ARIF KHAN @ AGHA KHANversusSTATE OF UTTARAKHAND

                         [2018] 6 S.C.R. 787                           787


                  ARIF KHAN @ AGHA KHAN                                A
                                 v.
                   STATE OF UTTARAKHAND
                 (Criminal Appeal No. 273 of 2007)
                          APRIL 27, 2018                               B
  [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
       Narcotic Drugs and Psychotropic Substances Act, 1985 –
ss.20 and 50 – Non-compliance of s.50 – Prosecution case that
Police raided appellant-accused and on search found contraband
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article “Charas” weighing around 2.5 Kg in quantity from his body
– Trial Court convicted u/s. 20 of the NDPS Act – Conviction
confirmed by the High Court – Appellant-accused contended that
the prosecution failed to ensure mandatory compliance of s.50 of
the NDPS Act – Held: In order to make the search and recovery of
the contraband articles from the body of the suspect, the search       D
and recovery has to be in conformity with the mandatory
requirements of s.50 of the Act – In instant case, appellant was not
produced before any Magistrate or Gazetted Officer as envisaged
in s.50 – Thus, prosecution was not able to prove that search and
recovery of the contraband made from the appellant was in
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accordance with the procedure prescribed u/s.50 of the NDPS Act
– Therefore, the appellant entitled to claim its benefit to seek his
acquittal.
      Allowing the appeal, the Court
      HELD: 1. In order to make the search and recovery of the         F
contraband articles from the body of the suspect, the search and
recovery has to be in conformity with the requirements of Section
50 of the Narcotic Drugs and Psychotropic Substances Act, 1985
Act. It is, therefore, mandatory for the prosecution to prove that
the search and recovery was made from the appellant in the
presence of a Magistrate or a Gazetted Officer. Though, the            G
prosecution examined as many as five police officials (PW-1 to
PW-5) of the raiding police party but none of them deposed that
the search/recovery was made in presence of any Magistrate or
a Gazetted Officer. [Paras 28 and 29] [793-E-F]
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                                787
788            SUPREME COURT REPORTS                          [2018] 6 S.C.R.


A            2. The prosecution was not able to prove that the
      search and recovery of the contraband (Charas) made from the
      appellant was in accordance with the procedure prescribed under
      Section 50 of the NDPS Act. Since the non-compliance of the
      mandatory procedure prescribed under Section 50 of the NDPS
      Act is fatal to the prosecution case and, in instant case, the
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      prosecution has failed to prove the compliance as required in
      law, the appellant is entitled to claim its benefit to seek his acquittal.
      [Para 30] [793-G-H; 794-A]

            Vijaysinh Chandubha Jadeja v. State of Gujarat
C           (2011) 1 SCC 609 : [2010] 13 SCR 255 – relied on.

            State of Punjab v. Baldev Singh (1999) 6 SCC 172 :
            [1999] 3 SCR 977 ; Ashok Kumar Sharma v. State of
            Rajasthan (2013) 2 SCC 67 : [2013] 1 SCR 236 ;
            Narcotics Control Bureau v. Sukh Dev Raj Sodhi
D           (2011) 6 SCC 392 : [2011] 6 SCR 974 - referred to.

                               Case Law Reference

              [2010] 13 SCR 255             relied on            Para 14

E             [1999] 3 SCR 977              referred to          Para 21

              [2013] 1 SCR 236              referred to          Para 23

              [2011] 6 SCR 974              referred to          Para 23

            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F     No. 273 of 2007.

            From the Judgment and Order dated 26.06.2006 of the High Court
      of Uttaranchal at Nainital in Criminal Appeal No. 368 of 2004.

           J.C.Gupta, Sr. Adv., Anurag Tomar, Vikrant Singh Bais,
G     Rameshwar Prasad Goyal, Advs. for the Appellant.

           Ashutosh Kumar Sharma, Jatinder Kumar Bhatia, Advs. for the
      Respondent.


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 ARIF KHAN @ AGHA KHAN v. STATE OF UTTARAKHAND                              789


      The Judgment of the Court was delivered by                            A
       ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by the
accused against the final judgment and order dated 26.06.2006 passed
by the High Court of Uttaranchal at Nainital in Criminal Appeal No.368
of 2004 whereby the High Court confirmed the judgment and order dated
09.11.2004 passed by the Additional Sessions Judge, Fast Track Court        B
II, Udham Singh Nagar in Special Sessions Trial No.20 of 2003 by which
the appellant-accused was convicted for the offence punishable under
Section 20 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as “the NDPS Act”) and sentenced him to
undergo rigorous imprisonment for 10 years and a fine of Rs.1,00,000/-.
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       2. In order to appreciate the issue involved in the appeal, few
facts need to be mentioned hereinbelow.
      3. In short, the case of the prosecution is as under:
       4. On 23.11.2002, a secret information was received in P.S. Kichha
from one unknown informant that one person is travelling in a roadways      D
bus carrying with him some contraband articles. The secret informant
also gave information that the person concerned would get down near
the railway crossing from the Bus and would approach towards a place
called “Chowki Pul Bhatta” along with contraband article.
       5. The raiding party headed by SHO-Harish Mehra, who was on          E
duty at P.S. Kichha along with the police officials on duty accordingly
left for the place informed by the informant.
       6. On reaching the informed place, the raiding party waited for
sometime and thereafter spotted the person concerned, who was
approaching towards the place informed to them. The raiding party           F
intercepted the person concerned.
      7. Thereafter, the accused was asked by the police personnel of
raiding party as to whether he is in possession of contraband “Charas”.
The accused admitted that he is in possession of “Charas”. On
apprehending the accused, he was informed by the police personnel that      G
he has a legal right to be searched in the presence of a Gazetted Officer
or a Magistrate to which the accused replied that he has a faith on the
raiding police party and consented to be searched by them.


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790             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


A            8. The raiding police party accordingly obtained his consent in
      writing to be searched by the raiding police party. The raiding police
      party then searched the accused which resulted in seizure of “Charas”
      weighing around 2.5 K.G. in quantity from his body.
             9. It is this incident, which gave rise to prosecution of the appellant
B     (accused) for commission of the offence punishable under Section 20 of
      the NDPS Act in Special Sessions Trial No.20/2003. After investigation,
      the prosecution filed the charge sheet (Ex- 11) against the appellant and
      examined 5 witnesses to bring home the charge levelled against the
      appellant.
C            10. By order dated 09.11.2004, the Additional Sessions Judge/
      Fast Track Court II, Udham Singh Nagar held that the prosecution was
      able to prove the case beyond reasonable doubt against the appellant
      and accordingly convicted him for the offences punishable under Section
      20 of the NDPS Act and sentenced him to undergo rigorous imprisonment
      for 10 years and a fine of Rs.1,00,000/-.
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              11. The accused felt aggrieved and filed appeal in the High Court
      at Nainital. By impugned judgment, the High Court dismissed the appeal
      and upheld the order of Additional Sessions Judge, which has given rise
      to filing of the present appeal by the accused by way of special leave in
      this Court.
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            12. Heard Mr. J.C. Gupta, learned senior counsel for the appellant
      (accused) and Mr. Ashutosh Kumar Sharma, learned counsel for the
      respondent-State.
             13. Learned counsel for the appellant (accused) while assailing
F     the legality and correctness of the impugned judgment contended that
      both the Courts below erred in holding the appellant guilty of commission
      of the offence in question and thus erred in convicting him for the alleged
      offence under the NDPS Act.
             14. Learned counsel contended that the prosecution has failed to
      ensure mandatory compliance of Section 50 of the NDPS Act inasmuch
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      as the alleged recovery/search of the contraband (Charas) made by the
      raiding police party from the appellant’s body was not done in accordance
      with the procedure prescribed under Section 50 of the NDPS Act which
      according to learned counsel is mandatory as held by this Court in the
      case of Vijaysinh Chandubha Jadeja vs. State of Gujarat, 2011(1)
H     SCC 609.
 ARIF KHAN @ AGHA KHAN v. STATE OF UTTARAKHAND                               791
           [ABHAY MANOHAR SAPRE, J.]

      15. Learned counsel urged that the search/recovery of the alleged      A
contraband from the appellant ought to have been made only in the
presence of either a Magistrate or a Gazetted Officer only.
       16. It was urged that since admittedly the prosecution did not
make the search/recovery from the appellant in the presence of a
Magistrate or a Gazetted Officer and, therefore, the alleged recovery of     B
the contraband “Charas” from the appellant is rendered illegal being in
contravention of requirements of Section 50 of the NDPS Act thereby
entitling the appellant for an acquittal from the charges.
     17. In reply, learned counsel appearing for the respondent (State)
supported the reasoning and conclusion arrived at in the impugned            C
judgment and, therefore, prayed for upholding of the impugned judgment.
       18. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow the appeal and while
setting aside of the impugned judgment acquit the appellant from the
charges in question.
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      19. The short question which arises for consideration in the appeal
is whether the search/recovery made by the police officials from the
appellant (accused) of the alleged contraband (charas) can be held to be
in accordance with the procedure prescribed under Section 50 of the
NDPS Act.
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      20. In other words, the question that arises for consideration in
this appeal is whether the prosecution was able to prove that the
procedure prescribed under Section 50 of the NDPS Act was followed
by the Police Officials in letter and spirit while making the search and
recovery of the contraband “Charas” from the appellant (accused).
      21. What is the true scope and object of Section 50 of the NDPS        F
Act, what are the duties, obligation and the powers conferred on the
authorities under Section 50 and whether the compliance of requirements
of Section 50 are mandatory or directory, remains no more res integra
and are now settled by the two decisions of the Constitution Bench of
this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and          G
Vijaysinh Chandubha Jadeja (supra).
       22. Indeed, the latter Constitution Bench decision rendered in the
case of Vijaysinh Chandubha Jadeja (supra) has settled the
aforementioned questions after taking into considerations all previous
case law on the subject.
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792             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


A             23. Their Lordships have held in Vijaysinh Chandubha Jadeja
      (supra) that the requirements of Section 50 of the NDPS Act are
      mandatory and, therefore, the provisions of Section 50 must be strictly
      complied with. It is held that it is imperative on the part of the Police
      Officer to apprise the person intended to be searched of his right under
      Section 50 to be searched only before a Gazetted officer or a Magistrate.
B
      It is held that it is equally mandatory on the part of the authorized officer
      to make the suspect aware of the existence of his right to be searched
      before a Gazetted Officer or a Magistrate, if so required by him and this
      requires a strict compliance. It is ruled that the suspect person may or
      may not choose to exercise the right provided to him under Section 50 of
C     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.
      (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2)
      SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi,
      2011 (6) SCC 392)
D
             24. Keeping in view the aforementioned principle of law laid down
      by this Court, we have to examine the question arising in this case as to
      whether the prosecution followed the mandatory procedure prescribed
      under Section 50 of the NDPS Act while making search and recovery
      of the contraband “Charas” from the appellant and, if so, whether it was
E     done in the presence of a Magistrate or a Gazetted Officer so as to
      make the search and recovery of contraband “Charas” from the appellant
      in conformity with the requirements of Section 50.
            25. In our considered view, the evidence adduced by the
      prosecution neither suggested and nor proved that the search and the
F     recovery was made from the appellant in the presence of either a
      Magistrate or a Gazetted Officer.
             26. It is the case of the prosecution and which found acceptance
      by the two Courts below that since the appellant (accused) was apprised
      of his right to be searched in the presence of either a Magistrate or a
G     Gazetted Officer but despite telling him about his legal right available to
      him under Section 50 in relation to the search, the appellant (accused)
      gave his consent in writing to be searched by the police officials (raiding
      party), the two Courts below came to a conclusion that the requirements

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 ARIF KHAN @ AGHA KHAN v. STATE OF UTTARAKHAND                              793
           [ABHAY MANOHAR SAPRE, J.]

of Section 50 stood fully complied with and hence the appellant was         A
liable to be convicted for the offence punishable under the NDPS Act.
      27. We do not agree to this finding of the two Courts below as, in
our opinion, a search and recovery made from the appellant of the alleged
contraband “Charas” does not satisfy the mandatory requirements of
Section 50 as held by this Court in the case of Vijaysinh Chandubha         B
Jadeja (supra). This we say for the following reasons.
       28. First, it is an admitted fact emerging from the record of the
case that the appellant was not produced before any Magistrate or
Gazetted Officer; Second, it is also an admitted fact that due to the
aforementioned first reason, the search and recovery of the contraband      C
“Charas” was not made from the appellant in the presence of any
Magistrate or Gazetted Officer; Third, it is also an admitted fact that
none of the police officials of the raiding party, who recovered the
contraband “Charas” from him, was the Gazetted Officer and nor they
could be and, therefore, they were not empowered to make search and         D
recovery from the appellant of the contraband “Charas” as provided
under Section 50 of the NDPS Act except in the presence of either a
Magistrate or a Gazetted Officer; Fourth, in order to make the search
and recovery of the contraband articles from the body of the suspect,
the search and recovery has to be in conformity with the requirements
of Section 50 of the NDPS Act. It is, therefore, mandatory for the          E
prosecution to prove that the search and recovery was made from the
appellant in the presence of a Magistrate or a Gazetted Officer.
       29. Though, the prosecution examined as many as five police
officials (PW-1 to PW-5) of the raiding police party but none of them
deposed that the search/recovery was made in presence of any                F
Magistrate or a Gazetted Officer.
       30. For the aforementioned reasons, we are of the considered
opinion that the prosecution was not able to prove that the search and
recovery of the contraband (Charas) made from the appellant was in
accordance with the procedure prescribed under Section 50 of the NDPS       G
Act. Since the non-compliance of the mandatory procedure prescribed
under Section 50 of the NDPS Act is fatal to the prosecution case and,
in this case, we have found that the prosecution has failed to prove the

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794                SUPREME COURT REPORTS                         [2018] 6 S.C.R.


A     compliance as required in law, the appellant is entitled to claim its benefit
      to seek his acquittal.
             31. In the light of the foregoing discussion, the appeal succeeds
      and is allowed. Impugned judgment is set aside. As a consequence thereof,
      the appellant’s conviction is set aside and he is acquitted of the charges
B     in question.


      Ankit Gyan                                                    Appeal allowed.



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