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2011 (6) Supreme 134
SUPREME COURT OF INDIA
Dr. B.S. Chauhan and Swatanter Kumar, JJ.
State of Delhi — Appellant
versus
Ram Avtar @ Rama — Respondent
Criminal Appeal No.1101 of 2004
Decided on : 7-7-2011
(1994) 3 SCC 299; (1994) 6 SCC 569; (1995) 3 SCC 510; (1999) 6 SCC 172; (2000) 7 SCC 477; (2010) 10 SCC 222 – Relied upon
(b) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 42(2), 41(1) and 50 – Section 42(2) is mandatory – Search u/ 41(1) would not attract compliance with section 50. (Para 14)
(c) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 50 – Its compliance is imperative – Substantial compliance is not sufficient. (Para 16)
(2011) 1 SCC 609 – Relied upon
(2007) 1 SCC 433 – Referred
(2000) 1 SCC 707; (2004) 2 SCC 56; (2004) 2 SCC 608; (1996) 11 SCC 391; (2009) 8 SCC 539 – Impliedly distinguished
(d) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 50 – If the provisions of section 50 are not complied with, the seizure will be illegal. (Para 18)
(e) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 50 – Offering the option to take the person to be searched before a Gazetted Officer or a Magistrate, should be unambiguous and definite and should inform the suspect of his statutory safeguards. (Para 19)
(f) Interpretation of statute – When a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed – The safeguard cannot be treated as a formality. (Para 22)
(g) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 50 – The accused was informed that a Gazetted Officer or a Magistrate could be arranged for taking his search, if he so required – Held, the accused was not made aware of his right, that he could be searched in the presence of Gazetted Officer or a Magistrate, and that he could exercise such choice – Requirement of section 50 was not complied with. (Para 22)
(h) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 50 – Once the recovery is held to be in violation of section 50 and therefore illegal, it means that the accused did not actually possess the illicit article or contraband – Statement of the police officers, or even independent witnesses, cannot cure the defect and form foundation for conviction u/s 21 of the Act. (Paras 23 and 25)
(1974) 1 SCC 345 – Relied upon
(i) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 50 – An illicit article seized from the person of an accused in violation of Section 50 cannot be used as evidence of proof of unlawful possession of the contraband on the accused – Such recovery may however be relied upon in other proceedings. (Para 28)
(2011) 1 SCC 609 – Relied upon
Facts of the case:
Scope and ambit of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is under consideration in this case.
Finding of the Court:
The recovery was in violation of section 50.
JUDGMENT
Swatanter Kumar J. —
Ingenuity of counsel sometimes results in formulation propositions, which appear at the first flush to be legally sound and relatable to recognized cannons of criminal jurisprudence. When examined in greater depth, their rationale is nothing but illusory; and the argument is without substance. One such argument has been advanced in the present case by the learned counsel appearing for the appellant who contends that ‘even where the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) have not been complied with the recovery can otherwise be proved without solely relying upon the personal search of the accused’. According to the learned counsel, the courts are required to take into consideration evidence of recovery of illicit 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.
2. 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 Singh along with Sub Inspector (SI) Sahab Singh, Head Constable Narsingh, Constable Manoj Kumar, Lady Constable Nirmla and the informer left for the spot in a Government vehicle. The vehicle was parked in a hideout at some distance. At around 9.30 a.m. Ram Avtar was apprehended based on pointing out by the informer while he was coming on a two wheeler scooter from the side of the main road, Tilak Nagar near his house. It is the case of the prosecution that a police officer in the raiding party had requested some persons, who were passing by, to join the raid but they declined to do so on some ground or the other. The police officer then served a notice Ex. PW6/A in writing, under Section 50 of the Act upon the appellant but he declined to be searched either in presence of a Gazetted Officer or a Magistrate. On search, three polythene packets were recovered from left side pocket of his shirt. On opening the packets, it was found to contain powder of light brown colour, suspected to be smack. This recovered powder was mixed together. The total weight of the recovered powder was 16 grams, out of which 5 grams were separated as sample. Both the sample and the remaining powder were converted into two parcels and sealed with the seal of DS which were the initials of PW8. CFSL Form was filled and seal of DS also affixed thereon. Parcels were seized vide memo Ex. PW-2/8. PW8 sent the parcels, CFSL Form and copy of rukka, Ex.PW-5/8 through Constable Manoj Kumar to Station House Officer (PW4) for recording an FIR under Section 21 of the Act. The samples, rukka etc. are now produced in carbon copy as Ex.PW-5/A. Sample parcels were sent to CFSL, Chandigarh and as per their report, the sample gave positive test for diacetylmorphine (heroin). Resultantly, Ram Avtar was taken into custody, and charge-sheet for committing an offence under Section 21 of the Act was filed against him.
3. As many as eight witnesses were examined by the prosecution
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