STATE OF RAJASTHANversusPARMANAND & ANR.

                       [2014] 3 S.C.R. 522


A                    STATE OF RAJASTHAN
                               v
                      PARMANAND & ANR.
                (Criminal Appeal ,No. 78 of 2005)
                      FEBRUARY 28, 2014
B
               [RANJANA PRAKASH DESAI AND
                   MADAN B. LOKUR, JJ.]

        NARCOTIC        DRUGS        AND     PSYCHOTROPIC
C SUBSTANCES ACT, 1985:
       s. 50 - Non-compliance of - Respondents-accused caught
  carrying opium which was recovered from the bag in the hands
  of one of them - Respondents given a written common notice
0 that they had a right to be searched before a nearest Gazetted
  Officer, or a Magistrate or before the Superintendent of raiding
  party - One of them signed for both agreeing to be searched
  by the Superintendent - Held: Bag of one of the respondents
  was searched and opium was recovered - His personal search ·
E was also carried out - Personal search of other respondent
  was carried out - Therefore, s. 50 will have applia.ation -
  Accused persons must be communicated individually bf their
  right - Further it was improper to tell the respondents that a
  third alternative was available and they could be searched
  before the Superintendent who was part of the raiding party -
F He could not be called an independent officer - Thus, breach
  of s.50 has vitiated the search - Conviction of respondents
  was illegal and they were rightly acquitted by High Court.

       The respondents were prosecuted for offences
G punishable u/s 8 read with s.18 and u/s 8 read with s.29
  of the Narcotic Drugs and Psychotropic Substances Act,
  1985 on the allegation that at about 4 A.M. on 14.10.1997
  the respondents were caught carrying 9 Kg. 600 gms of
  opium. The said opium was recovered from the bag in the
H                              522
 STATE OF RAJASTHAN v. PARMANAND & ANR.                 523

                                        ·-
hands of respondent no. 1. The Special Judge convicted         A
respondent No. 1 uls 8 read with s.18 of the NDPS Act and
respondent No.2 uls 8 read with s.28 of the NDPS Act.
They were sentenced to 10 years rigorous imprisonment
and a fine of Rs.10 lakhs each. However, the High Court
acquitted the respondents holding that provisions of s.50      B
of the Act had not been complied with.

    Dismissing the appeal, the Court

     HELD: 1.1 In the instant case, the conviction is solely
based on recovery of opium from the bag of respondent          C
No.1. A bag, briefcase or any such article or container
etc. can under no circumstances be treated as a body of
a human being. Therefore, it is not possible to include
these articles within the ambit of the word "person"
occurring in s. 50 of the NDPS Act. If merely a bag carried    D
by a person is searched without there being any search
of his person, s. 50 of the NDPS Act will have no
application. But if the bag carried by him is searched and
his person is also searched, s. 50 of the NDPS Act will
have application. In the instant case, bag of respondent       E
No.1 was searched. From the bag, opium was recovered.
His personal search was also carried out. Personal
search of respondent No.2 was also conducted.
Therefore, in light of judgments of this Court s. 50 of the
NDPS Act will have application. [para 9 and 12] [530-G;        F
531-B-C; 532-B-C]
                         .
   Dilip & Anr. v. State of Madhya Pradesh 2006 (9 ) Suppl.
          =
SCR 390 (2007) 1 SCC 450; Union of India v. Shah Alam
(2009) 16 sec 644 - relied on.
                                                               G
    Kalema Tumba v. State of Maharashtra 1999 (2) Suppl.
SCR 670 = (1999) 8 SCC 257; State of Himachal Pradesh
v. Pawan Kumar 2005 (3) SCR 417 = (2005) 4 SCC 350 -
referred to.
                                                               H
    524      SUPREME COURT REPORTS               [2014] 3 S.C R

A                      -
        1.2 The police witnesses have stated that the
  respondents were informed that they have a right to be
  searched before a nearest gazetted officer or a nearest
  Magistrate or before PW-5, the Superintendent. They were
  given a written notice. However, there was no individual
B communication of the right. A common notice was given
  on which only respondent No.2 is stated to have signed
  for himself and for respondent No.1. A joint
  communication of the right available u/s 50(1) of the NDPS
  Act to the accused would frustrate the very purport of s.
c 50. Communication of the said right to the person who
  is about to be searched is not an empty formality. Most
  of the offences under the NDPS Act carry stringent
  punishment and, therefore, the prescribed procedure has
  to be meticulously followed. These are minimum
  safeguards available to an accused against the
0
  possibility of false involvement. The communication of
  this right has to be clear, unambiguous and individual.
  The accused must be individually informed that u/s 50(1)
  of the NDPS Act, that he has a right to be searched before
  a nearest gazetted officer or before a nearest Magistrate.
E Therefore, the right has not been properly communicated
  to the respondents. The search of the bag of respondent
  No.1 and search of person of the respondents is,
  therefore, vitiated and resultantly their conviction is also
  vitiated. [para 13-14] (532-D-H; 533-A, 8-C, E-F]
F
        State of Punjab v. Balbir Singh (1994) 3 SCC 299; State
                                                 =
  of Punjab v. Baldev Singh 1999 (3) SCR 977 (1999) 6 SCC
  172 - relied on.
G       Paramjit Singh and Anr. v. State of Punjab 1997 (1)
    CRIMES 242; Dharamveer Lekhram Sharma and Another v.
    The State of Maharashtra and Ors. 2001 (1) CRIMES 586 -
    stood approved.

          State of ffimachal Pradnsh v. Pi1thi Chand (1996) 2 SCC
H 37 - stood disapproved.
   STATE OF RAJASTHAN v. PARMANAND & ANR.                   525


       1.3 The idea behind taking an accused to a nearest           A
  Magistrate or a nearest gazetted officer, if he so requires,
  is to give him a chance of being searched in the presence
  of an independent officer. Therefore, it was improper for
  PW-10, SI, to tell the respondents that a third alternative
. was available and that they could be searched before              B
  PW-5, the Superintendent, who was part of the raiding
  party. PW-5 cannot be called an independent officer. PW-
  10 could not have given a third option to the respondents
  when s. 50(1) of the NDPS Act does not provide for it and
  when such option would frustrate the provisions of s.             c
  50(1) of the NDPS Act. On this ground also, the search
  conducted by PW-10 is vitiated. Breach of s. 50(1) of the
  NDPS Act has vitiated the search. The conviction of the
  respondents was, therefore, illegal. The respondents
  have rightly been acquitted by the High Court. [para 15]          0
  [533-G-H; 534-A-D]
                      Case Law Reference:
    1997 (1) CRIMES 242          approved               Para 6
    2001 (1) CRIMES 586          approved               Para 6      E
    (1994) 3 sec 299             relied on              para 8
    (1996) 2 sec 37              stood disapproved para 8
    1999 (3) SCR 977             relied on              para 8
                                                                    F
    1999 (2) Suppl. SCR 670 referred to                 para 9
    2005 (3) SCR 417             referred to            para 9
    2006 (9) Suppl. SCR 390 relied on                   para 10
    c2009) 16 sec 644            relied on              para 11     G
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No. 78 of 2005.

     From the Judgment & Order dated 14.11.2003 of the High
 Court of Judicatue for Rajasthan at Jaipur Bench, Jaipur in S.B.   H
    526      SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A   Criminal Appeal No. 788 of 1998.

      lmtiaz Ahmed, Naghma lmtiaz, Milind Kumar, S.S.
  Shamshery, Bharat Sood, Varun Punia, Sandeep Singh, Ritesh
  Prakash Yadav, Harshvardhan Singh Rathore, Amit Sharma,
B Ruchi Kohli for the Appellant.

        Nidhi, D.K. Thakur, Devendra Jha, Debasis Misra for the
    Respondents.

          The Judgment of the Court was delivered by
c       (SMT.) RANJANA PRAKASH DESAI, J. 1. The
    respondents were tried by the Special Judge (NDPS Cases),
    Chhabra, District Baran for offences under Section 8 read with
    Section 18 and under Section 8 read with Section 29 of the
    Narcotic Drugs and Psychotropic Substances Act, 1985 (the
0   NDPS Act).

          2. The case of the prosecution was that on 13/10/1997
    during Kota Camp at lklera, P.N. Meena, Sub-Inspector, Office
    of.the Narcotics Commissioner, Kota received information at
E   1900 hours in the evening that the respondents were to
    handover about 10 Kg opium on 14/10/1997 in the moming
    between 4.00 a.m. to 6.00 a.m. at Nangdi-Tiraha, lklera,
    Chhipabaraud Road to a smuggler. This information was
    entered by SI Meena in the diary and he forwarded it to the
F   Investigating Officer J.S. Negi, Superintendent. J.S. Negi sent
    this information through Constable B.L. Meena to Assistan~
    Narcotic Commissioner, Kota. Thereafter, raiding party was
    formed. The raiding party was headed by Superintendent J.S.
    Negi. The raiding party reached Nangdi-Tira.ha by a
G   Government vehicle. Independent witnesses Ramgopal and
    Gopal Sir.igh were called by SI Qureshi. Their consent was
    obtained. At about 4.25 a.m., .the respondents came from the
    village Rajpura. On seeing the raiding party, they tried to run
    away but they were stopped. Enquiry was made with both the
H   respondent!i in the presooce of the independent witnesses by
    STATE OF RAJASTHAN v. PARMANAND & ANR.                    527
          [RANJANA PRAKASH DESAI, J.]
, SI Qureshi. The respondents gave their names. Respondent A
  No. 1 Parmanand had one white colour gunny bag of manure
  in his left hand. SI Qureshi told the respondents that he had to
  take their search. They were told about the provisions of Section
  50 of the NDPS Act. They were told that under Section 50(1)
  of the NDPS Act, they had a right to get themselves searched B
  in the presence of any nearest Magistrate or any gazetted
  officer or in the presence of Superintendent J.S. Negi of the
  raiding party. One written notice to that effect was given to them.
  On this notice, appellant Surajmal gave consent in writing in
  Hindi for himself and for appellant Parmanand and stated that c
  they are ready to get themselves searched by SI Qureshi in the
  presence of Superintendent J.S. Negi. He also put his thumb
  impression. Thereafter, bag of respondent No. 1 Parmanand
  was searched by SI Qureshi.· Inside the bag in a polythene bag
  some black material was found. The respondents told him that
                                                                      0
  it was opium and they had brought it from the village. The weight
  of the opium was 9 Kg. 600 gms. Necessary procedure of
  drawing samples and sealing was followed. The respondents
  were arrested. After completion of the investigation, respondent
  no. 1 Parmanand was charged for offence under Section 8 read
  with Section 18 of the NDPS Act and respondent No.2 E
  Surajmal was charged for offence under Section 8 read with
  Section 18 and for offence under Section 8 read with Section
  29 of the NDPS Act. The prosecution examined 11 witnesses.
  The important witnesses are PW-5 J.S. Negi, the
  Superintendent, PW-9 SI Meena and PW-10 SI Qureshi. The F
  respondents pleaded not guilty to the charge. They contended
  that the police witnesses had conspired and framed them.The
  case is false.

      3. Learned Special Judge convicted respondent No.1             G
  Parmanand under Section 8 read with Section 18 of the NDPS
  Act and respondent No.2 Surajmal under Section 8 read with
  Section 28 of the NDPS Act. They were sentenced for 10
  years rigorous imprisonment each and a fine of Rs.10 lakhs
  each. In de.fault of payment of fine, they were sentenced to       H
              I
     528       SUPREME COURT REPORTS               [2014] 3 S.C.R.


A undergo rigorous irnprisonment for two years.

       4. Aggrieved by the said judgment and order, the
  respondents preferred an appeal to the Rajasthan High Court.
  By the impugned order, the Rajasthan High Court acquitted the
B respondents. Hence, this appeal by the State.

        5. Mr. lmtiaz Ahmed, learned counsel for the State of
   Rajasthan submitted that the High Court was wrong in coming
  to the conclusion that there was no compliance with Section 50
  of the NDPS Act. Counsel submitted that PW-10 SI Qureshi
C has clearly stated that the respondents were communicated
  their right under Section 50(1) of the NDPS Act. A written notice
  was also given to them and only after they consented to be
  searched by PW-10 SI Qureshi in the presence of PW-5 J.S.
  Negi, the Superintendent, that the search of their person and
D search of bag of respondent No.1 Parmanand was conducted.
  Counsel submitted that the High Court was also wrong in
  disbelieving independent pancha witnesses. Counsel urged
  that the impugned order is perverse and deserves to be set
  aside.
E
        6. Ms. Nidhi, learned counsel for the respondents, on the
  other hand, submitted that admittedly notice under Section 50
  of the NDPS Act was a joint notice. The respondents were
  entitled to individual notice. The search is, therefore, vitiated.
  In this connection, counsel relied on judgment of the Punjab and
F Haryana High Court in Paramjit Singh and Anr. v. State of
  Punjab 1 and judgment of the Bombay High Court in
    Dharamveer Lekhram Sharma and Another v. The State of
    Maharashtra and Ors. 2. Counsel submitted that search was a
  farce. The High Court has, therefore, rightly acquitted the
G respondents.

        7. The question is whether Section 50 of the NDPS Act
    was complied with or not. Before we go to the legalities, it is
    1.   1997 (1) CRIMES 242.
H   2.   2001 (1) CRIMES 586.
     STATE OF RAJASTHAN v. PARMANAND & ANR.                     529
            [RANJANA PRAKASH DESAI, J.]
necessary to see what exactly the important police witnesses           A
have stated about compliance of Section 50 of the NDPS Act.
The gist of the evidence of the police witnesses PW-5 J.S. Negi,
the Superintendent, PW-9 SI Meena and PW-10 SI Qureshi is
that the respondents were informed that they have a right to be
searched in the presence of a gazetted officer or a nearest            B
Magistrate or before J.S. Negi, the Superintendent, who was
present there. They were given a written notice. On that notice,
respondent No.2 gave his consent in Hindi in his handwriting
that he and respondent No.1 Parmanand are agreeable to be
searched by PW-10 SI Qureshi in the presence of PW-5 J.S.              c
Negi, the Superintendent. He signed on the notice in Hindi and
put his thumb impression. Respondent No.1 Parmanand did not
sign. There is nothing to show that respondent No.1 Parmanand
had given independent consent. Search was conducted. PW-
10 SI Qureshi did not find anything on the person of the               0
respondents. Later on, he searched the bag which was in the
left hand of respondent No.1 - Parmanand. In the bag, he found
black colour material which was tested by chemical kit. It was
found to be opium.

       8. In State of Punjab v. Balbir Singh, 3 this Court held that   E
Section 50 of the NDPS Act is mandatory and non-compliance
thereof would vitiate trial. In State of Himachal Pradesh v. Pirthi
Chand, 4 this Court held that breach of Section 50 does not
affect the trial. There were divergent views on this aspect and,
therefore, a reference was made to the Constitution Bench. Out         F
of the three questions of law, which the Constitution Bench dealt
with in State of Punjab v. Baldev Singh, 5 the question which
is relevant for the present case is whether it is the mandatory
requirement of Section 50 of the NDPS Act that when an officer
duly authorized under Section 42 of the NDPS Act is about to           G
search a person, he must inform him of his right under sub-
section (1) thereof of being taken to the nearest gazetted officer
3.    (1994) 3 sec 299.
4.    (1996) 2 sec 37.
5.    (1999) 6 sgc 112.                                                H
    530         SUPREME COURT REPORTS                 (2014] 3 S.C.R


A or nearest Magistrate The conclusions drawn by the
  Constitution Bench, which are relevant for this case could be
  quoted.

          "(1) That when an empowered officer or a duly
               authorised officer acting on prior information is
B
               about to search a person, it is imperative for him
               to inform the person concerned of his right under
               sub-section (1) of Section 50 of being taken to the
               nearest gazetted officer or the nearest Magistrate
               for making the search. However, such information
c              may not necessarily be in writing.

          (2)    That failure to inform the person concerned about
                 the existence of his right to be searched before a
                 gazetted officer or a Magistrate would cause
D                prejudice to an accused.

          (3)    That a search made by an empowered officer, on
                 prior information, without informing the person of
                 his right that if he so requires, he shall be taken
                 before a gazetted officer or a Magistrate for search
E
                 and in case he so opts, failure to conduct his
                 search before a gazetted officer or a Magistrate,
                 may not vitiate the trial but would render the
                 recovery of the illicit article suspect and vitiate the
                 conviction and sentence of an accused, where the
F                conviction has been recorded only on the basis
                 of the possession of the illicit article, recovered
                 from his person, during a search conducted in
                 violation of the provisions of Section 50 of the Act."

G        9. In this case, the conviction is solely based on recovery
    of opium from the bag of respondent No.1 - Parmanand. No
    opium was found on his person. In Kalema Tumba v. State of
    Maharashtra, 6 this Court held that if a person is carrying a bag
    or some other article with him and narcotic drug is recovered
H a.   (1999) a sec 257.
     STATE OF RAJASTHAN v. PARMANAND & ANR.                 531
           [RANJANA PRAKASH DESAI, J.]
from it, it cannot be said that it was found from his person and, A
therefore, it is not necessary to make an offer for search in the
presence of a gazetted officer or a Magistrate in compliance
of Section 50 of the NDPS Act. In State of Himachal Pradesh
v. Pawan Kumar,7 three-Judge Bench of this Court held that a
person would mean a human being with appropriate coverings B
and clothing and also footwear. A bag, briefcase or any such
article or container etc. can under no circumstances be treated
as a body of a human being. Therefore, it is not possible· to
include these articles within the ambit of the word "person"'
occurring in Section 50 of the NDPS Act. The question is, c
therefore, whether Section 50 would be applicable to this case
because opium was recovered only from the bag carried by
respondent No.1 - ~armanand.

     10. In Dilip & Anr. v. State of Madhya Pradesh, 8 on the
basis of information, search of the person of the accused was       D
conducted. Nothing was found on their person. But on search
of the scooter they were riding, opium contained in plastic bag
was recovered. This Court held that provisions of Section 50
might not have been required to be complied with so far as the
search of the scooter is concerned, but keeping in view the fact    E
that the person of the accused was also searched, it was
obligatory on the part of the officers to comply with the said
provisions, which was not done. This Court confirmed the
acquittal of the accused.
                                                                    F
     11. In Union of India v. Shah Alam, 9 heroin was first
recovered from the bags carried by the respondents therein.
Thereafter, their personal search was taken but nothing was
recovered from their person. It was urged that since personal
search did not lead to any recovery, there was no need to           G
comply with the provisions of Section 50 of the NDPS Act.
Following Dilip, it was held that since the provisions of Section
1.   c2005) 4 sec 350.
a.   c2001) 1 sec 450.
9.   (2009) 16 sec 644.                                             H
    532     SUPREME COURT REPORTS                 (2014] 3 S.C.R


A 50 of the NDPS Act were not complied with, the High Court
  was right in acquitting the respondents on that ground.

       12. Thus, if merely a bag carried by a person is searched
  without there being any search of his person, Section 50 of the
B NDPS Act will have no application. But if the bag carried by
  him is searched and his person is also searched, Section 50
  of the NDPS Act will have application. In this case, respondent
  No.1 Parmanand's bag was searched. From the bag, opium
  was recovered. His personal search was also carried out.
  Personal search of respondent No.2 Surajmal was also
C conducted. Therefore, in light of judgments of this Court
  mentioned in the preceding paragraphs, Section 50 of the
  NDPS Act will have application.

        13. It is now necessary to examine whether in this case,
D Section 50 of the NDPS Act is breached or not. The police
  witnesses have stated that the respondents were informed that
  they have a right to be searched before a nearest gazetted
  officer or a nearest Magistrate or before PW-5 J.S. Negi, the
  Superintendent. They were given a written notice. As stated by
E the Constitution Bench in Baldev Singh, it is not necessary to
  inform the accused person, in writing, of his right under Section
  50(1) of the NDPS Act. His right can be orally communicated
  to him. But, in this case, there was no individual communication
  of right. A common notice was given on which only respondent
F No.2 - Surajmal is stated to have signed for himself and for
  respondent No.1 - Parmanand. Respondent No.1 Parmanand
  did not sign.

       14. In our opinion, a joint communication of the right
  available under Section 50(1) of the NDPS Act to the accused
G would frustrate the very purport of Section 50. Communication
  of the said right to the person who is about to be searched is
  not an empty formality. It has a purpose. Most of the offences
  under the NDPS Act carry stringent punishment and, therefore,
  the prescribed procedure has to be meticulously followed.
H These are minimum safeguards available to an accused
  STATE OF RAJASTHAN v. PARMANAND & ANR.                    533
         [RANJANA PRAKASH DESAI, J.]
against the possibility of false involvement. The communication A
of this right has to be clear, unambiguous and individual. The
accused must be made aware of the existence of such a right.
This right would be of little significance if the beneficiary thereof
is not able to exercise it for want of knowledge about its
existence. A joint communication of the right may not be clear B
or unequivocal. It may create confusion. It may result in diluting
the right. We are, therefore, of the view that the accused must
be individually informed that under Section 50(1) of the NDPS
Act, he has a right to be searched before a nearest gazetted
officer or before a nearest Magistrate. ·Similar view taken by c
the Punjab & Haryana High Court in Paramjit Singh and the
 Bombay High Court in Dharamveer Lekhram Sharma meets
with our approval. It bears repetition to state that on the written
 communication of the right available under Section 50(1) of the
 NDPS Act, respondent No.2 Surajmal has signed for himself 0
 and for respondent No.1 Parmanand. Respondent No.1
 Parmanand has not signed on it at all. He did not give his
 independent consent. It is only to be presumed that he had
 authorized respondent No.2 Surajmal to sign on his behalf and
 convey his consent. Therefore, in our opinion, the right has not E
 been properly communicated to the respondents. The search
 of the bag of respondent No.1 Parnanand and search of person
 of the respondents is, therefore, vitiated and resultantly their
 conviction is also vitiated.

     15. We also notice that PW-10 SI Qureshi informed the         F
respondents that they could be searched before the nearest
Magistrate or before a nearest gazetted officer or before PW-
5 J.S. Negi, the Superintendent, who was a part of the raiding
party. It is the prosecution case that the respondents informed
the officers that they would like to be searched before PW-5       G
J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again
a breach of Section 50(1) of the NDPS Act. The idea behind
taking an accused to a nearest Magistrate or a nearest
gazetted officer, if he so requires, is to give him a chance of
being searched in the presence of an independent officer.          H
    534     SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A  Therefore, it was improper for PW-10 SI Qureshi to tell the
   respondents that a third alternative was available and that they
  could be searched before PW-5 J.S. Neg1, the Superintendent,
  who was part of the raiding party. PW-5 J S. Negi cannot be
  called an independent officer. We are not expressing any
B opinion on the question whether if the respondents had
  voluntarily expressed that they wanted fo be searched before
  PW-5 J.S. Negi, the search would have been vitiated or not.
  But PW-10 SI Qureshi could not have given a third option to
  the respondents when Section 50(1) of the NDPS Act does not
c provide for it and when such option would frustrate the
  provisions of Section 50(1) of the NDPS Act. On this ground
  also, in our opinion, the search conducted by PW-10 SI Qureshi
  is vitiated. We have, therefore, no hesitation in concluding that
  breach of Section 50(1) of the NDPS Act has vitiated the
  search. The conviction of the respondents was, therefore,
0
  illegal. The respondents have rightly been acquitted by the High
  Court. It is not possible to hold that the High Court's view is
  perverse. The appeal is, therefore, dismissed.

    R.P.                                       Appeal dimissed.