Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1868 OF 2013

(@ SLP (CRL.) No.3407 of 2012)

Gurjant Singh @ Janta …. Appellant

VERSUS

State of Punjab …. Respondent

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1.Delay condoned.

2.Leave granted.

3.This appeal is directed against the judgment of the High

Court of Punjab and Haryana at Chandigarh dated

12.08.2010 in Criminal Appeal No.5-SB of 2000. The

appellant was proceeded against for an offence under

Section 15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter called “the NDPS Act”).

The trial Court by its judgment dated 30.07.1999, in

Sessions Case No.39 of 31.05.1996, found the appellant

guilty of the offence alleged against him and while

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Page 2 convicting him imposed a sentence of 10 years rigorous

imprisonment apart from a fine of Rs.1,00,000/- (Rupees

One Lac only) and in default of payment of fine to undergo

rigorous imprisonment for one more year.

4.The case of the prosecution as projected before the trial

Court was that on 04.04.1996, S.I. Darbara Singh, who was

examined as P.W.6, was posted as S.H.O, Police Station,

Sunam. According to him he along with A.S.I. Balbir Singh,

A.S.I. Massa Singh, H.C. Bhim Sain and other police officers

were present at ‘T’ point in an area of village Ugrahan in

connection with Nakabandi. At about 00.15 AM, one tractor

trolley was seen coming from the side of village Ugrahan.

The head lights of the tractor trolley were on and P.W.6 gave

a signal from his torch light and the tractor trolley was

stopped by the driver. According to P.W.6, as soon as the

tractor trolley was stopped, the driver who tried to slip away

was overpowered by P.W.6 and other police officials. The

driver stated to have revealed his name as Gurjant Singh @

Janta, the appellant herein. Thereafter, when P.W.6 checked

the trolley of the tractor he found three gunny bags lying

inside the trolley. P.W.6 informed the appellant that he

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Page 3 intended to search the gunny bags as he suspected some

incriminating article in the gunny bags. P.W.6 further

informed the appellant that, if he so desired, the search

could be conducted in the presence of a Gazetted officer or

a Magistrate. The appellant stated to have expressed his

consent that the search may be conducted in the presence

of some Gazetted officer or a Magistrate.

5.After recording the statement of the appellant and after

getting his signature attested by A.S.I Balbir Singh and A.S.I

Massa Singh, P.W.6 claimed to have flashed a wireless

message whereupon Baldev Singh, DSP, Sunam, who was

examined as P.W.3, reached the spot. P.W.6 stated to have

searched the gunny bags lying in the tractor trolley in which

poppy husk was recovered. P.W.6 claimed to have drawn

two samples of 250 gms from each of the gunny bag. The

remaining poppy husk, which weighed to the extent of 34 kg

in each of the gunny bag, was stated to have been

separately sealed, while the six sample parcels were also

sealed separately with the impression ‘DS’. P.W.6 also

claimed to have prepared a sample seal chit separately.

Tractor trolley and the case properties were taken into

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Page 4 possession by P.W.6 through a recovery memo attested by

P.W.3 as well as by A.S.I Balbir Singh and A.S.I. Massa Singh.

The appellant was stated to have been arrested, and the

arrest memo along with Rukka, was sent to the police

station through C. Harjinder Singh, based on which an FIR

was recorded by A.S.I Sukhdev Singh. After preparing the

rough site plan of the place of recovery with correct

marginal notes and after recording the statement of the

witnesses on the same day, P.W.6 stated to have deposited

the case property with the MHC with seals intact along with

the sample seal.

6.The final report was thereafter stated to have been filed in

the Court. Before the trial Court P.W.1 Kulwant Singh,

Registration Clerk, P.W.2 A.S.I Balbir Singh, P.W.3 D.S.P.

Baldev Singh, P.W.4 Harbans Singh C.No.365, P.W.5

Jaswinder Singh and P.W.6 S.I. Darbara Singh were

examined and the report of the Chemical Examiner Ex.PK

was also filed. When the incriminating circumstances were

put to the appellant under Section 313 Cr.P.C, appellant

pleaded false implication alleging that he was taken away

from his house in the presence of his wife and a false case

was planted on him. In defence, the appellant examined

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Page 5 H.C. Paramjit Singh as D.W.1 Gurmail Kaur, his wife as D.W.2

and one other witness C. Avtar Singh as D.W.3.

7.Before the trial Court it was contended on behalf of the

appellant that there was clear violation of Sections 42 and

50 of the NDPS Act, in as much as, the search was not

conducted in the presence of a Gazetted officer or a

Magistrate. According to the appellant, he was forcibly taken

away from his house and a false case was planted and the

claim that search was made in the presence of P.W.3 was

not true. It was also contended that P.W.3 was not a

regularly promoted D.S.P. but was only an Inspector in the

category of Own Rank Pay (ORP). It was contended that

since he was only an Inspector and was drawing the pay of

an Inspector, while acting as D.S.P, he cannot be held to be

a Gazetted Officer.

8.The trial Court, however, took the view that there was no

necessity to comply with Section 50 of the NDPS Act and on

that basis did not go into the question whether P.W.3 was a

competent Gazetted Officer, in order to validate the search

stated to have been held in his presence. The trial Court in

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Page 6 support of its conclusion relied upon the judgment in the

case of State of Punjab vs. Balbir Singh reported in

(1994) 3 SCC 299 and found the appellant guilty of the

offence alleged against him and convicted him by imposing

a sentence of 10 years rigorous imprisonment along with the

fine of Rs.1 lac with the default clause to undergo

imprisonment for one more year. In the appeal preferred by

the appellant before the High Court, unfortunately, the High

Court by simply extracting the concluding part of the

judgment of the trial Court chose to confirm the conviction

and sentence. The appellant has, therefore, come forward

with this appeal.

9.We heard Mr. S.S. Ray, learned counsel for the appellant as

well as Mr. Sanchar Anand, learned Additional Advocate

General for the respondent. The learned counsel for the

appellant mainly contended that there was non-compliance

of Section 50 in the matter of search alleged to have been

made on the appellant and the tractor; that the contention

of the appellant about the status of P.W.3 that he was not a

Gazetted officer on the date of the alleged search was not

considered by the Courts below and that none of the

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Page 7 defence witnesses were properly appreciated by the trial

Court as well as by the High Court. The learned counsel,

therefore, contended that the conviction and sentence

imposed on the appellant cannot be sustained.

10.Reliance was placed upon the decisions in State of Punjab

vs. Baldev Singh reported in (1999) 6 SCC 172, State of

H.P. vs. Pawan Kumar reported in (2005) 4 SCC 350 in

support of his submissions.

11.Learned Additional Advocate General in his submissions

contended that there was no illegality in the judgment of the

trial Court in convicting the appellant and the imposition of

sentence and, therefore, the High Court was justified in

confirming the same. Learned Additional Advocate General

contended that the reliance placed upon the decision of this

Court by the trial Court, namely, the one in Balbir Singh

(supra) was well justified. The learned Additional Advocate

General, therefore, contended that the judgment impugned

does not call for interference.

12.Having considered the respective submissions and also

having bestowed our serious consideration to the judgment

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Page 8 of the trial Court, as well as that of the High Court, at the

very outset we wish to state that the reliance placed upon

by the trial Court in Balbir Singh (supra) was totally

inappropriate to the facts of this case and consequently the

ratiocination of the trial Court in having held that Sections

42 and 50 were not attracted to the case on hand was not

correct.

13.When we refer to the decision of this Court in Balbir Singh

(supra), what has been held therein as a broad principle in

paragraph 25(1), is as under:

“25. The questions considered above arise frequently

before the trial courts. Therefore we find it necessary

to set out our conclusions which are as follows:

(1) If a police officer without any prior information as

contemplated under the provisions of the NDPS Act

makes a search or arrests a person in the normal

course of investigation into an offence or suspected

offences as provided under the provisions of CrPC and

when such search is completed at that stage Section

50 of the NDPS Act would not be attracted and the

question of complying with the requirements

thereunder would not arise. If during such search or

arrest there is a chance recovery of any narcotic drug

or psychotropic substance then the police officer, who

is not empowered, should inform the empowered

officer who should thereafter proceed in accordance

with the provisions of the NDPS Act. If he happens to

be an empowered officer also, then from that stage

onwards, he should carry out the investigation in

accordance with the other provisions of the NDPS Act.”

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Page 9 14.The said principle clearly postulates a situation where a

police officer in the normal course of investigation of an

offence or suspected offences as provided under the

provisions of Cr.P.C. and in the course of such investigation

when a search is completed and in that process happens to

stumble upon possession of a narcotic drug or psychotropic

substance, the question of invoking Section 50 would not

arise. When that principle is examined carefully one can

easily understand that without any prior information as to

possession of any narcotic drug and psychotropic substance,

a police officer might have held a search in the course of

discharge of his duties as contemplated under the provisions

of Cr.P.C and, therefore, it would well neigh impossible to

state that even under such a situation, the application of

Section 50 would get attracted. In fact, if we examine the

facts involved in Balbir Singh (supra), as per the

contention of learned counsel for the State, in that decision

the police officer effected the arrest, search and seizure on

reasonable suspicion that a cognizable offence was

committed and not based on any prior information that any

offence punishable under NDPS Act was committed and,

therefore, it was argued that complying with the provisions

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Page 10 of the NDPS Act at the time of the said arrest, search and

seizure did not arise in as much as such arrest, search and

seizure was substantially in accordance with the provisions

of the Cr.P.C. It was, therefore, contended that such arrest,

search and seizure cannot be declared as illegal. While

examining the contention in the said background, principle

no.1 in paragraph 25 came to be rendered.

15.However, while analyzing the importance of Section 50 of

the NDPS Act in that very decision, this Court has held as

under in paragraph 20:

“20. In Miranda v. Arizona the Court, considering the

question whether the accused be apprised of his right

not to answer and keep silent while being interrogated

by the police, observed thus:

“At the outset, if a person in custody is to be

subjected to interrogation, he must first be

informed in clear and unequivocal terms that he

has the right to remain silent. For those unaware

of the privilege, the warning is needed simply to

make them aware of it — the threshold

requirement for an intelligent decision as to its

exercise. More important, such a warning is an

absolute prerequisite in overcoming the inherent

pressures of the interrogation atmosphere.”

It was further observed thus:

“The warning of the right to remain silent must

be accompanied by the explanation that anything

said can and will be used against the individual in

court. This warning is needed in order to make

him aware not only of the privilege, but also of

the consequences of foregoing it. It is only

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Page 11 through an awareness of these consequences

that there can be any assurance of real

understanding and intelligent exercise of the

privilege. Moreover, this warning may serve to

make the individual more acutely aware that he

is faced with a phase of the adversary system —

that he is not in the presence of persons acting

solely in his interest.”

When such is the importance of a right given to an

accused person in custody in general, the right by way

of safeguard conferred under Section 50 in the context

is all the more important and valuable. Therefore it is

to be taken as an imperative requirement on the part

of the officer intending to search to inform the person

to be searched of his right that if he so chooses, he will

be searched in the presence of a Gazetted Officer or a

Magistrate. Thus the provisions of Section 50 are

mandatory.”

16.If the ratio of the said decision had been properly

understood, the flaw committed by the trial Court and as

confirmed by the High Court in our considered opinion would

not have arisen. The distinct feature in the case on hand was

that on the date of occurrence i.e. on 04.04.1996 at 00.15

AM, the police party headed by P.W.6, accosted a tractor

trolley coming from the side of village Ugrahan, which was

stopped by him and that when the driver after stopping the

tractor tried to escape was apprehended by the police team.

The most crucial aspect of the case was that P.W.6 noticed

three gunny bags lying in the tractor of the appellant and

felt that some incriminating substance was kept in those

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Page 12 gunny bags. P.W.6, therefore, took the view that before

effecting search of the gunny bags, the necessity of

affording an opportunity to the appellant to conduct the

search in the presence of a Gazetted officer or a Magistrate

was imperative. In other words, after noticing three gunny

bags, P.W.6, as an investigating officer, felt the need to

invoke the provisions of Section 50 and thereby provide an

opportunity to the appellant for holding any search in the

presence of a Gazetted officer or a Magistrate. When once

P.W.6 could assimilate the said legal requirement as

stipulated under Section 50 of the NDPS Act, we fail to

understand as to how principle No.1 in paragraph 25 of the

decision reported in Balbir Singh (supra) could be applied.

Unfortunately, the trial Court failed to understand the said

principle set out in Balbir Singh (supra) in the proper

perspective while holding that neither Section 42 nor Section

50 was attracted to the facts of this case.

17.On the other hand even according to the prosecution,

namely, the investigating officer himself, i.e. P.W.6, a search

was required after apprehending the appellant along with

the tractor and the gunny bags and such search had to be

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Page 13 necessarily conducted in accordance with Section 50 of the

NDPS Act. It was further the case of the prosecution that

such a step was pursued by calling upon the appellant to

exercise his opinion and after affirmatively ascertaining

whether he wanted any search to be conducted in the

presence of the Gazetted officer, only then P.W.3 was

summoned, in whose presence the search operation was

held. Therefore, the conclusion of the trial Court in having

held that Sections 42 and 50 were not applicable to the case

on hand was a total misunderstanding of the legal provisions

in the light of the facts placed before it and consequently

the conclusion arrived at for convicting the appellant was

wholly unjustified.

18.In fact, after reaching the said conclusion, all that the trial

Court did was to hold that the version of the prosecution

witnesses cannot be discarded merely because they were

police officers and that the evidence of P.W.3 was sufficient

to support the search and recovery of the narcotic

substance from the appellant. The trial Court also held that

the version of the defence witnesses was not worth

mentioning.

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Page 14

19.Unfortunately, the High Court has committed the same

errors whilst considering the correctness of the judgment of

the trial Court. The High Court being the first appellate Court

was required to independently reappraise the entire

material, record the conclusions supported by cogent

reasons. In our opinion, the High Court failed to exercise its

jurisdiction in dismissing the appeal.

20.Before concluding, we wish to refer to the decisions placed

before us to state the importance of applying the

stipulations contained in Section 50, before holding the

search, in order to ensure fair consideration of the offence

alleged against an accused under the NDPS Act, before

reaching any conclusion about the commission of the

alleged offence.

21.In the Constitution Bench decision of this Court in Baldev

Singh (supra), the importance of due compliance of Section

50 has been mainly set out in paragraphs 28, 32 and 33

which are as under:

“28……The argument that keeping in view the growing

drug menace, an insistence on compliance with all the

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Page 15 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 the judicial process may come under a

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 the law and may have the effect of

unconscionably compromising the administration of

justice. That cannot be permitted.”

32. However, 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 benefit 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 implicitly make

it imperative and obligatory and cast a duty of the

investigating officer (empowered officer) to ensure

that search of the person (suspect) concerned is

conducted in the manner prescribed by Section 50, by

intimating to the person concerned 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 the accused and render the recovery of

the illicit article suspect and vitiate the conviction and

sentence of the 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 omission may not vitiate the trial as such, but

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Page 16 because of the inherent prejudice which would be

caused to an accused by the omission 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.

33. 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.”

22.In Pawan Kumar (supra) wherein the Constitution Bench

decision was referred to and was reiterated as under in

paragraph 26:

“26.……..Otherwise, there would be no distinction

between recovery of illicit drugs, etc. seized during a

search conducted after following the provisions of

Section 50 of the Act and a seizure made during a

search conducted in breach of the provisions of Section

50. Having regard to the scheme and the language

used a very strict view of Section 50 of the Act was

taken and it was held that failure to inform the person

concerned of his right as emanating from sub-section

(1) of Section 50 may render the recovery of the

contraband suspect and sentence of an accused bad

and unsustainable in law. As a corollary, there is no

warrant or justification for giving an extended meaning

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Page 17 to the word “person” occurring in the same provision

so as to include even some bag, article or container or

some other baggage being carried by him.”

23.The aforesaid observations of the above Constitution Bench

decision in Baldev Singh (supra) and the three Judge Bench

decision in Pawan Kumar (supra), clearly highlight the

legal requirement of compliance of Section 50 in its true

spirit. It will have to be stated that such compliance of the

requirement under Section 50 of holding of a search and

seizure in the presence of Gazetted officer or a Magistrate,

cannot be an empty formality. In other words, the offer to

the person to be searched in the presence of a Gazetted

officer or a Magistrate, should really serve the purpose of

ensuring that there was every bona fide effort taken by the

prosecution to bring forth the grave offence of possession of

narcotic substance and proceed against the person by way

of prosecution and thereby establish the truth before the

appropriate judicial forum. In the same breath such a course

of compliance of Section 50 would also enable the person

accused of such a grave offence to be convinced that the

presence of such an independent Gazetted officer or a

Magistrate would also enable the person proceeded against

to demonstrate that there was no necessity for holding any

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Page 18 search on him and thereby persuade the concerned

Gazetted officer or Magistrate to protect his fundamental

right of freedom, from being unlawfully proceeded against.

In other words, the purpose of Section 50 was to ensure that

on the one hand, the holding of a search and seizure was not

a farce of an exercise in order to falsely implicate a person

by unscrupulous police authorities, while on the other hand

to prevent an accused from committing an offence of a

serious nature against the society, warranting appropriate

criminal proceedings to be launched and in the event of

establishing such offence, conviction and sentence to be

imposed in accordance with law. Therefore, such a dual

requirement of law prescribed under Section 50 cannot be

dealt with lightly by the Courts dealing with the trial of such

offences brought before it.

24.Keeping the above principles in mind, when we examine the

manner in which the trial Court dealt with the case of the

prosecution as well as the defence pleaded, we find that the

trial Court committed a serious flaw in holding that Sections

42 and 50 were not attracted to the case on hand, which we

have found in the earlier paragraph was a total misreading

of the provision as well as the decision relied upon by it.

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Page 19 That apart, when admittedly Section 50 was invoked by

offering the presence of a Gazetted officer or a Magistrate to

the appellant and at the request of P.W.6, P.W.3, who was

stated to be the D.S.P. at that point of time, was summoned

and in whose presence the search and seizure was stated to

have been made, the trial Court failed to appreciate whether

such a search or seizure was really held in accordance with

Sections 42 and 50 of the NDPS Act.

25.One of the grounds raised on behalf of the appellant was

that P.W.3 was not holding the post of D.S.P. in a

substantive manner in order to hold that he was a Gazetted

officer on the date of search. According to the appellant,

P.W.3 was not a regularly promoted D.S.P. but was only an

Inspector functioning as a D.S.P. in a category called ‘Own

Rank Pay’ D.S.P. According to the appellant, P.W.3 was

drawing the pay of an Inspector from I.R.D. and was not

holding the post of D.S.P. on a regular basis. It was,

therefore, contended that such a person who was not duly

promoted as D.S.P., cannot be equated to the status of a

Gazetted officer in order to hold that a search conducted in

his presence was a valid search as contemplated under

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Page 20 Section 50 of the NDPS Act. As far as the said point raised on

behalf of the appellant, we do not find any material or a

counter-stand taken to the effect that P.W.3 was a regularly

promoted D.S.P. or that as per the rules even as an ‘Own

Rank Pay’ D.S.P.,he could be equated to any other D.S.P.,

holding a substantive post. Unfortunately, as stated by us

earlier, the trial Court having taken a view that Sections 42

and 50 were not applicable, completely omitted to examine

the said defence raised on behalf of the appellant. We also

do not find any contra evidence laid on behalf of the

prosecution to counter the said ground raised on behalf of

the appellant.

26.In such circumstances it will be highly dangerous to simply

affirm the ultimate conclusion of the trial Court in having

convicted the appellant and the sentence imposed based on

such conviction, as the same was without any ratiocination.

It was most unfortunate that the High Court failed to

independently examine the correctness of the findings

recorded by the trial Court by simply extracting a portion of

the judgment of the trial Court, while affirming the

conviction.

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Page 21

27.For all the above stated reasons, the judgment of the trial

Court and the confirmation of the same by the High Court

cannot be sustained. The appeal stands allowed. The

conviction and sentence imposed on the appellant is set

aside and the appellant shall be set at liberty forthwith, if

not required in any other case.

………….……….…………………………..J.

[Surinder Singh Nijjar]

...……….…….………………………………J.

[Fakkir Mohamed Ibrahim

Kalifulla]

New Delhi;

October 28, 2013.

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