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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.78 OF 2005

State of Rajasthan … Appellant

Vs.

Parmanand & Anr. … Respondents

JUDGMENT

(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 NDPS Act).

2.  The case of the prosecution was that on 13/10/1997  

during  Kota  Camp  at  Iklera,  P.N.  Meena,  Sub-Inspector,  

Office  of  the  Narcotics  Commissioner,  Kota  received

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information  at  1900  hours  in  the  evening  that  the  

respondents  were  to  handover  about  10  Kg  opium  on  

14/10/1997 in the morning between 4.00 a.m. to 6.00 a.m.  

at Nangdi-Tiraha, Iklera, Chhipabaraud Road to a smuggler.  

This information was entered by SI Meena in the diary and  

he  forwarded  it  to  the  Investigating  Officer  J.S.  Negi,  

Superintendent.   J.S.  Negi  sent  this  information  through  

Constable  B.L.  Meena to  Assistant  Narcotic  Commissioner,  

Kota.  Thereafter,  raiding  party  was  formed.   The  raiding  

party was headed by Superintendent J.S. Negi.  The raiding  

party  reached  Nangdi-Tiraha  by  a  Government  vehicle.  

Independent  witnesses  Ramgopal  and  Gopal  Singh  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 respondents  

in the presence of the independent witnesses by SI Qureshi.  

The  respondents  gave  their  names.   Respondent  No.  1  

Parmanand had one white colour gunny bag of manure in his  

left hand.  SI Qureshi told the respondents that he had to  

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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  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 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  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  

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the NDPS Act and respondent No.2 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 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  

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  default  of  payment  of  fine,  they  were  

sentenced to undergo rigorous imprisonment for two years.   

4. Aggrieved  by  the  said  judgment  and  order,  the  

respondents  preferred  an  appeal  to  the  Rajasthan  High  

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Court.   By the impugned order,  the Rajasthan High Court  

acquitted the respondents. Hence, this appeal by the State.

5. Mr.  Imtiaz  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  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 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.  

6. Ms. Nidhi, learned counsel for the respondents, on the  

other hand, submitted that admittedly notice under Section  

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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 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 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  

necessary  to  see  what  exactly  the  important  police  

witnesses 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 Magistrate or before J.S. Negi,  1 1997(1) CRIMES 242 2 2001(1) CRIMES 586

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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. 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 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  Section  50  of  the  NDPS  Act  is  mandatory  and  non-

compliance  thereof  would  vitiate  trial.   In  State  of  

Himachal Pradesh  v.  Pirthi Chand4, this Court held that  

breach of Section 50 does not affect the trial.  There were  

3 (1994) 3 SCC 299 4 (1996) 2 SCC 37

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divergent views on this aspect and, therefore, a reference  

was  made  to  the  Constitution  Bench.   Out  of  the  three  

questions of law, which the Constitution Bench dealt with in  

State of Punjab  v.  Baldev Singh5, 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 search a person, he must inform him of his right  

under sub-section (1) thereof of being taken to the nearest  

gazetted  officer  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 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 may not   necessarily be in writing.

(2) That failure to  inform the person concerned  about  the  existence  of  his  right  to  be  

5 (1999) 6 SCC 172

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searched  before  a  gazetted  officer  or  a   Magistrate  would  cause  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 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  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.”

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 Maharashtra6, this Court held that if a person is  

carrying a bag or some other article with him and narcotic  

drug is recovered from it, it cannot be said that it was found  

from his person and, therefore, it is not necessary to make  

an offer for search in the presence of a gazetted officer or a  

6 (1999) 8 SCC 257

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Magistrate in compliance of Section 50 of the NDPS Act.  In  

State of Himachal Pradesh v.  Pawan Kumar7, three-

Judge Bench of this Court held that a person would mean a  

human being with  appropriate coverings 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,  

therefore,  whether  Section 50 would be applicable  to  this  

case  because  opium  was  recovered  only  from  the  bag  

carried by respondent No.1 - Parmanand.  

10. In  Dilip & Anr.  v.  State of Madhya Pradesh  8  , on  

the basis of information, search of the person of the accused  

was 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  7 (2005) 4 SCC 350 8 (2007) 1 SCC 450

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with so far as the search of the scooter is concerned, but  

keeping in view the fact 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.  

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 comply with the provisions of Section 50 of the NDPS  

Act. Following Dilip, it was held that since the provisions of  

Section 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  

9 (2009) 16 SCC 644

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the 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 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,  

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 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  

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individual  communication of  right.   A common notice was  

given on which only respondent 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  

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.  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  

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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.  

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  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  been  properly  communicated  to  the  

respondents.   The  search  of  the  bag  of  respondent  No.1  

Parnanand  and  search  of  person  of  the  respondents  is,  

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therefore,  vitiated  and  resultantly  their  conviction  is  also  

vitiated.  

15. We  also  notice  that  PW-10  SI  Qureshi  informed  the  

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  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.  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.  

Negi, 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 opinion on the question whether if  

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the respondents had voluntarily expressed that they wanted  

to 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 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,  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.  

….……………………………….J.       (RANJANA PRAKASH DESAI)

     …………………………………..J. (MADAN B. LOKUR)

NEW DELHI;

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FEBRUARY 28, 2014.

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