MANU/SC/0981/1999

Equivalent Citation: 1999(2)AC R1694(SC ), AIR1999SC 2378, 1999(2)ALD(C ri)279, 1999 (3) AWC 2546 (SC ), 1999C riLJ3672,
(1999)157C TR(SC )3, 1999(65)EC C 695, 1999(84)EC R545(SC ), [1999(81)FLR303], (1999)3GLR2483, JT1999(4)SC 595, (1999)ILLJ254SC ,
1999(II)OLR474, 1999(II)OLR(SC )474, 1994(4)SC ALE144

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 396 of 1990 With SLP (Cri.) Nos. 2187, 2141 & 2137 etc. etc. of
1990, Cri. Appeal Nos. 483 of 1990, 573 of 1989, SLP (Cri.) No. 2496 of 1989, Cri.
M.P. No. 6675 of 1997 and Cri. Appeal Nos. 1185, 744, 745 & 815 of 1998
Decided On: 21.07.1999
Appellants: State of Punjab
Vs.
Respondent: Baldev Singh and Ors.
Hon'ble Judges/Coram:
Dr. A.S. Anand, C.J., S.B. Majmudar, S.V. Manohar, K. Venkataswami and V.N. Khare,
JJ.
Counsels:
For Respondents/Defendant: V.A. Mohta, N.N. Goswami, M.S. Nargolkar, Sr. Advs.,
R.S. Sodhi, Lokesh Kumar, Kuldip Singh, V.B. Saharaya, K.K. Mehrotra, Advs. Amicus
Curiae, S.M. Walawikar, S.V. Deshpande, Vimal Dave, Shailendra Narayan Singh,
Kamini Jaiswal, K. Sarada Devi, A.L. Trehan, Devasis Misra, N.S. Bisht, Sudhir
Nandrajog, N.K. Aggarwal, Advs. Amicus Curiae, Rajiv Dawar, Sanjeev Malhotra, D.S.
Mehra, K.C. Kaushik, Sanjeev Malhotra, R.C. Kohli, Harijinder Singh, Priya Saxena,
C.P. Pandey, S.S. Shinde, D.M. Nargolkar, Yashank Adhyaru, H. Wahi, A Subhashini
and K.M.K. Nair, Advs.
JUDGMENT
A.S. Anand, C.J.
1. On 15.7.1997 when this batch of appeals/special leave petitions was placed before
a two-Judge Bench, it was noticed that there was divergence of opinion between
different Benches of this Court with regard to the ambit and scope of Section 50 of
Narcotic Drugs and - Psychotropic Substances Act, 1985 (hereinafter 'NDPS Act') and
in particular with regard to the admissibility of the evidence collected by an
investigating officer during search and seizure conducted in violation of the
provisions of Section 50 of NDPS Act. In the cases of State of Punjab v. Balbir Singh
MANU/SC/0436/1994 : 1994 CriL J 3702. Ali Mustaffa Abdul Rahman Moosa v. State
of Kerala MANU/SC/0050/1995 : AIR1995SC244. Saiyad Mohd. Saiyad Umar Saiyad
and Ors. v. State of Gujarat, MANU/SC/0695/1995 : 1995CriL J2662 and a number of
other cases, it was laid down that failure to observe the safeguards, while conducting
search and seizure, as provided by Section 50 would render the conviction and
sentence of an accused illegal. In AH Mustaffa's case (supra), the judgment in Pooran
Mal v. The Director of Inspection (Investigation), New Delhi and Ors.
MANU/SC/0055/1973 : [1974]93ITR505(SC), was also considered and it was opined
that the judgment in Pooran Mal's case could not be interpreted to have laid down
that a contraband seized as a result of illegal search or seizure could by itself be
treated as evidence of possession of the contraband to fasten liability, arising out of
unlawful possession of the contraband, on the person from whom the alleged
contraband had been seized during an illegal search conducted in violation of the
provisions of Section 50 of NDPS Act. However, in State of Himachal Pradesh v. Pirthi
Chand and Anr. MANU/SC/0259/1996 : 1996CriL J1354, and State of Punjab v. Labh
Singh MANU/SC/1208/1996 : 1996CriL J3996, relying upon a judgment of this Court
in Pooran Mal's case (supra), a discordant note was stuck and it was held that
evidence collected in a search conducted in violation of Section 50 of NDPS Act did
not become inadmissible in evidence under the Evidence Act The two-Judge Bench,
therefore, on 15.7.1997, by the following order, referred the batch of cases to a lager
bench :
One of the questions that has been raised in these appeals/special leave
petitions is whether compliance with Section 50 of the Narcotics Drugs and
Psychotropic substances Act, 1985 is mandatory and, if so, what is the effect
of the breach thereof. This question has had been engaging the attention of
this Court and answered in a number of cases. In State of Punjab v. Balbir
Singh MANU/SC/0436/1994 : 1994CriL J3702, a two Judge Bench of this
Court held that the above section is mandatory and it is obligatory on the
part of the officer concerned to inform the person to be searched of his right
to demand that the search be conducted in the presence of a Gazetted Officer
or a Magistrate. It was further held that a non-compliance with the above
section would affect the prosecution case and vitiate the trial. This Judgment
was affirmed by a three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v.
State of Gujarat MANU/SC/0695/1995 : 1995CriLJ2662. In Ali. Mustaffa
Abdul Rahman Moosa v. State of Kerala MANU/SC/0050/1995 :
AIR1995SC244 a submission was made on behalf of the State of Kerala to
reconsider the judgment in Balbir Singh's case (supra) keeping in view the
judgment of this Court in Puran Mal v. Director of Inspection
MANU/SC/0055/1973 : [1974]93ITR505(SC). It was contended that even if
the search and seizure of the contraband was held to be illegal and contrary
to the provisions of Section 50, it would not affect the conviction because the
seized articles could be used as evidence of unlawful possession of the
contraband. In repelling the contention, the Court observed : The judgment
in Pooran Mal case only lays down that the evidence collected as a result of
illegal search or seizure, could be used as evidence in proceedings against
the party under the Income Tax Act. The judgment cannot be interpreted to
lay down that a contraband seized as a result of illegal search or seizure, can
be used to fasten the liability of unlawful possession of the contraband on
the person from whom the contraband had allegedly been seized in an illegal
manner. "Unlawful possession" of the contraband is the sine qua non for
conviction under the NDPS Act and that factor has to be established by the
prosecution beyond a reasonable doubt. Indeed the seized contraband is
evidence but in the absence of proof of possession of the same, an accused
cannot be held guilty under the NDPS Act. In view of the law laid down in
Balbir Singh case we hold that there has been violation of the provisions of
Section 50 of the NDPS Act and consequently the conviction of the appellant
cannot be sustained.
(Emphasis supplied)
It, however, appears that while dealing with Section 50 in State of Himachal Pradesh
v. Pirthi Chand and Anr. MANU/SC/0259/1996 : 1996CriL J1354, another two-Judge
Bench of this Court referred to and relied upon the judgment in Pooran Mal's case
(supra) and held that the evidence collected in a search in violation of law does not
become inadmissible in evidence under the Evidence Act. The Court further observed
that even if search was found to be in violation of law, what weight should be given
to the evidence collected was a question to be gone into during trial. With the above
observations, the Bench recorded a finding that the Sessions Judge was not justified
in discharging the accused after filing of the charge sheet holding that mandatory
requirements of Section 50 had not been complied with. It, however, appears that the
Court's attention was not drawn to Ali Mustaffa (supra). The view expressed in Pirthi
Chand (supra) was reiterated in State of Punjab v. Labh Singh MANU/SC/1208/1996 :
1996CriL J3996 wherein this Court considered the case of Balbir Singh (supra),
besides other cases and held as follows :- "In State of H.P. v. Pirthi Chand, this Court
further elaborately considered the effect of the violation of Section 50 and held that
any evidence recorded and recovered in violation of the search and the contraband
seized in violation of the mandatory requirement does not ipso facto invalidate the
trial.
From the above resume, it would thus appear that though a two-Judge Bench of this
Court considered the earlier judgments of this Court, it held in the case of Pirthi
Chand, and affirmed in the case of Labh Singh (supra), that breach of Section 50
does not affect the trial while in the case of Ali Mustaffa (supra), another Bench
categorically laid down that breach of Section 50 makes the conviction illegal. In
view of the divergent opinions so expressed, we deem it fit to refer these matters to
a larger Bench.
Let the records be placed before the Chief Justice for necessary orders.
2 . The batch of cases was thereafter listed before a three-Judge Bench. However,
when the three-Judge Bench took up the matter, it was of the opinion that the
judgment of a three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad and Ors. v.
State of Gujarat, (supra), required reconsideration and, therefore, the cases were
required to be considered still by a larger bench and on 19.11.1997, the three-Judge
Bench made the following order:
1. In this bunch of appeals special leave petitions the following questions of
law (besides other questions of law and facts) fall for determination :
(i) Is it the mandatory requirement of Section 50 of the Narcotic
Drugs and Psychotropic Substances Act, 1985. ("Act" for short) that
when an officer, duly authorised under Section 42 of the Act, is
about to search a person he must inform him of his right under Sub-
section (1) thereof of being taken to the nearest Gazetted Officer or
nearest Magistrate for making the search?
(ii) If any search is made without informing the person of his such
right would the search be illegal even if he does not of his own
exercise his right under Section 50(1)? And
(iii) Whether a trial held in respect of any recovery of contraband
articles pursuant to such a search would be void ab initio?
2. The above questions came up for consideration before a two-Judge Bench
of this Court in State of Punjab v. Balbir Singh MANU/SC/0436/1994 :
1994CriL J3702, and it answered them as under : (p. 322. para 25) "On prior
information the empowered officer or authorised officer while acting under
Sections 41(2) or 42 should comply with the provisions of Section 50 before
the search of the person is made and such person should be informed that if
he so requires, he shall be produced before a Gazetted Officer or a
Magistrate as provided thereunder. It is obligatory on the part of such officer
to inform the person to be searched. Failure to inform the person to be
searched and if such person so requires, failure to take him to the Gazetted
Officer or the Magistrate, would amount to non-compliance of Section 50
which is mandatory and thus it would affect the prosecution case and vitiate
the trial.
(Emphasis supplied)
3 . In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala
MANU/SC/0050/1995 : AIR1995SC244, a submission was made on behalf of
the State of Kerala to reconsider the judgment in Balbir Singh's case (supra)
in view of the judgment of the Constitution Bench of this Court in Pooran Mal
v. The Director of Inspection (Investigation), New Delhi and Ors.
MANU/SC/0055/1973 : [1974]93ITR505(SC) wherein it was observed that
where the test of admissibility of evidence lay on relevancy (as in India and
England), unless there was an express or necessary implied prohibition in
the Constitution or other law, evidence obtained as a result of illegal search
or seizure was not liable to be shut out. Relying upon the above observation
it was contended that even if the search and seizure of the contraband were
held to be illegal and contrary to the provisions of Section 50 it would not
affect the conviction because the seized articles could be used as evidence of
unlawful possession. In repelling this contention the two-Judge Bench of this
Court observed as under : "The judgment in Pooran Mal's case (supra) only
lays down that the evidence collected as a result of illegal search or seizure,
could be used as evidence in proceedings against the party under the Income
Tax Act. The judgment cannot be interpreted to lay down that a contraband
seized as a result of illegal search or seizure, can be used to fasten that
liability of unlawful possession of the contraband on the person from whom
the contraband had allegedly been seized in an illegal manner. "Unlawful
possession" of the contraband is the sine qua non for conviction under the
NDPS Act and that factor has to be established by the prosecution beyond a
reasonable doubt. Indeed the seized contraband is evidence but in the
absence of proof of possession of the same, an accused cannot be held guilty
under the NDPS Act.
In view of the law laid down in Balbir Singh's case (supra) we hold that there
has been violation of the provisions of Section 50 of NDPS Act and
consequently the conviction of the appellant cannot be sustained.
4 . The judgment in Balbir Singh's case (supra) was affirmed by a three-
Judge Bench in Saiyad Mohd. Saiyad umar Saiyad v. State of Gujarat
MANU/SC/0695/1995 : 1995CriLJ2662.
5. A discordant note was however struck by a two-Judge Bench of this Court
i n State of H.P. v. Pirthi Chand and Anr. MANU/SC/0259/1996 :
1996CriL J1354, relying upon the judgment of this Court in Pooran Mal's case
(supra), when it held that the evidence collected in a search in violation of
law did not become inadmissible in evidence under the Evidence Act. The
 Court further observed that even if the search was found to be in violation of
law, what weight should be given to the evidence collected was a question to
be gone into during trial. The same view was reiterated by a two-Judge
Bench in State of Punjab v. Labh Singh MANU/SC/1208/1996 :
1996CriL J3996, with the observation that any evidence recorded and
recovered in violation of the search and the contraband seized in violation of
the mandatory requirement did not ipso facto invalidate the trial.
(Emphasis supplied)
6 . In our considered opinion the judgment of this Court in Saiyad Mohd.
Saiyad Umar Saiyad's case (supra) (which was delivered by a three-Judge
Bench) requires re-consideration and the questions formulated above
answered by a larger Bench, not only in view of the subsequent judgments of
this Court (delivered by a two-Judge Bench) referred to above, but also in
view of the Constitution Bench judgment in Pooran Mal's case (supra).
7. Let these matters be, therefore, placed before the Hon'ble Chief Justice for
necessary orders."
3. That is how this batch of Criminal Appeals/Special Leave Petitions has been placed
before this Constitution Bench.
4 . Drug abuse is a social malady. While drug addiction eats into the vitals of the
society, drug trafficking not only eats into the vitals of the economy of a country, but
illicit money generated by drug trafficking is often used for illicit activities including
encouragement of terrorism. There is no doubt that drug trafficking, trading and its
use, which is a global phenomena and has acquired the dimensions of an epidemic,
affects the economic policies of the State, corrupts the system and is detrimental to
the future of a country. It has the effect of producing a sick society and harmful
culture. Anti-drug justice is a criminal dimension of social justice. The united Nations
Conventions Against Illicit Trafficking In Narcotic Drugs & Psychotropic Substances
which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an
international level, to tackle the menace of drug trafficking throughout the comity of
nations. The Government of India has ratified this convention.
5. Prior to the passing of the NDPS Act, 1985 control over Narcotic drugs was being
generally exercised through certain Central enactments though some of the States
also had enacted certain statutes With a view to deal with illicit in drugs. The Opium
Act, 1857 related mainly to preventing illicit cultivation of poppy, regulating
cultivation of poppy and manufacture of opium. Opium Act, 1878, supplemented
Opium Act, 1875 and made possession, transportation, import, export, sale, etc. of
opium also an offence, the Dangerous Drug Act, 1930, was enacted with a view to
suppress traffic in contraband and abuse of dangerous drugs, particularly derived
from opium, Indian hemp and coca leaf etc. The Act prescribed maximum punishment
of imprisonment for three years with or without fine, insofar as first offence is
concerned and for the second or the subsequent offence the punishment could go
upto four years RI. These Acts, however, failed to control illicit drug traffic and drug
abuse on the other hand exhibited an upward trend. New drugs of addiction known as
Psychotropic Substances also appeared on the scene posing serious problem. It was
noticed that there was an absence of comprehensive law to enable effective control
over psychotropic substances in the manner envisaged by the International
convention of Psychotropic Substances, 1971. The need for the enactment of some
comprehensive legislation on Narcotics Drug and Psychotropic Substances was,
therefore, felt. The Parliament with a view to meet a social challenge of great
dimensions, enacted the NDPS Act, 1985 to consolidate and amend existing
provisions relating to control over drug abuse etc. and to provide for enhanced
penalties particularly for trafficking and various other offence. The NDPS Act, 1985
provides stringent penalties for various offences. Enhanced penalties are prescribed
for second and subsequent offences. The NDPS, Act 1985 was amended in 1988
w.e.f. 29th May, 1989. Minimum punishment of 10 years' imprisonment which may
extend upto 20 years and a minimum fine of Rs. 1 lakh which may extend upto Rs. 2
lakh have been provided for most of the offences under the NDPS Act, 1985. For
second and subsequent offences, minimum punishment of imprisonment is 15 years
which may extend to 30 years while minimum fine is Rs. 1.5 lakh which may extend
to Rs. 3 lakh, Section 31(a) of the Act, which was inserted by the Amendment Act of
1988, has even provided that for certain offences, after previous convictions, death
penalty shall be imposed, without leaving any discretion in the Court to award
imprisonment for life in appropriate cases, Another amendment of considerable
importance introduced by the Amendment Act, 1988 was that all the offences under
the Act were made triable by a special court. Section 36 of the Act provides for
constitution of special courts manned by a person who is a Sessions Judge or an
Additional Sessions Judge. Appeal from the orders of the special courts lie to the
High Court. Section 37 makes all the offences under the Act to be cognizable and
non-bailable and also lays down stringent conditions for grant of bail. However,
despite the stringent provisions of the NDPS Act, 1985 as amended in 1988 drug
business is booming addicts are rapidly rising; crime with its role to narcotic is
galloping and drug trafficking network is ever growing. While interpreting various
provisions of the statute, the object of the legislation has to be kept in view but at
the same time the interpretation has to be reasonable and fair.
6. With a view to answer the questions framed by the referring Bench and resolve the
divergence of opinion expressed by different benches particularly on the applicability
of the law laid down in Pooran Mal's case (supra) to the admissibility of evidence
collected as a result of search conducted in violation of the provisions of Section 50
of the NDPS Act, to offences under the NDPS Act, it would be appropriate to first
notice some of the relevant statutory provisions. For the purpose of this batch of
cases we are primarily concerned with Chapter V in general and Sections 35, 41, 42,
43, 50, 51, 54 and 57 of the Act in particular. Section 35 lays down :
3 5 . Presumption of culpable mental state.- (1) In any prosecution for an
offence under this Act which requires a culpable mental state of the accused,
the court shall presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such mental state
with respect to the act charged as an offence in that prosecution.
Explanation - In this section 'culpable mental state' includes intention,
motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the
court believes it to exist beyond a reasonable doubt and not merely when its
existence is established by a preponderance of probability.
Section 41 reads as follows :-
41. Power to issue warrant and authorisation.- (1) A Metropolitan Magistrate
or a Magistrate of the first class or any Magistrate of the second class
specially empowered by the State Government in this behalf, may issue a
warrant for the arrest of any person whom he has reason to believe to have
committed any offence punishable under Chapter IV, or for the search,
whether by day or by night, of any building, conveyance or place in which he
has reason to believe any narcotic drug or psychotropic substance in respect
of which an offence punishable under Chapter IV has been committed or any
document or other article which may furnish evidence of the commission of
such offence is kept or concealed.
(2)Any such officer of gazetted rank of the departments of central excise,
narcotics, customs, revenue intelligence or any other department of the
Central Government or of the Border Security Force as is empowered in this
behalf by general or special order by the Central Government, or any such
officer of the revenue, drugs control, excise, police or any other department
of a State Government as is empowered in this behalf by general or special
order of the State Government, if he has reason to believe from personal
knowledge or information given by any person and taken in writing that any
person has committed an offence punishable under Chapter IV or that any
narcotic drug, or psychotropic substance is respect of which any offence
punishable under Chapter IV has been committed or any document or other
article which may furnish evidence of the commission of such offence has
been kept or concealed in any building, conveyance or place, may authorise
any officer subordinate to him but superior in rank to a peon, sepoy, or a
constable, to arrest such a person or search a building, conveyance or place
whether by day or by night or himself arrest a person or search a building,
conveyance or place.
(3) the officer to whom a warrant under Sub-section (1) is addressed and the
officer who authorised the arrest or search or the officer who is so authorised
under Sub-section (2) shall have all the powers of an officer acting under
Section 42.
Section 42 provides :-
4 2 . Power of entry, search, seizure and arrest without warrant or
authorisation.- (1) Any such officer (being an officer superior in rank to a
peon, sepoy or constable) of the departments of central excise, narcotics,
customs, revenue intelligence or any other department of the Central
Government or of the Border Security Force as is empowered in this behalf
by general or special order by the Central Government, or any such officer
(being an officer superior in rank to a peon, sepoy or constable) of the
revenue, drugs control, excise, police or any other department of a State
Government as is empowered in this behalf by general or special order of the
State Government, if he has reason to believe from personal knowledge or
information given by any person and taken down in writing, that any narcotic
drug, or psychotropic substance, in respect of which an offence punishable
under Chapter IV has been committed or any document or other article which
may furnish evidence of the commission of such offence is kept or concealed
in any building, conveyance or enclosed place, may, between sunrise and
sunset -
(a) enter into and search any such building conveyance or place;
 (b) in case of resistance, break open any door and remove any
obstacle to such entry;
(c) such drug or substance and all materials used in the manufacture
thereof and any other article and any animal or conveyance which he
has reason to believe to be liable to confiscation under this Act and
any document or other article which he has reason to believe may
furnish evidence of the commission of any offence punishable under
Chapter IV relating to such drug or substance; and
(d) detain and search, and, if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence
punishable under Chapter IV relating to such drug or substance :
Provided that if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for the escape
of an offender, he may enter and search such building conveyance or
enclosed place at any time between sun set and sun rise after
recording the grounds of his belief
(2) Where an officer takes down any information in writing under Sub-
section (1) or records grounds for his belief under the proviso thereto he
shall forthwith send a copy thereof to his immediate official superior.
43. Power of seizure and arrest in public places.- Any officer of any of the
departments mentioned in Section 42 may -
(a) seize, in any public place or in transit, any narcotic drug or
psychotropic substance in respect of which he has reason to believe
an offence punishable under Chapter IV has been committed, and,
along with such drug or substance, any animal or conveyance or
article liable to confiscation under this Act, and any document or
other article which he has reason to believe may furnish evidence of
the commission of an offence punishable under Chapter IV relating
to such drug or substance;
(b) detain and search any person whom he has reason to believe to
have committed an offence punishable under Chapter IV, and, if such
person has any narcotic drug or psychotropic substance in his
possession and such possession appears to him to be unlawful,
arrest him and any other person in his company. Explanation - For
the purposes of this section, the expression "public place" includes
any public conveyance, hotel, shop, or other place intended for use
by, or accessible to, the public." Section 50 of the N.D.P.S. Act reads
as follows :
50. Conditions under which search of persons shall be conducted.- (1) When
any officer duly authorised under Section 42 is about to search any person
under the provisions of Section 41, Section 42 or Section 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) If such requisition is made, the officer may detain the person until he can
bring him before the Gazetted Officer or the Magistrate referred to in Sub-
section (1).
(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) No female shall be searched by anyone excepting a female.
Section 51 provides :
51. Provisions of the CrPC 1973 to apply to warrants, arrest, searches and
seizures.- The provisions of the CrPC, 1973 shall apply, in so far as they are
not inconsistent with the provisions of this Act, to all warrants issued and
arrests, searches and seizures made under this Act.
Section 52 reads thus :
Disposal of persons arrested and articles seized.-
(1) Any officer arresting a person under Section 41, Section 42,
Section 43 or Section 44 shall, as soon as may be, inform him of the
grounds for such arrest.
(2) Every person arrested and article seized under warrant issued
under Sub-section (1) of Section 41 shall be forwarded without
unnecessary delay to the Magistrate by whom the warrant was
issued.
(3) Every person arrested and article seized under Sub-section (2) of
Section 41, Section 42, Section 43 or Section 44 shall be forwarded
without unnecessary delay to -
(a) the officer-in-charge of the nearest police station, or
(b) the officer empowered under Section 53.
(4) The authority or officer to whom any person or article is
forwarded under Sub-section (2) or Sub-section (3) shall, with all
convenient dispatch, take such measures as may be necessary for
the disposal according to law of such person or article."
Section 54 provides :
54. Presumption from possession of illicit articles.- In trials under this Act, it
may be presumed, unless and until the contrary is proved, that the accused
has committed an offence under Chapter IV in respect of-
(a) any narcotic drug or psychotropic substance;
(b) any opium poppy, cannabis plant or coca plant growing or any
land which he has cultivated;
(c) any apparatus specially designed or any group of utensils
specially adopted for the manufacture of any narcotic drug or
 psychotropic substance; or
(d) any materials which have undergone any process towards the
manufacture of a narcotic drug or psychotropic substance, or any
residue left of the materials from which any narcotic drug or
psychotropic substance has been manufacture.
for the possession of which he fails to account satisfactorily."
Section 57 reads as follows :-
57. Report of arrest and seizure.- Whenever any person makes any arrest or
seizure under this Act, he shall, within forty-eight hours next after such
arrest or seizure, make a full report of all the particulars of such arrest or
seizure to his immediate superior official.
Section 132(13) of the Income Tax Act, 1961 provides :
132. Search and seizure.-
xxx
(13) The provisions of the CrPC, 1973 (2 of 1974), relating to searches and
seizure shall apply, so far a s may be, to searches and seizure under Sub-
section (1) or Sub-section (1A).
7 . Search and seizure are essential steps in the armoury of an investigator in the
investigation of a criminal case. The CrPC itself recognises the necessity and
usefulness of search and seizure during the investigation as is evident from the
provisions of Sections 96 to 103 and Section 165 of the Criminal Procedure Code. In
M.P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi and Ors.
MANU/SC/0018/1954 : (1954) S.C.R. 1077, the challenge to the power of issuing a
search warrant under Section 96(1) Cr.P.C. as violative of the fundamental rights was
repelled by the Constitution Bench on the ground that the power of search and
seizure in any system of jurisprudence is an overriding power of the State for the
protection of social security. It was also held that a search by itself is not a
restriction on the right to hold and enjoy property, though a seizure may be a
restriction on the right of possession and enjoyment of the seized property, but it is
only temporary and for the limited purpose of an investigation. The Court opined :
A power of search and seizure is in any system of jurisprudence an
overriding power of the State for the protection of social security and that
power is necessarily regulated by law. When the Constitution makers have
thought fit not to subject such regulation to constitutional limitations by
recognition of a fundamental right to privacy, analogous to the American
Fourth Amendment, we have no justification to import it, into a totally
different fundamental right, by some process of strained construction. Nor is
it legitimate to assume that the constitutional protection under Article 20(3)
would be defeated by the statutory provisions for searches.
8. The Court also opined :
A search and seizure is, therefore, only a temporary interference with the
right to hold the premises searched and the articles seized. Statutory
regulation in this behalf is necessary and reasonable restriction cannot per se
 be considered to be unconstitutional. The damage, if any, caused by such
temporary interference if found to be in excess of legal authority is a matter
for redress in other proceedings. We are unable to see how any question of
violation of Article 19(1)(f) is involved in this case in respect of the warrants
in question which purport to be under the first alternative of Section 96(1) of
the Criminal Procedure Code."
9. Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate
of the first class or any Magistrate of the second class specially empowered by the
State Government in this behalf, may issue a warrant for the arrest of and for search
of any person whom he has reason to believe to have committed any offence
punishable under Chapter IV. Vide sub-Section (2) the power has also been vested in
Gazetted Officers of the Department of Central Excise, Narcotics, Customs, Revenue
Intelligence or any other Department of the Central Government or of Border Security
Force, empowered in that behalf by general or special order of the State Govt. to
arrest any person, who he has reason to believe to have committed an offence
punishable under Chapter IV or to search any person or conveyance or vessel or
building etc. with a view to seize any contraband or document or other article which
may furnish evidence of the commission of such an offence, concealed in such
building or conveyance or vessel or place.
10. Sub-section (1) of Section 42 lays down that the empowered officer, if has a
prior information given by any person, he should necessarily take it down in writing
and where he has reason to believe from his personal knowledge that offences under
Chapter IV have been committed or that materials which may furnish evidence of
commission of such offences are concealed in any building etc. he may carry out the
arrest or search, without a warrant between sunrise and sunset, and he may do so
without recording his reasons of belief.
1 1 . The proviso to Sub-section (1) lays down that if the empowered officer has
reason to believe that a search warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or facility for the escape of an
offender, he may enter and search such building, conveyance or enclosed place, at
any time between sunset and sunrise, after recording the grounds of his belief. Vide
Sub-section (2) of Section 42, the empowered officer who takes down information in
writing or records the grounds of his belief under the proviso to Sub-section (1),
shall forthwith send a copy of the same to his immediate official superior. Section 43
deals with the power of seizure and arrest of the suspect in a public place.
The material difference between the provisions of Section 43 and Section 42 is that
whereas Section 42 requires recording of reasons for belief and for taking down of
information received in writing with regard to the commission of an offence before
conducting search and seizure, Section 43 does not contain any such provision and
as such while acting under Section 43 of the Act, the empowered officer has the
power of seizure of the article etc. and arrest of a person who is found to be in
possession of any Narcotic Drug or Psychotropic Substances in a public place where
such possession appears to him to be unlawful.
12. Section 50 of the Act prescribes the conditions under which search of a person
shall be conducted. Sub-section (1) provides that when the empowered officer is
about to search any suspected person, he shall, if the person to be searched so
requires, take him to the nearest Gazetted Officer or the magistrate for the purpose.
Under Sub-section (2) it is laid down that if such request is made by the suspected
person, the officer who is to take the search, may detain the suspect until he can be
brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down
that when the person to be searched is brought before such a Gazetted Officer or the
Magistrate and such Gazetted Officer or the Magistrate finds that there are no
reasonable grounds for search, he shall forthwith discharge the person to be
searched, otherwise he shall direct that the search be made.
1 3 . On its plain reading, Section 50 would come into play only in the case of a
search of a person as distinguished from search of any premises etc.
However, if the empowered officer, without any prior information as contemplated by
Section 42 of the Act makes a search or causes arrest of person during the normal
course of investigation into an offence or suspected offence and on completion of
that search, a contraband under the NDPS Act is also recovered, the requirements of
Section 50 of the Act are not attracted.
14. Vide Section 51, the provisions of the CrPC, 1973, shall apply, insofar as they
are not inconsistent with the provisions of the NDPS Act, to all warrants issued and
arrests, searches and seizures made under the NDPS Act. Thus, the NDPS Act, 1985
after incorporating the board principles regarding search, seizure and arrest etc. in
Sections 41, 42, 43, 49 and 50 has laid down in Section 51 that the provisions of the
CrPC shall apply insofar as they are not inconsistent with the provisions of the NDPS
Act. The expression "insofar as they are not inconsistent with the provisions of this
Act" occurring in Section 51 of the NDPS Act is of significance. This expression
implies that the provisions of the CrPC relating to search, seizure or arrest apply to
search, seizure and arrest under NDPS Act also except to the extent they are
"inconsistent with the provisions of the Act". Thus, while conducting search and
seizure, in addition to the safeguards provided under the CrPC, the safeguards
provided, under the NDPS Act are also required to be followed. Section 50(4) of the
NDPS Act lays down that no female shall be searched by anyone excepting a female.
This provision is similar to the one contained in Section 52 of the CrPC, 1898 and
Section 51(2) of the CrPC, 1973 relating to search of females. Section 51(2) of the
CrPC, 1973 lays down that whenever it is necessary to cause a female to be searched,
the search shall be made by another female with strict regard to decency. The
empowered officer must, therefore, act in the manner provided by Section 50(4) of
the NDPS Act read with Section 51(2) of the CrPC, 1973 whenever it is found
necessary to cause a female to be searched. The document prepared by the
Investigating Officer at the spot must invariably disclose that the search was
conducted in the aforesaid manner and the name of the female official who carried
out the personal search of the concerned female should also be disclosed. The
personal search memo of the female concerned should indicate compliance with the
aforesaid provisions. Failure to do so may not only affect the credibility of the
prosecution case but may also be found as violative of the basic right of a female to
be treated with decency and proper dignity.
15. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the
provisions of the NDPS Act and are applicable for affecting search, seizure or arrest
under the NDPS Act also. However, when an empowered officer carrying on the
investigation including search, seizure or arrest under the provisions of the CrPC,
comes across a person bring in possession of the narcotic drugs or the psychotropic
substance, then he must follow from that stage onwards the provisions of the NDPS
Act and continue the investigation as provided thereunder. If the investigating officer
is not an empowered officer then it is expected of him that he must inform the
empowered officer under the NDPS Act, who should thereafter proceed from that
stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case after
referring to a number of judgments, the Bench opined that failure to comply with the
provisions of Cr.P.C. in respect of search and seizure and particularly those of
Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there
is such a violation, what the courts have to see is whether any prejudice was caused
to the accused. While appreciating the evidence and other relevant factors, the courts
should bear in mind that there was such a violation and evaluate the evidence on
record keeping that in view.
16. What is the import of the expression "if such person so requires " he shall be
taken to the nearest Gazetted officer or Magistrate and his search shall be made
before such Officer or Magistrate as occurring in Section 50. Does the expression not
visualise that to enable the concerned person to require his search to be conducted
before a Gazetted Officer or a Magistrate, the empowered officer is under an
obligation to inform him that he has such a right? Learned counsel appearing for the
State of Punjab as also the learned counsel appearing for the State of Gujarat argued
that it would not be proper to read into the provisions of Section 50, any legislative
intent of prescribing a duty on the part of the empowered Officer to inform the
suspect that if he so requires, the search would be conducted before a Gazetted
Officer or a Magistrate, as the case may be. According to the learned counsel, the
view expressed in State of Punjab v. Balbir Singh (supra), laying down that it is
obligatory on the part of such an officer to so inform the person to be searched or if
such person requires, failure to take him for search before the Gazetted Officer or the
Magistrate, would amount to non-compliance with the provisions of Section 50 and
would affect the prosecution case and vitiate the trial requires reconsideration. As a
matter of fact, the order of the referring bench itself, centers around whether there is
any requirement of Section 50, making, it obligatory for the empowered officer, who
is about to search a person, to inform him of his right of being taken to the nearest
Gazetted Officer or nearest Magistrate for making the search if he so requires.
Learned counsel for the parties, however, agree that in case the obligation to inform
the suspect of his right to be searched before a Gazetted Officer or a Magistrate is
read as a duty cast on the empowered officer; then failure to give information
regarding that right to the suspect would be a serious infirmity amounting to denial
of a valuable right to an accused and would render his conviction for an offence
under the NDPS Act bad and unsustainable.
17. The question as to what is the effect of non-compliance with the provisions of
Section 50 on the recovery of the contraband was answered in State of Punjab v.
Balbir Singh (supra). The common question which arose for consideration in a batch
of appeals filed by the State of Punjab was "whether any arrest or search of a person
or search of a place conducted without conforming to the provisions of the NDPS Act
would be rendered illegal and consequently vitiate the conviction?"
18. The Trial Court in those cases had acquitted the accused on the ground that the
arrest, search and seizure were conducted in violation of some of the "relevant and
mandatory" provisions of the NDPS Act. The High Court declined to grant appeal
against the order of acquittal. The State of Punjab thereupon filed appeals by special
leave in this Court. In some other cases, where the accused had been convicted, they
also filed appeals by special leave questioning their conviction and sentence on the
ground that their trials were illegal because of non-compliance with the safeguard
provided under Section 50 of the NDPS Act. A two-Judge Bench speaking through K.
Jayachandra Reddy, J. considered several provisions of the NDPS Act governing
arrest, search and seizure and, in particular, the provisions of Sections 41, 42, 43,
44, 49, 50, 51, 52 and 57 of the NDPS Act as well as the provisions of the CrPC
relating to search and seizure effected during investigation of a criminal case.
Dealing with Section 50, it was held that in the context in which the right had been
conferred, it must naturally be presumed that it is imperative on the part of the
officer to inform the person to be searched of his right that if he so requires he shall
be searched before a Gazetted Officer or Magistrate and on such request being made
by him, to be taken before the Gazetted Officer or Magistrate for further proceedings.
The reasoning given in Balbir Singh's case was that to afford an opportunity to the
person to be searched "if he so requires to be searched before a Gazetted Officer or a
Magistrate" he must be made aware of that right and that could be done only by the
empowered officer by informing him of the existence of that right. The Court went on
to hold that failure to inform the person to be searched of that right and if he so
requires, failure to take him to the Gazetted Officer or the Magistrate, would mean
non-compliance with the provisions of Section 50 which in turn would "affect the
prosecution case and vitiate the Trial." The following conclusions were arrived at by
the two-Judge Bench in State of Punjab v. Balbir Singh (supra):
The questions considered above arise frequently before the trial courts.
Therefore we find it necessary to set out our conclusions which are as
follows :
(1) If a police officer without any prior information as contemplated
under the provisions of the NDPS Act makes a search or arrests a
person in the normal course of investigation into an offence or
suspected offences as provided under the provisions of CrPC and
when such search is completed at that stage Section 50 of the NDPS
Act would not be attracted and the question of complying with the
requirements thereunder would not arise. If during such search or
arrest there is a chance recovery of any narcotic drug or
psychotropic substance then the police officer, who is not
empowered, should inform the empowered officer who should
thereafter proceed in accordance with the provisions of the NDPS
Act. If he happens to be an empowered officer also, then from that
stage onwards, he should carry out the investigation in accordance
with the other provisions of the NDPS Act. (2-A) Under Section 41(1)
only an empowered Magistrate can issue warrant for the arrest or for
the search in respect of offences punishable under Chapter IV of the
Act etc. when he has reason to believe that such offences have been
committed or such substances are kept or concealed in any building,
conveyance or place. When such warrant for arrest or for search is
issued by a Magistrate who is not empowered then such search or
arrest if carried out would be illegal. Likewise only empowered
officers or duly authorised officers as enumerated in Sections 41(2)
and 42(1) can act under the provisions of the NDPS Act. If such
arrest or search is made under the provisions of the NDPS Act by
anyone other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can
give the authorised to his subordinate officer to carry out the
arrest of a person or search as mentioned therein. If there is
a contravention, that would affect the prosecution case and
vitiate the conviction.
 (2-C) Under Section 42(1) the empowered officer if has a
prior information given by any person, that should
necessarily be taken down in writing. But if he has reason to
believe from personal knowledge that offences under
Chapter IV have been committed or materials which may
furnish evidence of commission of such offences are
concealed in any building etc. he may carry out the arrest or
search without a warrant between sunrise and sunset and
this provision does not mandate that he should record his
reasons of belief. But under the proviso to Section 42(1) if
such officer has to carry out such search between sunset and
sunrise; he must record the grounds of his belief. To this
extent these provisions are mandatory and contravention of
the same would affect the prosecution case and vitiate the
trial.
(3) Under Section 42(2) such empowered officer who takes down
any information in writing or records the grounds under proviso to
Section 42(1) should forthwith send a copy thereof to his immediate
official superior. If there is total non-compliance of this provision the
same affects the prosecution case. To that extent it is mandatory.
But if there is delay whether it was undue or whether the same has
been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an
"empowered" officer while effecting an arrest or search
during normal investigation into offences purely under the
provisions of CrPC fails to strictly comply with the provisions
of Sections 100 and 165 CrPC including the requirement to
record reasons, such failure would only amount to an
irregularity.
(4-B) if an empowered officer or an authorised officer under
Section 41(2) of the Act carries out a search, he would be
doing so under the provisions of CrPC namely Sections 100
and 165 CrPC and if there is no strict compliance with the
provisions of CrPC then such search would not per se be
illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while
appreciating the evidence in the facts and circumstances of each
case.
(5) On prior information the empowered officer or authorised officer
while acting under Sections 41(2) or 42 should comply with the
provisions of Section 50 before the search of the person is made and
such person should be informed that if he so requires, he shall be
produced before a Gazetted Officer or a Magistrate as provided
thereunder. It is obligatory on the part of such officer to inform the
person to be searched. Failure to inform the person to be searched
and if such person so requires, failure to take him to the Gazetted
Officer or the Magistrate, would amount to non-compliance of Section
50 which is mandatory and thus it would affect the prosecution case
 and vitiate the trial. After being so informed whether such person
opted for such a course or not would be a question of fact.
(Emphasised ours)
(6) The provisions of Sections 52 and 57 which deal with the steps
to be taken by the officers after making arrest or seizure under
Sections 41 to 44 are by themselves not mandatory. If there is non-
compliance or if there are lapses like delay etc. then the same has to
be examined to see whether any prejudice has been caused to the
accused and such failure will have a bearing on the appreciation of
evidence regarding arrest or seizure as well as on merits of the case.
19. A three-Judge Bench in Saiyad Mohd. Saiyad umar Saiyad and Ors. v. State of
Gujarat (supra), upheld the view taken in Balbir Singh's case (supra) on the point of
duty of the empowered officer to inform the suspect about his right to be searched
before a Gazetted Officer or a Magistrate. It considered the provisions of Section 50
and opined :
8. We are unable to share the High Court's view that in cases under the NDPS
Act it is the duty of the court to raise a presumption, when the officer
concerned has not deposed that he had followed the procedure mandated by
Section 50, that he had in fact done so. When the officer concerned has not
deposed that he had followed the procedure mandated by Section 50, the
court is duty-bound to conclude that the accused had not had the benefit of
the protection that Section 50 affords; that, therefore, his possession of
articles which are illicit under the NDPS Act is not established; that the
prosecution for his having satisfactorily accounted for such possession has
not been met, and to acquit the accused.
(Emphasis ours)
20. In State of Himachal Pradesh v. Shri Pirthi Chand and Anr. (supra), the Bench
agreed with the view in Balbir Singh's case regarding to duty to inform the suspect of
his right as emanating from Section 50 of the NDPS Act. The Court opined :
...Compliance of the safeguards in Section 50 is mandatory obliging the
officer concerned to inform the person to be searched of his right to demand
that search could be conducted in the presence of a Gazetted Officer or a
Magistrate. The possession of illicit articles has to be satisfactorily
established before the court. The officer who conducts search must state in
his evidence that he had informed the accused of his right to demand, while
he is searched, in the presence of a Gazetted Officer or a Magistrate and that
the accused had not chosen to so demand. If no evidence to that effect is
given, the court must presume that the person searched was not informed of
the protection the law gives him and must find that possession of illicit
articles was not established. The presumption under Article 114 Illustration
(e) of the Evidence Act, that the official duty was properly performed,
therefore, does not apply....
21. In State of Punjab v. Labh singh, (supra) again it was reiterated that the accused
has been provided with a protection of being informed of his right to be searched in
presence of a Gazetted Officer or a Magistrate and failure to give an opportunity to
the concerned person to avail of the protection would render the prosecution case
unsustainable.
2 2 . In State of Punjab v. Jasbir singh and Ors. MANU/SC/0987/1996 :
1996(54)ECC79, it was opined :
Having considered the evidence we find it difficult to set aside the order of
acquittal recorded by the Additional Sessions Judge. Though the offence
involved is of a considerable magnitude of 70 bags containing 34 kgs. Of
poppy husk, each without any permit/licence, this Court is constrained to
confirm the acquittal for the reasons that the mandatory requirements of
Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 has not
been complied with. Protection given by Section 50 is a valuable right to the
offender and compliance thereof intended to be mandatory. In case the police
officers had prior knowledge that illegal transport of the contraband is in
movement and persons are in unlawful possession and intends to intercept it,
conduct search and consequentially to seize the contraband, they are required
to inform the offender that he has the right that the search will be conducted
in the presence of a gazetted officer or a Magistrate. Thereafter on their
agreeing to be searched by the police officers, the search and seizure of the
contraband from their unlawful possession would become legal and valid.
However, the evidence collected in breach of mandatory requirement does
not become inadmissible. It is settled law that evidence collected during
investigation in violation of the statutory provisions does not become
inadmissible and the trial on the basis thereof does not get vitiated. Each
case is to be considered on its own backdrop.
(Emphasis added)
2 3 . In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, (supra), two-Judge
Bench of this Court, (to which one of us (CJI) was a partly) it had been found that
the appellant had not been given any choice as to whether he desired to be searched
in the presence of a Gazetted Officer or a Magistrate as envisaged under Section 50
of the NDPS Act. The argument raised in that case to the effect that Section 50 of the
Act could not be said to have been violated because the appellant did not "require "
to have himself searched before a Gazetted Officer or a Magistrate was rejected
following the law laid down in Balbir Singh's case (supra). The court opined that to
enable the concerned person to require that his search be carried out in the presence
of a Gazetted Officer or a Magistrate makes, it is obligatory on the part of the
empowered officer to inform the concerned person that he has a right to require his
search to be conducted in the presence of a Gazetted Officer or a Magistrate.
24. Mohinder Kumar v. State, Panaji, Goa MANU/SC/0230/1995 : 1995CriL J2074, a
three-Judge Bench (to which one of us, sujata V. Manohar, J. was a party) once again
considered the requirements of Sections 42 and 50 of the Act. In that case the police
officer "accidentally" reached the house while on patrol duty and had it not been for
the conduct of the accused persons in trying to run into the house on seeing the
police party, he would perhaps not have had any occasion to enter the house and
effect search. But when the conduct of the accused persons raised a suspicion, he
went into the house and effected the search, seized the illicit material and caused the
arrest. The Court opined that in the facts and circumstances of the case, when the
Investigating Officer accidentally stumbled upon the offending articles and himself
not being the empowered officer, then on coming to know that the accused persons
were in possession of illicit articles, then from that stage onwards he was under an
obligation to proceed further in the matter only in accordance with the provisions of
the Act. On facts it was found that the Investigating Officer did not record the
grounds of his belief at any stage of the investigation, subsequent to his realising
that the accused persons were in possession of charas and since he had made no
record, he did not forward a copy of the grounds to his superior officer nor did he
comply with the provisions of Section 50 of the Act, inasmuch as he did not inform
the person to be searched that if he required, his search could be conducted before a
Gazetted Officer or a Magistrate, the Bench held that for failure to comply with the
provisions of Sections 42 and 50, the accused was entitled to an order of acquittal
and consequently the appeal was allowed and the order of conviction and sentence
against the accused was set aside.
25. It would thus, be seen that none of the decisions of the Supreme Court after
Balbir Singh's case have departed from that opinion. At least none has been brought
to our notice. There is, thus, unanimity of judicial pronouncements to the effect that
it is an obligation of the empowered officer and his duty before conducting the search
of the person of a suspect, on the basis of prior information, to inform the suspect
that he has the right to require his search being conducted in the presence of a
Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his
right, would render the search illegal because the suspect would not be able to avail
of the protection which is inbuilt in Section 50. Similarly, if the concerned person
requires, on being so informed by the empowered officer or otherwise, that his
search be conducted in the presence of a Gazetted Officer or a Magistrate, the
empowered officer is obliged to do so and failure on his part to do so would also
render the search illegal and the conviction and sentence of the accused bad.
2 6 . To be searched before a Gazetted Officer or a Magistrate, if the suspect so
requires, is an extremely valuable right which the legislature has given to the
concerned person having regard to the grave consequences that may entail the
possession of illicit articles under the NDPS Act, It appears to have been incorporated
in the Act keeping in view the severity of the punishment. The ration able behind the
provision is even otherwise manifest. The search before a Gazetted officer or a
Magistrate would impart much more authenticity and creditworthiness to the search
and seizure proceeding. It would also verily strengthen the prosecution case. There
is, thus, no justification for the empowered officer, who goes to search the person,
on prior information, to effect the search, of not informing the concerned person of
the existence of his right to have his search conducted before a Gazetted Officer or a
Magistrate, so as to enable him to avail of that right. It is, however, not necessary to
give the information to the person to be searched about his right in writing. It is
sufficient if such information is communicated to the concerned person orally and as
far as possible in the presence of some independent and respectable persons
witnessing the arrest and search. The prosecution must, however, at the trial,
establish that the empowered officer had conveyed the information to the concerned
person of his right of being searched in the presence of the Magistrate or a Gazetted
Officer, at the time of the intended search. Courts have to be satisfied at the trial of
the case about due compliance with the requirements provided in Section 50. No
presumption under Section 54 of the Act can be raised against an accused, unless the
prosecution establishes it to the satisfaction of the court, that the requirements of
Section 50 were duly complied with.
27. The safeguard or protection to be searched in presence of a Gazetted Officer or a
Magistrate has been incorporated in Section 50 to ensure that persons are only
searched with a good cause and also with a view to maintain veracity of evidence
derived from such search. We have already noticed that severe punishments have
been provided under the Act for mere possession of Illicit Drugs and Narcotic
Substances. Personal search, more particularly for offences under the NDPS Act, are
critical means of obtaining evidence of possession and it is, therefore, necessary that
the safeguards provided in Section 50 of the Act are observed scrupulously. The duty
to inform the suspect of his right to be searched in presence of a Gazetted Officer or
a Magistrate is a necessary sequence for enabling the concerned person to exercise
that right under Section 50 because after Maneka Gandhi v. Union of India
MANU/SC/0133/1978 : [1978]2SCR621, it is no longer permissible to contend that
the right to personal liberty can be curtailed even temporarily, by a procedure which
is not "reasonable, fair and just" and when a statute itself provides for a 'just'
procedure, it must be honoured. Conducting a search under Section 50. without
intimating to the suspect that he has a right to be searched before a Gazetted Officer
or a Magistrate, would be violative of the 'reasonable, fair and just procedure' and
the safeguard contained in Section 50 would be rendered illusory, otiose and
meaningless. Procedure based on systematic and unconscionable violation of law by
the officials responsible for the enforcement of law, cannot be considered to be 'fair',
just or reasonable procedure. We are not persuaded to agree that reading into
Section 50, the existence of a duty on the part of the empowered officer, to intimate
to the suspect, about the existence of his right to be searched in presence of a
Gazetted Officer or a Magistrate, if he so requires, would place any premium on
ignorance of law. The argument loses sight of a clear distinction between ignorance
of the law and ignorance of the right to a 'reasonable, fair and just procedure'.
2 8 . Requirement to inform has been read in by this in other circumstances also,
where the statute did not explicitly provide for such a requirement. While considering
the scope of Article 22(5) of the Constitution of India and various other provisions of
COFEPOSA Act and the NDPS Act as amended in 1988, a Constitution Bench of this
Court in Kamelesh Kumar Ishwardas Patel v. Union of India and Ors.
MANU/SC/0732/1995 : 1996(53)ECC123, concluded:
Article 22(5) must, therefore, be construed to mean that the person detained
has a right to make a representation against the order of detention which can
be made not only to the Advisory Board but also to the detaining authority,
i.e., the authority that has made the order of detention or the order for
continuance of such detention, which is competent to give immediate relief
by revoking the said order as well as to any other authority which is
competent under law to revoke the order for detention and thereby give relief
to the person detained. The right to make a representation carries within it a
corresponding obligation on the authority making the order of detention to
inform the person detained of his right to make a representation against the
order of detention to the authorities who are required to consider such a
representation.
(Emphasis ours)
2 9 . This Court cannot over-look the context in which the NDPS Act operates and
particularly the factor of widespread illiteracy among persons subject to investigation
for drug offences.
It must be borne in mind that severer the punishment, greater has to be the care
taken to see that all the safeguards provided in a statute are scrupulously followed.
We are not able to find any reason as to why the empowered officer should shirk
from affording a real opportunity to the suspect, by intimating to him that he has a
right "that if he requires" to be searched in the presence of a Gazetted Officer or a
Magistrate, he shall be searched only in that manner. As already observed the
compliance with the procedural safeguards contained in Section 50 are intended to
serve dual purpose - to protect a person against false accusation and frivolous
charges as also to lend creditability to the search and seizure conducted by the
empowered officer. The argument that keeping in view the growing drug menace, an
insistence on compliance with all the safeguards contained in Section 50 may result
in more acquittals does not appeal to us. If the empowered officer fails to comply
with the requirements of Section 50 and an order or acquittal is recorded on that
ground, the prosecution must thank itself for its lapses. Indeed in every case the end
result is important but the means to achieve it must remain above board. The remedy
cannot be worse than the disease itself. The legitimacy of judicial process may come
under cloud if the court is seen to condone acts of lawlessness conducted by the
investigating agency during search operations and may also undermine respect for
law and may have the effect of unconscionably compromising the administration of
justice. That cannot be permitted.
30. In D.K. Basu v. State of West Bengal MANU/SC/0157/1997 : 1997CriL J743, it
was opined:
We are conscious of the fact that the police in India have to perform a
difficult and delicate task, particularly in view of the deteriorating law and
order situation, communal riots, political turmoil, student unrest, terrorist
activities, and among others the increasing number of underworld and armed
gangs and criminals. Many hardcore criminals like extremists, terrorists, drug
peddlers, smugglers who have organised gangs, have taken strong roots in
the society. It is being said in certain quarters that with more and more
liberalisation and enforcement of fundamental rights, it would lead to
difficulties in the detection of crimes committed by such categories of
hardened criminals by soft peddling interrogation. It is felt in those quarters
that if we lay too much of emphasis on protection of their fundamental rights
and human rights, such criminals may go scot-free without exposing any
element or iota of criminality with the result, the crime would go unpunished
and in the ultimate analysis the society would suffer. The concern is genuine
and the problem is real. To deal with such a situation, a balanced approach is
needed to meet the ends of justice. This is all the more so, in view of the
expectation of the society that police must deal with the criminals in an
efficient and effective manner and bring to book those who are involved in
the crime. The cure cannot, however, be worst than the disease itself.
(Emphasis ours)
31. In D.K. Basu's case (supra), the Court also noticed the response of the Supreme
Court of the United States of America to such an argument in Miranda v. Arizona,
wherein that Court had said:
...The Latin maxim salus populi suprema lex (the safety of the people is the
supreme law) and salus republican suprema lex (safety of the State is the
supreme law) coexist and are not only important and relevant but lie at the
heart of the doctrine that the welfare of an individual must yield to that of
the community. The action of the State, however, must be 'right, just and
fair'....
(Emphasis supplied)
32. There is indeed, a need to protect society from criminals. The societal intent in
safety will suffer if persons who commit crimes are let off because the evidence
against them is to be treated as if it does not exist. The answer, therefore, is that the
investigating agency must follow the procedure as envisaged by the statute
scrupulously and the failure to do so must be viewed by the higher authorities
seriously inviting action against the concerned official so that the laxity on the part of
the investigating authority is curbed.
33. However, the question whether the provisions of Section 50 are mandatory or
directory and if mandatory to what extent and the consequences of non-compliance
with it does not strictly speaking arise in the context in which the protection has been
incorporated in Section 50 for the benefit of the person intended to be searched.
Therefore, without expressing any opinion as to whether the provisions of Section 50
are mandatory or not, but bearing in mind the purpose for which the safeguard has
been made, we hold that the provisions of Section 50 of the Act implicitly make it
imperative and obligatory and cast a duty on the Investigating Officer (empowered
officer) to ensure that search of the concerned person (suspect) is conducted in the
manner prescribed by Section 50, by intimating to the concerned person about the
existence of his right, that if he so requires, he shall be searched before a Gazetted
Officer or a Magistrate and in case he so opts, failure to conduct his search before a
Gazetted Officer or a Magistrate, would cause prejudice to an accused and render the
recovery of the illicit article suspect and vitiate the conviction and sentence of an
accused, where the conviction has been recorded only on the basis of the possession
of the illicit article, recovered during a search conducted in violation of the provisions
of Section 50 of the Act. The omission may not vitiate the trial as such, but because
of the inherent prejudice which would be caused to an accused by the omission to be
informed of the existence of his right, it would render his conviction and sentence
unsustainable. The protection provided in the section to an accused to be intimated
that he has the right to have his personal search conducted before a Gazetted Officer
or a Magistrate, if he so requires, is sacrosanct and indefeasible - it cannot be
disregarded by the prosecution except at its own peril.
3 4 . The question whether or not the safeguards provided in Section 50 were
observed would have, however, to be determined by the court on the basis of the
evidence led at the trial and the finding on that issue, one way or the other, would be
relevant for recording an order of conviction or acquittal. Without giving an
opportunity to the prosecution to establish at the trial that the provisions of Section
50, and particularly, the safeguards provided in that section were complied with, it
would not be advisable to cut short a criminal trial.
3 5 . The next question which arises for our consideration is whether evidence
collected in a search conducted in violation of Section 50, is admissible in evidence?
This question arises in the context of the judgment of the Constitution Bench in
Pooran Mal's case (supra):
3 6 . A submission was made in Ali Mustaffa Abdul Rahman Moosa's case (supra)
before the Bench on behalf of the State of Kerala to reconsider the judgment in Balbir
Singh's case in view of the judgment of this Court in Pooran Mal v. The Director of
Inspection (Investigation), New Delhi and Ors. It was urged in Ali Mustafa's case that
even if search and seizure of the contraband was held to be illegal having been
conducted in violation of the provisions of Section 50, it could not affect the
conviction because the recovered articles could still be used as "admissible evidence"
under the Evidence Act to establish unlawful possession of the contraband on the
concerned person from whom it was recovered during that search. This Court
repelled that contention and held that the judgment in Pooran Mal's case (supra)
could not be read to have laid down that a contraband seized as a result of an illegal
search or seizure could still be used as admissible evidence "of unlawful possession
of the contraband on the person from whom the contraband had allegedly been
seized in an illegal manner". The Bench in Ali Mustaffa's case (supra) observed:
The last submission of the learned counsel for the respondents is that even if
the search and seizure of the contraband are held to be illegal and contrary
to the provision of Section 50 of the NDPS Act, it would still not affect the
conviction because the seized articles could be used as 'evidence of unlawful
possession of a contraband. Reliance for this submission is placed on the
judgment of this Court in Pooran Mal v. Director of Inspection. We are afraid
the submission is misconceived and the reliance placed on the said judgment
is misplaced. The judgment in Pooran Mal case only lays down that the
evidence collected as a result of illegal search or seizure, could be used as
evidence in proceedings against the party under the Income Tax Act. The
judgment cannot be interpreted to lay down that a contraband seized as a
result of illegal search or seizure, can be used to fasten that liability of
unlawful possession of the contraband on the person from whom the
contraband had allegedly been seized in an illegal manner. "Unlawful
possession" of the contraband is the sine qua non for conviction under the
NDPS Act and that factor has to be established by the prosecution beyond a
reasonable doubt. Indeed the seized contraband is evidence but in the
absence of proof of possession of the same, an accused cannot be held guilty
under the NDPS Act.
37. However, a later two-Judge Bench in Pirthi Chand's case (supra) relying upon
Pooran Mal's case (supra), observed:
The evidence collected in a search in violation of law does not become
inadmissible in evidence under the Evidence Act. The consequence would be
that evidence discovered would be to prove unlawful possession of the
contraband under the Act. It is founded in Panchnama to seize the
contraband from the possession of the suspect/accused. Though the search
may be illegal but the evidence collected, i.e., Panchnama etc., nonetheless
would be admissible at the trial. At the stage of filing charge-sheet it cannot
be said that there is no evidence and the Magistrate or the Sessions Judge
would be committing illegality to discharge the accused on the ground that
Section 50 or other provisions have not been complied with. At the trial an
opportunity would be available to the prosecution to prove that the search
was conducted in accordance with law. Even if search is found to be in
violation of law, what weight should be given to the evidence collected is yet
another question to be gone into....
(Emphasis supplied)
38. This view was reiterated in Jasbir Singh's case also. It appears that the earlier
judgment in Ali Mustaffa's case was not brought to the notice of their Lordships in
both the above cases.
39. Let us, therefore, first examine the fact situation and the law as laid down in
Pooran Mal's case and the question of its applicability to cases arising out of offences
under the NDPS Act, based only on proof of unlawful possession of an illicit drug or a
psychotropic substance on the person of an accused, where the illicit article only was
seized during the search conducted in breach of the provisions of Section 50.
40. In Pooran Mal's case, the relief claimed by the main appellant in his case was in
respect of action taken under Section 132 of the Income Tax Act, 1961 by way of
search and seizure of certain premises on the ground that the authorisation for the
search as also the search and seizure of the materials were illegal. In that case
articles consisting of account books and documents besides some cash, jewelry and
other valuables were seized by the Income Tax Authorities purporting to act under
the authorisation of a search and seizure issued under Section 132 of the Income Tax
Act. The Constitution Bench dealt both with the challenge on constitutional and non-
constitutional grounds to the search and seizure. The Court opined that the power of
search and seizure in any system of jurisprudence is 'an overriding power of the
State for the protection of social security and that power is necessarily regulated by
law'. The Court then noticed the safeguards provided in Section 132 of the Act and
observed:
We are, therefore, to see what are the inbuilt safeguards in Section 132 of the
Income-tax Act. In the first place, it must be noted that the power to order
search and seizure is vested in the highest officers of the department.
Secondly the exercise of this power can only follow a reasonable belief
entertained by such officer that any of the three conditions mentioned in
Section 132(1)(a), (b) and (c) exists. In this connection it may be further
pointed out that under Sub-rule (2) of Rule 112, the Director of Inspection or
the Commissioner, as the case may be, has to record his reasons before the
authorisation is issued to the officers mentioned in Sub-section (1). Thirdly,
the authorisation for the search cannot be in favour of any officer below the
rank of an Income-tax Officer. Fourthly, the authorisation is for specific
purposes enumerated in (i) to (v) in Sub-section (1) all of which are strictly
limited to the object of the search. Fifthly when money, bullion, etc. is seized
the Income-tax Officer is to make a summary enquiry with a view to
determine how much of what is seized will be retained by him to cover the
estimated tax liability and how much will have to be returned forthwith. The
object of the enquiry under Sub-section (5) is to reduce the inconvenience to
the assessee as much as possible so that within a reasonable time what is
estimated due to the Government may be retained and what should be
returned to the assessee may be immediately returned to him. Even with
regard to the books of account and documents, seized, their return is
guaranteed after a reasonable time. In the meantime the person from whose
custody they are seized is permitted to make copies and take extracts.
Sixthly, where money, bullion, etc. is seized, it can also be immediately
returned to the person concerned after he makes appropriate provision for
the payment of the estimated tax dues under Sub-section (5) and lastly, and
this is most important, the provisions of the Criminal Procedure Code relating
to search and seizure apply, as far as they may be, to all searches and
seizures under Section 132. Rule 112 provides for the actual search and
seizure being made after observing normal decencies of behavior. The person
in charge of the premises searched is immediately given a copy of the list of
articles seized. One copy is forwarded to the authorising officer. Provision for
the safe custody of the articles after seizure is also made in Rule 112. In our
opinion, the safeguards are adequate to render the provisions of search and
seizure as less onerous and restrictive as is possible under the
circumstances. The provisions, therefore, relating to search and seizure in
 Section 132 and Rule 112 cannot be regarded as violative of Article 19(f) and
(g).
(Emphasis supplied)
4 1 . Dealing with the effect of search and seizure conducted in breach of the
provisions of Section 132 of the Income Tax Act, the Court opined:
In that view, even assuming, as was done by the High Court, that the search
and seizure were in contravention of the provisions of Section 132 of the
Income-tax Act, still the material seized was liable to be used subject to law
before the Income-tax authorities against the person from whose custody it
was seized and, therefore, no Writ of Prohibition in restraint of such use could
be granted. It, must be, therefore, held that the High Court was right in
dismissing the two writ petitions. The appeals must also fail and are
dismissed With costs.
...Now, if the Evidence Act, 1872 which is a law consolidating, defining and
amending the law of evidence, no provision of which is challenged as
violating the Constitution - permits relevancy as the only test of admissibility
of evidence (See Section 5 of the Act) and, secondly, that Act or any other
similar law in force does not exclude relevant evidence on the ground that it
was obtained under an illegal search or seizure, it will be wrong to invoke
the supposed spirit of our Constitution for excluding such evidence....
...It, therefore, follows that neither by invoking the spirit of our Constitution
nor by a strained construction of any of the fundamental rights can we spell
out the exclusion of evidence obtained on an illegal search.
(Emphasis supplied)
On facts, the Court in Pooran Mal's case, however, found:
On the whole, therefore, we are not inclined to hold that the search and
seizure in this writ petition was vitiated by any illegality.
42. Similarly, in the other writ petitions dealt with in Pooran Mal's case, the Court
opined:
...The search and seizure, therefore, impugned in this writ petition cannot be
regarded as illegal.
(Emphasis supplied)
43. The Judgment in Pooran Mal's case (supra) has to be considered in the context in
which it was rendered. It is well-settled proposition of law that a decision is an
authority for what it decides and not that everything said therein constitutes a
precedent. The courts are obliged to employ an intelligent technique in the use of
precedents bearing it in mind that a decision of the court takes its colour from the
questions involved in the case in which it was rendered.
4 4 . In C.I.T. v. Sun Engineering Works (P) Ltd. MANU/SC/0707/1992 :
[1992]198ITR297(SC), this Court rightly pointed out:
...It is neither desirable nor permissible to pick out a word or a sentence
from the judgment of this Court, divorced from the context of the question
 under consideration and treat it to be the complete 'law' declared by this
Court. The judgment must be read as a whole and the observations from the
judgment have to be considered in the light of the questions which were
before this Court. A decision of this Court takes its colour from the questions
involved in the case in which it is rendered and while applying the decision to
a later case, the courts must carefully try to ascertain the true principle laid
down by the decision of this Court and not to pick out words or sentences
from the judgment, divorced from the context of the questions under
consideration by this Court, to support their reasonings.
(Emphasis supplied)
45. The judgment in Pooran Mal's case (supra), therefore, cannot be understood to
have laid down that an illicit article seized during the search of person, on prior
information, conducted in violation of the provisions of Section 50 of the Act can be
used as evidence of unlawful possession of the illicit article on the person from
whom that contraband had been seized during an illegal search. Apart from the
position that in Pooran Mal's case, on facts, it was found that the search and seizure
conducted in the cases under consideration in that case were not vitiated by any
illegality, the import of that judgment, in the present context, can only be to the
effect that material seized during search and seizure, conducted in contravention of
the provisions of Section 132 of the Income Tax Act cannot be restrained from being
used, subject to law, before the Income Tax Authorities in other legal proceedings
against the persons, from whose custody that material was seized by issuance of a
writ of prohibition. It was not the seized material, in Pooran Mal's case, which by
itself could attract any penal action against the assessee. What is implicit from the
judgment in Pooran Mal's case is that the seized material could be used in other legal
proceedings against an assessee, before the Income Tax authorities under the Income
Tax Act, dealing with escaped income. It is, therefore, not possible to hold that the
judgment in Pooran Mal's case can be said to have laid down that the "recovered
illicit article" can be used as proof of unlawful possession of the contraband seized
from the suspect as a result of illegal search and seizure. If Pooran Mal's judgment is
read in the manner in which it has been construed in The State of Himachal Pradesh
v. Pirthi Chand and Anr. (though that issue did not strictly speaking arise for
consideration in that case), then there would remain no distinction between recovery
of illicit drugs etc. seized during a search conducted "after" following the provisions
of Section 50 of the NDPS Act and a seizure made during a search conducted "in
breach of" the provision of Section 50 of the NDPS Act. Prosecution cannot be
permitted to take advantage of its own wrong. Conducting a fair trial for those who
are accused of a criminal offence is the cornerstone of our democratic society. A
conviction resulting from an unfair trial is contrary to our concept of justice.
Conducting a fair trial is both for the benefit of the society as well as for an accused
and cannot be abandoned. While considering the aspect of fair trial, the nature of the
evidence obtained and the nature of the safeguard violated are both relevant factors.
Courts cannot allow admission of evidence against an accused, where the court is
satisfied that the evidence had been obtained by a conduct of which prosecution
ought not to take advantage particularly when that conduct had caused prejudice to
the accused. If after careful consideration of the material on the record it is found by
the court that the admission of evidence collected in search conducted in violation of
Section 50 would render the trial unfair then that evidence must be excluded. In R. v.
Collins 1987 (1) SCR 265 the Supreme Court of Canada speaking through Lamer, J.
(as His Lordship, Chief Justice of the Supreme Court of Canada then was) opined that
the use of evidence collected in violation of the Charter rights of an accused would
render a trial unfair and the evidence inadmissible. In the words of the Supreme
Court of Canada:
The situation is very different with respect to cases where, after a violation of
the Charter, the accused is conscripted against himself through a confession
or other evidence emanating from him. The use of such evidence would
render the trial unfair, for it did not exist prior to the violation and it strikes at
one of the fundamental tenets of a fair trial.
(Emphasis ours)
46. The opinion in Collins' case has been relied upon by the majority of the Supreme
Court of Canada in R. v. Stillman [1997] 1 R.C.S. 607 also.
47. The question of admissibility of evidence, which may be relevant to the question
in issue, has thus to be decided in the context and the manner in which the evidence
was collected and is sought to be used.
48. In view of the provisions of Chapter IV of NDPS Act, mere unlawful possession of
a contraband amounts to an offence and is punishable with rigorous imprisonment
for terms which shall not be less than 10 years but can extend to 20 years or 30
years in addition to a fine which shall not be less than one lakh of rupees but which
may extend to two lakhs or three lakhs of rupees. On a charge of possession of a
dangerous drug or a psychotropic substance, if it is established that the accused had
the contraband in his possession without authority, he is liable to be punished.
"Unlawful possession" of the contraband is the sine qua non for recording conviction
under the NDPS Act and the most important ingredient of an offence under the NDPS
Act.
49. Explaining the concept of possession, in Bocking v. Roberts (1973) 3 All E.R.
962, Lord Widgery, C.J. observed:
In my judgment it is quite clear that when dealing with a charge of
possession of a dangerous drug without authority, the ordinary maxim of de
minimis is not to be applied, in other words if it is clearly established that
the accused had a dangerous drug in his possession without authority, it is
no answer to him to say: 'oh, but the quantity of the drug which I possessed
was so small that the law should take no account of it.' The doctrine of de
minimis as such in my judgment does not apply but, on the other hand, since
the accused is possessing a dangerous drug, it is quite clear that the
prosecution have to prove that there was some drug in the possession of the
accused to justify the charge....
(Emphasis ours)
50. In R. v. Young (1984) 2 All E.R. 164, it was held that if an accused being in
possession of the prohibited substance on seeing the police party swallows the same
to avoid detection, he can be convicted for possession of the prohibited substance
and not for consumption thereof.
5 1 . Similarly, in Louis Beaver v. Her Majesty The Queen [1957] S.C.R. 531, the
Supreme Court of Canada while dealing with a case relating to an offence of
possession of forbidden narcotic substance held that the element of knowledge
formed a part of the ingredient of possession, where mere possession of the
forbidden substance amounts to an offence.
52. A Constitution Bench of this Court in Sanjay Dutt v. The State through C.B.I.,
Bombay (II) MANU/SC/0554/1994 : 1995CriL J477, while dealing with Section 5 of
the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), which reads:
Section 5 - Possession of certain unauthorised arms, etc., in specified areas.-
Where any person is in possession of any arms and ammunition specified in
Columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms
Rules, 1962, or bombs, dynamite or other explosive substances
unauthorisedly in a notified area, he shall notwithstanding anything
contained in any other law for the time being in force, be punishable with
imprisonment for a term which shall not be less than five years but which
may extend to imprisonment for life and shall also be liable to fine.
spelt out the ingredients of the offence created by Section 5 of TADA and opined:
The position which emerges is this. For constituting the offence made
punishable under Section 5 of the TADA Act, the prosecution has to prove the
aforesaid three ingredients. Once the prosecution has proved 'unauthorised'
conscious possession' of any of the specified arms and ammunition etc. in a
'notified area' by the accused, the conviction would follow on the strength of
the presumption unless the accused proves the non-existence of a fact
essential to constitute any of the ingredients of the offence. Undoubtedly, the
accused can set up a defence of non-existence of a fact which is an
ingredient of the offence to be proved by the prosecution.
(Emphasis ours)
53. The Constitution Bench in Sanjay Dutt's case, thus clearly held that once the
prosecution has proved unauthorised conscious possession of any of the specified
arms and ammunition etc. in a notified area by the accused, the offence is complete
and the conviction must follow on the strength of the statutory presumption, unless
the accused proves the non-existence of a fact essential to constitute any of the
ingredient of that offence. Indeed, the presumption, even though statutory in nature,
was held to be rebuttable.
54. Thus, even if, it be assumed for the sake of argument that all the material seized
during an illegal search, may be admissible as relevant evidence in other
proceedings, the illicit drug or psychotropic substance seized in an illegal search
cannot by itself be used as proof of unlawful conscious possession of the contraband
by the accused. An illegal search cannot also entitle the prosecution to raise a
presumption under Section 54 of the Act because presumption, is an inference of fact
drawn from the facts which are known as proved. A presumption under Section 54 of
the Act can only be raised after the prosecution has established that the accused was
found to be in possession of the contraband in a search conducted in accordance with
the mandate of Section 50.
55. We, therefore, hold that an illicit article seized from the person of an accused,
during search conducted in violation of the safeguards provided in Section 50 of the
Act, cannot by itself be used as admissible evidence of proof of unlawful possession
of the contraband on the accused. Any other material/article recovered during that
search may, however, be relied upon by the prosecution in other/independent
proceedings against an accused notwithstanding the recovery of that material during
an illegal search and its admissibility would depend upon the relevancy of that
material and the facts and circumstances of that case.
56. Thus, considered we are of the opinion that the judgment in Ali Mustaffa's case
correctly interprets and distinguishes the judgment in Pooran Mal's case and the
broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in
tune with the correct exposition of law, as laid down in Pooran Mal's case.
57. On the basis of the reasoning and discussion above, the following conclusions
arise:
(1) 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 concerned person 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;
(2) That failure to inform the concerned person about the existence of his
right to be searched before a Gazetted Officer or a Magistrate would cause
prejudice to an accused;
(3) 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 not vitiate the trial but would render the recovery of the illicit article
suspect and vitiate the conviction and sentence of an accused, where the
conviction has been recorded only on the basis of the possession of the illicit
article, recovered from his person, during a search conducted in violation of
the provisions of Section 50 of the Act;
(4) That there is indeed need to protect society from criminals. The societal intent in
safety will suffer if persons who commit crimes are let off because the evidence
against them is to be treated as if it does not exist. The answer, therefore, is that the
investigating agency must follow the procedure as envisaged by the statute
scrupulously and the failure to do so must be viewed by the higher authorities
seriously inviting action against the concerned official so that the laxity on the part of
the investigating authority is curbed. In every case the end result is important but the
means to achieve it must remain above board. The remedy cannot be worse than the
disease itself. The legitimacy of judicial process may come under cloud if the court is
seen to condone acts of lawlessness conducted by the investigating agency during
search operations and may also undermine respect for law and may have the effect of
unconscionably compromising the administration of justice. That cannot be
permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair
trial is contrary to our concept of justice. The use of evidence collected in breach of
the safeguards provided by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly
observed would have to be determined by the Court on the basis of evidence led at
the trial. Finding on that issue, one way or the other, would be relevant for recording
an order of conviction or acquittal. Without giving an opportunity to the prosecution
to establish, at the trial, that the provisions of Section 50, and particularly the
safeguards provided therein were duly complied with, it would not be permissible to
cut-short a criminal trial;
(6) That in the context in which the protection has been incorporated in Section 50
for the benefit of the person intended to be searched, we do not express any opinion
whether the provisions of Section 50 are mandatory or directory, but, hold that
failure to inform the concerned person of his right as emanating from Sub-section (1)
of Section 50, may render the recovery of the contraband suspect and the conviction
and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search
conducted in violation of the safeguards provided in Section 50 of the Act cannot be
used as evidence of proof of unlawful possession of the contraband on the accused
though any other material recovered during that search may be relied upon by the
prosecution, in other proceedings, against an accused, notwithstanding the recovery
of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the
prosecution has established that the accused was found to be in possession of the
contraband in a search conducted in accordance with the mandate of Section 50. An
illegal search cannot entitle the prosecution to raise a presumption under Section 54
of the Act.
(9) That the judgment in Pooran Mal's case cannot be understood to have laid down
that an illicit article seized during a search of a person, on prior information,
conducted in violation of the provisions of Section 50 of the Act, can by itself be used
as evidence of unlawful possession of the illicit article on the person from whom the
contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes
the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's
case and Jasbir Singh's case are not in tune with the correct exposition of law as laid
down in Pooran Mal's case.
58. The above conclusions are not a summary of our judgment and have to be read
and considered in the light of the entire discussion contained in the earlier part.
59. We, accordingly, answer the reference in the manner aforesaid.
60. Let the Criminal Appeals and Special Leave Petitions be now placed for disposal
before an appropriate Bench.

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