REPORTABLE                    IN THE SUPREME COURT OF  INDIA

          CRIMINAL APPELLATE JURISDICTION   

CRIMINAL APPEAL NO. 1857    OF 2010

NIRMAL SINGH PEHLWAN @ NIMMA ..  APPELLANT(S)

vs.

INSPECTOR, CUSTOMS, CUSTOMS HOUSE, PUNJAB ..  RESPONDENT(S)

O R D E R

This  appeal  is  directed  against  the  

concurrent  judgments  of  the  courts  below  whereby  the  

appellant has been sentenced to undergo 10 years R.I. and  

to pay a fine of rupees one lakh and in default to undergo  

RI  for  two  years  for  having  violated  the  provisions  of  

Section  22  of  the  Narcotic  Drugs  and  Psychotropic  

Substances  Act,  1985  (hereinafter  referred  to  as  the  

'Act').

The facts of the case are as under:

During the course of a joint Naka held on the  

4th January, 1999 by a party comprising  officials from the  

Customs Preventive Staff, the Punjab Police and the CIA  

Staff, Majitha, set up at the  T-crossing near Saki Bridge,  

Ajnala, a Maruti car bearing  registration No. PB-02-P-5595  

was seen coming from the opposite side  at about 9.40 a.m.  

There  were  three  occupants  in  the  car  and  two  of  them  

taking advantage of the thick fog at that time ran away  

whereas  the  third  one,  the  appellant  Nirmal  Singh,  was

apprehended by PW.4 Prem Singh-Superintendent Customs.  

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PW.4 disclosed his identity to the appellant  and told him  

that  as  he  was  suspected  to  be  in  possession  of  some  

narcotic, he should give his option as to whether he wished  

to be searched before a Magistrate or a Gazetted Officer.  

The appellant  stated that he would be satisfied if he was  

searched in the presence of a Gazetted officer.  Khazan  

Singh and Sarup Singh were also called as public witnesses.  

On a search of the appellant's person  two packets of brown  

powder each weighing 1 kilogram were found lying in his  

lap. The  powder was tested with the aid of a drug testing  

kit and was found to be  heroin.   Samples of 5 grams were  

drawn  from  each  packet  and  after  the  samples  had  been  

homogenized,   they  were  sent  to  the  laboratory  for  

analysis.  The Chemical Examiner in his report opined that  

the seized articles were indeed heroin.

During the course of the investigation the  

appellant  also made a confession under Section 108 of the  

Customs  Act   admitting  his  guilt.   The  matter  was  

ultimately sent up for trial after the completion of the  

investigation.   Sarup  Singh  and  Khazan  Singh,  the  

independent witnesses, were given up as having been won  

over by the appellant.  The prosecution accordingly placed

primary reliance on the statement of PW.1 Jagtar Singh,  

Inspector of Customs and PW.4 Prem Singh and the confession  

of the appellant made to him as also the circumstantial  

evidence in the case.  The accused was also examined  under  

Section 313 of the Cr. P.C. and he  stated that he had been  

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roped in on account of his animosity with Swaran Singh-DSP  

and his brother  Kartar Singh-SP as he had been involved in  

the murder case of their brother, Ranjit Singh.  He also  

produced several witnesses in defence.

The Trial Court, on a consideration of the  

evidence, held that the case against the appellant had been  

proved beyond doubt  more particularly as he had made a  

confession to PW.4 which  was admissible in evidence  as  

PW.4 was not a police officer.  It was also found that the  

provisions of Section 50 of the Act had been complied with  

as Ex. P.A., a consent memo, had been drawn up prior to the  

search.   The  Trial  Court  accordingly  convicted  and  

sentenced the appellant,  as already mentioned above. The  

conviction and sentence  has been confirmed by the High  

Court.   

Before  us,  Mr.  Sanjay  Jain,  the  learned  

counsel  for  the  appellant,  has  raised  primarily  two  

arguments based on the judgments of this Court. The first

is  Vijaisingh Chandu Bha Jadeja vs. State of Gujarat (2011  

(1) SCC 609).  In this case it has been observed by the  

Constitution Bench that the provisions of Section 50 of the  

Act postulated that before a search was made of a person  

suspected of carrying a narcotic  he should be informed of  

his right that he had an option of being searched in the  

presence of  

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a Gazetted Officer or a Magistrate and that merely because  

a consent memo had been drawn up  whereby he had chosen to  

be searched before the Magistrate or a Gazetted Officer (on  

the option given to him by an authorized  officer) would  

not amount to full compliance with the aforesaid provision.  

The second argument is based on the judgment of this Court  

in Noor Aga vs. State of Punjab & Anr. (2008 (16) SCC 417)  

in which this Court had deviated from the earlier position  

in  law that a Customs Officer was not a police officer and  

a confession made to  him under Section 108 of the Customs  

Act, was admissible in evidence.  In this case it has been  

held that as a Custom Officer  exercised  police powers  

and  a  confession  made  by  an  accused  could  result  in  a  

conviction and sentence, such a confession was hit by the

embargo placed by  Section 25 of the Evidence Act, 1872,  

and was, therefore, not admissible in evidence.

On the other hand, Mr. R.P. Bhatt, the leaned  

senior counsel for the respondent – Department, has pointed  

out  that  Ext.  P.A.  the  consent  memo  in  fact  conveyed  

information to the appellant  that he had a right to be  

searched  in  the  presence  of  a  Magistrate  or  a  Gazetted  

Officer  and  that  this  amounted  to  full  compliance  with  

Section  50  of  the  Act.   He  has  also  pointed  out  that  

although Noor Aga's case  did say that a confession made to  

a Custom Officer was hit by Section 25 of the Evidence Act  

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and was therefore not admissible in the evidence, yet a  

judgment of a coordinate Bench of this Court in  Kanahiya  

Lal vs.  Union   of  India  case  (2008  (4)  SCC  668)  had  

reiterated the earlier position in the law as given in Raj  

Kumar vs. Union of India – 1990(2) SCC 409 that Officers of  

the  Revenue  Intelligence  and  ipso  facto  of  the  Customs  

Department could not be said to be  police officers and a  

confession before them would not be hit by Section 25 of  

the Evidence Act.

We have examined the facts of the case in the  

light of the arguments raised by the learned counsel for  

the parties  and the case law cited. Ext. P.A. is the

consent memo under which the appellant had opted  to be  

searched in the presence of a Gazetted officer.  This memo  

is in the Gurmukhi script and has been read to us and we  

see that it cannot by any stretch of imagination  be said  

to be informing the appellant of his right to be searched  

in the presence of a Gazetted Officer or a Magistrate as he  

was only given the option to be searched before one of the  

other.  In Vijaisingh's case (supra) the Constitution Bench  

crystalised the issue before it in para 1 as under:

“The short question arising for consideration  

in this batch of appeals is whether Section 50 of the  

Narcotic Drugs and Psychotropic Substances Act, 1985  

(for  short  “the  NDPS  Act”)  casts  a  duty  on  the  

empowered officer to “inform” the suspect of his  

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right to be searched in the presence of a gazetted  

officer or a Magistrate, if he so desires or whether  

a mere enquiry by the said officer as to whether the  

suspect would like to be searched in the presence of  

a Magistrate or a gazetted officer can be said to be  

due compliance with the mandate of the said section?”

This was answered in paragraph 29 in the following  

terms:

“In view of the foregoing discussion, we are  

of the firm opinion that the object with which the

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 of a Magistrate. We have  

no  hesitation  in  holding  that  insofar  as  the  

obligation  of  the  authorised  officer  under  sub-

section  (1)  of  Section  50  of  the  NDPS  Act  is  

concerned,  it  is  mandatory  and  requires  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.”

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It  is  therefore  apparent  that  the  precise  

question that was before the Constitution Bench was as to  

whether a consent memo could be said to be  information  

conveyed to an accused as to his right under Section 50 of  

the  Act.  The  Constitution  Bench  clearly  stated  that  a

consent memo could not be said to be such information  as  

the provisions of Section 50 of the Act were mandatory and  

strict  compliance  was  called  for  and  any  deviation  

therefrom would vitiate the prosecution.   It was further  

held that it was not necessary that this information should  

be in a written form but the information had to be conveyed  

in some form or manner which would depend on the facts of  

the case.  We have accordingly gone through the evidence of  

PW.4 Prem Singh. He did not utter a single word as to  

whether he had informed the appellant of his right  and he  

merely took his option as to whether he would like to be  

searched  before  a  Gazetted  Officer  or  a  Magistrate   as  

noted  in  Ex.P.A.   In  the  light  of  the  judgment  in  

Vijaisingh's case  (supra)  we find that there has been  

complete non-compliance with the provisions of Section 50  

of the Act.

We  also  see  that  the  Division  Bench  in  

Kanahiya Lal's case had not examined the principles and the  

concepts underlying Section 25 of the Evidence Act vis.-a-

vis.  

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Section 108 of the Customs Act the powers of Custom Officer  

who could investigate and bring for trial an accused in a  

narcotic matter.  The said case relied exclusively on the  

judgment in Raj Kumar's case (Supra).  The  latest judgment  

in point of time is Noor Aga's case which has dealt very  

elaborately  with  this  matter.  We  thus  feel  it  would  be  

proper for us to follow the ratio of the judgment in Noor  

Aga's case particularly as the provisions of Section 50 of  

the Act which are mandatory have also not been complied  

with.   

In view of what has been held above we find  

that the conviction of the appellant must be set aside.  

Accordingly we allow this appeal and order his acquittal.

                   .................J.         (HARJIT SINGH BEDI)

                                          ....................J.

                                  (GYAN SUDHA MISRA)

New Delhi, July 21, 2011.