Supreme Court of India
S. K. RAJU @ ABDUL HAQUE @ JAGGAversusSTATE OF WEST BENGAL
- Citation
- 2018 INSC 780
- Decided
- 5 September 2018
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
When a seizure and arrest under the NDPS Act are effected in a public place, Section 42 does not apply and strict compliance with Section 50(1) – informing the accused of his right to be searched before a gazetted officer or magistrate – is mandatory, which was duly observed, so the conviction stands.
Summary
The appellant was intercepted on a public road near a club and, after being informed of his right to be searched before a gazetted officer or magistrate, consented to a search by a gazetted officer. A bag containing 1.5 kg of charas and cash was recovered from him. The appellant challenged the conviction on the grounds that Section 42 of the NDPS Act was not complied with and that Section 50(1) was violated because he was given an option to search the officer before his own search. The Supreme Court held that because the seizure occurred in a public place, Section 42 was inapplicable, and that the officers had strictly complied with Section 50(1) by informing the appellant of his rights and conducting the search in the presence of a gazetted officer. Consequently, the appeal was dismissed and the conviction upheld.
Issues considered
- Whether Section 42 of the NDPS Act applies when the seizure and arrest are made in a public place.
- Whether non‑recording of prior information under Section 42 renders the seizure invalid.
- Whether Section 50(1) of the NDPS Act requires strict compliance when a person and his belongings are searched.
- Whether giving the accused an option to search the officer before his own search vitiates the search under Section 50.
Legislation cited
- Code of Criminal Procedure, 1973s. 100
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(ii)(c), s. 42, s. 43, s. 50
Subjects
NDPS ActSection 42Section 43Section 50search and seizurepublic placecomplianceconvictionappeal
Judgment
[2018] 10 S.C.R. 731 731
S. K. RAJU @ ABDUL HAQUE @ JAGGA A
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 459 of 2017)
SEPTEMBER 05, 2018 B
[DIPAK MISRA, CJI, DR. D. Y. CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.20(b)(ii)(c) – Recovery of 1.5 kgs of Charas from accused-
C
appellant – PW2, on receipt of information that a drug dealer would
be in vicinity of a club, sought permission to organize the raid –
After grant of permission, raiding party reached the spot and
intercepted appellant walking on the road – Before conducting
search, option was given to the appellant whether he wished to be
searched before the gazetted officer or the magistrate – Appellant D
opted for gazetted officer – When PW-4-gazetted officer arrived,
he once again confirmed if he wanted to opt for search by magistrate
– Appellant consented to search in presence of PW-4-gazetted officer
– Thereafter, PW-4 also gave liberty to the appellant to search
PW-2-raiding officer which appellant did and found no narcotic
E
substance from the person of raiding officer – On search of the
appellant in the presence of PW-4, a bag was recovered from the
appellant carrying 1.5 kgs of charas, and Rs. 2,400/- cash was
recovered from the pocket of the appellant’s trouser – Conviction
of appellant by courts below – Plea of appellant that there was
non-compliance of s.42 and s.50 of the Act – Held: Plea not F
sustainable – The appellant was walking along the Garden Road –
He was intercepted and detained immediately by the raiding party
in front of the club, which was not a building, conveyance or an
enclosed place – The place of occurrence was accessible to the
public and fell within the ambit of the phrase “public place” in the
G
explanation to s.43 – Therefore, s.42 had no application – Before
the appellant’s search was conducted, both PW-2 and PW-4 on
different occasions apprised the appellant of his legal right to be
searched either in the presence of a Gazetted Officer or a Magistrate
– The options given by both PW-2 and PW-4 were unambiguous –
Merely because the appellant was given an option of searching H
731
732 SUPREME COURT REPORTS [2018] 10 S.C.R.
A PW-2 before the latter conducted his search, would not vitiate the
search – The search of the appellant was as a matter of fact
conducted in the presence of PW-4, a gazetted officer, in consonance
with the voluntary communication made by the appellant to both
PW-2 and PW-4 – Thus, there was strict compliance with the
requirements of s.50(1) of the Act.
B
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.42 – Essential requirement – Held: Compliance with s.42, including
recording of information received by the empowered officer, is not
mandatory, when an offence punishable under the Act was not
committed in a building, conveyance or an enclosed place.
C
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.43 – When attracted – Held: s.43 is attracted in situations where
the seizure and arrest are conducted in a public place, which includes
any public conveyance, hotel, shop, or other place intended for
use by, or accessible to, the public.
D
Dismissing the appeal, the Court
HELD: 1. An empowered officer under Section 42(1) is
obligated to reduce to writing the information received by him,
only when an offence punishable under the Act has been
E committed in any building, conveyance or an enclosed place, or
when a document or an article is concealed in a building,
conveyance or an enclosed place. Compliance with Section 42,
including recording of information received by the empowered
officer, is not mandatory, when an offence punishable under the
Act was not committed in a building, conveyance or an enclosed
F place. Section 43 is attracted in situations where the seizure and
arrest are conducted in a public place, which includes any public
conveyance, hotel, shop, or other place intended for use by, or
accessible to, the public. The appellant was walking along the
Picnic Garden Road. He was intercepted and detained
G immediately by the raiding party in front of Falguni Club, which
was not a building, conveyance or an enclosed place. The place
of occurrence was accessible to the public and fell within the ambit
of the phrase “public place” in the explanation to Section 43.
Section 42 had no application. [Paras 7, 8] [741-C-F]
H
S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OF 733
WEST BENGAL
Vijaysinh Chandubha Jadeja v State of Gujarat A
(2011) 1 SCC 609 : [2010] 13 SCR 255 – relied on.
State of Himachal Pradesh v Pawan Kumar (2005) 4
SCC 350 : [2005] 3 SCR 417 ; Dilip v State of Madhya
Pradesh (2007) 1 SCC 450 : [2006] 9 Suppl. SCR 390
– referred to. B
2.1 Strict compliance with Section 50(1) by the empowered
officer is mandatory. Section 50, however, applies only in the case
of a search of a person. PW-2 conducted a search of the bag of
the appellant as well as of the appellant’s trousers. Therefore,
the search conducted by PW-2 was also of the appellant’s person. C
Since the search of the person of the appellant was also involved,
Section 50 would be attracted in this case. Accordingly, PW-2
was required to comply with the requirements of Section 50(1).
As soon as the search of a person takes place, the requirement
of mandatory compliance with Section 50 is attracted, irrespective
of whether contraband is recovered from the person of the D
detainee or not. It was, therefore, imperative for PW-2 to inform
the appellant of his legal right to be searched in the presence of
either a gazetted officer or a magistrate. Before the appellant’s
search was conducted, both PW-2 and PW-4 on different occasions
apprised the appellant of his legal right to be searched either in E
the presence of a gazetted officer or a magistrate. The options
given by both PW-2 and PW-4 were unambiguous. Merely because
the appellant was given an option of searching PW-2 before the
latter conducted his search, would not vitiate the search.
[Paras 10, 11] [745-A-B; 747-F-G; 748-B-C]
F
2.2 The option given to the appellant of searching PW-2 in
the case at hand, before the latter searched the appellant, did not
vitiate the process in which a search of the appellant was
conducted. The search of the appellant was as a matter of fact
conducted in the presence of PW-4, a gazetted officer, in
consonance with the voluntary communication made by the G
appellant to both PW-2 and PW-4. There was strict compliance
with the requirements of Section 50(1) as stipulated by this Court
in Vijaysinh. [Para 11] [748-D-E]
H
734 SUPREME COURT REPORTS [2018] 10 S.C.R.
A Abdul Rashid Ibrahim Mansuri v State of Gujarat
(2000) 2 SCC 513 : [2000] 1 SCR 542 ; Directorate
of Revenue v Mohammed Nisar Holia (2008) 2 SCC
370 : [2007] 12 SCR 906 ; State of Rajasthan v Jagraj
Singh (2016) 11 SCC 687 : [2016] 4 SCR 451 ; Myla
Venkateswarlu v State of Andhra Pradesh (2012) 5 SCC
B
226 ; State of Rajasthan v Parmanand (2014) 5 SCC
345 : [2014] 3 SCR 522 ; Namdi Francis Nwazor v
Union of India (1998) 8 SCC 534 ; State of Punjab v
Baldev Singh (1999) 6 SCC 172 : [1999] 3 SCR 977 ;
Narayanaswamy Ravishankar v Assistant Director,
C Directorate of Revenue Intelligence (2002) 8
SCC 7 : [2002] 3 Suppl. SCR 121 ; Krishna Kanwar
(Smt) Alias Thakuraeen v State of Rajasthan (2004) 2
SCC 608 : [2004] 1 SCR 1101 – referred to.
Case Law Reference
D [2000] 1 SCR 542 referred to Para 3
[2007] 12 SCR 906 referred to Para 3
[2016] 4 SCR 451 referred to Para 3
(2012) 5 SCC 226 referred to Para 4
E
[2014] 3 SCR 522 referred to Para 4
(1998) 8 SCC 534 referred to Para 4
[1999] 3 SCR 977 referred to Para 4
[2002] 3 Suppl. SCR 121 referred to Para 6
F
[2004] 1 SCR 1101 referred to Para 6
[2010] 13 SCR 255 relied on Para 10
[2005] 3 SCR 417 referred to Para 10
[2006] 9 Suppl. SCR 390 referred to Para 10
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 459 of 2017.
From the Judgment and Order dated 19.02.2016 of the High Court
at Calcutta in C.R.A. No. 590 of 2014.
H
S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OF 735
WEST BENGAL
Anil Kaushik, Ms. Arunima Dwivedi, Rajinder Singh, Abhishek A
Mishra, Akash Bhardwaj, Advs. for the Appellant.
Suhaan Mukerji, Ms. Astha Sharma, Harsh Gursasani, Abhishek
Manchanda, M/s PLR Chambers And Co., Advs. for the Respondent.
The Judgment of the Court was delivered by
B
DR. DHANANJAYA Y. CHANDRACHUD, J. 1. The
present appeal, by special leave, is directed against a judgment dated 19
February 2016 of a Division Bench of the Calcutta High Court. The
High Court upheld the conviction of the appellant by the Additional
Sessions Judge (“ASJ”) and Special Court under the Narcotic Drugs
and Psychotropic Substances Act 1985 (“the Act”). On 15 February C
2014, the ASJ had convicted the appellant of an offence punishable under
Section 20(b)(ii)(C) of the Act. The appellant was sentenced to 14 years
of rigorous imprisonment and directed to pay a fine of Rs 1,40,000.
2. The facts of the case are as follows. On 15 November 2011,
Sub-Inspector Prasanta Kr. Das, Narcotics Cell, DD (PW-2) received D
information that a drug dealer would be in the vicinity of Tiljala Falguni
Club, 138B/1, Picnic Garden Road, near Tiljala Police Station to supply
narcotic drugs in the afternoon. PW-2 sought permission from the
Assistant Commissioner of Police, Anti-Narcotics Department, DD to
organize a raid (Exhibit-2). Permission was granted by the superior officer E
on the same day and a raiding team consisting of PW-2 and others reached
the spot at about 12.50 pm. At around 1.40 pm, the source of the
information pointed out to the appellant who was coming along Picnic
Garden Road. The appellant was intercepted and detained immediately
by the raiding party in front of Falguni Club. The appellant was informed
about the reasons for his detention and the identities of the raiding party F
were disclosed to him. Subsequently, the appellant also disclosed his
identity to the raiding party. PW-5 was one of the two independent
witnesses who agreed to be a witness to this search. The appellant was
informed about his legal right to be searched either in the presence of a
magistrate or a gazetted officer (Exhibit-3). The appellant opted for being G
searched by a gazetted officer. A gazetted officer, Inspector Joysurja
Mukherjee (“PW-4”), arrived on the scene at about 3.20 pm. He provided
the appellant with a “second option”. The appellant was asked by
PW-4 whether he wished to be searched in the presence of a gazetted
officer or a magistrate (Exhibit-4). Once again, the appellant consented
H
736 SUPREME COURT REPORTS [2018] 10 S.C.R.
A to be searched in the presence of a gazetted officer. PW-4 then inquired
of the appellant whether he wanted to search PW-2 before the latter
would carry out his search. The appellant agreed to search PW-2 before
his own search was carried out by PW-2. No narcotic substance was
recovered from the person of PW-2. PW-2 recovered nineteen “deep
brown / blackish broken rectangular sheets” from a black polythene
B
packet which was inside a biscuit colour jute bag, which the appellant
was carrying in his right hand. The sheets were tested by PW-2 on the
spot with the help of a test kit. The substance was found to be charas.
The substance was also weighed using a weighing scale. The appellant
was found to be in possession of 1.5 kilograms of charas. Cash amounting
C to Rs. 2,400/- was recovered from the trouser of the appellant.
3. Learned counsel for the appellant has argued that there was
non-compliance with Section 42 of the Act. After PW-2 was intimated
about the appellant’s arrival, he sought permission from the Assistant
Commissioner of Police, Anti-Narcotics Department. Upon receipt of
D the letter of permission from the Assistant Commissioner, PW-2 proceeded
to the place of the occurrence. PW-2 admitted in his cross-examination
that he was aware of the gravity ofthe need for compliance with Section
42. However, apart from a letter seeking permission to act on the
information which was addressed to a superior officer, he did not (it was
urged) diarise it elsewhere. Learned counsel urged that PW-2 had not
E complied with the mandatory requirements of Section 42, as a result of
which the trial stood vitiated. He has relied on the following decisions of
this Court to buttress the submission: Abdul Rashid Ibrahim Mansuri
v State of Gujarat(“Mansuri”), 1 Directorate of Revenue v
Mohammed Nisar Holia(“Holia”)2 and State of Rajasthan v Jagraj
F Singh (“Jagraj”).3
4. Learned counsel for the appellant also submitted that Section
50 has also not been complied with. According to him, not only was the
bag of the appellant searched, but a search of the person of the appellant
also resulted in the recovery of cash in the amount of Rs. 2,400/- from
G the left pocket of his trouser. Hence, it was urged by the learned counsel
that though Section 50 was mandatorily required to be complied with,
there was a breach of observance. Since the appellant was merely given
an ‘option’ by PW-2 and PW-4 to be searched before agazetted officer
1
(2000) 2 SCC 513
2
(2008) 2 SCC 370
H 3
(2016) 11 SCC 687
S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OF 737
WEST BENGAL [DR. D. Y. CHANDRACHUD, J.]
and was not informed that it was his legal right to be searched before a A
gazetted officer or a magistrate, the search was, it was urged, vitiated.
On this aspect, learned counsel for the appellant has relied on the following
judgments of this Court: Myla Venkateswarlu v State of Andhra
Pradesh(“Venkateswarlu”), 4 State of Rajasthan v
Parmanand(“Parmanand”)5 and Namdi Francis Nwazor v Union of
B
India(“Namdi”).6
On the other hand, the learned counsel appearing on behalf of the
respondent-State has supported the judgment of the High Court and the
legality of the conviction. He argued that since the search was carried
out in a public place, this casefalls solely within the ambit of Section 43
and compliance with Section 42 was not necessary. Learned counsel C
for the respondent-State also urged that Section 50 is not attracted when
the search involves the search of a bag or an article belonging to a
person.
5. Section 42 of the Act deals with the power of entry, search,
seizure and arrest without warrant or authorization. It reads thus: D
“42. Power of entry, search, seizure and arrest without warrant
or authorisation.—
(1) Any such officer (being an officer superior in rank to a peon,
sepoy or constable) of the departments of central excise, narcotics, E
customs, revenue intelligence or any other department of the
Central Government including para-military forces or armed forces
as is empowered in this behalf by general or special order by the
Central Government, or any such officer (being an officer superior
in rank to a peon, sepoy or constable) of the revenue, drugs control,
excise, police or any other department of a State Government as F
is empowered in this behalf by general or special order of the
State Government, if he has reason to believe from personal
knowledge or information given by any person and taken down in
writing that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence punishable G
under this Act has been committed or any document or other
article which may furnish evidence of the commission of such
4
(2012) 5 SCC 226
5
(2014) 5 SCC 345
6
(1998) 8 SCC 534
H
738 SUPREME COURT REPORTS [2018] 10 S.C.R.
A offence or any illegally acquired property or any document or
other article which may furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act is kept or concealed in any building,
conveyance or enclosed place, may between sunrise and sunset,—
B (a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any
obstacle to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
C conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or furnish
evidence of holding any illegally acquired property which is liable
D for seizure or freezing or forfeiture under Chapter VA of this Act;
and
(d) detain and search, and, if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence
punishable under this Act:
E Provided that in respect of holder of a licence for manufacture of
manufactured drugs or psychotropic substances or controlled
substances granted under this Act or any rule or order made
thereunder, such power shall be exercised by an officer not below
the rank of sub-inspector:
F Provided further that if such officer has reason to believe that a
search warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or facility
for the escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time between sunset
and sunrise after recording the grounds of his belief.
G
(2) Where an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the proviso
thereto, he shall within seventy-two hours send a copy thereof to
his immediate official superior.”
H
S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OF 739
WEST BENGAL [DR. D. Y. CHANDRACHUD, J.]
Section 43 of the Act confers powers on the empowered officer A
to seize a substance and arrest a suspect in a public place. It provides
thus:
“43. Power of seizure and arrest in public place.—Any officer of
any of the departments mentioned in section 42 may—
(a) seize in any public place or in transit, any narcotic drug or B
psychotropic substance or controlled substance in respect of which
he has reason to believe an offence punishable under this Act has
been committed, and, along with such drug or substance, any animal
or conveyance or article liable to confiscation under this Act, any
document or other article which he has reason to believe may C
furnish evidence of the commission of an offence punishable under
this Act or any document or other article which may furnish
evidence of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe D
to have committed an offence punishable under this Act, and if
such person has any narcotic drug or psychotropic substance or
controlled substance in his possession and such possession appears
to him to be unlawful, arrest him and any other person in his
company.
E
Explanation.— For the purposes of this section, the
expression “public place” includes any public conveyance,
hotel, shop, or other place intended for use by, or accessible
to, the public.” [Emphasis supplied]
6. We are unable to accept the submission madeby the learned F
counsel for the appellant that Section 42 is attracted to the facts of the
present case. In State of Punjab v Baldev Singh(“Baldev Singh”),7
Chief Justice Dr A S Anand speaking for a Constitution Bench of this
Court, held:
“The material difference between the provisions of Section 43
G
and Section 42 is that whereas Section 42 requires recording
of reasons for belief and for taking down of information
received in writing with regard to the commission of an
offence before conducting search and seizure, Section 43
7
(1999) 6 SCC 172
H
740 SUPREME COURT REPORTS [2018] 10 S.C.R.
A does not contain any such provision and as such while acting under
Section 43 of the Act, the empowered officer has the power
of seizure of the article etc. and arrest of a person who is
found to be in possession of any Narcotic Drug or
Psychotropic Substances in a public place where such
possession appears to him to be unlawful.” [Emphasis
B
supplied]
In Narayanaswamy Ravishankar v Assistant Director,
Directorate of Revenue Intelligence,8 a three judge Bench of this
Court considered whether the empowered officer was bound to comply
with the mandatory provisions of Section 42 before recovering heroin
C from the suitcase of the appellant at the airport and subsequently arresting
him. Answering the above question in the negative, the Court held:
“In the instant case, according to the documents on record and
the evidence of the witnesses, the search and seizure took place
at the airport which is a public place. This being so, it is the
D provisions of Section 43 of the NDPS Act which would be
applicable. Further, as Section 42 of the NDPS Act was not
applicable in the present case, the seizure having been effected in
a public place, the question of non-compliance, if any, of the
provisions of Section 42 of the NDPS Act is wholly irrelevant.”
E In Krishna Kanwar (Smt) Alias Thakuraeen v State of
Rajasthan,9 a two judge Bench of this Court considered whether a police
officer who had prior information was required to comply with the
provisions of Section 42 before seizing contraband and arresting the
appellant who was travelling on a motorcycle on the highway. Answering
F the above question in the negative, the Court held:
“Section 42 comprises of two components. One relates to the
basis of information i.e.: (i) from personal knowledge, and (ii)
information given by person and taken down in writing. The
second is that the information must relate to commission
G of offence punishable under Chapter IV and/or keeping or
concealment of document or article in any building,
conveyance or enclosed place which may furnish evidence
of commission of such offence. Unless both the components
8
(2002) 8 SCC 7
9
(2004) 2 SCC 608; Rajendra v State of M.P., (2004) 1 SCC 432
H
S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OF 741
WEST BENGAL [DR. D. Y. CHANDRACHUD, J.]
exist Section 42 has no application. Sub-section (2) mandates, A
as was noted in Baldev Singh case that where an officer takes
down any information in writing under sub-section (1) or records
grounds for his belief under the proviso thereto, he shall forthwith
send a copy thereof to his immediate official superior. Therefore,
sub-section (2) only comes into operation where the officer
B
concerned does the enumerated acts, in case any offence under
Chapter IV has been committed or documents etc. are concealed
in any building, conveyance or enclosed place. Therefore, the
commission of the act or concealment of document etc. must
be in any building, conveyance or enclosed place.” [Emphasis
supplied] C
7. An empowered officer under Section 42(1) is obligated to
reduce to writing the information received by him, only when an offence
punishable under the Act has been committed in any building, conveyance
or an enclosed place, or when a document or an article is concealed in a
building, conveyance or an enclosed place. Compliance with Section 42, D
including recording of information received by the empowered officer, is
not mandatory, when an offence punishable under the Act was not
committed in a building, conveyance or an enclosed place. Section 43 is
attracted in situations where the seizure and arrest are conducted in a
public place, which includes any public conveyance, hotel, shop, or other
place intended for use by, or accessible to, the public. E
8. The appellant was walking along the Picnic Garden Road. He
was intercepted and detained immediately by the raiding party in front
of Falguni Club, which was not a building, conveyance or an enclosed
place. The place of occurrence was accessible to the public and fell
within the ambit of the phrase “public place” in the explanation to Section F
43. Section 42 had no application.
9. The cases relied on by the learned counsel for the appellant
will also not apply in the context of the facts before us. In Mansuri, an
auto-rickshaw driver was intercepted by police personnel. Four gunny
bags of charas were recovered from the auto-rickshaw. The police G
officer who had prior information about transportation of some narcotic
substance, had neither taken down the information before carrying out
the seizure and arrest, nor apprised his superior officer. He contended
that the action taken by him was under Section 43 and not Section 42.
H
742 SUPREME COURT REPORTS [2018] 10 S.C.R.
A Rejecting the argument of the State, this Court held that compliance
with Section 42 was required as the auto-rickshaw was a private vehicle
and not a public conveyance as contemplated under Section 43. Similarly,
in Jagraj, contraband was recovered from a jeep which was intercepted
by police personnel on a public road after receiving prior information.
The police officer who had received the information, admitted to not
B
taking it down in writing, contending that Section 43 would be applicable.
Rejecting the argument of the State, this Court held that the jeep which
was intercepted, was not a public conveyance within the meaning of
Section 43 and compliance with Section 42(1) was therefore mandatory.
In Holia, Mandrax tablets were recovered from the hotel room of the
C respondent. The information wasnot reduced to writing by the officer
who had first received the information. The State claimed that compliance
with Section 42 was not required as the hotel was a public place. Rejecting
the submission of the State, this Court held that while a hotel is a public
place, a hotel room inside it is not a public place. This Court held thus:
D “Section 43, on plain reading of the Act, may not attract the rigours
of Section 42 thereof. That means that even subjective satisfaction
on the part of the authority, as is required under sub-section (1) of
Section 42, need not be complied with, only because the place
whereat search is to be made is a public place. If Section 43 is to
be treated as an exception to Section 42, it is required to be strictly
E complied with … It is also possible to contend that where a
search is required to be made at a public place which is
open to the general public, Section 42 would have no
application but it may be another thing to contend that
search is being made on prior information and there would
F be enough time for compliance of reducing the information
to writing, informing the same to the superior officer and
obtain his permission as also recording the reasons
therefore coupled with the fact that the place which is
required to be searched is not open to public although
situated in a public place as, for example, room of a hotel,
G whereas hotel is a public place, a room occupied by a guest
may not be. He is entitled to his right of privacy. Nobody,
even the staff of the hotel, can walk into his room without his
permission. Subject to the ordinary activities in regard to
H
S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OF 743
WEST BENGAL [DR. D. Y. CHANDRACHUD, J.]
maintenance and/or housekeeping of the room, the guest is entitled A
to maintain his privacy.” [Emphasis supplied]
There is hence no substance in the first submission.
10. Section 50 of the Act deals with conditions under which search
of persons shall be conducted. It states:
B
“50. Conditions under which search of persons shall be
conducted.—
(1) When any officer duly authorised under section 42 is about to
search any person under the provisions of section 41, section 42
or section 43, he shall, if such person so requires, take such person C
without unnecessary delay to nearest Gazetted Officer of any of
the departments mentioned in section 42 or to the nearest
Magistrate.
(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the Magistrate D
referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any
such person is brought shall, if he sees no reasonable ground for
search, forthwith discharge the person but otherwise shall direct
that search be made.
E
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason
to believe that it is not possible to take the person to be searched
to the nearest Gazetted Officer or Magistrate without the possibility
of the person to be searched parting with possession of any narcotic F
drug or psychotropic substance, or controlled substance or article
or document, he may, instead of taking such person to the nearest
Gazetted Officer or Magistrate, proceed to search the person as
provided under section100 of the Code of Criminal Procedure,
1973 (2 of 1974).
G
(6) After a search is conducted under sub-section (5), the officer
shall record the reasons for such belief which necessitated such
search and within seventy-two hours send a copy thereof to his
immediate official superior.”
H
744 SUPREME COURT REPORTS [2018] 10 S.C.R.
A According to Section 50(1), an empowered officer should
necessarily inform the suspect about his legal right, if he so requires, to
be searched in the presence of a gazetted officer or a magistrate. In
Vijaysinh Chandubha Jadeja v State of Gujarat(“Vijaysinh”),10 a
Constitution Bench of this Court interpreted Section 50 thus:
B “The mandate of Section 50 is precise and clear, viz. if the person
intended to be searched expresses to the authorised officer his
desire to be taken to the nearest gazetted officer or the Magistrate,
he cannot be searched till the gazetted officer or the Magistrate,
as the case may be, directs the authorised officer to do so … In
view of the foregoing discussion, we are of the firm opinion that
C the object with which right under Section 50(1) of the NDPS Act,
by way of a safeguard, has been conferred on the suspect, viz. to
check the misuse of power, to avoid harm to innocent persons
and to minimise the allegations of planting or foisting of false cases
by the law enforcement agencies, it would be imperative on the
D part of the empowered officer to apprise the person intended to
be searched of his right to be searched before a gazetted officer
or a Magistrate. We have no hesitation in holding that in so far as
the obligation of the authorised officer under Sub-section (1) of
Section 50 of the NDPS Act is concerned, it is mandatory and
requires a strict compliance. Failure to comply with the provision
E would render the recovery of the illicit article suspect and vitiate
the conviction if the same is recorded only on the basis of the
recovery of the illicit article from the person of the accused during
such search. Thereafter, the suspect may or may not choose to
exercise the right provided to him under the said provision … We
F are of the opinion that the concept of “substantial compliance”
with the requirement of Section 50 of the NDPS Act introduced
and read into the mandate of the said Section in Joseph Fernandez
(supra) and Prabha Shankar Dubey (supra) is neither borne out
from the language of Sub-section (1) of Section 50 nor it is in
consonance with the dictum laid down in Baldev Singh’s case
G (supra).”
The principle which emerges from Vijaysinh is that the concept
of “substantial compliance” with the requirement of Section 50 is neither
in accordance with the law laid down in Baldev Singh, nor can it be
10
H (2011) 1 SCC 609
S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OF 745
WEST BENGAL [DR. D. Y. CHANDRACHUD, J.]
construed from its language. [Reference may also be made tothe decision A
of a two judge Bench of this Court in Venkateswarlu]. Therefore,
strict compliance with Section 50(1) by the empowered officer is
mandatory. Section 50, however, applies only in the case of a search of
a person. In Baldev Singh, the Court held “on its plain reading, Section
50 would come into play only in the case of a search of a person as
B
distinguished from search of any premises, etc.” In State of Himachal
Pradesh v Pawan Kumar (“Pawan Kumar”),11 a three judge Bench
of this Court held that the search of an article which was being carried
by a person in his hand, or on his shoulder or head, etc., would not attract
Section 50. It was held thus:
“In common parlance it would be said that a person is carrying a C
particular article, specifying the manner in which it was carried
like hand, shoulder, back or head, etc. Therefore, it is not possible
to include these articles within the ambit of the word “person”
occurring in Section 50 of the Act …After the decision in Baldev
Singh, this Court has consistently held that Section 50 would only D
apply to search of a person and not to any bag, article or container,
etc. being carried by him.”
In Parmanand, on a search of the person of the respondent, no
substance was found. However, subsequently, opium was recovered
from the bag of the respondent. A two judge Bench of this Court E
considered whether compliance with Section 50(1) was required. This
Court held that the empowered officer was required to comply with the
requirements of Section 50(1) as the person of the respondent was also
searched. [Reference may also be made to the decision of a two judge
Bench of this Court in Dilipv State of Madhya Pradesh]12. It was held
thus: F
“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.” G
Moreover, in the above case, the empowered officer at the time
of conducting the search informed the respondent that he could be
searched before the nearest Magistrate or before the nearest gazetted
11
(2005) 4 SCC 350
12
(2007) 1 SCC 450 H
746 SUPREME COURT REPORTS [2018] 10 S.C.R.
A officer or before the Superintendent, who was also a part of the
raiding party. The Court held that the search of the respondent was not
in consonance with the requirements of Section 50(1) as the empowered
officer erred in giving the respondent an option of being search before
the Superintendent, who was not an independent officer. It was held
thus:
B
“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
C 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
D 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
E 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
F 50(1) of the NDPS Act. On this ground also, in our opinion, the
search conducted by PW 10 SI Qureshi is vitiated.”
The question which arises before us is whether Section 50(1)
was required to be complied with when charas was recovered only
from the bag of the appellant and no charas was found on his person.
G Further, if the first question is answered in the affirmative, whether the
requirements of Section 50 were strictly complied with by PW-2 and
PW-4.
11. As evidenced by Exhibit-3, a first option was given to the
appellant. PW-2 informed him that it was his legal right to be searched
H
S.K. RAJU @ ABDUL HAQUE @ JAGGA v. STATE OF 747
WEST BENGAL [DR. D. Y. CHANDRACHUD, J.]
either in the presence of a magistrate or in the presence of a gazetted A
officer. The appellant was then asked to give his option by indicating
whether he wanted to be searched by a magistrate or a gazetted officer.
The appellant indicated that he wanted the search to be carried out in
the presence of a gazetted officer. When PW-4 arrived, he was
introduced to the detainee as a gazetted officer. As evidenced by Exhibit-
B
4, PW-4 then gave the appellant a second option. He inquired of him
again, whether he wanted to be searched in the presence of a gazetted
officer or in the presence of a magistrate. The appellant reiterated his
desire to be searched in the presence of a gazetted officer. Before the
search of the appellant commenced, the gazetted officer asked the
appellant whether he wanted to search PW-2 before his own search C
was carried out by PW-2. The appellant agreed to search PW-2 before
the latter carried out his search. On conducting the search, only personal
belongings of PW-2 were found by the appellant. On the search of the
appellant in the presence of the gazetted officer, a biscuit colour jute bag
was recovered from the appellant, and Rs. 2,400/- cash in the
D
denomination of 24 notes of Rs. 100/- each was found in the left pocket
of the appellant’s trouser. When the bag was opened, a black polythene
cover containing nineteen rectangular broken sheets of a blackish / deep
brown colour weighing 1.5 kilograms was recovered. The sheets were
tested and were found to be charas.
PW-2 conducted a search of the bag of the appellant as well as of E
the appellant’s trousers. Therefore, the search conducted by PW-2 was
not only of the bag which the appellant was carrying, but also of the
appellant’s person. Since the search of the person of the appellant was
also involved, Section 50 would be attracted in this case. Accordingly,
PW-2 was required to comply with the requirements of Section 50(1). F
As soon as the search of a person takes place, the requirement of
mandatory compliance with Section 50 is attracted, irrespective of whether
contraband is recovered from the person of the detainee or not. It was,
therefore, imperative for PW-2 to inform the appellant of his legal right
to be searched in the presence of either a gazetted officer or a magistrate.
From Exhibit-3, it can be discerned that the appellant was informed of G
his legal right to be searched in the presence of a magistrate or a gazetted
officer. The appellant opted for the latter alternative. Exhibit-4 is a record
of the events after the arrival of PW-4 on the scene. After the arrival of
PW-4, the appellant was once again asked by him, whether he wished to
H
748 SUPREME COURT REPORTS [2018] 10 S.C.R.
A be searched in the presence of a gazetted officer or a magistrate. This
was the second option which was presented to him. When he reiterated
his desire to be searched before a gazetted officer, PW-4 inquired of the
appellant whether he wished to search PW-2 before his own search
was conducted by PW-2. The appellant agreed to search PW-2. Only
the personal belongings of PW-2 were found by the appellant. It was
B
only after this that asearch of the appellant was conducted and charas
recovered. Before the appellant’s search was conducted, both PW-2
and PW-4 on different occasions apprised the appellant of his legal right
to be searched either in the presence of a gazetted officer or a magistrate.
The options given by both PW-2 and PW-4 were unambiguous. Merely
C because the appellant was given an option of searching PW-2 before
the latter conducted his search, would not vitiate the search. In
Parmanand, in addition to the option of being searched by the gazetted
officer or the magistrate, the detainee was given a ‘third’ alternative by
the empowered officer which was to be searched by an officer who
was a part of the raiding team. This was found to be contrary to the
D
intent of Section 50(1).The option given to the appellant of searching
PW-2 in the case at hand, before the latter searched the appellant, did
not vitiate the process in which a search of the appellant was conducted.
The search of the appellant was as a matter of fact conducted in the
presence of PW-4, a gazetted officer, in consonance with the voluntary
E communication made by the appellant to both PW-2 and PW-4. There
was strict compliance with the requirements of Section 50(1) as stipulated
by this Court in Vijaysinh.
12. As we have already held that Section 50 was attracted in the
present case, we do not need to decide on the applicability of Namdi to
F the facts of the present case. We have held that Section 50 was complied
with. Having regard to the above position, we do not find any merit in
the appeal.
13. The Criminal Appeal shall accordingly stand dismissed.
G
Devika Gujral Appeal dismissed.
H
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