Section 50 of the NDPS 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. 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 Magistrate or a Gazetted Officer.- 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 16 to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 273 OF 2007

Arif Khan @ Agha Khan … Appellant(s)

Versus

State of Uttarakhand … Respondent(s)

J U D G M E N T

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 II, Udham Singh Nagar in

2

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/-.

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 bus carrying with him some contraband

articles. The secret informant also gave information

that the person concerned would get down near the

3

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 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 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

4

police personnel that 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.

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 (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

5

and examined 5 witnesses to bring home the charge

levelled against the appellant.

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/-.

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.

6

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 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

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

7

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) SCC 609.

15. Learned counsel urged that the

search/recovery of the alleged 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 the contraband “Charas” from the appellant is

rendered illegal being in contravention of

requirements of Section 50 of the NDPS Act thereby

8

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 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.

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

9

procedure prescribed under Section 50 of the NDPS

Act.

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 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

10

Singh (1999) 6 SCC 172 and 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.

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. It is held that it is equally

mandatory on the part of the authorized officer to

11

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 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)

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

12

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 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 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 Gazetted Officer but despite telling

13

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 of

Section 50 stood fully complied with and hence the

appellant was 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 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

14

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 “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 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

15

Section 50 of the NDPS 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.

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

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 Act. Since the

non-compliance of the mandatory procedure

prescribed under Section 50 of the NDPS Act is fatal

16

to the prosecution case and, in this case, we have

found that the prosecution has failed to prove the

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 in question.

………………………………..J

(R.K. AGRAWAL)

…..………………………………J.

(ABHAY MANOHAR SAPRE)

New Delhi,

April 27, 2018