ASHOK KUMAR SHARMAversusSTATE OF RAJASTHAN

                       [2013) 1 S.C.R. 236


A                   ASHOK KUMAR SHARMA
                                 v.
                     STATE OF RAJASTHAN
                (Criminal Appeal No. 817 of 2008)
                        JANUARY 9, 2013
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

       NARCOTIC   DRUGS               AND    PSYCHOTROPIC
    SUBSTANCES ACT, 1985:
c
        s. 50 - Search of person of suspect I accused - Procedure
  - Nature of- Conviction of accused ulss.8 and 21 - Held: It
  is mandatory on the part of the authorized officer to make the
  accused aware of his right to be searched before a Gazetted
  Officer or a Magistrate, if so required by him and this
0
  mandatory provision requires strict compliance - In the instant
  case. accused had been only informed that he could be
  searched before a Magistrate or a Gazetted Officer, if he so
  wished - Thus, there being non-compliance of the mandatory
E provision, conviction and sentence awarded by courts below,
  set aside - Maxim "iqnorantia juris non excusat".

      The appellant was convicted and sentenced to 10
  years RI and a fine of Rs. 1 lakh u/ss. 8 and 21 of the
  Narcotic Drugs and Psychotropic Substances Act, 1985,
F as he was stated to have been found in possession of
  two packets of smack of 344 gm. each. His appeal was
  dismissed by the High Court.

       In the instant appeal it was contended for the
G accused-appellant that his conviction was vitiated for
  non-compliance of the procedure laid down u/s. 50 of the
  NDPS Act, as he was not informed by the empowered
  officer of his right to be searched before a Magistrate or
  a Gazetted Officer.
H                              236
ASHOK KUMAR SHARMA v. STATE OF RAJASTHAN 237


    Allowing the appeal, the Court                           A

     HELD: 1.1. This Court in Vijaysingh Chandubha
Jadeja's case has held that u/s. 50 of the NDPS Act, it is
mandatory on the part of the authorized officer to make
the accused/suspect aware of the existence of his right
                                                             8
to be searched before a Gazetted Officer or a Magistrate,
if so required by him and this mandatory provision
requires strict compliance. Thus, an obligation is cast on
the officer concerned u/s. 50 of the NDPS Act to apprise
the person of his right to be searched before a Gazetted
Officer or a Magistrate. Therefore, the general maxim        C
"ignorantia juris non excusar has no application. [Para 7
and 9] [240-D-E; 241-E-H; 242-A]
     Vijaysingh Chandubha Jadeja v. State of Gujarat 2010
(13) SCR 255 = (2011) 1 sec 609 - relied on.                 D
      1.2. In the instant case, the statement of PW1 would
clearly indicate that he had only informed the accused
that he could be searched before a Magistrate or a
Gazetted Officer if he so wished. The fact that the
accused person has a right u/s. 50 of the NDPS Act to        E
be searched before a Gazetted Officer or a Magistrate
was not made known to him. This Court, therefore, is of
the view that non-compliance of the mandatory procedure
prescribed u/s. 50 has vitiated the entire proceedings
initiated against the accused-appellant. The Special Court   F
as well as the High Court, have committed an error in not
properly appreciating the scope of s. 50 of the NDPS Act.
Consequently, the conviction and sentence imposed by
the courts below is set aside. [Para 8, 10] [241-B-C; 242-
B-C]                                                         G
                    Case Law Reference:
    2010 (13) SCR 255       relied on           Para 5
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal         H
No. 817 of 2008.
    238        SUPREME COURT REPORTS               [2013] 1 S.C.R.


A       From the Judgment & Order dated 09.02.2007 of the High
    Court of Rajasthan, Jaipur Bench in SB Crl. A.No. 1157 of
    2003.

          C.K. Sucharita for the Appellant.
B         Amit Lubhaya, Pragati Neekhra for the Respondent.

          The Judgment of the Court was delivered by

       K.S. RADHAKRISHNAN, J. 1. The short question that
C has come up for consideration in this appeal is whether the
  empowered officer, acting under Section 50 of the Narcotic
  Drugs and Psychotropic Substances Act, 1985 (for short 'the
  NDPS Act') is legally obliged to apprise the accused of his right
  to be searched before a Gazetted Officer or a Magistrate and
  whether such a procedure is mandatory under the provisions
0 of the NDPS Act.

       2. PW1, Additional Superintendent of Police (Crimes),
  Jaipur City, Jaipur got secret information that on 25.2.2001 one
  Ashok Kumar, the appellant herein would be selling smack to
E a person near Nandipur under Bridge. After completing the
  formalities PW1 along with two independent witnesses reached
  near Nandpuri under Bridge. At about 4.55 P.M. a person came
  on a scooter, who was stopped by the police force and was
  questioned. Exhibit P-3, notice was given by PW1 under
F Section 50 of the NDPS Act to the appellant to get himself
  searched either before a Magistrate or a Gazetted officer. The
  appellant gave his consent in writing on Ex.P-3 itself stating that
  he has full confidence in him and agreed for search. Upon
  search two packets had been recovered from the right and left
G pockets of the pant of the appellant. The contra-banned was
  weighed by PW7, goldsmith and the total weight of the packets
  was 344 gms. From each packet two samples of 10 gms. were
  taken and sealed and remaining packets were sealed
  separately. The appellant was then arrested and the scooter
H was seized.
ASHOK KUMAR SHARMA v. STATE OF RAJASTHAN 239
         [K.S. RADHAKRISHNAN, J.]
     3. PW1 gave a written report to the Station House Officer,     A
Malviya Nagar Police Station, Jaipur to register FIR No.112/
2001 under Section 8 and 21 of the NDPS Act. Ex-P-19, report
of the Public Analyst of the Rajasthan State Forensic
Laboratory, Jaipur showed that the samples contained the
presence of diacetylmorphine (Heroin). On completion of the         B
investigation, challan was filed against the accused. Learned
Special Judge, NDPS framed the charge under Sections 8 and
21 of the NDPS Act. Before the Special Judge, prosecution
examined 14 witnesses and produced Ex. P1 to P19. The
accused-appellant in his statement under Section 313 of the         c
Code of Criminal Procedure stated that false case had been
foisted against him.

     4. The Sessions Court after having found guilty, convicted
the appellant and sentenced him to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.1 lakh and,      D
in default, to further under go simple imprisonment for one year.
The appellant preferred Criminal Appeal No.1157 of 2003
before the High Court under Section 374 of the Code of
Criminal Procedure. The appeal was, however, rejected by the
High Court on 9.2.2007 against which this appeal has been           E
preferred by way of special leave.

      5. Ms. C.K. Sucharita, learned amicus curiae appearing
for the appellant-accused submitted that the High Court has
committed a grave error in not appreciating the fact that the       F
conviction was vitiated by the non-compliance of the procedure
laid down in Section 50 of the NDPS Act. Learned counsel took
us to the evidence of PW1 and submitted that PW1 had not
disclosed the fact that.the accused had a right to be searched
before a Gazetted Officer or a Magistrate, if so required by him.   G
According to the learned counsel non-compliance of that
procedure vitiated the entire proceedings initiated against the
appellant. In support of her contention reliance was placed on
a Judgment of this court in Vijaysingh Chandubha Jadeja v.
State of Gujarat (2011) 1 SCC 609.
                                                                    H
    240       SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A       6. Mr. Amit Lubhaya, learned counsel appearing for the
  State of Rajasthan, on the other hand, contended that the
  Sessions Court has rightly convicted the appellant and there
  has been a substantial compliance of the procedure laid down
  under Section 50 of the - NDPS Act. Learned counsel further
B submitted that the High Court in a well considered order has
  affirmed the conviction as well as the sentence imposed by the
  Special Judge.

         7. We are in this case concerned only with the question
    whether PW1, the officer who had conducted the search on the
C   person of the appellant had followed the procedure laid down
    under Section 50 of the NDPS Act. On this question, there were
    conflicts of views by different Benches of this Court and the
    matter was referred to a five Judge Bench. This Court in
    Vijaysingh Chandubha Jadeja (supra) answered the question,
D   stating that it is imperative on the part of the officer to apprise
    the person intended to be searched of his right under Section
    50 of the NDPS Act, to be searched before a Gazetted Officer
    or a Magistrate. This Court also held that it is mandatory on
    the part of the authorized officer to make the accused aware
E   of the existence of his right to be searched before a Gazetted
    Officer or a Magistrate, if so required by him and this
    mandatory provision requires strict compliance. The suspect
    may or may not choose to exercise the right provided to him
    under the said provision, but so far as the officer concerned,
F   an obligation is cast on him under Section 50 of the NDPS Act
    to apprise the person of his right to be searched before a
    Gazetted Officer or a Magistrate. The question, as to whether
    this procedure has been complied with or not, in this case the
    deposition of PW1 assumes importance, which reads as
G   follows:

          "He was apprised while telling the reason of being
          searched that he could be searched before any Magistrate
          or any Gazetted Officer if he wished. He gave his consent
          in written and said that I have faith on you, you can search
H
ASHOK KUMAR SHARMA v. STATE OF RAJASTHAN 241
         [K.S. RADHAKRISHNAN, J.]
     me. Fard regarding apprising and consent is Ex.P-3 on             A
     which I put my signature from A to B and the accused put
     his signature from C to D. E to F is the endorsement of
     the consent of the accused and G to H is signature, which
     has been written by the accused."
                                                                       B
     8. The above statement of PW1 would clearly indicate that
he had only informed the accused that he could be searched
before any Magistrate or a Gazetted Officer if he so wished.
The fact that the accused person has a right under Section 50
of the NDPS Act to be searched before a Gazetted Officer or
a Magistrate was not made known to him. We are of the view             C
that there is an obligation on the part of the empowered officer
to inform the accused or the suspect of the existence of such
a right to be searched before a Gazetted Officer or a
Magistrate, if so required by him. Only if the suspect does not
choose to exercise the right in spite of apprising him of his right,   D
the empowered officer could conduct the search on the body
of the person.

     9. We may, in this connection, also examine the general
maxim "ignorantia juris non excusar and whether in such a              E
situation the accused could take a defence that he was
unaware of the procedure laid down in Section 50 of the NDPS
Act. Ignorance does not normally afford any defence under the
criminal law, since a person is presumed to know the law.
lndisputedly ignorance of law often in reality exists, though as       F
a general proposition, it is true, that knowledge of law must be
imputed to every person. But it must be too much to impute
knowledge in certain situations, for example, we cannot expect
a rustic villager, totally illiterate, a poor man on the street, to
be aware of the various law laid down in this country i.e. leave       G
aside the NDPS Act. We notice this fact is also within the
knowledge of the legislature, possibly for that reason the
legislature in its wisdom imposed an obligation on the
authorized officer acting under Section 50 of the NDPS Act to
inform the suspect of his right under Section 50 to be searched        H
    242       SUPREME COURT REPORTS                [2013] 1 S.C.R.


A in the presence of a Gazetted Officer or a Magistrate warranting
  strict compliance of that procedure.

        10. We are of the view that non-compliance of this
  mandatory procedure has vitiated the entire proceedings
  initiated against the accused-appellant. We are of the view that
8
  the Special Court as well as the High Court has committed an
  error in not properly appreciating the scope of Section 50 of
  the NDPS Act. The appeal is, therefore, allowed. Consequently
  the conviction and sentence imposed by the Sessions Court
  and affirmed by the High Court are set aside. The accused-
C appellant, who is in jail, to be released forthwith, if not required
  in connection with any other case.

   R.P.                                             Appeal allowed.