Bombaybench High Court · 2024
Case Details
2024:BHC-AUG:18076 1 BA-639,1160-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.639 OF 2024Sahil Shah Sattar Shah,Age 21 years, Occu. Labour,R/o. Ramdev Baba Nagar,Near Natraj Talkies,Taluka and District Dhule..ApplicantVersusThe State of MaharashtraThrough Azadnagar Police Station,District Dhule..RespondentWITHBAIL APPLICATION NO.1160 OF 2024Ajay s/o. Raju Kothari,Age 33 years, Occu. Labour,R/o. Behind Old Government Hospital,Pardesi Pura, Taluka andDistrict Nandurbar..ApplicantVersusThe State of MaharashtraThrough Dhule City Police Station,District Dhule..RespondentMr. C. C. Deshpande, Advocate for ApplicantsMs. D. S. Jape, A.P.P. for RespondentCORAM :S. G. MEHARE, J.RESERVED B.A.No.639 of 2024 ON 20-07-2024 AND B.A.NO.1160 OF 2024 ON 25.07.2024PRONOUNCED ON: 14-08-2024PER COURT :-1.Heard the learned counsel for the applicants and the learnedA.P.P. for the respondent. 2 BA-639,1160-24.odt2.In Bail Application No.639 of 2024, applicant - Sahil ShahSattar Shah seeks bail in C.R.No.306 of 2023 registered with AzadNagar Police Station, District Dhule, for the offence punishableunder Sections 328 and 276 of the Indian Penal Code (for short,"the IPC") and 8(c) and 22 of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (for short, "the NDPS Act") and Section 18 ofthe Drugs and Cosmetics Act.3.In brief, it has been alleged against applicant – Sahil Shahthat, based on secret information, Police raided the spot of theincident. After recording the information in the station diary,permission to lay the raid was also sought from theSuperintendent of Police. The Inspector of the Food and DrugsDepartment was also called. They reached the MahaveerApartment, situated on the road that goes from Bholabazar Squaretowards Natraj Talkies. At some distance, they found that oneperson was holding a plastic bag near the bushes. The Police triedto apprehend him. He tried to flee away. One of the constables ofthe raiding party identified him and apprehended him. He was toldthe reasons for his arrest. The Police took his physical search andrecovered 26 bottles found in the bag. The Police drew seizurepanchnama on the spot of the incident and took samples.4.In Bail Application No.1160 of 2024, the applicant - Ajay RajuKothari seeks bail in C.R.No.264 of 2023 registered with Dhule City
Legal Reasoning
19 BA-639,1160-24.odt38.Another question referred to the the Larger Bench inVijaysinh case was, whether or not the procedure prescribed hadbeen followed and the requirement of Section 50 had been met, isa matter of trial. his question has been answered that it wouldneither be possible nor feasible to lay down any absolute formulain that behalf.39.After analyzing the law, it has been pronounced that wherethe physical search of his wearing apparel or carrying any suchcontraband in his hand or person, compliance with Section 50 ofthe NDPS Act is mandatory. However, in case of a search ofanything other than physical search or bag carried on his person,notice under Section 50 of the NDPS Act is not mandatory.40.Section 52A of the NDPS Act speaks of the disposal of seizednarcotic drugs and psychotropic substances. This Court in thecase of Sunil (supra) relied on the view of this Court taken inMukesh case (supra).41.The accused raised serious objection against drawingsamples on the spot for being sent to the chemical analyzer andclaimed that it is not permissible having regard to the mandate ofSection 52A of the NDPS Act. Therefore, whether the applicantwas entitled to be enlarged on bail was the question before theCourt. In that case, the cases of Mohanlal (supra) and 20 BA-639,1160-24.odtSimranjit Singh (supra) were referred to. This Court in Mukesh(supra) has referred to Rules 2022 and observed that, as per new2022 Rules, now, different procedure is laid down. After seizure,the contraband needs to be produced before the Magistrate andthen samples are to be drawn and then sent to the ChemicalAnalyser. The contention on behalf of applicant is earlier lacunaewas taken care in the Rules. 42.In paragraph No.16, it is observed thus;“16.There was no need to send the samples which weredrawn before the Magistrate to the Chemical Analyser, priorto 2022 Rules. Now the rules have cleared the controversy." 43.In paragraph No.17, it is observed thus;“17. So, I feel that merely because spot samples are taken, itdoes not violate the provisions of Section 52A of the NDPSAct for the simple reason that it does not contain provisionfor taking samples at the spot but it deals with differentsituation. So, the contention raised in that on behalf ofapplicant does not appeal to my conscience."44.In paragraph No.18, it is observed thus;"18.It is also observed that, it is true that in case ofSimranjit Singh (supra), Hon'ble Supreme Court hadrefused to accept the evidence of drawing samples on thespot and conviction was set aside.” 21 BA-639,1160-24.odt45.In Mukesh (supra), the recovery of contraband was beforeRules, 2022. Hence, the bail was refused. However, in the case onhand, the recovery was after Rules 2022. Therefore, Mukesh’scase does not assist the learned A.P.P.46.Learned A.P.P. further relied on the case of Saddam Alam(supra). In that case also, bail was sought for the violation ofSection 52A of the NDPS Act. In that case, Section 52-A of theNDPS Act was also discussed the Standing Order 1/88 dated15.03.1988 issued by the Narcotics Control Bureau. Referring tothe relevant portion of Section 52-A of the NDPS Act, the Courtfinally held that the validity of the proceedings under Section 52-Aof NDPS Act cannot be examined at the stage of consideration ofbail, and it has to be decided during the trial.47.Recently, the Honourable Supreme Court, in the case ofYusuf @ Asif (supra) had an occasion to deal with Section 52A ofthe NDPS Act. In paragraph No.16, it has been observed that inthe absence of material on record, it established that the samplesof seized contraband were drawn in the presence of the Magistrateand that the inventory of the seized contraband was duly certifiedby the Magistrate, it is apparent that said seized contraband andsamples drawn therefrom would not be a valid piece of primaryevidence in the trial. Once there is no primary evidence available,the trial as a whole stands dismissed. 22 BA-639,1160-24.odt48.The Honourable Supreme Court, in the above case hascrystalized that compliance with Section 52A is mandatory. If it isnot complied with, there would be no valid piece of evidence, andthe trial would vitiate.49.In the case of applicant - Sahil Shah Sattar Shah, theInvestigating Officer served the notice upon the applicant,informing the reason for his apprehension that bears his signature.However, notice under Section 50(1) of the NDPS Act bears asingle signature without writing the name of the person signing it.In the said notice, he was asked whether he wanted to have thesearch before the Executive Magistrate. Further, it has beenwritten that he refused to have a search before the ExecutiveMagistrate and told them that they may take his search. However,there is no endorsement on the said notice with the signature ofthe accused that he refused to go for search in the presence of theGazetted Officer or the Officer appointed under Section 42 of theNDPS Act or Magistrate. This seems to be an apparent defect inapprising the applicant of his right under Section 50 of the NDPSAct. 50.As far as drawing samples on the spot is concerned, recoverywas done from the plastic bags, which were in his hand. The Policetook personal or physical search as well as the search of the bagscontaining contraband. Nothing has been recovered from his 23 BA-639,1160-24.odtperson. The contraband has been seized from the plastic bag.51.In the case of applicant - Ajay s/o. Raju Kothari, theInvestigating Officer served notice upon him for personal search ofphotographer and police officers. The notice allegedly issuedunder Section 50 of the NDPS Act nowhere discloses that theaccused was apprised of his right to have a physical search beforethe Gazetted Officer only. Therefore, there was no compliance withSection 50 of the NDPS Act.52.So far as Section 52-A of the NDPS Act is concerned, fromthe case laws discussed above, it can be summarized that uponseizure of the contraband it is to be forwarded to the officer-in-charge of the nearest police station or to the Officer empoweredunder Section 53, who has to prepare an inventory of seizedcontraband and then to make an application to the Magistrate forthe purposes of getting its correctness certified the samples drawnin presence of Magistrate and list thereon being certified alonewould constitute primary evidence for the purpose of trial.Therefore, submission of the learned A.P.P. that merely taking thesamples soon after the seizure on the spot is not bad in law and itcould not raise the suspicion about the seizure, could not beappreciated.53.The Hon’ble Supreme Court has crystalized Section 50 and52A of the NDPS Act and laid down the law that compliance of 24 BA-639,1160-24.odtSection 50 and 52A of the NDPS Act is mandatory.54. Considering the facts of the case and the ratio laid down inthe various cases discussed above, the Court believes that therewas no compliance of Sections 50 and 52A of the NDPS Act.Therefore, the applicants deserve bail. Hence, the order:- ORDERi)The bail applications are allowed.ii)Applicant - Sahil Shah Sattar Shah in Bail Application No.639of 2024 and applicant - Ajay s/o. Raju Kothari in Bail ApplicationNo.1160 of 2024, be released on bail, on furnishing PB and SB ofRs.50,000/-, with one solvent surety of the like amount each, in theabove crimes for the aforesaid offences, on the conditions that,(a)they should furnish their residential proof and cellphone numbers with the Investigating Officer with anundertaking that they would not change it tillconclusion of the trial;(b)they should not leave their residence without priorpermission of the Court;(c)they should not involve in the similar crimes;(d)they should attend the trial on each and everyeffective date. ( S. G. MEHARE ) JUDGErrd
Arguments
3 BA-639,1160-24.odtPolice Station, District Dhule, for the offences punishable underSections 328 and 276 of the IPC and Sections 8A(a) and 22 of theNDPS Act and Section 18(c) of the Drugs and Cosmetics Act, 1940.5.Brief allegations against the applicant – Ajay Kothari, werethat the Police got secret information that the applicant came toDhule from Nandurbar with the psychotropic substance containedin the bottles and pills for selling and was standing near Dhule BusStand. After the formalities for the raid the police raiding partyreached on the spot. The applicant was apprehended on the spotof the incident with a psychotropic substance. He was told thereason for his arrest. The applicant told his name. The Police drewthe samples from the contraband and sealed it under the signatureof the Inspector of Drugs on the spot of the incident.6.In both cases, Learned counsels for the applicants arguedthat Sections 50 and 52A of the NDPS Act have not been complied.The seizure of contraband is illegal. Drawing samples fromcontraband on the spot of the incident is inadmissible underSections 52-A(2) and (3) of the NDPS Act. That raises doubt aboutthe veracity of the seized contraband recovered from him. Hissearch is illegal without compliance of Section 50 of the NDPS Act.The physical search of the accused should be taken '‘only'’ in thepresence of the Gazetted Officer of any department specifiedunder the NDPS Act or any nearest Magistrate. The officer who 4 BA-639,1160-24.odtclaimed to be present with the raiding party, though GazettedOfficer, is not an officer as provided under Section 42 of the NDPSAct. Apart from that, the contraband has been recovered, andnothing is to be recovered from them.7.Learned counsel for the applicants/accused relied on thejudgments of the following case laws:-(a)Vikky Pachauri versus Union of India, Crl.A./53/2021 ofthe Gauhati High Court, dated 03.04.2024;(b)Mohammed Khalid and another versus The State ofMaharashtra, Criminal Appeal No.1610 of 2023, dated01.03.2024.(c)Janki Dass versus State of Haryana, CRA-S-412-SB-2006 (O&M), High Court of Punjab and Haryana atChandigarh, dated 24.05.2024.(d)Amjad Khan @ Akram @ Ajju s/o. Shri. Nazar HussainVersus State of Rajasthan, High Court Rajasthan atJodhpur, 2024: RJ-JD:24228, decided on 27.05.2024.(e)Order of this Bench in the case of Pramod Arun Yeoleversus The State of Maharashtra, Bail ApplicationNo.156 of 2024, dated 11.01.2024.(f)Yusuf @ Asif versus State, Criminal Appeal No.3191 of2023 (Arising out of SLP (Crl) No.3010 of 2023) dated13.10.2023.(g)Simarnjit Singh vs. State of Punjab, Criminal Appeal 5 BA-639,1160-24.odtNo.1443 of 2023 (Arising out of S.L.P. (Crl.) No.1958 of2023) dated 09.05.2023.(h)Pramod Arun Yeole vs. The State of Maharashtra, BailApplication No.156 of 2024, dated 11.03.2024 ofBombay High Court Bench At Aurangabad.(i)Santosh Pandurang Parte vs. Amar Bahadur Mauryaand another, Bail Application No.4125 of 2021, dated19.07.2023.8.The prosecution has strongly opposed the applications. It hasbeen argued that the seized contraband were Schedule H1 drugand psychotropic substances were found in the possession of theaccused. The said drug falls under the NDPS Act. It is harmful tohuman life. The charge sheets against the applicants have beenfiled. After receiving the Chemical Analyzer’s report, theproceedings for the destruction of samples under Section 52A ofthe NDPS Act would be completed. 9.The C.A. report is now available. It reflects in the case ofapplicant - Sahil that the substance drawn during the raid showsthat the sample does not give an identification test for thepresence of codeine phosphate. Hence, it was declared as spuriousvide Section 17(b)(d) of the Drugs and Cosmetics Act, 1940 andRules thereunder. 10.Further, the learned A.P.P. argued that Section 50 of the 6 BA-639,1160-24.odtNDPS Act has been complied with. Bare recovery of samples andthen drawing seizure panchanama on the spot is not illegality.Section 52-A speaks of the disposal of seized narcotic drugs andpsychotropic substances. Sub-section (2) of Section 52-A providesthat after the contraband [narcotic drugs, psychotropicsubstances, controlled substances or conveyances] has beenseized, it should be forwarded to the officer-in-charge of thenearest police station or to the Officer empowered under section53, and such Officer referred to in sub-section (1) shall prepare aninventory of such contraband with details relating to theirdescription, quality, quantity, mode of packing, marks, numbers orsuch other identifying the particulars of the contraband under thisAct and make an application to the Magistrate for the purpose of(a) certifying the correctness of the inventory so prepared; or (b)taking, in the presence of such Magistrate, photographs of [suchdrugs or substances or conveyances] and certifying suchphotographs as true; or (c) allowing to draw representativesamples of such drugs or substances, in the presence of suchMagistrate and certifying the correctness of any list of samples sodrawn.11.Reading the above Section, the learned A.P.P. hasvehemently argued that drawing the samples on the spot of theincident for C.A. test is not bad in law, and that is not the groundfor granting bail. 7 BA-639,1160-24.odt12.In both cases, the common thread of arguments is that noneof the provisions under the NDPS Act has been violated. The legalnotice of their physical examination was correctly served. The offerwas given to them to get searched before the Gazetted Officer. Ifsuch an Officer is a party to the raiding party, it is also not bad inlaw. Section 52-A speaks about the disposal of the contrabandafter the seizure, and the Magistrate is empowered only to certifythe correctness of the inventory so prepared or taking photographsof contraband, etc.13.To bolster the arguments, the learned A.P.P. relied on thefollowing cases;(a)Sunil Sheshrao Pawar vs. State of Maharashtrathrough PSO PS Mehkar, Taluka Mehkar, DistrictBuldana, High Court Bombay, Nagpur Bench, CriminalApplication (BA) No.679 of 2023, dated 12.02.2024 :(2024:BHC-NAG:1678).(b)Mukesh Rajaram Chaudhari vs. The State ofMaharashtra, Bail Application 54 of 2023, dated27.09.2023;(c)Ranjan Kumar Chadha versus State of HimachalPradesh, 2023 LiveLaw (SC) 856.14.Let us deal with Section 50 of the Act first. Section 50 of theNDPS Act speaks of ' the Conditions under which search of persons 8 BA-639,1160-24.odtshall be conducted’. It has been provided that when any officerduly authorized under section 42 is about to search any personunder the provisions of section 41, section 42 or section 43, heshall, if such person so requires, take such person withoutunnecessary delay to the nearest Gazette Officer of any of thedepartments mentioned in section 42 or to the nearest Magistrate.15.It has been further provided that if such requisition is made,the Officer may detain the person until he can bring him before theGazetted Officer. The Gazetted Officer before whom any suchperson is brought shall, if he sees no reasonable ground for search,forthwith discharge the person but otherwise shall direct thatsearch be made. Sub-section (5) of said Section provides thatwhen an officer duly authorized under section 42 has reason tobelieve that it is not possible to take the person to be searched tothe nearest Gazetted Officer or Magistrate without the possibilityof the person to be searched parting with possession of anynarcotic drug or psychotropic substance, or controlled substanceor article or document, he may, instead of taking such person tothe nearest Gazette Officer or Magistrate, proceed to search theperson as provided under section 100 of the Code of CriminalProcedure, 1973. However, after a search, the Officer shall recordthe reasons for such belief which necessitated such search and,within seventy-two hours, send a copy thereof to his immediateofficial superior. 9 BA-639,1160-24.odt16.Reading Section 50 of the NDPS Act, it is clear that theOfficer authorized under Section 42 of the said Act is about tosearch any person, he shall take search of a person without delaybefore the nearest Gazetted Officer or Magistrate if such person sorequires.17.Sub-section (1) of Section 50 of the NDPS Act is clear thatsuch search before the nearest Gazetted Officer appointed of anyof the departments mentioned in section 42 or to the nearestMagistrate is the choice of such person whose search is required tobe taken. However, suppose the contingency or the situationdemands that taking such a person to the nearest Gazetted Officeror nearest Magistrate is not possible, in that case, such Officermay take the assistance of Section 100 of the Cr.P.C. Thereafter,he shall inform his acts so done with reasons to his immediateofficial superior within seventy-two hours.18.This Section fell for consideration in many cases. The lawhas been settled that the person to be searched under the NDPSAct must be apprised of his right under Section 50 of the NDPS Actbefore he is physically searched, and it is a mandatoryrequirement. No presumption to that effect can be raised. TheHon'ble Supreme Court has taken this view in the case of C. AliVs. State of Kerala, 2000 Cr.LJ 3181 SC. 10 BA-639,1160-24.odt19.In Sholadoye Samual Joy (supra), the ratio of Vijaysinh(supra) was followed, and it was observed that it is imperative onthe part of the police officer to apprise the person intended to besearched of his right under Section 50 of the NDPS Act in which thesearched only before the Gazetted Officer or Magistrate. It isfurther held that it is equally mandatory on the part of theauthorized Officer to make the suspect aware of the existence ofthe right to be searched before the Gazetted Officer of Magistrateif he requires, and this requires strict compliance. It is further heldthat the suspect person may or may not choose to exercise theright provided under Section 52 of the NDPS Act, but so far as theofficer is concerned an obligation is cast upon him under Section50 of the NDPS Act to apprise the suspect of his right to besearched before the Gazetted officer or Magistrate.20.In the case of State of Himachal Pradesh vs. PawanKumar, 2005(4) SCC 350 and State of Haryana vs. RanbirAli, AIR 2006 SC 1096, it has been held that Section 50 would beapplicable only in the cases of personal search of the accused andnot when it is made in respect of some package like, article,vehicle, or container, etc., which the accused at the relevant timewas carrying.21. The question is whether the person carrying the contrabandon his shoulder or holding a bag in his hand requires a personal 11 BA-639,1160-24.odtsearch.22.In the case of Ranjan Kumar Chadha vs State OfHimachal Pradesh 2023 Live Law (SC) 856, in an appeal, anissue before the Hon'ble Supreme Court was what meaning wasassigned to the explanation "to search any person" occurring inSection 50 of NDPS Act. The phrase "to search any person" means(a) search of articles on the person or body of the persons to besearched, (b) would include a search of articles in immediatepossession as such bag or other luggage carried by him or inphysical possession of such person to be searched, (c) wouldinclude the search of bag or luggage which is presumed to be inpossession of the person even though it may be lying in a house orrailway compartment or at the airport, (d) whether application ofSection 50 could be extended to a case of search of a place, aconveyance or a house if the accused is physically present at thetime of the search.23.The facts of the above case were that on the secretinformation, the Police conducted a raid. The accused consented tobe searched before the Police. The accused, carrying a bag withhim, was searched and also searched personally. The search of thebag resulted in the recovery of three polythene bags containingCharas with other articles. The quantity of Charas found in the bagwas 1 kg. 250 gram. Two samples of 25 grams each were drawn 12 BA-639,1160-24.odtfrom the polythene bag containing Charas, and the remainingCharas was sealed.24.In that case, the case of State of Rajasthan vs. Parmanandand another, (2014) 5 SCC 345 was considered in which it washeld in the paragraph 15 that"15.Thus, if merely a bag carried by a person is searchedwithout there being any search of his person, Section 50 ofthe NDPS Act will have no application. But if the bag carriedby him is searched and his person is also searched, Section50 of the NDPS Act will have application. In this case,Respondent 1 Parmanand's bag was searched. From thebag, opium was recovered. His personal search was alsocarried out. Personal search of Respondent 2 Surajmal wasalso conducted. Therefore, in light of judgments of this Courtmentioned in the preceding paragraphs, Section 50 of theNDPS Act will have application"”25.The case, of State of Punjab v. Baldev Singh, (1999) 6SCC 172, was also placed before the Supreme Court. The Hon'bleSupreme Court, in the case of Parmanand in which it has beenheld that it is not necessary to inform the accused person, inwriting, of his right under Section 50(1) of the NDPS Act. His rightscan be orally communicated to him. However, a jointcommunication of the right available under Section 50 of the NDPS 13 BA-639,1160-24.odtAct to the accused would frustrate the very purpose of Section 50of the NDPS Act.26.Appreciating the oral evidence of Ranjan Kumar (supra),the Hon'ble Supreme Court observed in paragraph 29 that, "thus,from the oral evidence on record as discussed above it is evidentthat Section of the NDPS Act stood violated for giving a thirdoption of being searched before a police officer." Further, inparagraph No.30 it has been further observed that, "However, theimportant question that falls for our consideration is whetherSection 50 of the NDPS Act is at all applicable to the present case?27.The facts were appreciated that there is nothing in oralevidence of Police Officers on record to indicate that the search ofthe person of the accused was also undertaken along with the bag.Therefore, we proceed on the assumption that it is only the bagwhich was searched which led the recovery of the contraband.28.Further, in paragraph No.31 it has been observed that, "thequestion, therefore, that requires consideration is what meaningshould be assigned to the phrase "to search any person" occurringin Section 50 of the NDPS Act. Whether the phrase "to search anyperson" means (a) search of articles on the person or body of theperson; (b) would include search of articles in immediatepossession as such bag or other luggage carried by him or inphysical possession of the person to be searched; (c) would 14 BA-639,1160-24.odtinclude search of bag or luggage which is presumed to be inpossession of the person even though it may be lying in a house orrailway compartment or at the airport; or (d) whether applicationof Section 50 could be extended to a case of search of a place, aconveyance or a house if the accused is physically present at thetime of the search.29.In paragraph No.36, it has been observed which reads thus;"36. Considering the aforesaid provisions, the inferencewhich can be drawn is that "to search any person" wouldmean only search of the body or wearing apparels of suchperson and in that case the procedure which is required tobe followed would be the one prescribed under Section 50of the NDPS Act. In contrast, if search of any building,conveyance or place, including a public place, is to becarried out, then there is no question of following theprocedure prescribed under Section 50. However, when asuspected or arrested person is to be searched, then theprocedure prescribed under Section 50 comes intooperation and the procedure thereunder is required to befollowed. This can be seen by referring to Section 100(3) ofthe CrPC 1973 which provides that where any person isreasonably suspected of concealing about his person anyarticle for which search should be made, such person maybe searched and if such person is a woman, the search shall 15 BA-639,1160-24.odtbe made by another woman with strict regard to decency.The concealment which is suspected is on the person orabout his person."30.In paragraph No.103, it has observed that considering thecontrary view by the Hon'ble Supreme Court in another casesagainst Pawan Kumar (supra) has been referred to andconsidered in Sk. Raju (supra) yet, the Court in Sk. Raju (supra)overlooked the fact that in Pawan Kumar (supra) also the searchwas not only of the person of the accused but also of his bag.Even in such circumstances, the Larger Bench in Pawan Kumar(supra) took the view that Section 50 would not apply if nothingincriminating is recovered from the person of the accused. Thus,there is an apparent conflict between the two decisions.31.Finally, in paragraph No.119 it has been observed that,"119. As such, there is no direct conflict between SK. Raju(supra) and in Baljinder Singh (supra). It is pertinent tonote that in SK. Raju (supra) the contraband was recoveredfrom the bag which the accused was carrying, whereas inBaljinder Singh (supra) the contraband was recovered fromthe vehicle. This makes a lot of difference even whileapplying the concept of any object being "inextricably linkedto the person". Parmanand (supra) relied upon thejudgment in Dilip (supra) while taking the view that if both, 16 BA-639,1160-24.odtthe person of the accused as well as the bag is searched andthe contraband is ultimately recovered from the bag, then itis as good as the search of a person and, therefore, Section50 would be applicable. However, it is pertinent to note thatDilip (supra) has not taken into consideration PawanKumar (supra) which is of a larger Bench. It is also pertinentto note that although in Parmanand (supra) the Courtlooked into Pawan Kumar (supra), yet ultimately it followedDilip (supra) and took the view that if the bag carried by theaccused is searched and his person is also searched, Section50 of the NDPS Act will have application. This is somethingtravelling beyond what has been stated by the large Bench inPawan Kumar (supra). Baljinder Singh (supra), on theother hand, says that Dilip (supra) does not lay down a goodlaw."32.The ratio laid down in case of Pawan Kumar (supra) wasupheld wherein the law has been laid down that the term "person"under Section 50 would mean a natural person or a living unit andnot an artificial person i.e., a bag or a briefcase.33.Considering the ratio laid down in the case of Pawan Kumar(supra), the Hon'ble Supreme Court in the case of Ranjan Kumar(supra) has observed that a bare reading of Section 50 shows thatit only applies in case of personal search of a person and that 17 BA-639,1160-24.odtwould not extend to the search of a vehicle or a container or a bagor premises. The language of Section 50 was interpreted to searchhas to be in relation to a person as contrasted to a search ofpremises, vehicles or articles.34.In the case of Vijaysinh Chandubha Jadeja v. State ofGujarat, (2011) 1 SCC 609, it is observed that it is imperativeon the part of the empowered Officer to apprise the person of hisright to be searched only before a Gazetted Officer or Magistrate.It is not necessary that the information required to be given underSection 50 should be in a prescribed form or in writing but it ismandatory that the suspect is made aware of the existence of hisright to be searched before a gazetted officer or a Magistrate, if sorequired by him. This mandatory requirement requires strictcompliance. Thereafter, the suspect may or may not choose toexercise the right provided to him under the said provision.35.In paragraph No.31, it has been observed thus, “We are ofthe opinion that the concept of "substantial compliance" with therequirement of Section 50 of the NDPS Act introduced and readinto the mandate of the said Section in Joseph Fernandez (supra)and Prabhakar Shankar Dubey (supra) is neither borne out fromthe language of sub-section (1) of Section 50, nor it is inconsonance with the dictum laid down in Baldev Singh’s case(supra). Needless to add that the question whether or not the 18 BA-639,1160-24.odtprocedure prescribed has been followed and the requirement ofSection 50 had been met, is a matter of trial. It would neither bepossible nor feasible to lay down any absolute formula in thatbehalf.36.It has also been laid down in the above case that insofar asthe obligation of the authorized Officer under sub-section (1) ofSection 50 of the NDPS Act is concerned, it is mandatory andrequires strict compliance. Failure to comply with the provisionwould render the recovery of the illicit article suspect and vitiatethe conviction if the same is recorded only on the basis of therecovery of the illicit article from the person of the accused duringsuch search. Thereafter, the suspect may or may not choose toexercise the right provided to him under the said provision.37.In paragraph No.32 of the Vijaysinh (supra), it has beenheld that “we also feel that though Section 50 gives an option tothe empowered Officer to take such person (suspect) either beforethe nearest gazetted Officer or the Magistrate but in order toimpart authenticity, transparency and creditworthiness to theentire proceedings, in the first instance, an endeavour should be toproduce the suspect before the nearest Magistrate, who enjoysmore confidence of the common man compared to any otherofficer. It would not only add legitimacy to the search proceedings,it may verily strengthen the prosecution as well.”