STATE OF PUNJABversusLABH SINGH ETC

A                               STATE OF PUNJAB
                                           v.
                                LABH SINGH ETC.

                                    JULY 19, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.j

          Narcotic D111gs and Psychotropic Substances Act, 1985:

          Section 5!J-Accused--Searclz of-Right to be infonned about entitle-
C ment to be searched in presence of a gazetted office1-Violation of light-Ef-
    fect of-Held no exhaustive or n1athen1alical fon11ula of unive1:1al ap11Iication
    can be laid doivn-Cozut should consider each case on its oJvn settin[jAb-
    sence of any w1iting from the accused to the effect that he was infonned of
    his right and that the sante 1vas 1vaived-Also long delay in the nzat-
    ter--Respondents acquitted in such circianstances-Held no interference 1vas
D   called for with acquiUal order.

          State of Punjab v. Balbir Singh. [1994] 3 SCC 299; State of Punjab v.
    Jasbir Singh, [1996] 1 SCC 288 and State of Himac/za/ Pradesh v. P1ithi
    Chand & Anr., [1996] 2 SCC 37, referred to.

E         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    730 of 1996 Etc.

         From the Judgment and Order dated 22.1.91 of the Punjab &
    Haryana High Court in Crl.M. No. 13695-M(A) of 1990.

F         R.S. Suri for the Appellant.

          Salish Vig for Respondent in Crl.A. No. 730/96.

           P.N. Puri for the Respondent in Crl.A. No. 731/9G.

G         The following Order of the Court was delivered :

           Leave granted.

       These appeals anse under the Narcotic Drugs and Psychotropic
  Substances Act, 1985. The respondents were acquitted on trial on the
H ground that they were not informed of their valuable right that under
                                  760
                          STATE v. lABH SINGH                             761

Section 50 of the Act they were entitled to be searched in the presence of A
the Gazetted Officer. Violation thereof vitiates the trial as the accused have
the statutory right to be searched. The absence of the their information as
to the said right in one the infirmities to the validity of their prosecution.

       The question was considered in State uf Punjab v. Balbir Singh, I1994J
3 SCC 299. Subsequently, another Bench of this Court in State of Punjab B
v. Jasbir Singh, 11996] l SCC 288 has pointed out that it would be open to
the search officer to inform the suspect, at the time of search, that he is
entitled to be searched in the presence of the Gazetted Officer and also
to take in writing from the accused that he has been so informed and that
the accused has waived that right. Thus it would form part of the record C
as contempraneous evidence. Thereafter, it may not be open to the ac-
cused to take the pica of non-compliance of Section 50. It would be for the
Court to consider, at the trial, whether the officer who conducted the
search had as a fact informed the accused of that right and whether the
accused had waived that right of being searched only in the presence of a
Gazetted Officer. This Court held that :                                      D
        "The matter of appreciation of e<idencc and the totality of the facts
        and circumstances have to be considered by the trial Court. On
        the facts in that case, it was held that since the Additional Sessions
        Judge \Vas not inclined to accept the prosecution case in the            E
        absence of anything in writing, this Court confirmed the acquittal. 11

       In Stare of Himachal Pradesh v. P1ithi Chand & A111:, [1996] 2 SCC
37, this Court further elaborately considered the effect of the violation of
Section 50 and held that any evidence recorded and recovered in violation
of the search and the contraband ;,eized in violation of the mandatory           F
requirement does not ipso facto invalidates the trial. Section 50 con-
templates right to be searched in the presence of a Gazetted Officer. It
depends upon the facts and circumstances in each case. It was found that
the discharge of the accused on that ground was deprecated. In view of the
Jong delay .in the matter, this Court declined to interfere with the discharge   G
recorded by the Additional Sessions Judge.

       In view of the settled legal position that the accused has valuable
right to be informed of his right to be searched in th presence of a Gazetted
Officer, the search officer invariably would conduct the search subserving
the salutory right given under Section 50. Each case should be considered        H
    762                   SUPREME COURT REPORTS [1996} SUPP. 3 S.C.R.

A in the light of the facts and circumstances in which the contraband was
  seized, viz., Lime when the search \Vas c~nducted, ·the place where it was
    seized, whether police had prior information of the contraband being in
    transport or place of concealment, whether there was proper opportunity
    to the police to secure the presence of a Gazetted Officer; whether the
    delay in search and seizure would result in the escape of the accused from
B
    arrest or contraband would he destroyed or whisked away and host of all
    relevant atlendant circumstances. Each case depends upon its own factual
    scenario and no exhaustive or mathematical formula of universal applica-
    tion can be laid down. The Court has to consider each case on its own
    setting. In view of the absence of any writing from the accused to the effect
C   that the accused was informed of his right and that the same was waived
    taken by the officer who conducted the search and seized the contraband
    and in view of the long delay that has taken place, we think that these may
    not be cases warranting interference with the order of acquittal at this
    distance
       ,_ •.
              of time.

D         The appeals are accordingly, dismissed. The respondents are
    directed tu be set at liberty forthwith.

    T.N.A.                                                   Appeals dismissed.




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