1999 (7) TMI 630 - SC - Customs

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? Whether 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 Whether a trial held in respect of any recovery of contraband articles pursuant to such a search would be void ab initio? Held 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 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 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 A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair 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 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 and 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; 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

Issues Involved:
1. Mandatory nature of Section 50 of the NDPS Act.
2. Effect of non-compliance with Section 50 on the legality of search and seizure.
3. Admissibility of evidence collected in violation of Section 50.
4. Interpretation of the judgment in Pooran Mal's case in relation to the NDPS Act.
5. Requirement for informing the suspect of their rights under Section 50.

Detailed Analysis:

1. Mandatory Nature of Section 50 of the NDPS Act:
The court examined whether compliance with Section 50 of the NDPS Act is mandatory. It was noted that previous judgments, including State of Punjab v. Balbir Singh and Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, had held that Section 50 is mandatory. Specifically, the officer must inform the person to be searched of their right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. Failure to comply with this requirement would affect the prosecution case and vitiate the trial.

2. Effect of Non-Compliance with Section 50 on the Legality of Search and Seizure:
The court discussed the implications of non-compliance with Section 50. It was held that non-compliance with Section 50 would render the search illegal, and the conviction based on such a search would be unsustainable. The court emphasized that the failure to inform the suspect of their right to be searched in the presence of a Gazetted Officer or Magistrate would cause prejudice to the accused.

3. Admissibility of Evidence Collected in Violation of Section 50:
The judgment addressed the admissibility of evidence obtained through searches conducted in violation of Section 50. It was held that evidence collected in such a manner cannot be used to prove unlawful possession of contraband. The court distinguished between the general admissibility of evidence obtained through illegal searches (as discussed in Pooran Mal's case) and the specific requirements under the NDPS Act. It concluded that while other materials recovered during an illegal search might be admissible in other proceedings, the contraband itself could not be used to establish possession.

4. Interpretation of the Judgment in Pooran Mal's Case in Relation to the NDPS Act:
The court analyzed the applicability of Pooran Mal's case, which dealt with the admissibility of evidence obtained through illegal searches under the Income Tax Act. It clarified that Pooran Mal's case did not lay down that contraband seized during an illegal search could be used as evidence of possession under the NDPS Act. The court emphasized that the judgment in Pooran Mal's case should not be interpreted to mean that evidence obtained in violation of Section 50 of the NDPS Act is admissible.

5. Requirement for Informing the Suspect of Their Rights Under Section 50:
The court reiterated that it is imperative for the empowered officer to inform the suspect of their right to be searched in the presence of a Gazetted Officer or Magistrate. This requirement is crucial to ensure a fair trial and to protect the rights of the accused. The court held that failure to inform the suspect of this right would render the search illegal and the subsequent conviction unsustainable.

Conclusion:
The court concluded that the provisions of Section 50 of the NDPS Act are mandatory. Non-compliance with these provisions would render the search illegal and the conviction based on such a search unsustainable. The judgment in Pooran Mal's case does not apply to the NDPS Act in a manner that would allow contraband seized during an illegal search to be used as evidence of possession. The court emphasized the importance of informing the suspect of their rights under Section 50 to ensure a fair trial.

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