MAN BAHADURversusSTATE OF H.P.

                    [2008] 13 S.C.R. 955


                     MAN BAHADUR                              A
                            v.
                     STATE OF H.P.
           (Criminal Appeal No. 1513 of 2008)

                  SEPTEMBR 23, 2008
                                                              B
        [S.8. SINHA AND CYRIAC JOSEPH, JJ]

     Narcotic Drugs and Psychotropic Substances Act, 1985:
      s. 50 - Search of person - Right to be searched before a
Gazetted Officer or a Magistrate - HELD: In the instant case, C
search memo or any other document do not show that the
suspect was made aware of his right to be searched before a
Gazetted Officer or a Magistrate - I. 0. had merely given an
option to the suspect to be searched either by himself or in·
presence of a Magistrate or a Gazetted Officer - No evidence D
has been adduced to show that suspect was communicated
of his right either to be searched in presence of a Magistrate
or a Gazetted Officer on the one hand and by an empowered
officer on the other-There has been even no substantial com-
pliance of s.50 - Conviction and sentence set aside.           E

     State of Punjab vs. Baldev Singh 1999(3) SCR 977=
(1999) 6 SCC 172; Vjaysinh Chandubha Jadeja vs. State of
Gujarat 2007 (1) SCC 433; and Noor Aga vs. State of Punjab
and Anr. [2008] 10 SCR 379=2008 (9) SCALE 681 - relied
on.                                                           F

     Miranda vs. Arizona 384 US 436 - referred to.
                     Case Law Reference
     1999(3) SCR 977              relied on     para 2
                                                              G
    ·354 us 436                   referred to   para 2
     2001 (1 l sec 433            relied on     para 3
     [2008] 10 SCR 379            relied on     para 8
                            955                               H
    956         SUPREME COURT REPORTS                 [2008] 13 S.C.R.
                                                                          ..\


A        CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
    No. 1513 of2008
         From the final Judgment and Order dated 20.12.2005 of
    the High Court of Himachal Pradesh at Shimla in Crl. A. No.
    337 of 2003
B
          Radha Shyam Jena for the Appellant.
          Naresh K. Sharma for the Respondent.

          The following Order of the Court was delivered
c
          Delay condoned.
          Leave granted.
        1. One of the questions which arises for consideration in
  this appeal is as to whether Shri Lal Chand No. 8 1.0.
D
  P.P.Pandoh(P.W.10) was bound to make the accused-appel-
  lant aware that he had also a right to be searched before a
  Magistrate or a gazetted Officer.
         2. In State of Punjab Vs. Baldev Singh -(1999) 6 SCC 172,
E a Constitution Bench of this Court has clearly held that the ac-
  cused has a right to be made aware thereof. Having regard to
  the Miranda clause as enunciated by the Supreme Court of the
  United States of America in Miranda Vs. Arizona-384 US 436,
  the Constitution Bench held that, although.such communication
F itself may not necessarily be made in writing but as far as pos-         ,,.   ...
  sible suc:h communication should be made in the presence of
  some independent and respectable persons witnessing the
  arrest and search.
          It was opined:
G
          "57 On the basis of the reasoning and discussion above,
          the following conclusions arise:
          (1)   That when an empowered officer or a duly authorised
                officer acting on prior information is about to search
H               a person, it is imperative for him to inform the person
"'        )
                             MAN BAHADUR v. STATE OF H.P.                  957


                          concerned of his right under sub-section (1) of A
                          Section 50 of being taken to the nearest gazetted
                          officer or the nearest Magistrate for making the
                          search. However, such information may not
                          necessarily be in writing.
          -i
                    (2)   That failure to inform the person concerned about 8
                          the existence of his right to be searched before a
                          gazetted officer or Magistrate would cause prejudice
                          to an accused."
                    3. A three-Judge Bench of this Court in Vijaysinh             c
               Chandubha Jadeja Vs. State of Gujarat - (2007) 1 SCC 433
               noticed the aforementioned dicta laid by the Constitution Bench
               in Baldev Singh(Supra) and in no uncertain terms opined that
               the accused must be told of his right to be searched before a
               gazetted officer or a Magistrate.
                                                                                  D
      -f
                      4. The Bench, however, was of the opinion that some more
               clarification is necessary as to whether such communication of
               the right of the accused could be taken in evidence by way of
               oral evidence of the officer concerned.
                     5. In this case it is accepted at the Bar that the search    E
               memo or any other document do not show that the appellant
               was made aware of his right to be searched before a gazetted
               officer or a Magistrate.
                     6. From the deposition of P.W.10-1.0.P.P. Pandoh, it ap-     F
                pears that he had merely given an option to the appellant to be
               -searched either by himself or in presence of a Magistrate or a
                gazetted Officer.
                     7. No evidence has been adduced to show that the appel-
               lant was communicated of his right either to be searched in pres- G
               ence of a Magistrate or a gazetted officer on the one hand and
               by an empowered officer on the other.
     ,~
                    8. Recently, this Court in Noor Aga Vs. State of Punjab
               and Anr.- 2008(9) SCALE 681, categorically, held that as the
                                                                                  H
    958       SUPREME cou'RT REPORTS                  [2008] 13 S.C.R.


A provisions contained in the N.D.P.S.Act are penal in nature, all
  requirements laid down therein must be complied with strictly,
  stating:
          " 149. Section 50 of the Act provides for an option to be
          given. This Court in Baldev Singh(supra) quoted with
B         approval the decision of the Supreme Court of United
          States in Miranda Vs. Arizona [(1966) 384 US 436} in the
          following terms:
                "The Latin maxim salus populi suprema lex ( the
c              safety of the people is the supreme law) and salus
               republicae suprema lex(safety of the State is the
               supreme law) coexist and are not only important and
               relevant but lie at the heart of the doctrine that the
               welfare of an individual must yield to that of the
               community. The action of the State, however, must
D
               be right, just and fair."
          150. Justness and fairness of a trial is also implicit in
          Article 21 of the Constitution.
          151. A fair trial is again a human right. Every action of the
E         authorities under the Act must be construed having regard
          to the provisions of the Act as also the right of an accused
          to have a fair trial.
          152. The courts, in order to do justice between the parties,
F         must examine the materials brought on record in each
          case' on its own merits. Marshalling and appreciation of
          evidence must be done strictly in accordance with the well
          known legal principles governing the same; wherefor the
          provisions of the Code of Criminal Procedure and
          Evidence Act must be followed.
G
          153. Appreciation of evidence must be done on the basis
          of materials on record and not on the basis of some reports
          which have nothing to do with the occurrence in question.
          154. Article 12 of the Universal Declaration of Human
H
                     MAN BAHADUR v. STATE OF H.P.                      959
_}

            Rights provides for the Rightto a fair trial. Such rights are     A .
            enshrined in our Constitutional Scheme being Article 21
            of the Constitution of India. If an accused has a right of fair
            trial, his case must be examined keeping in view the
            ordinary law of the land.

            155. It is one thing to say that even applying the well known 8
            principles of law, they are found to be guilty of commission
            of offfences for which they are charged but it is another
            thing to say that although they cannot be held guilty on the
            basis of the materials on record, they must suffer
            punishment in view of the past experience of otherwise." C

         9. In the instant case, there has been even no substantial
     compliance of Section 50 of the N.D.P.S. Act.

          10. For the reasons aforementioned, the impugned judg-
     ment of conviction and sentence cannot be upheld. It is set aside        D
     accordingly. The appeal is allowed.
          11. Appellant is in custody. He shall be released forthwith
     unless required in connection with some other case.
     R.P.                                               Appeal allowed.       E




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