Supreme Court of India
PRABHA SHANKAR DUBEYversusSTATE OF MADHYA PRADESH
- Citation
- 2003 INSC 686
- Decided
- 2 December 2003
- Disposal
- Dismissed
Holding
The Court held that no specific form is prescribed for the intimation under Section 50; the substance of the notice given satisfied the statutory requirement, and the convictions stand.
Summary
The accused were intercepted while carrying opium and were served a notice under Section 50 of the NDPS Act informing them of their right to be searched before a gazetted officer or magistrate. They declined that option and were searched by a narcotics officer, leading to the seizure of 200 g of opium and conviction under Section 18 of the NDPS Act. On appeal they contended that the statutory requirement of Section 50 was not complied with because no specific form of intimation was used. The Supreme Court held that the Act does not prescribe a particular form; what matters is that the accused be made aware of the right, which was satisfied by the notice and their written consent. Consequently, the requirements of Section 50 were deemed complied with, and the convictions were upheld. The appeals were dismissed.
Issues considered
- The adequacy of compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 regarding informing the suspect of his right to be searched before a gazetted officer or magistrate.
- Whether the absence of a prescribed form of intimation invalidates the search and subsequent conviction.
- Whether substantial compliance with Section 50 suffices for the purpose of the statute.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 42, s. 50, s. 55, s. 57
Subjects
NDPS ActSection 50search procedureprocedural safeguardsubstantial complianceopium seizurecriminal conviction
Judgment
A PRABHA SHANKAR DUBEY
v.
STATE OF MADHYA PRADESH
DECEMBER 2, 2003
B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]
Narcotics Drugs and Psychotropic Substances Act, 1985; Section I 8:
Suspects carrying opium intercepted by Officer-Notice for search by
C Magistrate/Gazetted Officer-Opted to be searched by Officer intercepting
them-Seizure of opium ji·om their custody-Trial Court convicted and
sentenced them for committing offence holding that statutory requirements
pertaining to search of s.uspects fully complied with-Upheld by the High
Court-On appeal, Held : Since no specific form prescribed under the
D provisions of the Act except conveying to suspects about existence of their
right to search by named officers, the question as to compliance thereto
has to be decided on facts of each case and not by any strait jacket
formula-It is only ·a procedural requirement to protect rights of an
accused-No material placed before the Courts below to substantiate the
plea of non-compliance of requirements of provisions of th~ concerned
E authority-Hence, no infirmity in- the impugned judgment to warrant
interference.
According to the prosecution, on receipt of information, appel-
lants possessing opium were intercepted by the Officer of Narcotics
F Department. They were served a notice to inform them as to whether
they would desire to be taken to a Magistrate or a Gazetted Officer
for search. They did not opt to be searched by them. Hence they were
searched by the Officer of the Narcotics Department. 200 gm. of opium
was found which was seized and sent to the Forensic Science Labora-
tory and matter was investigated. Trial Court found both accused
G guilty of the offence punishable under Section 18 of the Narcotics
Drugs and Psychotropic Substances Act and convicted and sentenced
them accordingly. The order was upheld by the High Court. Hence the
present appeals.
H It was contended for the accused-appellants that merely asking .
444
PRABHA SHANKAR DUBEYv. STATE OF M.P. 445
the accused as to whether they would like to b~, searched by the A
Magistrate/Gazetted Officer, is not a sufficient compliance of Section
50 of the Act.
On behalf of the respondent-State, it was submitted that no
specific manner has been prescribed under Section 50 of the Act to B
intimate accused for search by the Magistrate or a Gazatted officer,
that the purpose of such information is to ensure transparency and to
rule out any allegation of false implication; and that since accused did
not opt to be searched by the named officer, search could be conducted
by the officers to the exclusion of named officers.
c
Dismissing the appeals, the Court ·
HELD : 1.1. There is no specific form prescribed or intended for
conveying the information required to be given under Section 50 orthe
Narcotics Drugs and Psychotropic Substances Act. What is necessary D
is 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 generalization and/or strait-jacket E
formula. [451-A-C]
State of Punjab v. Ba!dev Singh, [1999) 6 SCC, 172, followed.
1.2. Section 50 of the Act does not involve any self-incrimination. F
It is only a procedure required to protect the right of an accused
(suspect) being made aware of the existence of his right to be searched
if so required by him before any of the specified officers. The object
seems to be to ensure that at a later stage the accused (suspect) does
not take a plea that the articles were planted on him or that those were
not recovered from him. To put it differently, fair play and transpar- G
ency in the process of search has been given the primacy. If a thing
is required to be done in a particular way it should be done in that way,
but in the instant case, position is different in view of the conclusions
that the requirements of Section 50 of the Act were sufficiently
complied with. [451-C-E] H
446 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A Raghbir Singh v. State of Haryana, (1996) 2 SCC 201; Nazir Ahmad
v. King-Emperor, AIR (1936) P.C. 253; State of Uttar Pradesh v.
Singhara Singh & Ors., (1964) 4 SCR 48S and Joseph Fernandez v. State
of Goa, (20001 1 SCC 707, relied on.
B 1.3. The use of the expression 'substantial compliance' was made
in the background that the searching officer had Section SO of the Act
in mind and it was unaided by the interpretation placed on. it by the
Constitution Bench in Baldev Singh 's case. A line or a word in a
judgment cannot be read in isolation or as if interpreting a statutory
provision, to impute a different meaning to the observations. Hence,
C there is no substance in the plea that there was non-compliance with
the requirements of Sedion SO of the Act. (4S4-D-E-FJ
State of Punjab v. Baldev Singh, (1999) 6 SCC, 172, referred to •.
D 1.4. There was no material placed either before the trial Court
or the High Court to substantiate the plea that requirements of Section
SO have not been complied with. Hence, the grievance in this regard
does not merit any consideration, leave alone the impact of it on the
guilt and conviction of the accused. While giving Statement under
section 313 Cr.P.C., the accused did not say that he was unaware of
E his rights or that he was misled on that account in any man!ler. On
the contrary, in general and vague manner it was said that he did not
know or he had no idea of the allegations. There is no infirmity in the
impugned judgment to warrant interference. (4S4-F-G-H; 4SS-A-B)
F CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
634 of 2003.
From the Judgment and Order dated 2.8.2002 of the Madhya Pradesh
High Court at Jabalpur in Cr!. A. No. 2076 of 1999.
G WITH
Cr!. A. No. 1122 of 2003.
M.S. Ganesh, Ms. Sushma Manchanda for the Appellant in Cr!. A.
H No. 634/2003.
PRABHA SHANKAR DUBEYv. STATE OF M.P. [PASAYAT, J.] 447
Sunil Kumar Jain, Kamal Mohan Gupta and S. Borthakur for the A
Appellant in Cr!. A. No. 1122/2003.
R.P. Gupta, Binod N. Tewari and Ms. Kamakashi S. Mehlwal for the
Respondent.
The Judgment of the Court was delivered by B
ARIJIT PASA YAT, J. These two appeals relate to the common
judgment rendered by a learned Single Judge of the Madhya Pradesh High
Court at Jabalpur Bench upholding conviction of the appellants (hereinafter
referred to as the accused by their respective names) for commission of C
offence punishable under Section 18 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as the 'Act'). In addition to
custodial sentence of I 0 years, a fine of Rs. l ,00,000 was imposed.
Prosecution version as unfolded during trial is as under:
D
On 3.11.1998 S.B. Shrivastava (PW-6) received information that two
persons in possession of opium were going on scooter No.M.P.-04-R-7693
from the side of new jail to Gandhi Nagar. This information was recorded
at Serial No. 216 in Roznamcha and transmitted to. the C.S.P. as per
Ex .P-1. The accused persons were stopped and apprised through the notices E
Ex.P-10 and Ex.P-11 that if they so desire, can be taken to a Magistrate
or a gazetted officer for search. They opted to be searched by him. On their
search 200 grams of opium was found on the "person" of each of them.
It was seized as per seizure memos Ex.P-4 and Ex.P-6. Samples of l 0
grams each were taken and sealed. The seized opium in sealed condition F
was deposited in Malkhana of the police station. The crime was registered
as per Ex.P-12. The information relating to search and arrest of the accused
persons was sent to the superior officer on 5.11.J 998 as per Ex.P-2. The
sealed samples were sent to the Forensic Science Laboratory and as per
report Ex.P-14, the commodity which was seized was found to be opium .
. The accused persons pleaded not guilty. Their defence was that they have G
been falsely implicated.
The trial Court held that the testimony of the investigating officer
to be reliable and unbreakably supported by the Onkar Singh Kushwaha
(PW-I) and Rajindra Singh Yadav (PW-3)-Police Constable, who accom- H
448 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A panied him though the two panch witnesses Ramesh (PW-4) and Yakoob
Khan (PW-5) did not support the prosecution version. The trial Court held
that there was full compliance with the statutory requirements contained
in Sections 42, 50, 55 and 57 of the Act and, therefore, convicted and
sentenced the appellants as afore-noted. Appeals before the High Court as
B indicated at the threshold did not bring any relief to the accused-appellants.
In support of the appeals, learned counsel appearing for the accused-
appellants mainly focused on alleged non-compliance with the requii-e-
ments of Section 50 of the Act. According to them, mere asking the accused
as to whether they would like to be searched by the Gazetted Officer or
C the Magistrate is not sufficient compliance of the requirements embodied
in Section 50 of the Act. By merely asking them what is to be done is
seeking their opinion and not making them aware o( their right. Great
emphasis is laid on certain observations made by a Constitution Bench in
State of Punja!J v. Baldev Singh, [ 1999] 6 SCC 172. With reference to the
D questions that were formulated for determination in Baldev Singh 's case
(supra), it was submitted that the sanctity that is attached to the compliance
with the requirements has to be culled out from references made to the
principles under the Preventive Detention Laws, The Fifth Amendment to
the American Constitution and the imperative and obligatory nature of the
E duty as indicated in D.K Basu v. State of West Bengal, [1997] l sec 416.
The Act provides stringent measures attached for ·infraction. That itself
brings in the necessity to ensure strict compliance with the requirements.
What has been done in the instant case is not in any way compliance with
the requirements as there was no specific information given about the right.
It is pointed out that in some cases, this Court has said that substantial
F compliance would be sufficient which is against the settled position in law
that in respect of penal statutes substant_ial compliance will not be
sufficient.
In response, learned counsel for the State submitted that the purpose
G of informing the accused is to ensure that there is transparency and is aimed
at ruling out allegations of false implication. There is no specific manner
in which the information/intimation is required to be given. The accused
did not opt to be searched by the Gazetted Officer or the Magistrate even
though -it was pointed out to him that he had the choice. It was not as if
H he had limited option. The search could be conducted in the presence of
PRABHA SHANKAR DUBEY v. STATE OF M.P. [PASA YAT, J.] 449
the named officers to the exclusion of the officer making the offer for the A
search if accused so chose. According to learned counsel, before the
Constitution Bench in Baldev Singh 's case (supra) the form of information/
intimation aspect was not under consideration.
In order to appreciate rival submissions, some of the observations B
made by the Constitution Bench in Baldev Singh 's case (supra) are required
to be noted. It is also to be noted that the Court did not in the abstract decide
whether Section 50 was directory or mandatory in nature. It was held that
the provisions to the Act implicitly make it imperative and obligatory and
cast a duty on the investigating officer (empowered officer) to ensure that
search of the person (suspect) concerned is conducted in the manner C
prescribed by Section 50 by intimating to the person concerned about the
existence of his right that if he so requires, he shall be searched before a
Gazetted Officer or a Magistrate and in case he so opts, failure to conduct
his search before a Gazetted Officer or a Magistrate would cause prejudice
to the accused and render the recovery of the illicit articles suspect and D
vitiate the conviction and sentence of the accused. Where the conviction
has been recorded only on the basis of the possession of the illicit article,
recovered during a search conducted in violation of the provisions of
Section 50 of the Act, it was illegal. It was further held that the omission
may not vitiate the trial as such, but because of the inherent prejudice which E
would be caused to an accused by the omission to be informea of the
existence of his right, it . would render his conviction and sentence
unsustainable. In paragraph 32 of the judgment (at page 200) this position
was highlighted. In para 57, inter alia the following conclusions were
arrived at:
F
"(I) That when an empowered officer or a duly authorized
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 the Act of being taken to
the nearest gazetted officer or nearest Magistrate for making the G
search. However,
•
sucb>f 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 H
450 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A 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
B
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 ~ search
c . conducted in violation of the provisions of Section 50 of the Act.
(5) That whether or not the safeguards provided in Section
50 have been duly observed wou\d have to be determined by the
court on the basis of the evidence led at the trial. Finding on that
D issue, one way or the other would be relevant for recording an
order of conviction or acquittal. Without giving an opportunity to
the prosecution to establish, at the trial, that the provisions of
Section 50 and, particularly, the safeguards provided therein were
duly complied with, it would not _be permissible to cut short' a
E criminal trial.
(6) That in the context in which the protection· has been
incorporated in Section 50 for the benefit of the person intended
to be searched, we do not express any opinion whether the
provisions of Section 50 are mandatory or directory, but hold that
F failure to inform the person concerned of his right as emanating
from .~ub~sectio~ (I) ~f Section 50 and render the recovery of the
contr~band suspect and the conviction and sentence of an accused
bad and unsustainable in law.
G (7) That an illicit article seized from the person of an accused
during search conducted in violation of the safeguards provided
in Section 50 of the Act cannot be used as evidence of proof of
unlawful possession of the contraband on the accused though any
other material recovered during that search may be relied upon
by the prosecution, in other proceedings, against an accused,
H
PRABHA SHANKAR DUBEYv. STATE OF M.P. [PASAYAT, J.] 451
notwithstanding the recovery of that material during an illegal A
search."
It is not disputed that there is no specific form prescribed or intended
for conveying the information required to be given under Section 50. What
is necessary is that the accused (suspect) should be made aware of the B
existence of his right to be searched in presence of one of the officers
named in the Section itself. Since no specific mode or maimer 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 decidea on the facts of each case and there cannot
be any sweeping generalization and/or strait-jacket formula. c
Section 50 does not involve any self-incrimination. It is only a
procedure required to protect the rights ofan accused (suspect) being made
aware of the existence of his right to be searched if so required by him
before any of the specified officers. The object seems to be to ensure that D
at a \ater stage the accused (suspect) does not take a plea that the articles
were planted on him or that tnose were not recovered from him. To put
it differently, fair play and transparency in the process of search has been
given the primacy. In Raghbir Singh v. State of Haryana, [l 996] 2 SCC
201, the true essence of Section 50 was highlighted in the following E
- manner:
"8. The very question that is referred to us came to be
considered by a Bench of two learned Judges on 22.1.1996 in
Manohar Lal v. State of Rajasthan, [Crl.M.P.No.138/96 in
SLP(Crl.)No.184/1996]. One of us (Verma, J), speaking for the F
Bench, held:
"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 iike to be searched by the officer making G
the search or in the presence of the nearest available
Gazetted Officer or the nearest available Magistrate. The
choice of the nearest Gazetted Officer or the nearest Mag-
istrate has to be exercised by the officer making the search
and not by the accused". H
I
I
.:l
452 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
9. We concur with the view taken in Manohar Lai's case supra.
I 0. Finding a pe1 :;on to be in possession of articles which are
illicit under the pruvisions of the Act has the consequence of
requiring him to prove that he was not in contravention of its
provisions and it renders him liable to severe punishment. It is,
B therefore, that the Act affords the person to be searched a
safeguard. He may require the search to be conducted in the
presence of a senior officer. The senior officer may be a Gazetted
Officer or a Magistrate, depending upon who is conveniently
available.
c
I I. The option under Section 50 of the Act, as it plainly reads,
is only of being searched in the presence of such senior officer.
There is no further option of being searched in the presence of
either a Gazetted Officer or of being searched in the presence of
a Magistrate. The use of the word 'nearest' in Section 50 is
D
relevant. The search has to be conducted at the earliest and; once
the person to be searched opts to be searched in the presence of
such senior officer, it is for the police officer who is to conduct
the search to conduct it in the presence of whoever is the most
conveniently available, Gazetted Officer or Magistrate".
E
As has been highlighted in Baldev Singh 's case (supra) it has to be
seen and gauzed whether the requirements of Section 50 have been met.
Section 50 in reality provides for additional safeguards which are not
specifically provided by the statute. The stress is on the adoption of a
F reasonable, fair and just procedure. No specific words are necessary to be
used to convey existence of the right. In the case at hand the information
was conveyed in the following manner:
"By way of this notice you are informed that we have
received information that you are illegally carrying opium with
G 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".
In response to the aforesaid intimation each of the accused gave in
H writing as follows:
PRABHA SHANKAR DUBEY v. STATE OF M.P. [PASAYAT, J.] 453
"Sir, I have no objection if you search me or my scooter". A
Sd/- Sd/- Sd/-
Ram Vilas Prabhashankar at 14.20 P.M.
3.11.1998 3.11.98 Thana Shahjaibad
at 14.25 P.M. B
Thana Shahjaibad".
The notice in the present case has great similarity with what was
conveyed to the accused in Joseph Fernandez v. State of Goa, [2000] I
SCC 707. It was inter alia held in the said case as follows: C
"2. Learned counsel tried to highlight a point that Section 50
of the Aet has not strictly been complied with by PW-8, the officer
who conducted the search. According to the learned counsel for
the appellant the searching.officer should have told the person D
who was subjected to search that he had a right to be searched
in the presence of a gazetted officer or a Magistrate. ff1 this case
PW-8 has deposed that she told the appellant that if he wished
he could be searched in the presence of the gazetted officer or a
Magistrate to which the appellant had not favourably recipro- E
!. cated. According to us the said offer is a communication about
the information that the appellant has a right to be searched so.
It must be remembered that the searching officer had only Section
50 of the Act then in mind unaided by the interpretation placed
on it by the Constitution Bench. Even then the searching officer F
informed him that "if you wish you may be searched in the
presence of a gazetted officer or a Magistrate". This according to
us is in substantial compliance with the requirement of Section 50.
We do not agree with the contention that there was non-compli-
ance with the mandatory provision contained in Section 50 of the
Act". G
(Italicised for emphasis)
Though, learned counsel for the appellants submitted that this was a case
where the Court erroneously held that substantial compliance would be
sufficient, we find that the underlined portion is what was held by the Court H
454 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A to be information of the right. The offer in the present case is almost a
replica of what was said in that case.
Though there cannot be any quarrel with the general principle .
high I ighted by learned counsel for the appellants that if a thing is required
B to be done iri a particular way it should be done in that way, the position
here is differentin view of our conclus·ions that the requirements of Section
50 of the Act were sufficiently complied with. The general principle as
noted has been stated illuminatingly inNazirAhmadv. King-Emperor, AIR
(1936) P.C. 253, and later by this Court in State of Uttar Pradesh v.
Singhara Singh and Ors., [1964] 4 SCR 485. What the concerned officer .
C is required to do is to convey about the choice the accused had. The accused
(suspect) has to be told in a way that he becomes aware that the choice
is his and not of the concerned officer, even though there is no specific
form. The use of the word 'right' at relevant places in the decision of
Baldev Singh 's case (supra) seems to be to lay effective emphasis that it
I) is not by the grace of the officer the choice has to be given but more by
way of a right in the 'suspect' at that stage to be given such a choice and
the inevitable consequences that have to follow by transgressing it.
The use of the expression 'substantial compliance' was made in the
background that the searching officer had Section 50 in mind and it was
E unaided by the interpretation placed on it by the Constitution Bench in
Baldev Singh 's case (supra). A line or a word in ajudgment cannot be read
in isolation or as if interpreting a statutory provision, to impute a different
meaning to the observations.
F Above being the position, we find no substance in the p_lea that there
was non-compliance with the requirements of Section 50 of the Act.
It was pleaded that the requirements of Section 57 have not been
complied with. There was no material placed either before the trial Court
or the High Court to substantiate such a plea. The grievance in this regard
G does not merit any consideration, leave alone the impact of it on the guilt
and conviction of the accused.
': · Additionally, it may also be noticed that while giving statement
· unde-r Section.313 of the Code of Criminal Procedure, 1973 (for short the
H ~Code'), the accused did not say that he was unaware of his rights or that
PRABHA SHANKAR DUBEYv. STATE OF M.P. [PASAYAT, J.] 455
he was misled on that account in any manner. On the contrary, in general A
and vague manner it was only said that he did not know or he had no idea
of the allegations. Though that by itself is not sufficient to convict accused,
in view of the procedural safegua:ds required to be observed by compliance
with the requirements of Section 50, yet that is of some relevance in
appreciating the grievance, now sought to be ventilated. There is no B
infirmity in the impugned judgment to warrant interfere~ce. The appeals
are accordingly dismissed.
S.K.S. - Appeals dismissed.
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