitled to an individual notice and independent exercise of the right.
- Relied on High Court authorities—Paramjit Singh v. State of Punjab and Dharmaveer Lekhram Sharma v. State of Maharashtra—to support the contention that joint notice vitiates the search.
- Asserted that the option to be searched in the presence of Superintendent J.S. Negi (a member of the raiding party) violated the statutory mandate of an independent officer.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Punjab v. Balbir Singh (1994) 3 SCC 299 | Declared Section 50 mandatory; non-compliance vitiates trial. | Cited to illustrate the initial strict view on Section 50 compliance. |
| State of H.P. v. Pirthi Chand (1996) 2 SCC 37 | Held breach of Section 50 does not necessarily affect trial. | Referenced to show divergent judicial positions prior to Constitution Bench ruling. |
| State of Punjab v. Baldev Singh (Constitution Bench) (1999) 6 SCC 172 | Laid down authoritative guidelines: the accused must be informed of the right to be searched before a Magistrate or gazetted officer; failure renders recovery suspect. | Formed the central yardstick for evaluating compliance in the present case. |
| Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257 | Search of a bag alone does not attract Section 50; it does not constitute search of “person.” | Used to frame the distinction between bag search and personal search. |
| State of H.P. v. Pawan Kumar (2005) 4 SCC 350 | Clarified that bags or containers are not part of the “person” for Section 50 purposes. | Cited to decide when Section 50 becomes applicable. |
| Dilip v. State of M.P. (2007) 1 SCC 450 | Where both the vehicle/bag and the person are searched, Section 50 compliance is obligatory. | Supported the conclusion that Section 50 applied because personal searches were conducted. |
| Union of India v. Shah Alam (2009) 16 SCC 644 | Affirmed Dilip; lack of Section 50 compliance after personal search leads to acquittal. | Reinforced the consequence of non-compliance. |
| Paramjit Singh v. State of Punjab (1997) 1 Crimes 242 (P&H) | Joint notice under Section 50 is invalid. | High Court’s reasoning accepted; Supreme Court approved the view. |
| Dharmaveer Lekhram Sharma v. State of Maharashtra (2001) 1 Crimes 586 (Bom) | Reiterated necessity of individual notice under Section 50. | Cited with approval to hold that the joint notice was defective. |
Court's Reasoning and Analysis
1. Applicability of Section 50: The Court observed that opium was recovered from the bag carried by Respondent 1 and that personal searches of both respondents were also conducted. Relying on Dilip, Pawan Kumar and Shah Alam, the Court held that once a personal search accompanies a bag search, Section 50 is triggered.
2. Joint Notice Defect: The written notice of rights under Section 50 was addressed jointly to both accused, and only Respondent 2 signed it “for himself and for Respondent 1.” The Court reasoned that Section 50 requires a “clear, unambiguous and individual” communication; a joint notice risks confusion and undermines the safeguard. Paramjit Singh and Dharmaveer Sharma were relied upon to affirm this view.
3. Improper Third Option: SI Qureshi offered the respondents a third alternative—search before Superintendent J.S. Negi, a member of the raiding party. The statute, however, limits the choice to the “nearest Magistrate” or “nearest gazetted officer,” both intended to be independent. Presenting a non-independent officer as an option further violated Section 50.
4. Cumulative Effect: These defects—non-individual notice and offering an impermissible option—constituted a breach of Section 50. Under Baldev Singh, such breach renders the recovery suspect and vitiates the conviction because the prosecution’s case rested solely on that recovery.
Holding and Implications
APPEAL DISMISSED – ACQUITTAL CONFIRMED.
The Supreme Court upheld the Rajasthan High Court’s acquittal of the respondents, holding that non-compliance with Section 50 rendered the search and consequent conviction invalid. The immediate effect is the release of the respondents; the judgment reinforces the requirement of individual and independent communication of Section 50 rights but does not create a new doctrinal rule beyond applying existing precedent.
Ranjana P. Desai, J.— The respondents were tried by the Special Judge (NDPS Cases), Chhabra, District Baran for the offences under Section 8 read with Section 18 and under Section 8 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act”).
2. The case of the prosecution was that on 13-10-1997 during Kota Camp at Iklera, P.N Meena, Sub-Inspector, Office of the Narcotics Commissioner, Kota received information at 1900 hours in the evening that the respondents were to hand over about 10 kg opium on 14-10-1997 in the morning between 4.00 a.m to 6.00 a.m at Nangdi-Tiraha, Iklera, Chhipabaraud Road to a smuggler. This information was entered into by SI Meena in the diary and he forwarded it to the Investigating Officer J.S Negi, Superintendent. J.S Negi sent this information through Constable B.L Meena to Assistant Narcotic Commissioner, Kota. Thereafter, raiding party was formed. The raiding party was headed by Superintendent J.S Negi. The raiding party reached Nangdi-Tiraha by a government vehicle. Independent witnesses Ramgopal and Gopal Singh were called by SI Qureshi. Their consent was obtained. At about 4.25 a.m, the respondents came from Village Rajpura. On seeing the raiding party, they tried to run away but they were stopped. Enquiry was made with both the respondents in the presence of the independent witnesses by SI Qureshi. The respondents gave their names. Respondent 1 Parmanand had one white-coloured gunny bag of manure in his left hand.
3. SI Qureshi told the respondents that he had to take their search. They were told about the provisions of Section 50 of the NDPS Act. They were told that under Section 50(1) of the NDPS Act, they had a right to get themselves searched in the presence of any nearest Magistrate or any gazetted officer or in the presence of Superintendent J.S Negi of the raiding party. One written notice to that effect was given to them. On this notice, respondent Surajmal gave consent in writing in Hindi for himself and for respondent Parmanand and stated that they are ready to get themselves searched by SI Qureshi in the presence of Superintendent J.S Negi. He also put his thumb impression. Thereafter, bag of Respondent 1 Parmanand was searched by SI Qureshi. Inside the bag in a polythene bag some black material was found. The respondents told him that it was opium and they had brought it from the village. The weight of the opium was 9 kg 600 gm. Necessary procedure of drawing samples and sealing was followed. The respondents were arrested. After completion of the investigation, Respondent 1 Parmanand was charged for offence under Section 8 read with Section 18 of the NDPS Act and Respondent 2 Surajmal was charged for the offence under Section 8 read with Section 18 and for the offence under Section 8 read with Section 29 of the NDPS Act.
4. The prosecution examined 11 witnesses. The important witnesses are PW 5 J.S Negi, the Superintendent, PW 9 SI Meena and PW 10 SI Qureshi. The respondents pleaded not guilty to the charge. They contended that the police witnesses had conspired and framed them. The case is false.
5. The learned Special Judge convicted Respondent 1 Parmanand under Section 8 read with Section 18 of the NDPS Act and Respondent 2 Surajmal under Section 8 read with Section 28 of the NDPS Act. They were sentenced to 10 years' rigorous imprisonment each and a fine of Rs 10 lakhs each. In default of payment of fine, they were sentenced to undergo rigorous imprisonment for two years. Aggrieved by the said judgment and order, the respondents preferred an appeal to the Rajasthan High Court. By the impugned order Criminal Appeal No. 788 of 1998, the Rajasthan High Court acquitted the respondents. Hence, this appeal by the State.
6. Mr Imtiaz Ahmed, learned counsel for the State of Rajasthan submitted that the High Court was wrong in coming to the conclusion that there was no compliance with Section 50 of the NDPS Act. The counsel submitted that PW 10 SI Qureshi has clearly stated that the respondents were communicated their right under Section 50(1) of the NDPS Act. A written notice was also given to them and only after they consented to be searched by PW 10 SI Qureshi in the presence of PW 5 J.S Negi, the Superintendent, that the search of their person and search of bag of Respondent 1 Parmanand was conducted. The counsel submitted that the High Court was also wrong in disbelieving independent pancha witnesses. The counsel urged that the impugned order Criminal Appeal No. 788 of 1998 is perverse and deserves to be set aside.
7. Ms Nidhi, learned counsel for the respondents, on the other hand, submitted that admittedly notice under Section 50 of the NDPS Act was a joint notice. The respondents were entitled to individual notice. The search is, therefore, vitiated. In this connection, the counsel relied on the judgment of the Punjab and Haryana High Court in Paramjit Singh v. State of Punjab (1997) 1 Crimes 242 (P&H) and judgment of the Bombay High Court in Dharmaveer Lekhram Sharma v. State of Maharashtra (2001) 1 Crimes 586 (Bom). The counsel submitted that the search was a farce. The High Court has, therefore, rightly acquitted the respondents.
8. The question is whether Section 50 of the NDPS Act was complied with or not? Before we go to the legalities, it is necessary to see what exactly the important police witnesses have stated about compliance with Section 50 of the NDPS Act. The gist of the evidence of the police witnesses PW 5 J.S Negi, the Superintendent, PW 9 SI Meena and PW 10 SI Qureshi is that the respondents were informed that they have a right to be searched in the presence of a gazetted officer or the nearest Magistrate or before J.S Negi, the Superintendent, who was present there. They were given a written notice. On that notice, Respondent 2 gave his consent in Hindi in his handwriting that he and Respondent 1 Parmanand are agreeable to be searched by PW 10 SI Qureshi in the presence of PW 5 J.S Negi, the Superintendent. He signed on the notice in Hindi and put his thumb impression. Respondent 1 Parmanand did not sign. There is nothing to show that Respondent 1 Parmanand had given independent consent. The search was conducted. PW 10 SI Qureshi did not find anything on the person of the respondents. Later on, he searched the bag which was in the left hand of Respondent 1 Parmanand. In the bag, he found black-coloured material which was tested by chemical kit. It was found to be opium.
9. In State of Punjab v. Balbir Singh (1994) 3 SCC 299, this Court held that Section 50 of the NDPS Act is mandatory and non-compliance therewith would vitiate trial. In State of H.P v. Pirthi Chand (1996) 2 SCC 37, this Court held that breach of Section 50 does not affect the trial. There were divergent views on this aspect and, therefore, a reference was made to the Constitution Bench. Out of the three questions of law, which the Constitution Bench dealt with in State of Punjab v. Baldev Singh (1999) 6 SCC 172, the question which is relevant for the present case is whether it is the mandatory requirement of Section 50 of the NDPS Act that when an officer duly authorised under Section 42 of the NDPS Act is about to search a person, he must inform him of his right under sub-section (1) thereof of being taken to the nearest gazetted officer or the nearest Magistrate?
10. The conclusions drawn by the Constitution Bench, which are relevant for this case could be quoted: (Baldev Singh case (1999) 6 SCC 172)
“(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. 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 trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.”
(emphasis in original)
11. In the present case, the conviction is solely based on recovery of opium from the bag of Respondent 1 Parmanand. No opium was found on his person. In Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257 this Court held that if a person is carrying a bag or some other article with him and narcotic drug is recovered from it, it cannot be said that it was found from his person and, therefore, it is not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate in compliance with Section 50 of the NDPS Act.
12. In State of H.P v. Pawan Kumar (2005) 4 SCC 350, a three-Judge Bench of this Court held that a person would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container, etc. can under no circumstances be treated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the NDPS Act. The question is, therefore, whether Section 50 would be applicable to this case because opium was recovered only from the bag carried by Respondent 1 Parmanand.
13. In Dilip v. State of M.P (2007) 1 SCC 450, on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. This Court held that:
“16. … provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but keeping in view the fact that the person of [the accused] was also searched, it was obligatory on the part of [the officers] to comply with the said provisions.”
which was not done. This Court confirmed the acquittal of the accused.
14. In Union of India v. Shah Alam (2009) 16 SCC 644, heroin was first recovered from the bags carried by the respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip (2007) 1 SCC 450, it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the respondents on that ground.
15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.
16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before the nearest gazetted officer or the nearest Magistrate or before PW 5 J.S Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh (1999) 6 SCC 172, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only Respondent 2 Surajmal is stated to have signed for himself and for Respondent 1 Parmanand. Respondent 1 Parmanand did not sign.
17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh (1997) 1 Crimes 242 (P&H) and the Bombay High Court in Dharmaveer Lekhram Sharma (2001) 1 Crimes 586 (Bom) meets with our approval.
18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, Respondent 2 Surajmal has signed for himself and for Respondent 1 Parmanand. Respondent 1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorised Respondent 2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of Respondent 1 Parmanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.
19. We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW 5 J.S Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J.S Negi, the Superintendent, who was part of the raiding party. PW 5 J.S Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated.
20. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed.
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