Supreme Court of India
STATE OF RAJASTHANversusBHANWAR LAL & ANR.
- Citation
- 2009 INSC 295
- Decided
- 3 March 2009
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
Section 50 only obliges the police to conduct the search in the presence of the nearest available gazetted officer or magistrate, and the High Court’s acquittal was erroneous; however, under Section 27 the sentence must be limited to the time already served because the quantity seized was below 25 grams.
Summary
The State of Rajasthan appealed the acquittal of Bhanwar Lal and Mohan Lal, who had been convicted under Sections 8, 18 (and 20) of the NDPS Act. The High Court set aside the convictions on the ground that the police had not complied with Section 50, which requires the accused to be searched in the presence of a senior officer. The Supreme Court held that Section 50 merely gives the accused the option to be searched in the presence of the nearest gazetted officer or magistrate, and that the police must conduct the search before the nearest such officer who is conveniently available. Consequently, the High Court’s acquittal was unjustified. However, because the seized opium was less than 25 grams, Section 27 (as per G.O. 327E/1996) applies, and the sentence should be limited to the period already served. The appeal was therefore partly allowed, setting aside the acquittal and restricting the sentence to time already undergone.
Issues considered
- The correct interpretation of Section 50 of the NDPS Act regarding the accused's right to be searched in the presence of a senior officer.
- Whether the High Court erred in acquitting the accused for non‑compliance with Section 50.
- The applicability of Section 27 of the NDPS Act to a possession of less than 25 grams of opium and the appropriate sentencing.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 20, s. 27, s. 50, s. 8
Subjects
NDPS ActSection 50 searchgazetted officermagistratesmall quantitySection 27sentencing limitationprocedural safeguardappeal
Judgment
[2009) 5 S.C.R. 1
STATE OF RAJASTHAN A
11.
BHANWAR LAL & ANR.
(Criminal Appeal No.145 of 2003)
MARCH 3, 2009
8
·[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANG ULY, JJ.]
Narcotics and Psychotropic Substances Act, 1985:
c
s.50 - Right of accused to exercise option under s.50
of being searched by gazetted officer or magistrate - Held:
The use of word 'nearest' in s.50 is relevant - Search has to
be conducted at earliest and, once person to be searched
opts to be searched in presence of such senior officer, it is
0
for police officer who is to conduct the search, to conduct it in
the presence of conveniently available officer - On facts,
acquittal reForded by High Court for non-compliance of s.50
not justified.
s.27 - Seizure of opium - Quantity seized was less than E
25 grams - Held: s.27 has application in terms of the
Noti~ation No.G.0.327E dated 161711996 of the Central
Government issued in exercise of power under Section 27 of
the Act-' Since accused is in custody for more than two years
and 7 months, sentence restricted to the period already F
undergone.
The respondents were convicted under Section 8
read with Section 18 of Narcotics and Psychotropic
Substances Act, 1985. High Court found that there was G
non compliance with the, requirements of Section 50 of
the Act and directed acquittal.
In appeal to this Court, State-appellant contended
that the High Court went on discarding the evidence of
1 H
2· SUPREME COURT REPORTS (2009] 5 S.C.R.
A the Dy. Superintendent of Police PW.16 on the ground of
alleged variation in testimony vis-a-vis. PW.12. It was
l
pointed out that PW.16 stated that he asked the accused
persons as to whether they wanted to be searched by
Gazetted Officer, or Magistrate in the sense that he
s himself was a Gazetted Officer. PW.12 stated that the
accused persons were asked whether they wanted to be ' 1
j
searched in the presence of PW.16 himself or Magistrate.
This according to the appellant-State was not a proper
way of reading the evidence. ·
•• ,
~
c Respondent contended that the quantity seized was
below 25 grams. He referred to a Notification No.G.0.327E
dated 1617/1996 of the Central Government issued in
exercise of power under Section 27 of the Act which
. provided that accused found in possession upto 25
l1
j
· D grams of opium can be awarded such sentences as '
meant for "small quantities". According to him, the '
quantity of 20 grams was meant for his personal use. .J
,...
ii
Partly allowing the appeal, the Court
E
HELD: 1.1: A reading of the evidences of PW 12 ,ind
16 showed no material contradiction regaJding
information given to the accused to exercise th~ option
to be examined in the presence of Gazetted Officer or a
F Magistrate. The High Court was not justified in drawing
that inference. The version of PW.16 was in line with what
was stated in Ext.P.8. [Para 5) [5-C-D]
State of Rajasthan v. Ram Chandra 2005 (5) SCC 151,
relied on. ·
G
1.2. The option under Section 50 of the Narcotics and
Psychotropic Substances Act, as it plainly reads, is only
of being searched in the presence of such senior officer.
There is no further option of being searched in the
H presence of a Magistrate. The use of the word 'nearest'
STATE OF RAJASTHAN v. BHANWAR LAL & ANR. 3
~·-
in Section 50 is relevant. The search has to be conducted A
at the earliest and, once the person to be searched opts
to be searched in the presence of such senior officer, it
is for the police officer who is to conduct the search to
conduct it in the presence of whoever is the most
conveniently available, gazetted officer or Magistrate. B
Therefore, the acquittal as recorded was not justified.
However, as rightly contended by the respondent that the
quantity seized was less than 25 grams. That being so,
Section 27 of the Act has application in terms of the
Notification referred above. It is stated that he is in c
custody for more than two years and 7 months. That
being so it will be appropriate to restrict the sentenced
to the period already undergone. [Paras 6 and 7) [6-H; 7-
A]
Case Law Reference: D
J
2005 (5)SCC 151 relied on Para 7
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.145 of 2003.
E
From the Judgment and Order dated 07.02.2002 of the
High Court of Judicature for Rajasthan at Jodhpur in S.B.
Criminal Appeal No. 445/1999.
Dr. Manish Singnvi, AAG(Raj), Milind Kumar, Sandeep
Bajaj and Aruneshwar Gupta (NP) for the Appellant. F
Doongar Singh, V.J. Francis and Anupam Mishra for the
Respondents.
The Judgment of the was delivered by ,-
G
DR. ARIJIT PASAYAT, J.1. Challenge in this.appeal by
,
the Stat~ of Rajasthan is to a judgment of the learned single
Judge of the Rajasthan High Court dfrecting acquittal of the
•.
respondents - Bhanwar Lal and Mohan Lal. Both these
accused persons faced trial for alleged commission of offences H
4 SUPREME COURT REPORTS [2009) 5 S.C.R.
A punishable under Sections 8 and 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short 'NDPS Act'). The
---
accused Mohan Lal was convicted in terms of Sections 8 read
with Sec.18 and awarded ten years R. I. along with fine of
Rs.1,00,000/- (rupees one lakh) with default stipulation. The
B appellant Bhanwar Lal was convicted under Sections 8 and 18
of the NDPS Act and awarded 12 years R.I. along with fine of
Rs.2,00,000/- (Rupees two lakhs). He was also convicted for
the offences under Section 8 read with Sec.20 of the NDPS
Act and, therefore, separately awarded two years R.I. with fine
c of Rs.2,000/- with default stipulation.
2. The trial court found that the evidence led by the
prosecution is credible and cogent and recorded conviction as
noted above. The High Court found that there was non-
compliance with the requirements of Sec.SO of the Act and
D directed acquittal.
l
3. It is brought to our notice by lear.ned counsel that the
accused Bhanwar Lal has died on 12/10/2003 and therefore
the appeal does not survive so far as he is concerned.
E
4. Coming to the case of the accused Mohan Lal, learned
counsel for the appell<mt State submitted that the High Court
went on discarding the evidence of the Dy. Superintendent of
Police PW.16 on the ground of alleged variation in testimony
vis-a-vis. PW.12. It is pointed out that while PW.16 stated that
F he asked the accused as to whether they wanted to be
searched by Gazetted Officer, or Magistrate in the sense that
he himself was a Gazetted Officer. PW.12 stated that the
accused persons were asked whether they wanted to be
searched in the presence of PW.16 himself or Magistrate. This
G according to the learned counsel for the appellant-State is not
a proper way of reading the evidences.
4. Learned counsel for the respondent on the other hand
submitted that the quantity seized was below 25 grams.
H Reference is made to a Notification No. G.O. 327E dated 16/
- )
STATE OF RAJASTHAN v. BHANWAR LAL & ANR.
[DR. ARIJIT PASAYAT, J.]
5
7/1996 of the Central Government issued in exercise of power A
under Section 27 of the Act which provides that if an accused
is found in possession upto 25 grams of opium then such
accused can be awarded such sentence as meant for "small
j quantities". According to him, the quantity of 20 grams was
meant for the respondent's personal use. It is also pointed out B
that the recovery was made on 23/12/1996 and it was sent to
the office of the Superintendent of Police where allegedly the
same was not accepted and was sent back to the police station.
What prompted this action, according to the learned counsel
for the respondent has not been clarified by the prosecution. c
5. A reading of the evidences of PW 12.and 16 shows no
material contradiction regarding information given to the
accused to exercise the option to be examined in the presence
of Gazetted Officer or a Magistrate. The High Court was not
justified in drawing that inference. The version of PW.1 '6 is in D
lir:ie with what is stated in Ext.P.8.
6. It was observed as follows at para 13 in 2005 (5) sec
151.
E
"Section 50 does not involve any self-incrimination.
It is only a procedure required to protect the rights of an
accused (suspect) being made aware of the existence of
his right to be searched if so required by him before any
of the specified officers. The object seems to be to ensure
that at a later stage the accused (suspect) does not take F
a plea that the articles were planted on him or that those
were not recovered from him. To put it differently, fair play
and transparency in the process of search has been given
primacy. In Raghbir Singh vs. State of Haryana the true
essence of Section 50 was highlighted in the following G
--<
manner: (SCC pp.204-05, paras 8-11)
~
"8. The very question that is referred to us came to
be considered by a Bench of two learned Judges on 22-
1-1996 in Manohar Lal vs. State of Rajashtan. One of us H
6 SUPREME COURT REPORTS [2009] 5 S.C.R. -
A (Verma, J.), speaking for the Bench, held:
·It is clear from Section 50 of the NDPS Act that the
option given thereby to the accused is only to choose
whether he would likei to be searched by the officer making
~
the search or in the presence of the nearest available
B
gazetted officer or the nearest available Magistrate. The
choice of the nearest gazetted officer or the nearest
Magistrate has to exercised by the officer making the
search and not by the accused.'
c 9. We concur with the view taken in Manohar Lal case.
10. Finding a person to be in possession of articles which
are illicit under the provisions of the Act has the
consequence of requiring him to prove that he was not in
contravention of its provisions and it renders him liable to
D
severe punishment. It is, therefore, that the Act affords the
person to be searched a safeguard. He may require the
search to be conducted in the presence of a senior officer.
The senior officer may be a gazetted officer or a
Magistrate, depending upon who is conveniently available.
E
11. The option under Section 50 of the Act, as it plainly
reads, is only-0f being s1~arched in the presence of such
senior officer. There is no further option of being searched
in the presence of either a gazetted officer or of being
F searched in the presence of a Magistrate. The use of the
word 'nearest' in Section 50 is relevant. The search has
to be conducted at the earliest and, once the person to
be searched opts to be searched in the presence of such
senior officer, it is for the police officer who is to cpnduct
G the search to conduct it in the presence of whoever is the
most conveniently available, gazetted officer or .,_
Magistrate." •
7. Therefore, the acquittal as recorded was not justified.
However, as rightly contended by learned counsel for the
H
STATE OF RAJASTHAN v. BHANWAR LAL & ANR. 7
[DR. ARIJIT PASAYAT, J.]
respondent Mohan Lal that the quantity seized was less than A
25 grams. That being so, Section 27 of the Act has application
in terms of the Notification referred above. It is stated that he
is in custody for more than two years and 7 months. That being
so it will be appropriate to restrict the sentence to the period
already undergone. The appeal is allowed to the aforesaid B
extent.
D.G. Appeal partly allowed.
~.I I t
J.
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