2011 (7) TMI 1105 - SC - Customs

Whether illegal recovery can be the foundation of a successful conviction under the provisions of Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985?

Issues Involved:
1. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Impact of non-compliance with Section 50 on the legality of the recovery and subsequent conviction.
3. Interpretation of the term "substantial compliance" in the context of Section 50.
4. Admissibility of evidence obtained in violation of Section 50.

Issue-Wise Detailed Analysis:

1. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985:
The primary issue in the case was whether the provisions of Section 50 of the NDPS Act were complied with during the search of the accused. Section 50 mandates that the person to be searched must be informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate. The Court examined various precedents, including State of Punjab v. Balbir Singh, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, and State of Punjab v. Baldev Singh, which underscored the importance of informing the accused of this right. The Court reiterated that the statutory language of Section 50 is clear and imposes an obligation on the authorized officer to inform the person to be searched of this right explicitly.

2. Impact of Non-Compliance with Section 50 on the Legality of the Recovery and Subsequent Conviction:
The Court emphasized that non-compliance with Section 50, which is mandatory, vitiates the trial and affects the prosecution case. The judgment referred to the Constitution Bench decision in Vijaysinh Chandubha Jadeja, which held that substantial compliance is not sufficient, and strict compliance with Section 50 is required. The Court noted that the failure to inform the accused of their right under Section 50 renders the recovery of contraband suspect and the conviction and sentence unsustainable in law.

3. Interpretation of the Term "Substantial Compliance" in the Context of Section 50:
The Court rejected the argument of substantial compliance with Section 50, as suggested in some precedents like Joseph Fernandez v. State of Goa. The Constitution Bench in Vijaysinh Chandubha Jadeja clarified that the concept of substantial compliance does not apply to Section 50, and the requirements of the section are imperative. The Court held that the notice given to the accused in the present case did not meet the requirements of Section 50, as it did not clearly inform the accused of his right to be searched in the presence of a Gazetted Officer or a Magistrate.

4. Admissibility of Evidence Obtained in Violation of Section 50:
The Court addressed the argument that even if there was non-compliance with Section 50, the recovery of contraband could still be proved by statements of independent witnesses or responsible officers. The Court rejected this argument, stating that once the recovery is found to be illegal due to non-compliance with Section 50, it cannot form the basis for conviction under Section 21 of the NDPS Act. The Court reiterated that an illegal recovery cannot be validated by oral evidence or statements of witnesses. The possession of the illicit article must be established in accordance with the provisions of Section 50, and any recovery made in violation of these provisions is inadmissible as evidence of unlawful possession.

Conclusion:
The Supreme Court upheld the High Court's decision, which acquitted the accused due to non-compliance with Section 50 of the NDPS Act. The Court reaffirmed the mandatory nature of Section 50 and the necessity for strict compliance to ensure a fair trial. The appeal by the State was dismissed, and the conviction and sentence based on the illegal recovery were set aside.

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