# Ikrar & Anr v. U.O.I

- **Citation:** (2024) 7 ILRA 1051
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-26
- **Case number:** Criminal Appeal No. 985 of 2002
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ikrar-anr-v-u-o-i-52182
- **Pages:** 12

## Headnote

SUBSTANCES Act-Section 50-Appellants
convicted-Admittedly Appellants were not
produced before the Gazetted Officer or
Magistrate u/s 50 of the Act -no written
consent of Appellants for his search -no
evidence to show that the accused was
communicated of his such right- breach of
sec.
50
and
sec.
43
of
the
Act-no
independent eye witness of the alleged
recovery-all witness are police personnelcase is based on circumstantial evidence -
guilt not established beyond a reasonable
doubt-impugned judgment set aside.

Appeal allowed. (E-9)

List of Cases cited:

## Text

7 All. Ikrar & Anr. Vs. U.O.I.
1051
21.

Consequences
to
follow.

22. It is needless to
mention that irrespective of the
aforesaid order having been set
aside, it would always be open for
the authorities to proceed against
the accused person namely Faiz
Abbas in accordance with law.
----------
(2024) 7 ILRA 1051
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.07.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 985 of 2002

Ikrar & Anr. ...Appellants
Versus
U.O.I. ...Respondent

Counsel for the Appellants:
A.P. Mishra

Counsel for the Respondent:
Rakesh Kumar Awasthi, Sm Singh Royekwar

NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES Act-Section 50-Appellants
convicted-Admittedly Appellants were not
produced before the Gazetted Officer or
Magistrate u/s 50 of the Act -no written
consent of Appellants for his search -no
evidence to show that the accused was
communicated of his such right- breach of
sec.
50
and
sec.
43
of
the
Act-no
independent eye witness of the alleged
recovery-all witness are police personnelcase is based on circumstantial evidence -
guilt not established beyond a reasonable
doubt-impugned judgment set aside.

Appeal allowed. (E-9)

List of Cases cited:
1. Vijaysinh Chandubha Jadeja Vs St. of Guj.,
2010 (2) EFR 755

2. St. of Rajasthan Vs Parmanand & anr., (2014)
2 SCC (Cri) 563

3. Vijaysinh Chandubha Jadeja Vs St. of Guj.,
2010 (2) EFR 755

4. St. Of Punjab Vs Baldev Singh [1999 (6) SCC
172]

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The case is taken up in the revised
call.

2. This criminal appeal Under
Section 374 (2) Cr.P.C. against the
judgement and order dated 29.7.2002
passed
by
Learned
Special
Judge,
B.D.P.S.Act, Lucknow in criminal case no.
650 of 1991 Under Section 8/21/29
N.D.P.S. Act, challaned by C.B. Mohd.
Ikrar and other Vs. Union of India by
which the appellants have been convicted
for 6 years R.I. and fine of Rs 25000/- each
with stipulate default

3. Considering the report of the
Chief Judicial Magistrate, Barabanki dated
05.03.2024, the appeal in respect of
appellant No.1-Ikrar has already been
abated vide order dated 03.07.2024. Thus,
the present appeal is decided on merit in
respect of appellant No.2-Sushail.

4. Heard Sri A.P.Mishra, learned
counsel for the appellant No.2-Suhail as
well as Sri S.M.Singh Royekwar, learned
counsel for the Union of India.

5.

The
Brief
fact
of
the
prosecution,
on
13.9.1991,
Inspector
received confidential information that two
individuals, Baijnath and Vinod, residents
of Motihari, Bihar, were staying at Anand
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
Hotel in Aminabad. They were expected to
receive a consignment of heroin from Ikrar
son of Moh. Anis and Suhail son of Nijju,
residents of Tikra Baraki village. Based on
this information a team was formed under
the orders of Superintendent Radhe Raman,
consisting of Inspector B.D. Pandey, S.I.
Jayant, and other officers. On 14.9.91, the
team surrounded Anand Hotel. Around 2
p.m., two suspicious individuals arrived on
a motorcycle (Registration No. R.26/3439)
and signaled towards the upper floor of the
hotel. Subsequently, Baijnath and Vinod
came out and engaged in conversation.
During this exchange, a small packet was
handed over to Vinod, who placed it in his
bag. The team then apprehended Baijnath
and Vinod.

6. On this allegation, Complainant
had lodged a written report at Police
Station-
N.C.B,
Lucknow
District-
Lucknow on 14.09.1991 Under Sections
8/21/29 N.D.P.S Act against appellants.

7. This case was entrusted to
investigating officer who investigated this
case and during investigation, he visited the
place of occurrence and prepared the site
plan ,recorded the statements of witnesses
and after completing the investigation,
investigating officer had submitted the
charge sheet against the appellant and other
accused persons.

8. That further after submission of
charge-sheet before Court of learned
Magistrate the said case was committed to
Court of Session wherein it was registered
as S.T. No. 650 of 1991 After committal,
the trial court framed charges against the
accused under Section 8/21/29 N.D.P.S Act.
The accused-appellant denied the charges
levelled against them and claimed to be
tried.
9. That in order to substantiate its
case,
prosecution
examined
Seven
witnesses
namely
PW-1
Inspector
Radheraman lal , PW-2 Rama Shankar
Prasad, PW-3 Inspector dina Nath Gupta,
PW-4 Constable Shiv Shankar Singh, PW-5
Investigating Officer Mohd.Naseem, P.W-6
Constable Cheda Lal , P.W-7 B.D Panday.

10. The Appellant Ikrar, in his
statement under Section 313 Cr.P.C., denied
involvement in the incident. He claimed
that he was not present at the scene and that
his signatures were forcibly taken by
Abhay Kumar at the D.N.C. office in
Lucknow on 14.9.91. Suhel also denied the
allegations, stating that no statement was
taken from him and his signatures were
obtained under duress.

11. The learned counsel for the
appellant submitted that the trial court
failed to properly consider the evidence
adduced by the defense. The judgment and
order were passed solely on the basis of the
prosecution's
evidence,
which
is not
sustainable under the law. Thus, the
conviction order is against the principles of
justice.

12. The learned counsel further
argued that the prosecution failed to
produce any independent witnesses to
corroborate their story. The explanation
provided for not producing such witnesses
is inadequate and not acceptable in the eyes
of the law. This failure undermines the
credibility of the prosecution's case.

13. The learned counsel further
submitted that Section 50 of the N.D.P.S.
Act is a mandatory provision. The arresting
officer
has
not
complied
with
that
provision. As such, the recovery is illegal
which vitiates the trial. Learned counsel
7 All. Ikrar & Anr. Vs. U.O.I.
1053
further submitted that the alleged place of
recovery is public place but no effort to
invite the public witness at the time of
recovery was made by the police party.
Learned
trial
Court
without
proper
appreciation of the evidence available on
record has illegally convicted the appellant
vide impugned judgment and order which
is liable to be set aside as the prosecution
has miserably failed to prove its case
beyond reasonable doubt. In support of his
argument learned counsel for the appellant
has placed reliance on law laid down by
Hon'ble Supreme Court in Vijaysinh
Chandubha Jadeja Vs. State of Gujarat,
2010 (2) EFR 755 and State of Rajasthan
Vs. Parmanand and another, (2014) 2
SCC (Cri) 563.

14. The learned counsel further
submitted that the individuals from whom
narcotics were allegedly recovered have
been acquitted in the same case. However,
the present appellants, from whom nothing
was recovered, have been convicted. This
inconsistency is unjust and against the law.

15. The learned counsel further
submitted that The prosecution has failed to
prove its case beyond a reasonable doubt.
The
learned
trial
court
overlooked
significant legal aspects and evidence
presented by the defense, leading to an
erroneous
judgment
and
order
of
conviction. The prosecution's case was
based
on
conjecture
and
insufficient
evidence.

16. The learned counsel for Union
of India for the respondent submitted that
the trial court's judgment and order dated
29.7.2002, convicting the appellants under
various provisions of the Narcotic Drugs
and Psychotropic Substances (N.D.P.S.)
Act, 1985, were well-founded and based on
substantial
evidence.
The
primary
arguments made by the learned counsel for
the Union of India are summarized as
follows:

17. The learned counsel for Union
of India further submitted that The
prosecution presented a coherent and
consistent narrative supported by the
testimonies of investigating officers and
other material evidence. The trial court
duly considered all evidence on record
before passing the judgment of conviction.

18. The learned counsel for Union
of India further submitted that The acquittal
of other individuals involved in the case
does not undermine the evidence against
the appellants. Each accused's case was
evaluated on its own merits, and the
evidence
specifically
incriminated
the
appellants
in
the
possession
and
distribution of narcotics.

19. The learned counsel for Union
of India further submitted that The
prosecution successfully discharged its
burden of proving the appellants' guilt
beyond a reasonable doubt. The evidence
on record, including the recovery of
narcotics and the appellants' involvement in
the transaction, was sufficient to establish
the charges against them.

20. After considering the argument
advanced by learned counsel for the parties,
this Court finds that the prosecution's case
rests heavily on the testimonies of the
investigating
officers
and
lacks
corroboration from independent witnesses.
Moreover,
the
failure
to
fulfil
the
requirements of Section 50 of the N.D.P.S.
Act, and also the prosecution's failure to
produce
independent
witnesses
to
corroborate
the
testimonies
of
the
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
investigating officers is a significant lapse.
Independent witnesses play a crucial role in
lending credibility to the prosecution's case,
especially in matters involving serious
allegations under the N.D.P.S. Act. The
absence of such witnesses, without a
satisfactory explanation, undermines the
reliability of the prosecution's evidence.

21. Severe punishment has been
provided in the N.D.P.S. Act to check the
misuse of this Act by the police personnel
or
officers
and
certain
safeguards
particularly Section 50 of N.D.P.S. Act has
been incorporated in this Act that search of
the suspected person must be done before
the
Magistrate
or
Gazetted
Officer.
Similarly Section 55 and 57 of N.D.P.S. Act
provides that seized contraband article be
kept by Station House Officer in safe
custody and report of arrest and seizure be
sent immediately to immediate Superior
Officer within 48 hours.

Section -50 of N.D.P.S ACT, 1986
is reproduced here-as-under:
Conditions under which search of
persons shall be conducted.

(1) When any officer duly
authorised under section 42 is
about to search any person under
the provisions of section 41, section
42 or section 43, he shall, if such
person so requires, take such
person without unnecessary delay
to nearest Gazetted Officer of any
of the departments mentioned in
section 42 or to the nearest
Magistrate.
(2) If such requisition is
made, the officer may detain the
person until he can bring him
before the Gazetted Officer or the
Magistrate referred to in subsection (1).
(3) The Gazetted Officer or
the Magistrate before whom any
such person is brought shall, if he
sees no reasonable ground for
search, forthwith discharge the
person but otherwise shall direct
that search be made.
(4) No female shall be
searched by anyone excepting a
female.
(5) When an officer duly
authorised under section 42 has
reason to believe that it is not
possible to take the person to be
searched to the nearest Gazetted
Officer or Magistrate without the
possibility of the person to be
searched parting with possession of
any narcotic drug or psychotropic
substance, or controlled substance
or article or document, he may,
instead of taking such person to the
nearest
Gazetted
Officer
or
Magistrate, proceed to search the
person
as
provided
under
section100 of the Code of Criminal
Procedure, 1973 (2 of 1974).

(6) After
a
search
is
conducted under sub-section (5),
the officer shall record the reasons
for such belief which necessitated
such search and within seventy-two
hours send a copy thereof to his
immediate official superior.

22. Hon'ble Supreme Court in
Vijaysinh Chandubha Jadeja Vs. State of
Gujarat, 2010 (2) EFR 755, while
discussing the importance and relevancy of
section 50 of N.D.P.S. Act, in para-22, has
opined as under:-
7 All. Ikrar & Anr. Vs. U.O.I.
1055
"22.
In
view
of
the
foregoing discussion, we are of the
firm opinion that the object with
which right under Section 50(1) of
the NDPS Act, by way of a
safeguard, has been conferred on
the suspect, viz. to check the misuse
of power, to avoid harm to innocent
persons
and
to
minimise
the
allegations of planting or foisting
of
false
cases
by
the
law
enforcement agencies, it would be
imperative on the part of the
empowered officer to apprise the
person intended to be searched of
his right to be searched before a
gazetted officer or a Magistrate.
We have no hesitation in holding
that in so far as the obligation of
the authorised officer under subsection (1) of Section 50 of the
NDPS Act is concerned, it is
mandatory and requires a strict
compliance. Failure to comply with
the provision would render the
recovery of the illicit article suspect
and vitiate the conviction if the
same is recorded only on the basis
of the recovery of the illicit article
from the person of the accused
during such search. Thereafter, the
suspect may or may not choose to
exercise the right provided to him
under
the
said
provision. As
observed in Re Presidential Poll
(1974) 2 SCC 33, it is the duty of the
courts to get at the real intention of
the Legislature by carefully attending
to the whole scope of the provision to
be construed. "The key to the opening
of every law is the reason and spirit of
the law, it is the animus imponentis,
the intention of the law maker
expressed in the law itself, taken as a
whole." We are of the opinion that the
concept of "substantial compliance"
with the requirement of Section 50 of
the NDPS Act introduced and read
into the mandate of the said Section in
Joseph
Fernandez
(supra)
and
Prabha Shankar Dubey (supra) is
neither borne out from the language
of sub-section (1) of Section 50 nor it
is in consonance with the dictum laid
down in Baldev Singh's case (supra).
Needless to add that the question
whether
or
not
the
procedure
prescribed has been followed and the
requirement of Section 50 had been
met, is a matter of trial. It would
neither be possible nor feasible to lay
down any absolute formula in that
behalf. We also feel that though
Section 50 gives an option to the
empowered officer to take such
person (suspect) either before the
nearest gazetted officer or
the
Magistrate but in order to impart
authenticity,
transparency
and
creditworthiness
to
the
entire
proceedings, in the first instance, an
endeavour should be to produce the
suspect before the nearest Magistrate,
who enjoys more confidence of the
common man compared to any other
officer. It would not only add
legitimacy to the search proceedings,
it
may
verily
strengthen
the
prosecution as well."

23. Hon'ble Supreme Court in
State of Rajasthan Vs. Parmanand and
another, (2014) 2 SCC (Cri) 563, again in
paragraph-17, has opined as under:-

"In our opinion, a joint
communication
of
the
right
available under Section 50(1) of
the NDPS Act to the accused would
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
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. These are
minimum safeguards available to
an accused against the possibility
of
false
involvement.
The
communication 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 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 the Punjab & Haryana
High Court in Paramjit Singh and
the
Bombay
High
Court
in
Dharamveer
Lekhram
Sharma
meets with our approval."

24.

In
addition
to
above,
admittedly the appellant, prior to his
search, was not produced before any
Gazetted Officer or Magistrate, whereas
according to prosecution before his search
the police personnel were informed by the
appellant that he was carrying the charas.
Prosecution has also not produced any
written consent of the appellant for his
search. From perusal of testimony of
prosecution witnesses, it does not transpire
that any efforts were made by them to
produce the appellant before any Gazetted
Officer or Magistrate, as required by
Section 50 of N.D.P.S. Act, in view of law
laid down by Apex Court in Vijaysinh
Chandubha Jadeja (Supra).

25. It is a matter of fact that the
Investigating
Officer
acted
on
prior
information as deposed by him below
Exhibit-18 as PW . In view of such
position, PW-1 , complainant-IO while
acting on prior information and before
making search of a person, it is imperative
for him to inform the respondent-accused
about his right to sub-section (1) of Section
50 of the NDPS Act for being taken to the
nearest Gazetted Officer or the Magistrate
for making search in their presence. It also
appears that neither such procedure is
followed; nor any note to the said effect is
made in the Panchnama drawn while
making search of the person of the
respondent-accused.

As laid down in the case of
State Of Punjab vs Baldev Singh
[1999 (6) SCC 172],

18. A three-Judge Bench in
Saiyad Mohd. Saiyad Umar Saiyad
v. State of Gujarat [(1995) 3 SCC
610 : 1995 SCC (Cri) 564] upheld
the view taken in Balbir Singh case
[(1994) 3 SCC 299 : 1994 SCC
(Cri) 634] on the point of duty of
the empowered officer to inform the
suspect about his right to be
searched before a gazetted officer
or a Magistrate. It considered the
7 All. Ikrar & Anr. Vs. U.O.I.
1057
provisions of Section 50 and
opined: (SCC p. 615, para 8)
"8. We are unable to share
the High Court's view that in cases
under the NDPS Act it is the duty of
the court to raise a presumption,
when the officer concerned has not
deposed that he had followed the
procedure mandated by Section 50,
that he had in fact done so. When
the officer concerned has not
deposed that he had followed the
procedure mandated by Section 50,
the court is duty-bound to conclude
that the accused had not had the
benefit of the protection that
Section 50 affords; that, therefore,
his possession of articles which are
illicit under the NDPS Act is not
established; that the precondition
for
his
having
satisfactorily
accounted for such possession has
not been met; and to acquit the
accused."
19. In State of H.P. v. Pirthi
Chand [(1996) 2 SCC 37 : 1996
SCC (Cri) 210] the Bench agreed
with the view in Balbir Singh case
[(1994) 3 SCC 299 : 1994 SCC
(Cri) 634] regarding the duty to
inform the suspect of his right as
emanating from Section 50 of the
NDPS Act. The Court opined: (SCC
p. 41, para 3)
"Compliance
of
the
safeguards
in
Section
50
is
mandatory obliging the officer
concerned to inform the person to
be searched of his right to demand
that search could be conducted in
the presence of a gazetted officer or
a Magistrate. The possession of
illicit
articles
has
to
be
satisfactorily established before the
court. The officer who conducts
search must state in his evidence
that he had informed the accused of
his right to demand, while he is
searched, in the presence of a
gazetted officer or a Magistrate
and that the accused had not
chosen to so demand. If no
evidence to that effect is given, the
court must presume that the person
searched was not informed of the
protection the law gives him and
must find that possession of illicit
articles was not established. The
presumption under Article 114
Illustration (e) of the Evidence Act,
that the official duty was properly
performed, therefore, does not
apply."
20. In State of Punjab v.
Labh Singh [(1996) 5 SCC 520 :
1996 SCC (Cri) 1036] again it was
reiterated that the accused has
been provided with a protection of
being informed of his right to be
searched in the presence of a
gazetted officer or a Magistrate
and failure to give an opportunity
to the person concerned to avail of
the protection would render the
prosecution case unsustainable.
21. In State of Punjab v.
Jasbir Singh [(1996) 1 SCC 288 :
1996 SCC (Cri) 1] it was opined:
(SCC p. 289, para 2)
"2. Having considered the
evidence we find it difficult to set
aside
the
order
of
acquittal
recorded by the Additional Sessions
Judge. Though the offence involved
is of a considerable magnitude of
70 bags containing 34 kgs of poppy
husk,
each
without
any
permit/licence,
this
Court
is
constrained to confirm the acquittal
for the reasons that the mandatory
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
requirements of Section 50 of
Narcotic Drugs and Psychotropic
Substances Act, 1985 has not been
complied with. Protection given by
Section 50 is a valuable right to the
offender and compliance thereof
intended to be mandatory. In case
the
police
officers
had
prior
knowledge that illegal transport of
the contraband is in movement and
persons are in unlawful possession
and intends to intercept it, conduct
search and consequentially to seize
the contraband, they are required
to inform the offender that he has
the right that the search will be
conducted in the presence of a
gazetted officer or a Magistrate.
Thereafter on their agreeing to be
searched by the police officers, the
search
and
seizure
of
the
contraband from their unlawful
possession would become legal and
valid.
However,
the
evidence
collected in breach of mandatory
requirement
does
not
become
inadmissible. It is settled law that
evidence
collected
during
investigation in violation of the
statutory
provisions
does
not
become inadmissible and the trial
on the basis thereof does not get
vitiated. Each case is to be
considered on its own backdrop."
22. In Ali Mustaffa Abdul
Rahman Moosa v. State of Kerala
[(1994) 6 SCC 569 : 1995 SCC
(Cri) 32] a two-Judge Bench of this
Court (to which one of us, C.J., was
a party) it had been found that the
appellant had not been given any
choice as to whether he desired to
be searched in the presence of a
gazetted officer or a Magistrate as
envisaged under Section 50 of the
NDPS Act. The argument raised in
that case to the effect that Section
50 of the Act could not be said to
have been violated because the
appellant did not "require" to have
himself searched before a gazetted
officer or a Magistrate was rejected
following the law laid down in
Balbir Singh case [(1994) 3 SCC
299 : 1994 SCC (Cri) 634] . The
Court opined that to enable the
person concerned to require that
his search be carried out in the
presence of a gazetted officer or a
Magistrate makes, it is obligatory
on the part of the empowered
officer
to
inform
the
person
concerned that he has a right to
require his search to be conducted
in the presence of a gazetted officer
or a Magistrate.
23. In Mohinder Kumar v.
State, Panaji, Goa [(1998) 8 SCC
655] a three-Judge Bench (to which
one of us, Sujata V. Manohar, J.,
was a party) once again considered
the requirements of Sections 42 and
50 of the Act. In that case the
police
officer
"accidentally"
reached the house while on patrol
duty and had it not been for the
conduct of the accused persons in
trying to run into the house on
seeing the police party, he would
perhaps not have had any occasion
to enter the house and effect
search. But when the conduct of the
accused persons raised a suspicion,
he went into the house and effected
the
search,
seized
the
illicit
material and caused the arrest. The
Court opined that in the facts and
circumstances of the case, when the
investigating officer accidentally
stumbled
upon
the
offending
7 All. Ikrar & Anr. Vs. U.O.I.
1059
articles and himself not being the
empowered officer, then on coming
to know that the accused persons
were in possession of illicit articles,
then from that stage onwards he
was under an obligation to proceed
further in the matter only in
accordance with the provisions of
the Act. On facts it was found that
the investigating officer did not
record the grounds of his belief at
any stage of the investigation,
subsequent to his realising that the
accused persons were in possession
of charas and since he had made
no record, he did not forward a
copy of the grounds to his superior
officer nor did he comply with the
provisions of Section 50 of the Act,
inasmuch as he did not inform the
person to be searched that if he
required, his search could be
conducted before a gazetted officer
or a Magistrate. The Bench held
that for failure to comply with the
provisions of Sections 42 and 50,
the accused was entitled to an
order of acquittal and consequently
the appeal was allowed and the
order of conviction and sentence
against the accused was set aside.
24. It would, thus, be seen
that none of the decisions of the
Supreme Court after Balbir Singh
case [(1994) 3 SCC 299 : 1994
SCC (Cri) 634] have departed from
that opinion. At least none has been
brought to our notice. There is,
thus,
unanimity
of
judicial
pronouncements to the effect that it
is an obligation of the empowered
officer
and
his
duty
before
conducting the search of the person
of a suspect, on the basis of prior
information, to inform the suspect
that he has the right to require his
search being conducted in the
presence of a gazetted officer or a
Magistrate and that the failure to
so inform the suspect of his right,
would render the search illegal
because the suspect would not be
able to avail of the protection
which is inbuilt in Section 50.
Similarly, if the person concerned
requires, on being so informed by
the
empowered
officer
or
otherwise, that his search be
conducted in the presence of a
gazetted officer or a Magistrate,
the empowered officer is obliged to
do so and failure on his part to do
so would also render the search
illegal and the conviction and
sentence of the accused bad.
25. To be searched before a
gazetted officer or a Magistrate, if
the suspect so requires, is an
extremely valuable right which the
legislature has given to the person
concerned having regard to the
grave consequences that may entail
the possession of illicit articles
under the NDPS Act. It appears to
have been incorporated in the Act
keeping in view the severity of the
punishment. The rationale behind
the provision is even otherwise
manifest. The search before a
gazetted officer or a Magistrate
would
impart
much
more
authenticity and creditworthiness to
the search and seizure proceeding.
It would also verily strengthen the
prosecution case. There is, thus, no
justification for the empowered
officer, who goes to search the
person, on prior information, to
effect the search, of not informing
the
person
concerned
of
the
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
existence of his right to have his
search conducted before a gazetted
officer or a Magistrate, so as to
enable him to avail of that right. It
is, however, not necessary to give
the information to the person to be
searched about his right in writing.
It is sufficient if such information is
communicated
to
the
person
concerned orally and as far as
possible in the presence of some
independent
and
respectable
persons witnessing the arrest and
search.
The
prosecution
must,
however, at the trial, establish that
the
empowered
officer
had
conveyed the information to the
person concerned of his right of
being searched in the presence of a
Magistrate or a gazetted officer, at
the time of the intended search.
Courts have to be satisfied at the
trial of the case about due
compliance with the requirements
provided
in
Section
50.
No
presumption under Section 54 of
the Act can be raised against an
accused, unless the prosecution
establishes it to the satisfaction of
the court, that the requirements of
Section 50 were duly complied
with.
26.
The
safeguard
or
protection to be searched in the
presence of a gazetted officer or a
Magistrate has been incorporated
in Section 50 to ensure that persons
are only searched with a good
cause and also with a view to
maintain the veracity of evidence
derived from such search. We have
already
noticed
that
severe
punishments have been provided
under the Act for mere possession
of
illicit
drugs
and
narcotic
substances. Personal search, more
particularly for offences under the
NDPS Act, are critical means of
obtaining evidence of possession
and it is, therefore, necessary that
the safeguards provided in Section
50 of the Act are observed
scrupulously. The duty to inform
the suspect of his right to be
searched in the presence of a
gazetted officer or a Magistrate is a
necessary sequence for enabling
the person concerned to exercise
that right under Section 50 because
after Maneka Gandhi v. Union of
India [(1978) 1 SCC 248] it is no
longer permissible to contend that
the right to personal liberty can be
curtailed even temporarily, by a
procedure
which
is
not
"reasonable, fair and just" and
when a statute itself provides for a
"just" procedure, it must be
honoured. Conducting a search
under
Section
50,
without
intimating to the suspect that he
has a right to be searched before a
gazetted officer or a Magistrate,
would
be
violative
of
the
"reasonable,
fair
and
just
procedure" and the safeguard
contained in Section 50 would be
rendered
illusory,
otiose
and
meaningless. Procedure based on
systematic
and
unconscionable
violation of law by the officials
responsible for the enforcement of
law, cannot be considered to be a
"fair",
just
or
reasonable
procedure. We are not persuaded to
agree that reading into Section 50,
the existence of a duty on the part
of
the
empowered
officer,
to
intimate to the suspect, about the
existence of his right to be searched
7 All. Ikrar & Anr. Vs. U.O.I.
1061
in the presence of a gazetted officer
or a Magistrate, if he so requires,
would place any premium on
ignorance of the law. The argument
loses sight of a clear distinction
between ignorance of the law and
ignorance of the right to a
"reasonable,
fair
and
just
procedure".
27. Requirement to inform
has been read in by this Court in
other circumstances also, where the
statute did not explicitly provide for
such
a
requirement.
While
considering the scope of Article
22(5) of the Constitution of India
and various other provisions of the
COFEPOSA Act and the NDPS Act
as amended in 1988, a Constitution
Bench
of
this
Court
in
Kamleshkumar Ishwardas Patel v.
Union of India [(1995) 4 SCC 51 :
1995 SCC (Cri) 643] concluded:
(SCC p. 59, para 14)
"14. Article 22(5) must,
therefore, be construed to mean
that the person detained has a right
to make a representation against
the order of detention which can be
made not only to the Advisory
Board but also to the detaining
authority, i.e., the authority that
has made the order of detention or
the order for continuance of such
detention, which is competent to
give immediate relief by revoking
the said order as well as to any
other authority which is competent
under law to revoke the order for
detention and thereby give relief to
the person detained. The right to
make
a
representation
carries
within
it
a
corresponding
obligation on the authority making
the order of detention to inform the
person detained of his right to
make a representation against the
order of detention to the authorities
who are required to consider such a
representation."

26. Thus, there is breach or
violation of Section 50 of the NDPS Act on
behalf of the prosecution, because it is a
statutory requirement of writing down or
conveying information to Superior Officer.

In the case on hand, neither such
intimation is sent to Superior Officer; nor any
entry is made in the station diary. the
respondent-accused must be made aware of
his right for being search to be carried out in
presence of a Gazetted Officer or a Magistrate.
Learned Public Prosecutor could not point out
any evidence or document showing that
respondent-accused was made aware of his
right before the Magistrate or Gazetted Officer.
On perusal of deposition of PW, the
complainant, no evidence has been adduced to
show
that
respondent-accused
was
communicated of his such right and thus there
is a noncompliance of provisions of Section 50
read with Section 43 of the NDPS Act.

27. Section 50 of the N.D.P.S. Act
mandates that the accused must be
informed of their right to be searched in the
presence of a Gazetted Officer or a
Magistrate. This is a crucial safeguard to
ensure the fairness of the search process
and to protect the rights of the accused. In
this case, there is clear non-compliance
with this mandatory provision, rendering
the search and subsequent seizure legally
flawed. The prosecution's failure to adhere
to
this
statutory
requirement
further
weakens its case.

28. Admittedly, the prosecution
has not produced other independent eye-
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses of the alleged recovery and even
no explanation has been offered by the
prosecution for their non-production. All
the witnesses are police personnel. Nonproduction of independent eye witness is
serious lacuna which has made the
prosecution case very doubtful.

29. The defense has raised serious
allegations regarding the manner in which the
investigation was conducted. Accused Ikrar
stated that his signatures were forcibly
obtained at the D.N.C. office in Lucknow, and
Suhail denied giving any statement voluntarily,
claiming that his signatures were obtained
under duress. These allegations cast doubt on
the integrity of the investigation process and
were not adequately addressed by the trial
court.

30. The handling and examination of
the recovered narcotic substances did not
comply with the prescribed legal protocols,
raising doubts about the integrity and
reliability of the evidence. Proper chain of
custody and forensic examination are critical
in cases involving narcotics to ensure that the
evidence has not been tampered with or
contaminated.

31. The prosecution's case is primarily
based on circumstantial evidence, with no direct
evidence linking the appellants to the possession
and distribution of the narcotics. In the absence of
direct evidence, the prosecution has failed to
establish the guilt of the appellants beyond a
reasonable doubt.

32. It is noteworthy that the individuals
from whom the narcotics were allegedly
recovered have been acquitted, while the
appellants, from whom no recovery was made,
have
been
convicted.
This
inconsistency
highlights the arbitrary and unjust nature of the
trial court decision.
33. Therefore, based on the analysis of
the evidence and the legal precedents cited, this
Court concludes that the prosecution has failed to
establish its case beyond a reasonable doubt. The
non-compliance with Section 50 of the NDPS
Act, coupled with procedural irregularities and
discrepancies in the evidence, casts serious doubt
on the guilt of the accused. Consequently, the
accused is entitled to the benefit of doubt,
Therefore, unable to uphold the conviction and
sentence of the appellant. The appellant is entitled
to be acquitted. The impugned judgment and
order is liable to be set aside and accordingly,
appeal is liable to be allowed.

34. Therefore, the appeal is allowed, and
the judgment and order dated 29.7.2002, passed
by the trial court in Criminal Case No. 650 of
1991, Ikrar and others vs. Union of India is hereby
set aside and reversed. The appellant, Suhail, is
acquitted of all charges levelled against him. The
appellant is on bail. Their personal bond and
surety bonds are canceled and sureties are
discharged.

35. . Let a copy of this judgment
alongwith the lower court record be sent
immediately to the Trial Court concerned for
necessary compliance.

36. No order as to the costs.
----------
(2024) 7 ILRA 1062
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Criminal Appeal No. 1146 of 2019

Sajeb Ali @ Shakeel ...Appellant
Versus
State of U.P. ...Respondent