LexSTATE OF RAJASTHAN versus PARMANAND & ANR.
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A B [2014] 3 S.C.R. 522 STATE OF RAJASTHAN v PARMANAND & ANR. (Criminal Appeal ,No. 78 of 2005) FEBRUARY 28, 2014 [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. 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. G 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 0 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 individually informed that u/s 50(1) o
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