GURJANT SINGH @ JANTAversusSTATE OF PUNJAB

                        (2013] 12 S.C.R. 180


A                   GURJANT SINGH @ JANTA
                                  v.
                        STATE OF PUNJAB
                (Criminal Appeal No. 1868 of 2013)

                        OCTOBER 28, 2013
B
     [SURINDER SINGH NIJJAR AND FAKKIR MOHAMED
                IBRAHIM KALIFULLA, JJ.]

        NARCOTIC         DRUGS         AND     PSYCHOTROPIC
C SUBSTANCES ACT, 1985:
         s. 50 - Requirement and purpose of search and seizuri9
    in presence of a Gazetted Officer or Magistrate - Explained.

       ss.42 and 50 rlw s.15 - Appellant caught carrying 3 bags
D of poppy husk in tractor trolley - Conviction of accused and
  sentence of 10 years RI and fine of Rs. 1 lakhs u/s 15 -
  Upheld by High Court - Held: Compliance of s. 50 of
  conducting search in the presence of Gazetted Officer or a
  Magistrate, cannot be an empty formality and cannot be dealt
E with lightly by courts -- Conclusion of trial court that ss.42 and
  50 were not applicable to the case was a total
  misunderstanding of legal provisions in the light of facts
  placed before it -- Judgment of trial court and confirmation of
  the same by High Court cannot be sustained -- Conviction
F and sentence imposed on appellant is set aside.
      s. 50 - Search and seizure in presence of Gazetted Officer
  or Magistrate - Held: In the instant case, trial court omitted to
  examine defence of appellant that the officer in whose1
G presence search was carried out was not a regularly promotecl
  D.S.P. but an "own rank pay D.S.P. ".

      Criminal appeal -- Duty of appellate court - Held: High
  Court being the first appellate court was required to
  independently reappraise the entire material, and record the
H                             180
  GURJANT SINGH @ JANTA v. STATE OF PUNJAB                     181


conclusions supported by cogent reasons -- High Court failed          A
to independently examine the correctness of findings
recorded by trial court and simply extracted a portion of the
judgment of trial court, while affirming the conviction-- It failed
 to exercise its jurisdiction in dismissing the appeal.
                                                                      B
     The appellant was prosecuted for committing an
offence u/s of 15 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 on the allegation that on 4.4.1996
at 00.15 A.M., he was carrying 3 gunny bags weighing 34
kg. each of poppy husk in the tractor-trolly, which was               C
searched in the presence of PW-3. The appellant, in his
statement u/s 313 CrPC stated that he was falsely
implicated in the case and he was taken away from his
house in the presence of his wife. He got examined his
wife and two more witnesses. His plea of non-compliance
of ss.42 and 50 was turned down by the trial court                    D
holding that there was no necessity to comply with s.50
and on that basis it did not go into the question whether
PW-3 was a gazetted officer. The trial court convicted the
appellant u/s 15 and sentenced him to 10 years RI and a
fine of Rs. 1 lakh. The High Court dismissed the appeal.              E

     Allowing the appeal, the Court

     HELD: 1.1 The ratiocination of the trial court in
having held that ss.42 and 50 of the NDPS Act were not
attracted to the case on hand was not correct. [para 12)
                                                                      F
[188-E]

    State of Punjab vs. Balbir Singh 1994 (2) SCR 208            =
(1994) 3 sec 299 - held inapplicable
                                                                      G
     1.2 The distinct feature and the most crucial aspect
of the case was that P.W.6 noticed three gunny bags
lying in the tractor of the appellant and felt that some
incriminating substance was kept in those gunny bags.
P.W.6, as an investigating officer, felt the need to invoke           H
    182     SUPREME COURT REPORTS              [2013] 12 S.C.R.


A the provisions of s.50 of the NDPS Act and thereby to
  provide an opportunity to the appellant for holding any
  search in the presence of a Gazetted Officer or a
  Magistrate. When once P.W.6 could assimilate the legal
  requirement as stipulated u/s 50, the conclusion of the
B trial court in having held that ss.42 and 50 were not
  applicable to the case on hand was a total
  misunderstanding of the legal provisions in the light of
  the facts placed before it. The trial court failed to
  understand principle No. 1 set out in paragraph 25 of the
c decision in Balbir Singh in the proper perspective.
  Consequently, the conclusion arrived at by trial court for
  convicting the appellant was wholly unjustified. [para 11;-
  17] [191-C-G; 192-C-D]

         1.3 The purpose of s.50 is to ensure that on the one
D   hand, the holding of a search and seizure was not a farce
    of an exercise in order to falsely implicate a person by
    unscrupulous police authorities, while on the other hand
    to prevent an accused from committing an offence of a
    serious nature against the society, warranting appropriate
E   criminal proceedings to be launched and in the event of
    establishing such offence, conviction and sentence to be
    imposed in accordance with law. At the same time, such
    a course of compliance of s.50 would also enable the
    person accused of such a grave offence to demonstrate
F   that there was no necessity for holding any search on him
    and thereby persuade the Gazetted Officer or Magistrate
    to protect his fundamental right of freedom, from being
    unlawfully proceeded against. Therefore, such a dual
    requirement of law prescribed u/s 50 cannot be dealt with
G   lightly by the courts dealing with the trial of such offences
    brought before it. In the instant case, the trial court while
    dealing with the case of the prosecution as well as the
    defence pleaded, committed a serious flaw in holding that
    ss. 42 and 50 were not attracted to the case on hand. [para
H   23-24] [195-F-H; 196-A-D]
   GURJANT SINGH @ JANTA v. STATE OF PUNJAB              183


     State of Punjab vs. Ba/dev Singh 1999 (3) SCR 977     = A
 (1999) 6 SCC 172; and State of H.P. vs. Pawan Kumar 2005
 (3) SCR 417   =(2005) 4 sec 350 - relied on.
       1.4 Besides, when, admittedly, s.50 was invoked by
  offering the presence of a Gazetted Officer or a Magistrate   B
  to the appellant and at the request of P.W.6, P.W.3, who
  was stated to be the D.S.P. at that point of time, was
  summoned and in whose presence the search and
  seizure was stated to have been made, the trial court
  failed to appreciate whether such a search or seizure was     C
  really held in accordance with ss.42 and 50 of the NDPS
  Act.One of the grounds raised on behalf of the appellant
  was that P.W.3 was not holding the post of D.S.P. in a
  substantive manner in order to hold that he was a
  Gazetted Officer on the date of search. The trial court
  having taken a view that ss.42 and 50 were not                D
  applicable, completely omitted to examine the said
· defence raised on behalf of the appellant. There is no
  contra evidence laid on behalf of the prosecution to
  counter the said ground raised on behalf of the appellant.
  [para 24-25] [196-D-G; 197-C]                                 E

      2.1 The High Court being the first appellate court was
 required to independently reappraise the entire material
 and record the conclusions supported by cogent
 reasons. The High Court failed to independently examine        F
 the correctness of the findings recorded by the trial court
 and simply extracted a portion of the judgment of the trial
 court, while affirming the conviction and, thus, failed to
 exercise its jurisdiction in dismissing the appeal. [para 19
 and 26] [192-F-G; 197-D-E]
                                                                G
      2.2 In the circumstances it will be highly dangerous
 to simply affirm the ultimate conclusion of the trial court
 in having convicted the appellant and the sentence
 imposed based on such conviction, as the same was
 without any ratiocination. The judgment of the trial court     H
    184      SUPREME COURT REPORTS              [2013] 12 S.C.R.


A and the confirmation of the same by the High Court
  cannot be sustained. The conviction and sentence
  imposed on the appellant is set aside. [para 26-27) [197-
  D, E-F]
                          Case Law Reference:
B
          1994 (2) SCR 208         held inapplicable    para 8
          1999 (3) SCR 977         relied on            para 10
          2005 (3) SCR 417         relied on            para 10
c
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1868 of 2013.

       From the Judgment and Order dated 12.08.2010 of the
  High Court of Judicature at Punjab & Haryana at Chandigarh,
D in Criminal Appeal No. 5-SB of 2000.

          S.S. Ray, Rakhi Ray, Vaibhav Gulia for the Appellant.

        Sanchar Anand, AAG, Anant K. Vatsya (for Kuldip Singh)
E for the Respondent.

          The Judgment of the Court was delivered by

        FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Delay
    condoned.
F         2. Leave granted.

      3. This appeal is directed against the judgment of the High
  Court of Punjab and Haryana at Chandigarh dated 12.08.2010
  in Criminal Appeal No.5-SB of 2000. The appellant was
G proceeded against for an offence under Section 15 of the
  Narcotic Drugs and Psychotropic Substances Act, 1985
  (hereinafter called "the NDPS Act"). The trial Court by its
  judgment dated 30.07.1999, in Sessions Case No.39 of
  31.05.1996, found the appellant guilty of the offence alleged
H                                                                 _-,
 GURJANT SINGH@ JANTA v. STATE OF PUNJAB                   185
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
against him and while convicting him imposed a sentence of         A
10 years rigorous imprisonment apart from a fine of
Rs.1,00,000/- (Rupees One Lac only) and in default of payment
of fine to undergo rigorous imprisonment for one more year.

      4. The case of the prosecution as projected before the trial 8
Court was that on 04.04.1996, S.I. Darbara Singh, who was
examined as P.W.6, was posted as S.H.O, Police Station,
Sunam. According to him he along with A.S.I. Balbir Singh,
A.S.I. Massa Singh, H.C. Shim Sain and other police officers
were present at 'T' point in an area of village Ugrahan in
connection with Nakabandi. At about 00.15 AM, one tractor C
trolley was seen coming from the side of village Ugrahan. The
head lights of the tractor trolley were on and P.W.6 gave a
signal from his torch light and the tractor trolley was stopped
by the driver. According to P.W.6, as soon as the tractor trolley
was stopped, the driver who tried to slip away was D
overpowered by P.W.6 and other police officials. The driver
stated to have revealed his name as Gurjant Singh @ Jania,
the appellant herein. Thereafter, when P.W.6 checked the trolley
of the tractor he found three gunny bags lying inside the trolley.
P.W.6 informed the appellant that he intended to search the E
gunny bags as he suspected some incriminating article in the
gunny bags. P.W.6 further informed the appellant that, if he so
desired, the search could be conducted in the presence of a
 Gazetted officer or a Magistrate. The appellant stated to have
expressed his consent that the search may be conducted in the F
 presence of some Gazetted officer or a Magistrate.

     5. After recording the statement of the appellant and after
getting his signature attested by A.S.I Balbir Singh and A.S.I
Massa Singh, P.W.6 claimed to have flashed a wireless              G
message whereupon Baldev Singh, DSP, Sunam, who was
examined as P.W.3, reached the spot. P.W.6 stated to have
searched the gunny bags lying in the tractor trolley in which
poppy husk was recovered. P.W.6 claimed to have drawn two
s~ples of 250 gms from each of the gunny bag. The remaining
                                                                   H
    186     SUPREME COURT REPORTS                (2013] 12 S.C.R.


A poppy husk, which weighed to the extent of 34 kg in each of
  the gunny bag, was stated to have been separately sealed, while
  the six sample parcels were also sealed separately witl1 the
  impression 'DS'. P.W.6 also claimed to have prepared a
  sample seal chit separately. Tractor trolley and the case
B properties were taken into possession by P.W.6 through a
  recovery memo attested by P.W.3 as well as by AS.I Balbir
  Singh and AS.I. Massa Singh. The appellant was stated to
  have been arrested, and the arrest memo along with Rukka,
  was sent to the police station through C. Harjinder Singh, based
c on which an FIR was recorded by A.S.I Sukhdev Singh. After
  preparing the rough site plan of the place of recovery with
  correct marginal notes and after recording the statement of the
  witnesses on the same day, P.W.6 stated to have deposited
  the case property with the MHC with seals intact along with the
  sample seal.
0
       6. The final report was thereafter stated to have been filed
  in the Court. Before the tr"1al Court P .W.1 Kulwant Singh,
  Registration Clerk, P.W.2 A.S.I Balbir Singh, P.W.3 D.S.P.
  Baldev Singh, P.W.4 Harbans Singh C.No.365, P W.5
E Jaswinder Singh and P.W.6 S.I. Darbara Singh were examined
  and the report of the Chemical Examiner Ex.PK was also filed.
  When the incriminating cirtumstances were put to the appellant
  under Section 313 Cr.P.C, appellant pleaded false implication
  alleging that he was taken away from his house in the presence
F of his wife and a false case was planted on him. In defence,
  the appellant examined H.C. Paramjit Singh as D.W.1 Gurmail
  Kaur, his wife as D.W.2 and one other witness C. Avtar Singh
  as D.W.3.

G        7. Before the trial Court it was contended on behalf of the
    appellant that there was clear violation of Sections 42 and 50
    of the NDPS Act, in as much as, the search was not condL1cted
    in the presence of a Gazetted officer or a Magistrate.
    According to the appellant, he was forcibly taken away frorn his
    house and a false case was planted and the claim that search
H
 GURJANT SINGH @ JANTA v. STATE OF PUNJAB                   187
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
was made in the presence of P.W.3 was not true. It was also         A
contended that P.W.3 was not a regularly promoted D.S.P. but
was only an Inspector in the category of Own Rank Pay (ORP).
It was contended that since he was only an Inspector and was
drawing the pay of an Inspector, while acting as D.S.P, he
cannot be held to be a Gazetted Officer.                            B

     8. The trial Court, however, took the view that there was
no necessity to comply with Section 50 of the NDPS Act and
on that basis did not go into the question whether P.W.3 was
a competent Gazetted Officer, in order to validate the search       C
stated to have been held in his presence. The trial Court in
support of its conclusion relied upon the judgment in the case
of State of Punjab vs. Balbir Singh reported in (1994) 3 SCC
299 and found the appellant guilty of the offence alleged
against him and convicted him by imposing a sentence of 10
years rigorous imprisonment along with the fine of Rs.1 lac with    D
the default clause to undergo imprisonment for one more year.
In the appeal preferred by the appellant before the High Court,
unfortunately, the High Court by simply extracting the concluding
part of the judgment of the trial Court chose to confirm the
conviction and sentence. The appellant has, therefore, come         E
forward with this appeal.

     9. We heard Mr. S.S. Ray, learned counsel for the
appellant as well as Mr. Sanchar Anand, learned Additional
Advocate General for the respondent. The learned counsel for        F
the appellant mainly contended that there was non-compliance
of Section 50 in the matter of search alleged to have been
made on the appellant and the tractor; that the contention of the
appellant about the status of P.W.3 that he was not a Gazetted
officer on the date of the alleged search was not considered        G
by the Courts below and that none of the defence witnesses
were properly appreciated by the trial Court as well as by the
High Court. The learned counsel, therefore, contended that the
conviction and sentence imposed on the appellant cannot be
sustained.
                                                                    H
    188      SUPREME COURT REPORTS               [2013] 12 S.C.R.


A        10. Reliance was placed upon the decisions in State of
    Punjab VS. Baldev Singh reported in (1999) 6 sec 172, State
    of H.P. vs. Pawan Kumar reported in (2005) 4 SCC 350 in
    support of his submissions.

        11. Learned Additional Advocate General in his
B
  submissions contended that there was no illegality in the
  judgment of the trial Court in convicting the appellant and the
  imposition of sentence and, therefore, the High Court was
  justified in confirming the same. Learned Additional Advocate
  General contended that the reliance placed upon the decision
C of this Court by the trial Court, namely, the one in Balbir Singh
   (supra) was well justified. The learned Additional Advocate
   General, therefore, contended that the judgment impugned does
   not call for interference.

D      12. Having considered the respective submissions and
  also having bestowed our serious consideration to the judgment
  of the trial Court, as well as that of the High Court, at the very
  outset we wish to state that the reliance placed upon by the trial
  Court in Balbir Singh (supra) was totally inappropriate to the
E facts of this case and consequently the ratiocination of the trial
  Court in having held that Sections 42 and 50 were not attracted
  to the case on hand was not correct.

         13. When we refer to the decision of this Court in Balbir
    Singh (supra), what has been held therein as a broad principle
F   in paragraph 25(1 ), is as under:

          "25. The questions considered above arise frequently
          before the trial courts. Therefore we find it necessary to
          set out our conclusions which are as follows:
G
          ( 1) If a police officer without any prior information as
          contemplated under the provisions of the NDPS Act
          makes a search or arrests a person in the normal course
          of investigation into an offence or suspected offences as
          provided under the provisions of CrPC and when such
H
GURJANT SINGH@ JANTA v. STATE OF PUNJAB                    189
  [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
    search is completed at that stage Section 50 of the NDPS      A
    Act would not be attracted and the question of complying
    with the requirements thereunder would not arise. If during
    such search or arrest there is a chance recovery of any
    narcotic drug or psychotropic substance then the police
    officer, who is not empowered, should inform the              B
    empowered officer who should thereafter proceed in
    accordance with the provisions of the NDPS Act. If he
    happens to be an empowered officer also, then from that
    stage onwards, he should carry out the investigation in
    accordance with the other provisions of the NDPS Act."        c
     14. The said principle clearly postulates a situation where
a police officer in the normal course of investigation of an
offence or suspected offences as provided under the
provisions of Cr.P.C. and in the course of such investigation
when a search is completed and in that process happens to D
stumble upon possession of a narcotic drug or psychotropic
substance, the question of invoking Section 50 would not arise.
When that principle is examined carefully one can easily
understand that without any prior information as to possession
of any narcotic drug and psychotropic substance, a police E
officer might have held a search in the course of discharge of
his duties as contemplated under the provisions of Cr.P.C and,
therefore, it would well neigh impossible to state that even
under such a situation, the application of Section 50 would get
attracted. In fact, if we examine the facts involved in Balbir F
Singh (supra), as per the contention of learned counsel for the
State, in that decision the police officer effected the arrest,
search and seizure on reasonable suspicion that a cognizable
offence was committed and not based on any prior information
that any offence punishable under NDPS Act was committed G
and, therefore, it was argued that complying with the provisions
of the NDPS Act at the time of the said arrest, search and
 seizure did not arise in as much as such arrest, search and
 seizure was substantially in accordance with the provisions of
 the Cr.P.C. It was, therefore, contended that such arrest, search H
    190       SUPREME COURT REPORTS                (2013] 12 S.C.R.


A   and seizure cannot be declared as illegal. While examining the
    contention in the said background, principle no.1 in paragraph
    25 came to be rendered.

       15. However, while analyzing the importance of Section 50
B of the NDPS Act in that very decision, this Court has held as
  under in paragraph 20:

          "20. In Miranda v. Arizona the Court, considering the
          question whether the accused be apprised of his right not
          to answer and keep silent while being interrogated by the
c         police, observed thus:

                 "At the outset, if a person in custody is to be
                 subjected to interrogation, he must first be informed
                 in clear and unequivocal terms that he has the right
D                to remain silent. For those unaware of the privilege,
                 the warning is needed simply to make them aware
                 of it - the threshold requirement for an intelligent
                 decision as to its exercise. More important, such a
                 warning is an absolute prerequisite in overcoming
                 the inherent pressures of the interrogation
E
                 atmosphere."

          It was further observed thus:

                 "The warning of the right to remain silent must be
F                accompanied by the explanation that anything said
                 can and will be used against the individual in court.
                 This warning is needed in order to maf;e him aware
                 not only of the privilege, but also of the
                 consequences of foregoing it. It is only through an
G                awareness of these consequences that there can
                 be any assurance of real understanding and
                 intelligent exercise of the privilege. Moreover, this
                 warning may serve to make the individual more
                 acutely aware that he is faced with a phase of the
                 adversary system - that he is not in the presence
H
GURJANT SINGH @ JANTA v. STATE OF PUNJAB                   191
  [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

                       .
           of persons acting solely in his interest."              A
    When such is the importance of a right given to an
    accused person in custody in general, the right by way of
    safeguard conferred under Section 50 in the context is all
    the more important and valuable. Therefore it is to be taken   B
    as an imperative requirement on the part of the officer
    intending to search to inform the person to be searched
    of his right that if he so chooses, he will be searched in
    the presenc~ of a Gazetted Officer or a Magistrate. Thus
    the provisions of Section 50 are mandatory."
                                                                   c
     16. If the ratio of the said decision had been properly
understood, the flaw committed by the trial Court and as
confirmed by the High Court in our considered opinion would
not have arisen. The distinct feature in the case on hand was
that on the date of occurrence i.e. on 04.04.1996 at 00.15 AM, D
the police party headed by P.W.6, accosted a tractor trolley
coming from the side of village Ugrahan, which was stopped
by him and that when the driver after stopping the tractor tried
to escape was apprehended by the police team. The most
crucial aspect of the case was that P.W.6 noticed three gunny E
bags lying in the tractor of the appellant and felt that some
incriminating substance was kept in those gunny bags. P.W.6,
therefore, took the view that before effecting search of the gunny
 bags, the necessity of affording an opportunity to the appellant
 to conduct the search in the presence of a Gazetted officer or F
a Magistrate was imperative. In other words, after noticing three
 gunny bags, P.W.6, as an investigating officer, felt the need to
 invoke the provisions of Section 50 and thereby provide an
 opportunity to the appellant for holding any search in the
 presence of a Gazetted officer or a Magistrate. When once G
 P.W.6 could assimilate the said legal requirement as stipulated
 under Section 50 of the NDPS Act, we fail to understand as to
 how principle No.1 in paragraph 25 of the decision reported in
 Balbir Singh (supra) could be applied. Unfortunately, the trial
 Court failed to understand the said principle set out in Ba/bir
  Singh (supra) in the proper perspective while holding that H
    192      SUPREME COURT REPORTS                [2013] 12 S.C.R.


A   neither Section 42 nor Section 50 was attracted to the facts of
    this case.                            ·

       17. On the other hand even according to the prosecution,
  namely, the investigating officer himself, i.e. P.W.6, a search
  was required after apprehending the appellant along with the
8
  tractor and the gunny bags and such search had to be
  necessarily conducted in accordance with Section 50 of the
  NDPS Act. It was further the case of the prosecution that such
  a step was pursued by calling upon the appellant to exercise
  his opinion and after affirmatively ascertaining whether he
C wanted any search to be conducted in the presence of the
  Gazetted officer, only then P.W.3 was summoned, in whose
  presence the search operation was held. Therefore, the
  conclusion of the trial Court in having held that Sections 42 and
  50 were not applicable to the case on hand was a total
D misunderstanding of the legal provisions in the light of the facts
  placed before it and consequently the conclusion arrived at for
  convicting the appellant was wholly unjustified.

        18. In fact, after reaching the said conclusion, all that the
E trial Court did was to hold that the version of the prosecution
  witnesses cannot be discarded merely because they were
  police officers and that the evidence of P.W.3 was sufficient to
  support the search and recovery of the narcotic substance from
  the appellant. The trial Court also held that the version of the
F defence witnesses was not worth mentioning.

        19. Unfortunately, the High Court has committed the same
  errors whilst considering the correctness of the judgment of the
  trial Court. The High Court being the first appellate Court was
  required to independently reapprais,e the entire material, record
G the conclusions supported by cogent reasons. In our opinion,
  the High Court failed to exercise its jurisdiction in dismissing
  the appeal.

      20. Before concluding, we wish to refer to the decisions
H placed before us to state the importance of applying the
 GURJANT SINGH @ JANTA v. STATE OF PUNJAB                   193
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
stipulations contained in Section 50, before holding the search,   A
in order to ensure fair consideration of the offence alleged
against an accused under the NDPS Act, before reaching any
conclusion about the commission of the alleged offence.

    21. In the Constitution Bench decision of this Court in        B
Baldev Singh (supra), the importance of due compliance of
Section 50 has been mainly set out in paragraphs 28, 32 and
33 which are as under:

     "28 ...... The argument that keeping in view the growing
     drug menace, an insistence on compliance with all the C
     safeguards contained in Section 50 may result in more
     acquittals does not appeal to us. If the empowered officer
     fails to comply with the requirements of Section 50 and an
     order or acquittal is recorded on that ground, the
     prosecution must thank itself for its lapses. Indeed in every D
     case the end result is important but the means to achieve
     it must remain above board. The remedy cannot be worse
     than the disease itself. The legitimacy of the judicial
      process may come under a cloud if the court is seen to
     condone acts of lawlessness conducted by the E
      investigating agency during search operations and may
      also undermine respect for the law and may have the effect
      of unconscionably compromising the administration of
     justice. That cannot be permitted."
                                                                   F
     32. However, the question whether the provisions of
     Section 50 are mandatory or directory and, if mandatory,
     to what extent and the consequences of non-compliance
     with it does not strictly speaking arise in the context in
     which the protection has been incorporated in Section 50
     for the benefit of the person intended to be searched.        G
     Therefore, without expressing any opinion as to whether
     the provisions of Section 50 are mandatory or not, but
     bearing in mind the purpose for which the safeguard has
      been made, we hold that the provisions of Section 50 of
     the Act implicitly make it imperative and obligatory and      H
       194       SUPREME COURT REPORTS                 [2013] 12 S.C.R.


  A          cast a duty of the investigating officer (empowered officer)
             to ensure that search of the person (suspect) concerned
             is conducted in the manner 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
  B          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 article suspect and vitiate
             the conviction and sentence of the accused, where the
  c          conviction has been recorded orly 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. The omission may not vitiate the trial as such, but
             because of the inherent prejudice which would be caused
             to an accused by the omission to be informed of the
  D
             existence of his right, it would render his conviction and
             sentence unsustainable. The protection provided in the
             section to an accused to be intimated that he has the right
             to have his personal search conducted before a gazetted
             officer or a Magistrate, if he so requires, is sacrosanct and
  E          indefeasible - it cannot be disregarded by the prosecution
             except at its own peril.
             33. The question whether or not the safeguards provided
             in Section 50 were observed wo1Jld have, however, to be
  F          determined by the court on the basis of the evidence led
             at the trial and the finding on that 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
  G          Section 50 and, particularly, the safeguards provided in
             that section were complied with, it would not be advisable
.. .         to cut short a criminal trial."
         22. In Pawan Kumar (supra) wherein the Constitution
    Bench decision was referred to and was reiterated as under
  H in paragraph 26:
GURJANT SINGH @ JANTA v. STATE OF PUNJAB                  195
  [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
   "26 ......... Otherwise, there would be no distinction between A
   recovery of illicit drugs, etc. seized during a search
   conducted after following the provisions of Section 50 of
   the Act and a seizure made during a search conducted in
   breach of the provisions of Section 50. Having regard to
   the scheme and the language used a very strict view of B
    Section 50 of the Act was taken and it was held that failure
    to inform the person concerned of his right as emanating
    from sub-section (1) of Section 50 may render the recovery
    of the contraband suspect and sentence of an accused
    bad and unsustainable in law. As a corollary, there is no    c
    warrant or justification for giving an extended meaning to
     the word "person" occurring in the same provision so as
     to include even some bag, article or container or some
     other baggage being carried by him."

       23. The aforesaid observations of the above Constitution D
Bench decision in Baldev Singh (supra) and the three Judge
Bench decision in Pawan Kumar (supra), clearly highlight the
legal requirement of compliance of Section 50 in its true spirit.
It will have to be stated that such compliance of the requirement
under Section 50 of holding of a search and seizure in the E
presence of Gazetted officer or a Magistrate, cannot be an
empty formality. In other words, the offer to the person to be
searched in the presence of a Gazetted officer or a Magistrate,
should really serve the purpose of ensuring that there was every
 bona fide effort taken by the prosecution to bring forth the grave F
offence of possession of narcotic substance and proceed
 against the person by way of prosecution and thereby establish
 the truth before the appropriate judicial forum. In the same
 breath such a course of compliance of Section 50 would also
 enable the person accused of such a grave offence to be G
 convinced that the presence of such an independent Gazetted
  officer or a Magistrate would also enable the person proceeded
  against to demonstrate that there was no necessity for holding
  any search on him and thereby persuade the concerned
  Gazetted officer or Magistrat~ m;protect his fundamental right H
     196     SUPREME COURT REPORTS               [2013) 12 S.C.R

A of freedom, from being unlawfully proceeded against. In other
  words, the purpose of Section 50 was to ensure that on the one
  hand, the holding of a search and seizure was not a farce of
  an exercise in order to falsely implicate a person by
  unscrupulous police authorities, while on the other hand to
B prevent an accused from committing an offence of a serious
  nature against the society, warranting appropriate criminal
  proceedings to be launched and in the event of establishing
  such offence, conviction and sentence to be imposed in
  accordance with law. Therefore, such a dual requirement of law
c prescribed under Section 50 cannot be dealt with lightly by the
  Courts dealing with the trial of such offences brought before it.

        24. Keeping the above principles in mind, when we
  examine the manner in which the trial Court dealt with the case
  of the prosecution as well as the defence pleaded, we find that
D the trial Court committed a serious flaw in holding that Sections
  42 and 50 were not attracted to the case on hand, which we
  have found in the earlier paragraph was a total misreading of
  the provision as well as the decision relied upon by it. That
  apart, when admittedly Section 50 was invoked by offering the
E presence of a Gazetted officer or a Magistrate to the appellant
  and at the request of P.W.6, P.W.3, who was stated to be the
  D.S.P. at that point of time, was summoned and in whose
  presence the search and seizure was stated to have been
  made, the trial Court failed to appreciate whether such a search
F or seizure was really held in accordance with Sections 42 and
  50 of the NDPS Act.
       25. One of the grounds raised on behalf of the appellant
  was that P.W.3 was not holding the post of D.S.P. in a
G substantive manner in order to hold that he was a Gazetted
  officer on the date of search. According to the appellant, P.W.3
  was not a regularly promoted D.S.P. but was only an Inspector
  functioning as a D.S.P. in a category called 'Own Rank Pay'
  D.S.P. According to the appellant, P.W.3 was drawing the pay
  of an Inspector from LR.D. and was not holding the post of
H
 GURJANT SINGH @ JANTA v. STATE OF PUNJAB                      197
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

D.S.P. on a regular basis. It was, therefore, contended that such A
a person who was not duly promoted as D.S.P., cannot be
equated to the status of a Gazetted officer in order to hold that
a search conducted in his presence was a valid search as
contemplated under Section 50 of the NDPS Act. As far as the
said point raised on behalf of the appellant, we do not find any B
material or a counter-stand taken to the effect that P.W.3 was
a regularly promoted D.S.P. or that as per the rules even as
an 'Own Rank Pay' D.S.P.,he could be equated to any other
D.S.P., holding a substantive post. Unfortunately, as stated by
us earlier, the trial Court having taken a view that Sections 42 c
 and 50 were not applicable, completely omitted to examine the
 said defence raised on behalf of the appellant. We also do not
 find any contra evidence laid on behalf of the prosecution to
 counter the said ground raised on behalf of the appellant.

    26. In such circumstances it will be highly dangerous to            D
simply affirm the ultimate conclusion of the trial Court in having
convicted the appellant and the sentence imposed based on
such conviction, as the same was without any ratiocination. It
was most unfortunate that the High Court failed to independently
examine the correctness of the findings recorded by the trial           E
Court by simply extracting a portion of the judgment of the trial
Court, while affirming the conviction.

       27. For all the above stated reasons, the judgment of the
 trial Court and the confirmation of the same by the High Court         F
 cannot be sustained. The appeal stands allowed. The
 conviction and sentence imposed on the appellant is set aside
 and the appellant shall be set at liberty forthwith, if not required
 in any other case.

 R.P.                                             Appeal allowed.       G