LAW MANTRA THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321 6417)

"Ashok Kumar Sharma v. State of Rajasthan"

A. INTRODUCTION1

Societal awareness has become quintessential to the functioning of every state system.

Principles of Natural Justice entail the need to notify an individual prior to imposing a

sanction upon him. Nevertheless, there have been searches and seizures done by various

governmental agencies, without a reasonable cause and efficient warning. In the United

States of America, it is considered unconstitutional to search an individual without an

appropriate cause and notification.2 Although this right is not subject to constitutional

protection in India, it still receives statutory protection.

In the case of Ashok Kumar Sharma v. State of Rajasthan3, the apex court has upheld the

precedent in Vijaysingh Chandubha Jadeja v. State of Gujart 4, obligating the empowered

officer to inform5 the suspect of his right to be searched before a Gazetted Officer/

1 ALWYN SEBASTIAN, BA LLB (Hons), School of Law, Christ University, Bangalore. 2 The fourth amendment to the United States Constitution provides:” The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no War-rants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” See also Coolidge v. New Hampshire 403 U.S. 443 (1971) ; Arizona v. Hicks 107 S. Ct. 1149 (1987). 3 Criminal Appeal No.817 of 2008 4 (2011) 1 SCC 609 5 Previously in the Supreme court, by means of its decisions in Prabha Shankar Dubey Vs. State of M.P. 2004(2) SCC 56 and also in Joseph Fernandez Vs. State of Goa (2000) 1 SCC 707, the scope of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was construed in a rather narrow manner. The Apex court help that a mere statement saying “If you wish, you may be searched in the presence of a gazetted officer or a Magistrate” , was sufficient to prove that the procedural requirements under Section was fulfilled. Moreover the court laid down that such a procedure needs to only be “substantially complied” with. However, the decision in Vijaysingh Chandubha Jadeja v. State of Gujart (2011) 1 SCC 609, departed from this rule and said that the court in Prabhas case and in Joseph Fernandez case filed to correctly interpret the decision in State of Punjab v. Baldev Singh (1999) 6 SCC 172, 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. Failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. 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 vitiate the trial.” Therefore, the substantial fulfillment rule was done away with effectively and the court make such a duty an absolute one. ( See Vijaysingh Chandubha Jadeja v. State of Gujart (2011) 1 SCC 609)

Magistrate, if so required by him.6 Only on a conversant waiver, does the empowered

officer reserve the right search the body of the person.7

Consent searches have been acknowledges and recognized in most democracies across the

world. Even the Indian judiciary has taken ample steps to safeguard the innocent citizen’s

right to privacy and personal liberty. However in the present matter the court applied a

declaratory precedent, not understanding the continuing perplexity in the minds of the

Executive agencies in issuing such warnings. The case comment attempts to resolve this

ambiguity, using both Indian and American judicial pronouncements.

B. FACTS

The matter8came to light when the Appellant, Mr. Ashok Kumar Sharma was arrested on

being found with two packets of contraband (heroin) in his pant pockets. This was a result

of a search conducted by PW1, Additional Superintendent of Police (Crimes), Jaipur City,

subsequent to an expressed consent given by the appellant. The appellant was then charged

under Section 89 and 2110 of the Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as the Act). The trial court convicted the appellant and sentenced

the appellant to 10 years of rigorous imprisonment coupled with a fine of 1 lakh rupees.

The appellant preferred an appeal11, before the High Court of Rajasthan. However, the

appeal was rejected by the High court, against which an appeal was preferred under special

leave.12

The appellants argued that the lower courts failed to take cognizance that PW1 had not

informed the accused that he had a right to be searched before a Gazetted Officer/

6 Ashok Kumar Sharma v. State of Rajasthan, No.817 of 2008 7 Ibid. 8 Supra, note 3 9 Section 8 provides that: “No person shall- (a) xxxx , (b) xxxx, (c) produce, manufacture, possess, sell, purchase, transport, ware-house, use, consume, import inter-State export inter-State import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization” 10 Section 21 provides that: “Whoever, in contravention of any provision of this Act, or any rule or order made or condition of license granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees” 11 Ashok Kumar Sharma v. State of Rajasthan Criminal Appeal No.817 of 2008 12 THE CONSTITUTION OF INDIA,. art. 136.

Magistrate, if so required by him; therefore not complying with the procedural

requirements under Section 5013 of the Act

C. THE RATIO

The Supreme court, on analyzing the case discovered that although the accused was made

aware of the fact that he could be searched before any Magistrate or a Gazzeted Officer, the

empowered officer did not apprise him of his right under Section 50 of the Act14. The court

held that, a search can be conducted pursuant to an informed waiver.15

The court examined the maxim, ignorantia juris non excusat16 and laid down that although

it is a general rule that all members of society have to be aware of their right, it is

practically impossible for the whole nation to be accustomed to all pieces of legislation

passed by the state.

D. ANALYSIS

I. The state interest over individual interest

The Supreme Court in both Ashok’s case and Vijaysingh’s case17,clearly indicated that a

suspect’s right to be specifically aware of his legal rights is a mandatory requirement, non

compliance of which would vitiate the proceedings. So far, there has not been a single

exception to this mandate. In the contrary, Mr. Justice O’Connor of the United States Supreme

Court (U.S.S.C.) asserted that "the permissibilty of a particular law enforcement practice

should be judged by balancing its intrusion on the individual's interests against its promotion of 13 Section 50 provides that: “ (1)When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or sections 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate, (2) xxxx, (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made , (4) xxxx (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 ” 14 See Kollutumotil v. State of Kerala 2001(1) EFR 262 ; Abdul Rahim Ibrahim Mansoori v. State of Gujarat JT 2001 SC 471 ; Faglu Ram And Anr. vs State Of Rajasthan 2002 (2) WLN 361. 15 An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. ( Fifth Amendment: An Overview, Legal Information Institute, http://www.law.cornell.edu/wex/fifth_amendment (last visited on Feb, 5, 2013).) 16 “Ignorance of the law is no excuse; typically refers to criminal charges, in which such ignorance is not a cognizable defense.” See Ignorantia Juris Non Excusat, YourDictionary, (Nov, 22. 2012) http://law.yourdictionary.com/ignorantia-juris-non-excusat , (last visited on Feb, 5, 2013) 17 Vijaysingh Chandubha Jadeja v. State of Gujart, (2011) 1 SCC 609.

a legitimate government interest."18 Therefore in certain circumstances, the judiciary has

departed from the general rule, and has allowed for the ‘over-riding effect’ of the state interest

to play its part in subjugating the individual’s defense of non compliance of procedural

formalities.

Accordingly, Justice O'Connor suggested that in any situation in which the particular

government interest outweighed the degree of invasiveness of a search, the search should be

constitutionally permissible.19 The U.S.S.C has enunciated this opinion in United States v.

Place20, that countervailing governmental interests will justify a search based only on specific

articulable facts that the item in question is contraband21 or evidence of a crime.22 In Ashok’s

case, the apex court has passed a suspect-friendly judgment, not realizing the state’s interest in

regulating the flow of contraband in the country. Thus the Supreme Court’s absolutist view in

Ashok’s case may backfire the State in the long run.

II. The Element of Coercion and Specific Knowledge

Authoritative superiority of the empowering officer, has led to the presumption that consent

was gained through coercion. In cases where the subject denied guilt and simultaneously

consents to the search that yields evidence against him, the court found in such circumstances a

strong implication of coercion.23 The U.S.S.C has presumed coercion in cases where consent

was obtained without informing the individual of his “right of action”.24

Consent has often been sustained without a showing of knowledge of the right to prevent a

search. 25 Therefore it is to be determined by the court, as to whether the consent was taken in a

free and voluntary manner. Keeping in view that consent should be granted knowingly and

intelligently26, the U.S.S.C has held in United States v. Johnson 27 that in cases where consent

18 Arizona v.Hicks, 107 S. Ct. at 1159. (O'Connor, J., dissenting). 19 Ibid at 1159-60. (O'Connor, J., dissenting) 20 462 U.S. 696 (1983) 21 United States v. Place 462 U.S. 706 (1983) 22 Elsie Romero, Fourth Amendment: Requiring Probable Cause for Searches and Seizures under the Plain View Doctrine The Journal of Criminal Law and Criminology (1973-), Vol. 78, No. 4 787, 763-793 (Northwestern University: Winter, 1988) 23 See United States v. Wallace, 160 F. Supp. 859 (D.D.C. 1958) 24 Miranda v. Arizona, 384 U.S. 436, 444 (1966). 25 See United States v. Dornblut, 261 F.2d 949 (2d Cir. 1958), cert.d enied, 360U .S. 912 (1959); United States v. Adelman, 107F .2d4 97 (2d Cir. 1939) United States v. Bianco, 96 F.2d 97 (2d Cir. 1938). 26 See Wren v. United States, 352 F.2d6 17 (10th Cir. 1965), cert. denied, 384 U.S. 944 (1966) 27 333 U.S. 10 (1948)

was “granted in submission to authority rather than as an understanding and an intelligent

waiver of a constitutional right”28, it would be invalidated.

The “mandatory requirement”29 as laid down in Vijaysingh’s case30 is not complied with by

merely informing the accused of his ‘option’ to be searched either in the presence of a Gazetted

officer/ Magistrate31; he must be intimated of his ‘legal right’32. Such procedure is of

continuous nature, requiring the suspect to be taken and searched before the Gazetted Officer/

Magistrate. In order to impart authenticity, transparency and creditworthiness to the entire

proceedings, an endeavour should be made by the prosecuting agency to produce the suspect

before the nearest Magistrate.33 Therefore, the law in Ashok’s case is not exclusive with respect

to the responsibility of the empowered officer. The case does not provide a reliable and precise

requirement, that the empowered officer needs to abide by, therefore leaving room for

ambiguity and uncertainty.

III. Ignorance of criminal law

Consent must be given with full understanding and the knowledge of the consequence of

waiving it.34 The suspects “free choice”35 to be searched before the Gazzeted officer or the

Magistrate must be made “knowingly [and] competitively”36. Thus it is imperative on the State

to ensure that the suspect is made fully knowledgeable of his legal right, before he makes a

conscious decision to waive it.

Moreover, the Court in the present case highlighted the impracticality of applying the rule of

ignorantia juris non excusat , courtesy the large population of illiterate citizens in the

country.37 also noted that it was too much to expect people in certain circumstances to know

28 Johnson v. United States, 333 U.S. 10, 13 (1948) 29 Myla Venkateswarlu v. State of Andhra Pradesh, 2012 (5) SCC 226 30 (2011) 1 SCC 609 31 Ibid 32 A right emanating from Section 50 of the Act, 1985. The mention of the word ‘right’, puts the suspect in a much more knowledgeable position, than by merely giving him an option. “What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word ’right’; at relevant places in the decision of State of Punjab v. Baldev Singh (1999) 6 SCC 172 seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the suspect”( Vijaysingh Chandubha Jadeja v. State of Gujart, (2011) 1 SCC 622). 33 Vijaysingh Chandubha Jadeja v. State of Gujart, (2011) 1 SCC 622 ( Narcotics Central Bureau v. Sukh Dev Raj Sodhi Criminal Appeal No. 1079 of 2002) 34 Miranda v. Arizona 384 U.S. 436, 469 (1966) 35 Ibid, at 458 36 Ibid at 465 37 Ashok Kumar Sharma v. State of Rajasthan, Criminal Appeal No.817 of 2008

their rights and exercise them.38 Looking beyond the illiteracy factor, the court failed to realize

that the impugned knowledge is that of a ‘legal right’ and not a ‘legal wrong’. It is possible to

presume that a person committing a ‘legal wrong’ should be aware of the consequences and

repercussions of his actions. However, in the contrary, it is unreasonable to expect citizens to

know all their ‘legal rights’39.

IV. Delivery of effective warning

An efficient search must follow from edifying warning. The Court in Ashok’s case40 entails the

police to notify the suspect of his right under Section 50 of the Act to be searched before the

Gazzeted officer or the Magistrate.41 However, the law in the U.S requires that a suspect be

made aware of his right both under the Fourth amendment42 and the Fifth Amendment43 before

being searched. Therefore alongside Section 50, the suspect must also be made aware of his

right to remain silent upon interrogation44.

Furthermore, to reassure the individual’s waiver of these rights, awareness of the legal and

practical consequences of such a waiver, must also be established45. Such an acquaintance,

comprehends the individual’s understanding of his decision.46 Moreover, the police cannot

search for articles, ultravires.47 It is only on the expressed free consent on the part of the

suspect, that the search and seizure of the contraband from the unlawful possession of the

offender become lawful and admissible.48

38 Trial vitiated if accused under NDPS Act unaware of right: SC , (Jan 13, 2013) , http://www.deccanherald.com/content/305127/trial-vitiated-accused-ndps-act.html (last visited on Feb 4, 2013) 39 Legal Rights here are made in reference to both Constitutional rights as well as Statutory Rights. Most laymen of our country only become aware of their right on the advent of injustice that is done to them. The feeling of injustice is he force that drives most people into making an effort to discover their rights and identify which right of theirs has been infringed. 40 Ashok Kumar Sharma v. State of Rajasthan ( Criminal Appeal No. 817 of 2008) 41 Ibid. 42 Supra, note 2 43 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Fifth Amendment, Bill of Rights 44 THE CONSTITUTION OF INDIA, art. 20(3) See Selvi and Anr. v. State of Karnataka (2010) 7 SCC 263. 45 Miranda v. Arizona, 384 U.S. 436, 469 (1966) 46 Consent Searches: An Reappraisal after Miranda v. Arizona, Vol. 67, No. 1 (Jan. 1967), 130-161 Columbia Law Review 47 See United States v. White, 122 F. Supp. 664 (D.D.C. 2954) 48 See State of Punjab v. Jasbir Singh And Ors. 1995 (4) Crimes 765 SC

Revocation of consent, must not sojourn the search. In matters where the suspect opts to be

searched by a Gazzeted officer/ Magistrate, a claim cannot be made regarding non compliance

of procedural requirements under Section 50 of the Act.49 After a proper warning, the suspect

will know precisely what conduct on the part of the police he is being asked to permit.50

Therefore a waiver binds the individual prospectively.

E. CONCLUSION

It is a settled principle, that a duty51 is cast upon the empowered officer to duly inform the

suspect of his rights before initiating the search and seizure. However, in most matters it is

seen that the court merely applies this principle, without making an attempt to consider other

aspects of the case.52 Therefore, non compliance of Section 50 of the Act, 1985 is sufficient to

vitiate the trial prima facie53.Although there has been a continuing insistence for an effective

procedural compliance, there has not been a single instance where the court has expressly laid

out a definite and certain procedure. This has left a lacuna in the interpretation of this statutory

provision.

This can be solved when the court provides for the contents of such warning54 , thus removing

all kinds of ambiguity in this respect. Therefore similar to the Miranda Rights in the United

States, I wish to make an attempt at laying down a similar proposition by means of enunciating

the contents of a definite warning. In a verbose manner, the warning may include: ‘Being an

empowered officer, I have been conferred the right to search your body and belongings.

However, the law grants you the right to be searched before a Gazetted Officer /Magistrate

49 Navdeep Singh v. State of Haryana ( Criminal Appeal No: 970 of 2011) 50 Supra, note 19 ( V V J case) 51 A duty under Section 50 (5) of the NDPS Act, 1985. ( “When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974)”) 52 See State of Punjab v. Jasbir Singh And Ors. 1995 (4) Crimes 765 SC ; Navdeep Singh v. State of Haryana ( Criminal Appeal No: 970 of 2011) ; Myla Venkateswarlu v. State of Andhra Pradesh, 2012 (5) SCC 226 ; Vijaysingh Chandubha Jadeja v. State of Gujart (2011) 1 SCC 609 ; Anil v. Union of India 2004 (2) Cr LR (Raj) 1165 : 2004 Cri NOC 355 ; Munna Ali v. State 1999 (1) EFR 287. 53 See Anil v. Union of India 2004 (2) Cr LR (Raj) 1165 : 2004 Cri NOC 355 ; 54 The U.S.S.C had laid down a concise and simple warning that must be abided by all interrogating officers, before they conduct a search or initiate interrogation. ( See Miranda v. Arizona , 384 U.S. 436 (1966) ) The warning includes: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.” See The Miranda Warning ( Feb 2, 2013); available at http://www.usconstitution.net/miranda.html.

under Section 50 of the Act. If you wish to exercise your right, then I will stop my search and

take you to the Gazetted officer/ Magistrate, before whom you will be searched. Once you

exercise your right, you may not revoke it. However, on waiving your right, I will search you

immediately.’ Such a warning vitiates the element of ambiguity, simultaneously protecting the

innocent citizen’s rights.

Section 20 of the Act provides a minimum punishment of 10 years and a fine of Rupees one

lakh. Such a punishment makes it very difficult for trial court judges to severe the matters

appearing before it based on the gravity of offence committed. Thus most judges, have to

strictly comply with the punishment, even if they wish to depart from the provision based on

principles of equity, justice and good conscience. The judgment either results in ten years of

sentence or in acquittal, leaving no room for the gray area. Therefore, amending the provision

to include ‘maximum’ in place of ‘minimum’ will help resolve this concern.

Although, in a broader perspective the court was right in deciding the matter in Ashok Kumar

Sharma v. State of Rajasthan, it has not been able to administer complete justice. The court

merely applied the law laid down in Vijaysingh Chandubha Jadeja v. State of Gujart, and

disposed off the matter. There is a need to put an end to this stagnating ambiguity, and train the

concerned executive authority to execute their duty in accordance with the procedural

requirements. Once these officers are fully equipped with the procedure, the suspect’s ‘escape

mechanism’ will lose its effectiveness. This will result in more convicts, further creating a

stronger message in relation to contraband trade and usage in the country. According to the

World Drug Report of 2010, there were 871,000 heroin users and 674,000 opium users in India

in 2008.55 Therefore, it is upon the state to cooperate with governmental and voluntary

organizations in the national endeavour to prevent abuse of narcotics and synthetic drugs.56

This can be achieved only by means of an effective delivery of warning, thereby removing a

big obstacle in judicial conviction.

By:- Alwyn Sebastian, 3rd Year, Student, B.A LL.B (Hons.), School of Law, Christ

University, Bangalore.

55 World Drug Report 2010, United Nations Office of Drug and Crime, n. 4, p. 40. http://www.unodc.org/documents/wdr/WDR_2010/World_Drug_Report_2010_lo-res.pdf (last visited on Feb 5, 2013) See, Extent, Pattern and Trend of Drug Use in India, Ministry of Social Justice and Empowerment, Government of India, 2004, pp.ix, 5. 56 Pushpita Das, Drug Trafficking in India: A case for border Security, Institute of Defense Studies and Analysis , http://www.idsa.in/system/files/OP_DrugTraffickinginIndia.pdf (last visited on 3 Feb, 2013)