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TMI Blog2011 (7) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... material independently of the factum of personal search of the accused as stated by other witnesses as such evidence would be admissible and can form the basis for conviction of an accused in accordance with law. Before we notice the judgments which have been referred to on behalf of the State, it will be necessary for us to refer to the facts giving rise to the present appeal. On 18th January, 1998 at about 8.15 a.m., a secret informer met Assistant Sub Inspector (ASI) - Dasrath Singh (who was examined as PW8) and informed him that a person by the name of Ram Avtar @ Rama resident of House No. 71/144, Prem Nagar, Choti Subzi Mandi, Janakpuri would be going to his house on a two wheeler scooter No. DL 4SL 2996 and if the said person was searched and raid was conducted, smack could be recovered from him. This information was passed on by ASI-Dasrath Singh, to the Station House Officer (SHO) M.C. Sharma (who was examined as PW4), on telephone, who in turn directed R.P. Mehta, Assistant Commissioner of Police (Narcotics Bureau) ACP(NB) to conduct the raid immediately. The secret information was recorded in the DD at Sl. No.3. In furtherance to this at around 8.30 A.M., ASI Dasrath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate . He claims to have been falsely implicated in this case. The accused had taken a specific objection, with regard to non-compliance with the provisions of Section 50 of the Act, and had laid down this defense before the Trial Court. The Trial Court was of the opinion that the prosecution has been able to prove the case beyond any reasonable doubt and therefore, convicted the accused and sentenced him to undergo rigorous imprisonment of ten years and pay a fine of ₹ 1,00,000/-; in default thereof, further undergo one year of rigorous imprisonment. An appeal was preferred by the accused challenging the conviction and order of sentence dated 19th July, 1999. The High Court after taking note of the notice that was alleged to have been issued to the accused under Section 50 of the Act, Ex.PW-6/A, returned a finding in accordance with settled principles of law, that the notice provided to the accused was not in conformity with the provisions of Section 50 of the Act. Resultantly, there was no compliance with the provisions of Section 50 of the Act in the eyes of law and therefore, the accused was acquitted of the charge. The State of Delhi feeling aggrieved by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein the Court stated that the searching officer was obliged to inform the person to be searched of his rights. Further, the contraband seized in an illegal manner could hardly be relied on, to the advantage of the prosecution. Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act, and that factor has to be established beyond any reasonable doubt. The Court further indicated that articles recovered may be used for other purposes, but cannot be made a ground for a valid conviction under this Act. In the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, [(1995) 3 SCC 510], the Court followed the principles stated in Balbir Singh s case (supra) and also clarified that the prosecution must prove that the accused was not only made aware of his right but also that the accused did not choose to be searched before a Gazetted Officer or a Magistrate. Then the matter was examined by a Constitution Bench of this Court, in the case of State of Punjab v. Baldev Singh [(1999) 6 SCC 172], where the Court, after detailed discussion on various cases, including the cases referred by us above, recorded its conclusion in para 57 of the judgment . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court followed the above cases including Baldev Singh s case (supra) and held that even 18 where search is made by empowered officer who may be a Gazetted Officer, it remains obligatory for the prosecution to inform the person to be searched about his right to be taken to the nearest Gazetted Officer or Magistrate before search. In this case, the Court also noticed at sub-para (e) at page 482 of the judgment that the provisions of Section 50 of the Act, which afford minimum safeguard to the accused, provide that when a search is about to be made of a person under Section 41 or Section 42 or Section 43 of the Act, and if the person so requires, then the said person has to be taken to the nearest Gazetted Officer of any department mentioned in Section 42 of the Act or to the nearest Magistrate. In the case of K. Mohanan v. State of Kerala, [(2010) 10 SCC 222] another Bench of this Court while following Baldev Singh s case (supra) stated in unambiguous terms that merely asking the accused whether he wished to be searched before a Gazetted Officer or a Magistrate, without informing him that he enjoyed a right under law in this behalf, would not satisfy the requirements of Section 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary. In the case of Union of India v. Satrohan, [(2008) 8 SCC 313] though the Court was not directly concerned with the interpretation of the provisions of Section 50 of the Act, the Court held that Section 42(2) of the Act was mandatory. It also held that search under Section 41(1) of the Act would not attract compliance to the provisions of Section 50 of the Act. To that extent this judgment was taking a view different from that taken by the equi-Bench in Ahmed s case (supra). This question to some extent has been dealt with by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] (hereinafter referred to as Vijaysinh Chandubha Jadeja ). As this question does not arise for consideration before us in the present case, we do not consider it necessary to deliberate on this aspect in any further detail. In the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, [(2007) 1 SCC 433], a three Judge Bench of this Court had taken the view that the accused must be informed of his right to be searched in presence of a Magistrate and/or a Gazetted Officer, but in light of some of the judgments we have mentioned above, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions, in force at the relevant time, the petitioner had a right to be informed of the choice available to him; making him aware of the existence of such a right was an obligation on the part of the searching officer. This duty cast upon the officer is imperative and failure to provide such an option, in accordance with the provisions of the Act, would render the recovery of the contraband or illicit substance illegal. Satisfaction of the requirements in terms of Section 50 of the Act is sine qua non prior to prosecution for possession of an unlawful narcotic substance. In fact, the Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), in para 25, has even taken a view that after the amendment to Section 50 of the Act and the insertion of sub-section 5, the mandate of Section 50(2) of the Act has not been nullified, and the obligation upon the searching officer to inform the person searched of his rights still remains. In other words, offering the option to take the person to be searched before a Gazetted Officer or a Magistrate as contemplated under the provisions of this Act, should be unambiguous and definite and should inform the suspect of his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be strictly construed. As already held by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), the theory of substantial compliance would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on its plain reading as it relates to penal consequences. Section 50 of the Act states the conditions under which the search of a person shall be conducted. The significance of this right is clear from the language of Section 50(2) of the Act, where the officers have been given the power to detain the person until he is brought before a Gazetted Officer or Magistrate as referred to in sub-section (1) of Section 50 of the Act. Obviously, the legislative intent is that compliance with these provisions is imperative and not merely substantial compliance. Even in the case of Ali Mustaffa Abdul Rahman Moosa (supra), this Court clearly stated that contraband seized as a result of search made in contravention to Section 50 of the Act, cannot be used to fasten the liability of unlawful possession of 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 Act. In the case of Ali Mustaffa Abdul Rahman Moosa (supra), this Court had considered the observation made by a Bench of this Court, in an earlier judgment, in the case of Pooran Mal v. Director of Inspection [(19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery used in para 29 of that judgment, to contend that if there is other supporting evidence of recovery, the conviction cannot be set aside. This submission is nothing but based upon a misreading of the judgment; not only of para 29 but the judgment in its entirety. What the Constitution Bench has stated is that where the recovery is from the person of the suspect, and that recovery is found to be illegal, the conviction must be set aside as the principles applicable to personal recovery are somewhat different from recovery of contraband from a vehicle or a house. In para 29 of the judgment itself, the Bench has held that we have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section(1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. In fact the contention raised by the appellant has, in specific terms, been rejected by the Constitution Bench in clause 7 of para 23 of the judgment. The Court clearly held 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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