Reference Order
1. This is an appeal preferred by the accused against the decision of the Division Bench of the High Court of Gujarat. The appellant herein was found guilty of the offence punishable under Section 31 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) and was sentenced to undergo 10 years' imprisonment with a fine of Rs 10 lakhs.
2. When the matter came before this Court, the appellant raised a contention that Section 50 of the NDPS Act was not duly complied with and the conviction and sentence of the appellant was, therefore, illegal. The appellant relied on a decision of the Constitution Bench of this Court in State of Punjab v. Baldev Singh (1999) 6 SCC 172. The contention of the appellant is that the officer, who conducted the search, did not inform him of his right to be searched in the presence of a gazetted officer or a Magistrate. The police only told him that the search on his body will be carried out and whether he wanted to be searched in the presence of any gazetted officer or a Magistrate. The Division Bench of the High Court held that this is sufficient compliance with Section 50 of the NDPS Act and the conviction of the appellant was upheld.
3. Counsel for the appellant submits that the Constitution Bench in Baldev Singh case (1999) 6 SCC 172 has held that it is not enough that the accused be informed or intimated that he would be searched in the presence of a gazetted officer or a Magistrate but he should be informed of his right to be searched in the presence of a gazetted officer or a Magistrate and if there is any violation in this regard, it will be violation of Section 50 of the NDPS Act.
4. When the matter came up before this Court, it was found that in some of the decisions rendered by this Court, a slightly different view was taken than what was expressed by the Constitution Bench with regard to interpretation of Section 50 of the NDPS Act. In Joseph Fernandez v. State of Goa (2000) 1 SCC 707 a Bench of three Hon'ble Judges held that even when the searching officer informed him that “if you wish you may be searched in the presence of a gazetted officer or a Magistrate”; it was held that it was in substantial compliance with the requirement of Section 50 of the NDPS Act, and the Court observed that it did not agree with the contention that there was non-compliance with the mandatory provisions contained in Section 50 of the NDPS Act. In another decision of this Court in Prabha Shankar Dubey v. State of M.P (2004) 2 SCC 56 the following information was conveyed to the accused:
“By way of this notice, you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by any gazetted officer or by a Magistrate?”
This was held to be substantial compliance with Section 50 of the NDPS Act. In Krishna Kanwar v. State of Rajasthan (2004) 2 SCC 608 the same question was considered and it was held that there is no specific form prescribed or initiated for conveying the information required to be given under Section 50 of the NDPS Act and it was held that:
“What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed or intended, the court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalisation and/or a straitjacket formula.”
5. A reference was also made to an earlier decision of this Court in Manohar Lal v. State of Rajasthan (1996) 11 SCC 391 wherein this Court held that:
“It is clear from Section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available gazetted officer or the nearest available Magistrate.”
6. However, we notice that in the decisions in State of Punjab v. Balbir Singh (1994) 3 SCC 299, K. Mohanan v. State of Kerala (2000) 10 SCC 222 and Vinod v. State of Maharashtra (2002) 8 SCC 351 the decision of the Constitution Bench was followed. It was held therein that before conducting search, the police officer concerned cannot merely ask the accused whether he would like to be produced before the Magistrate or a gazetted officer for the purpose of search but should inform him of his right in that behalf under the law.
7. We may now refer to the decision of the Constitution Bench rendered in Baldev Singh case (1999) 6 SCC 172 in this regard. In Baldev Singh case (1999) 6 SCC 172 an argument was raised that whether the accused suspect is merely to be informed as to whether he prefers to be searched in the presence of the Magistrate or the gazetted officer and that it is not necessary that he should be informed of his right under Section 50 of the NDPS Act. This plea was negatived by the Constitution Bench and it was held:
“We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so requires, would place any premium on ignorance of the law. The argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a ‘reasonable, fair and just procedure’.”
(emphasis in original)
It was further held that:
“27. Requirement to inform has been read in by this Court in other circumstances also, where the statute did not explicitly provide for such a requirement. While considering the scope of Article 22(5) of the Constitution of India and various other provisions of the COFEPOSA Act and the NDPS Act as amended in 1988, a Constitution Bench of this Court in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51 concluded:
‘14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority i.e the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order of detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.’ ”
(emphasis in original)
It was also reiterated at the end of the paragraph:
“57. (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.”
(emphasis added)
8. From the aforesaid decision in Baldev Singh case (1999) 6 SCC 172 it is clear that it is not enough that the accused be told that whether he would prefer to be searched in the presence of a gazetted officer or a Magistrate, but he must be told of his right to be searched in the presence of a gazetted officer or a Magistrate. It may be noticed that clause (1) of Section 50 of the NDPS Act only indicates that only in cases where the accused suspect requires to be searched in the presence of a gazetted officer or a Magistrate, he need be taken to such place. It is also important to note that the option is for the searching officer to take him either to the gazetted officer or to the Magistrate. In Baldev Singh case (1999) 6 SCC 172 the Constitution Bench also observed that it is not necessary that in the search memo or in the contemporaneous document it should be specifically mentioned that the accused suspect was apprised of his right under Section 50(1) of the NDPS Act. It has been so held that it is enough that the officer, who conducts the search, gives oral evidence to the effect that the accused was informed of his right under Section 50(1) of the NDPS Act.
9. Thus, in a way, it all depends on the oral evidence of the officer who conducts search, in case nothing is mentioned in the search mahazar or any other contemporaneous document prepared at the time of search. In view of the large number of cases coming up under the provisions of the NDPS Act the interpretation of Section 50 of the Act requires a little more clarification as its applicability is quite frequent in many cases. In appreciating the law laid down by the Constitution Bench in Baldev Singh case (1999) 6 SCC 172 we have noticed that conflicting decisions have been rendered by this Court. We feel that the matter requires some clarification by a larger Bench. The matter be placed before the Hon'ble Chief Justice of India for taking further action in this regard.
10. We are told that the appellant has already undergone a sentence of 8 years and 8 months' imprisonment. If the matter is referred to a larger Bench, it is likely that the final disposal of the appeal may take further time and in view of these peculiar circumstances, we grant interim bail to the appellant, pending disposal of the appeal finally. The appellant is directed to be released on interim bail on executing bail bonds to the satisfaction of the Additional Sessions Judge, Rajkot, Gujarat.