1996 JTR(SC) 1093
1996 3 AICLR 226 ; 1996 AIR(SCW) 3444 ; 1996 2 ALD(Cri)(SC) 919 ; 1996 33 AllCriC 645 ; 1996 2 ALT(Cri)(SC) 729 ; 1997 1 BLJR 43 ; 1996 3 CCR(SC) 84 ; 1996 3 CivCC 90 ; 1997 CriLR 76 ; 1996 3 Crimes(SC) 74 ; 1997 CriR(SC) 102 ; 1996 CrLJ 3996 ; 1996 2 EastCrC(SC) 433 ; 1996 6 JT 598 ; 1997 1 RCR(Cri) 565 ; 1996 3 RLW(Raj) 156 ; 1996 5 Scale 366 ; 1996 5 SCC 520 ; 1996 SCC(Cri) 1036 ; 1996 Supp3 SCR 760 ; 1996 KHC 3545 ; 1996 5 Supreme 507
1996(5) Supreme 507
SUPREME COURT OF INDIA
K. Ramaswamy & G.B. Pattanaik, JJ.
State of Punjab -Appellant
versus
Labh Singh etc. -Respondents
Criminal Appeal No. 730 of 1996 etc.
Decided on 19-7-1996
Counsel for the Parties :
For the Appellant : R.S. Suri, Advocate.
For the Respondents : Satish Vig, Advocate in Crl. A. No. 730/96. P.N. Puri, Advocate in Crl. A. No. 731/96.
IMPORTANT POINT
Section 50 of the Narcotic Drugs Psychotropic Substances Act contemplates right of the accused to be searched in the presence of a Gazetted Officer and each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down.
Act
Referred
:CONSTITUTION OF INDIA : Art.136
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.50
A) The appeals are adjudicated under the Narcotic Drugs and Psychotropic Substances Act, 1985, specifically invoking Section 50, which mandates that a search be conducted in the presence of a Gazetted Officer. The respondents were acquitted because they were not informed of this statutory right, and the court held that non-compliance with this mandatory requirement vitiates the trial. The validity of the prosecution was challenged on the ground of this infirmity, and the court relied on prior precedents to outline the conditions under which such non-compliance may or may not warrant interference, emphasizing that the right to be so informed is a valuable constitutional and statutory safeguard.
B) The key legal principles are that the accused has an indefeasible right to be searched in the presence of a Gazetted Officer under Section 50; the search officer must invariably inform the accused of this right and obtain written waiver; appreciation of evidence must consider the totality of circumstances including time, place, and risk of evidence destruction; and acquittal based on non-compliance is not lightly disturbed, especially after long delays, unless the court is satisfied on contemporaneous evidence.
Facts of the case:
The respondents were charged under the Narcotic Drugs and Psychotropic Substances Act, 1985. At trial, they were acquitted on the ground that they were not informed of their right to be searched in the presence of a Gazetted Officer as required by Section 50. No written evidence was produced to show that the accused were informed and had waived the right, and a substantial delay attended the proceedings.
Findings of Court:
The court found that the absence of information to the accused regarding the right under Section 50 was a fatal infirmity that vitiated the trial. It held that each case must be decided on the facts and circumstances, including the time of search, place of seizure, prior information to police, opportunity to secure the presence of a Gazetted Officer, and delay. In the instant appeals, the long delay and lack of written waiver led the court to decline interference with the acquittal.
Issues:
Whether the accused were informed of their right under Section 50 to be searched in the presence of a Gazetted Officer; whether the non-compliance with Section 50 vitiates the trial and mandates interference on appeal; and whether the long delay precludes interference with the acquittal.
Ratio Decidendi:
Section 50 imposes a mandatory requirement to inform the accused of the right to be searched in the presence of a Gazetted Officer, and violation vitiates the trial. However, interference with an acquittal is permissible only if the court is satisfied on the basis of contemporaneous evidence that the accused were informed and waived the right, taking into account the facts and circumstances, including delay, to prevent abuse.
Result:
The appeals are dismissed and the respondents are directed to be set at liberty forthwith.
A) The appeals are adjudicated under the Narcotic Drugs and Psychotropic Substances Act, 1985, specifically invoking Section 50, which mandates that a search be conducted in the presence of a Gazetted Officer. The respondents were acquitted because they were not informed of this statutory right, and the court held that non-compliance with this mandatory requirement vitiates the trial. The validity of the prosecution was challenged on the ground of this infirmity, and the court relied on prior precedents to outline the conditions under which such non-compliance may or may not warrant interference, emphasizing that the right to be so informed is a valuable constitutional and statutory safeguard.
B) The key legal principles are that the accused has an indefeasible right to be searched in the presence of a Gazetted Officer under Section 50; the search officer must invariably inform the accused of this right and obtain written waiver; appreciation of evidence must consider the totality of circumstances including time, place, and risk of evidence destruction; and acquittal based on non-compliance is not lightly disturbed, especially after long delays, unless the court is satisfied on contemporaneous evidence.
Facts of the case:
The respondents were charged under the Narcotic Drugs and Psychotropic Substances Act, 1985. At trial, they were acquitted on the ground that they were not informed of their right to be searched in the presence of a Gazetted Officer as required by Section 50. No written evidence was produced to show that the accused were informed and had waived the right, and a substantial delay attended the proceedings.
Findings of Court:
The court found that the absence of information to the accused regarding the right under Section 50 was a fatal infirmity that vitiated the trial. It held that each case must be decided on the facts and circumstances, including the time of search, place of seizure, prior information to police, opportunity to secure the presence of a Gazetted Officer, and delay. In the instant appeals, the long delay and lack of written waiver led the court to decline interference with the acquittal.
Issues:
Whether the accused were informed of their right under Section 50 to be searched in the presence of a Gazetted Officer; whether the non-compliance with Section 50 vitiates the trial and mandates interference on appeal; and whether the long delay precludes interference with the acquittal.
Ratio Decidendi:
Section 50 imposes a mandatory requirement to inform the accused of the right to be searched in the presence of a Gazetted Officer, and violation vitiates the trial. However, interference with an acquittal is permissible only if the court is satisfied on the basis of contemporaneous evidence that the accused were informed and waived the right, taking into account the facts and circumstances, including delay, to prevent abuse.
Result:
The appeals are dismissed and the respondents are directed to be set at liberty forthwith.
ORDER
Leave granted.
2. These appeals arise under the Narcotic Drugs and Psychotropic Substances Act,1985. The respondents were acquitted on trial on the ground that they were not informed of their valuable right that under Section 50 of the Act they were entitled to be searched in the presence of a Gazetted Officer. Violation thereof vitiates the trial as the accused have the statutory right to be searched. The absence of their information as to the said right is one of the infirmities to the validity of their prosecution.
3. The question was considered in State of Punjab v. Balbir Singh1. Subsequently, another Bench of this Court in State of Punjab v. Jasbir Singh2 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 a 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 as contempraneous evidence. Thereafter, it may not be open to the accused to take the plea 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 :
The matter of appreciation of evidence 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 was not inclined to accept the prosecution case in the absence of anything in writing, this Court confirmed the acquittal.
In State of Himachal Pradesh v. Prithi Chand & Anr.3, 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 seized in violation of the mandatory requirement does not ipso facto invalidates the trial. Section 50 contemplates 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 long delay in the matter, this Court declined to interfere with the discharge recorded by the Additional Sessions Judge.
4. In view of the settled legal position that the accused has valuable right to be informed of his right to be searched in the 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 in the light of the facts and circumstances in which the contraband was seized, viz., time when the search was conducted, 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 arrest or contraband would be destroyed or wisked away and host of all relevant attendant circumstances. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application 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 that the accused was informed of his right and that the same was waived taken by the officer who conducted the searched 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.
5. The appeals are accordingly, dismissed. The respondents are directed to be set at liberty forthwith.
Appeals dismissed.
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Parallel Citations of other Journals :
State of Punjab v. Labh Singh, 1996(5) Supreme 507 : JT 1996(6) SC 598 : 1996 (5) SCC 520
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