State Of Punjab vs Vijay Shankar

1. The Narcotic Drugs and Psyche-tropic Substances Act, 1985 was incorporated and introduced in the statute book to amend the laws relating to narcotic drugs and to make stringent provisions to control and regulate the narcotic drugs and psychotropic substances. The recent trend of judicial decisions depicts the strictness of the interpretation of the statute and the matter has had travelled on more than one occasion before the constitution bench of this Court for its proper appreciation and interpretation.

2. In State of Punjab v. Baldev Singh, the constitution bench of this Court in no uncertain terms stated the requirement of law as regards the compliance of section 50 as below:

25. To be searched before a gazetted officer or a magistrate, if the suspect so re-

quires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the seventy of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a magistrate, so as to enable him to avail of that right. It is however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a magistrate or a gazetted officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that

the requirements of Section 50 were duly complied with." (emphasis supplied)

3. Turning attention on to the contextual facts, it appears that the respondent-accused was intercepted having in possession of 105 kg. of poppy husks on 10th October, 1991 in the state of Punjab. Learned sessions judge upon consideration of the facts available on record did record that the prosecution has been able to prove its case against accused beyond any shadow of doubt and as such the accused was held guilty of Section 15 of the NDPS Act and he was convicted accordingly and sentenced to undergo imprisonment for a period of 10 years and to pay a fine of rupees one lakh, in default, to undergo further period of imprisonment for two and a half years. It is this order which came up for challenge before the High Court.

The High Court, however, dealt with the issue recording therein that the requirement of Section 50 of the NDPS Act which has since been declared to be mandatory, shall have to be in writing and not an oral intimation. While it is true that the judgment under appeal presently was earlier in point of time than Baldev Singh (supra) but we do feel it expedient to note that since the constitution bench has settled the law as above, it would be a travesty of justice to lay by and allow the decision impugned to be operative.

4. Be it noted that the requirement of the statute does not specifically record that this offer of being searched should be in writing as such - by reason therefore specific requirement as is under the impugned judgment does not stand the test of reasonable

interpretation.

5. On the wake of the aforesaid, we do not find any justification for the High Court to offer such an interpretation more so by reason of the state of law as is available presently in terms of the decision in Baldev Singh (supra).

6. The appeals thus succeed.

7. The judgment and order passed by the High Court cannot be sustained and the same is thus set aside and quashed and that of the sessions judge stands restored. The respondent be taken into custody to serve out the sentence.