State of Rajasthan v. Parmanand reported in (2014) 5 SCC
345, have held that there is a need for individual
communication to each accused and individual consent by each
accused under Section 50 of the Act. Their lordships have also
held that Section 50 does not provide for third option. Their
lordships have also held that if a bag carried by the accused is
searched and his personal search is also started, Section 50
would be applicable. Their lordships have held as under:
“15. Thus, if merely a bag carried by a person is searched
without there being any search of his person, Section 50 of 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.
16. 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 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.
19. 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 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.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No.635/2015
Decided on: 1.1.2016
State of Himachal Pradesh …… Appellant
Versus
Kamal Kishore ……..Respondent
Coram:
Hon’ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Sureshwar Thakur, Judge
Citation;2016 CRLJ 1021
