1999 Supreme(SC) 726

1999(6) Supreme 159
Supreme Court of India
(From Punjab and Haryana High Court)
Dr. A.S. Anand, CJI., S.B. Majmudar, Mrs. Sujata V. Manohar, K. Venkataswami and V.N. Khare, JJ.
The State of Punjab—Appellant
versus
Baldev Singh etc. etc. —Respondents
Criminal Appeal No. 396 of 1990
With
SLP (Crl.) No. 2187, 2188, 2186, 2139, 2141, 2142, 2138, 2137, 2140 of 1990,
Crl. Appeal No. 483/90, 573/89,
SLP (Crl.) No. 2496/89,
Crl.A.No. 783/91, 78/92,
SLP (Crl.) No. 950/96,
Crl. A. No. 1704/96, 808/97,
Crl.M.P. No. 6675/97,
SLP (Crl.) No. 3463/98, 2492/98,
Crl.A. No. 1185/98, 744/98, 745/98, 815/98)
Decided on 21-7-1999
Counsel for the Parties :
For the Appearing Parties : V.A. Mohta, N.N. Goswami, M.S. Nar­golkar, Sr. Advocates, R.S. Sodhi, Lokesh Kumar, Kuldip Singh, V.B. Saharya, K.K. Mehrotra, (A.C.), S.M. Walawikar, S.V. Deshpande, Vimal Dave, Shailendra Narayan Singh, Ms. Kamini Jaiswal, Ms. K. Sarada Devi, A.L. Trehan, Devasis Misra, N.S. Bisht, (Sudhir Nandrajog and N.K. Aggarwal) Advocates (A.C.), Rajiv Dawar, Sanjeev Malhotra, D.S. Mehra, K.C. Kaushik, Sanjeev Malhotra, R.C. Kohli, Harijinder Singh, Ms. Priya Saxena, C.P. Pandey, S.S. Shinde, D.M. Nargolkar, Yashank Adhyaru, Ms. H. Wahi, Ms. A. Subhashini, K.M.K. Nair, Advocates.

Important points
1. 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 the NDPS Act 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. 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 NDPS Act.
3. Failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50 of NDPS Act may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.
4. 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.
5. 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 NDPS Act.

Headnote:(i) Narcotic Drugs and Psycho­tro­pic Substances Act, 1985—Sec­tion 50—Scope and ambit—Right of accused to be informed that he is entitled to be searched in the presence of Magistrate or Gazetted Officer—Section 50 would come into play only in case of search of a person—If search is made without prior information as contemplated under Section 42 during normal investigation re­quirement of section not attracted—It is imperative for empowered officer while acting on prior information to inform concerned person of his right under Section 50(1) being taken to nearest Gazetted Officer or Magistrate for making search — Information need not necessarily in writing—Failure to inform concerned person of his right under Section 50(1) may render recovery of contraband suspect and conviction and sentence of an accused bad and unsustainable in law—Failure to conduct search before a Gazetted Officer or Magistrate may not vitiate trial but would render recovery of illicit article suspect and vitiate conviction and sentence where conviction has been recorded only on basis of possession of illicit article recovered during search con­ducted in violation of Section 50—Illicit article seized during search in violation of safeguard provided in Section 50 cannot be used as evidence of proof of unlawful possession of contraband—Other material recovered during such search may be relied upon in other proceedings against an accused—Presump­tion under Section 54 can only be raised after prose­cution has established that accused was found to be in possession of contraband in a search conducted in accordance with mandate of Section 50.

       Held : On its plain reading, Section 50 would come into play only in the case of a search or 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. (Para 11)

       Vide Section 51, the provisions of the Code of Criminal Procedure, 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 broad 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure, 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 Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 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 Code of Criminal Procedure, 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. (Para 12)

       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. (Para 23)

       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 rationale 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. (Para 24)

       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. Severe punishments have been provided under the Act for mere possession of IIIicit 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, (1978) 1 SCC 248, 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’. (Para 25)

       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 creditibility 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. (Para 27)

       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 benefirt 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 implicity 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 ommission may not vitiate the trial as such, but because of the inherent preju­dice which would be caused to an accused by the ommission 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. (Para 31)

       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. (Para 32)

       What is implicit from the judgment in Pooran Mal v. The Director of Inspection (Investigation), New delhi & Ors., 1974(1) SCC 345 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 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. (Para 40)

       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. (Para 40)

       Therefore, 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. 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/indepedent 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. (Paras 48 and 49)

       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 the NDPS Act 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 NDPS 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 investigation 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 investigation 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 of NDPS Act 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 NDPS 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."

        (Para 51)

       (ii) Narcotic Drugs and Psycho­tropic Substances Act, 1985—Sec­tion 54—Presumption as to Commission of offence on basis of posses­sion of illicit articles—Condition precedent to raise presump­tion—Prosecution must establish that accused was found to be in possession of contraband in search conducted in accordance with mandate of Section 50—Illegal search cannot entitle prose­cution to raise a presumption under Section 54. (Para 51)

       (iii) Narcotic Drugs and Psycho­tropic Substances Act, 1985—Sec­tions 40 to 50—Code of Criminal Procedure, 1973 — Sections 100 and 165—Search and seizure—Provisions of Cr.P.C. not inconsistent with provisions of NDPS Act—Provisions of Cr.P.C. are applicable for affecting search, seizure or arrest under NDPS Act also.

       Held : 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 Code of Criminal Proce­dure, comes across a person being 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. (Para 13)