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CASE NO.:

Appeal (crl.) 396 of 1990

PETITIONER:

STATE OF PUNJAB

RESPONDENT:

BALDEV SINGH

DATE OF JUDGMENT: 21/07/1999

BENCH:

A.S.ANAND CJI & S.B.MAJMUDAR & SUJATA V.MANOHAR & K.VENKATASWAMI & V.N.KHARE

JUDGMENT:

JUDGMENT

DELIVERED BY:

DR.A.S.ANAND, CJI

DR. A.S.ANAND, CJI :

On 15.7.1997 when this batch of appeals/special leave

petitions was placed before a two-Judge Bench, it was

noticed that there was divergence of opinion between

different Benches of this Court with regard to the ambit and

scope of Section 50 of Narcotic Drugs and - Psychotropic

Substances Act, 1985 (hereinafter NDPS Act) and in

particular with regard to the admissibility of the evidence

collected by an investigating officer during search and

seizure conducted in violation of the provisions of Section

50 of NDPS Act. In the cases of State of Punjab v. Balbir

Singh, 1994 (3) SCC 299, Ali Mustaffa Abdul Rahman Moosa v.

State of Kerala, 1994 (6) SCC 569, Saiyad Mohd. Saiyad Umar

Saiyad and others v. State of Gujarat, 1995 (3) SCC 610 and

a number of other cases, it was laid down that failure to

observe the safeguards, while conducting search and seizure,

as provided by Section 50 would render the conviction and

sentence of an accused illegal. In Ali Mustaffas case

(supra), the judgment in Pooran Mal v. The Director of

Inspection (Investigation), New Delhi & Ors., 1974 (1) SCC

345, was also considered and it was opined that the judgment

in Pooran Mals case could not be interpreted to have laid

down that a contraband seized as a result of illegal search

or seizure could by itself be treated as evidence of

possession of the contraband to fasten liability, arising

out of unlawful possession of the contraband, on the person

from whom the alleged contraband had been seized during an

illegal search conducted in violation of the provisions of

Section 50 of NDPS Act. However, in State of Himachal

Pradesh v. Pirthi Chand and Anr., 1996 (2) SCC 37, and

State of Punjab v. Labh Singh, 1996 (5) SCC 520, relying

upon a judgment of this Court in Pooran Mals case (supra),

a discordant note was stuck and it was held that evidence

collected in a search conducted in violation of Section 50

of NDPS Act did not become inadmissible in evidence under

the Evidence Act The two-Judge Bench, therefore, on

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15.7.1997, by the following order, referred the batch of

cases to a larger bench : One of the questions that has

been raised in these appeals/special leave petitions is

whether compliance with Section 50 of the Narcotics Drugs

and Psychotropic Substances Act, 1985 is mandatory and, if

so, what is the effect of the breach thereof. This question

has had been engaging the attention of this Court and

answered in a number of cases. In State of Punjab v.

Balbir Singh (1994 (3) SCC 299), a two-Judge Bench of this

Court held that the above section is mandatory and it is

obligatory on the part of the officer concerned to inform

the person to be searched of his right to demand that the

search be conducted in the presence of a Gazetted Officer or

a Magistrate. It was further held that non-compliance with

the above section would affect the prosecution case and

vitiate the trial. This Judgment was affirmed by a

three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v.

State of Gujarat (1995 (3) SCC 610). In Ali Mustaffa Abdul

Rahman Moosa v. State of Kerala (1994 (6) SCC 569) a

submission was made on behalf of the State of Kerala to

reconsider the judgment in Balbir Singhs case (supra)

keeping in view the judgment of this Court in Puran Mal v.

Director of Inspection (1974 (1) SCC 345). It was contended

that even if the search and seizure of the contraband was

held to be illegal and contrary to the provisions of Section

50, it would not affect the conviction because the seized

articles could be used as evidence of unlawful possession of

the contraband. In repelling the contention, the Court

observed : The judgment in Pooran Mal case only lays down

that the evidence collected as a result of illegal search or

seizure, could be used as evidence in proceedings against

the party under the Income Tax Act. The judgment cannot be

interpreted to lay down that a contraband seized as a result

of illegal search or seizure, can be used to fasten the

liability of unlawful possession of the 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 NDPS Act and

that factor has to be established by the prosecution beyond

a reasonable doubt. Indeed the seized contraband is

evidence but in the absence of proof of possession of the

same, an accused cannot be held guilty under the NDPS Act.

In view of the law laid down in Balbir Singh case we

hold that there has been violation of the provisions of

Section 50 of the NDPS Act and consequently the conviction

of the appellant cannot be sustained. (Emphasis supplied)

It, however, appears that while dealing with Section

50 in State of Himachal Pradesh v. Pirthi Chand and Anr.

(1996 (2) SCC 37), another two-Judge Bench of this Court

referred to and relied upon the judgment in Pooran Mals

case (supra) and held that the evidence collected in a

search in violation of law does not become inadmissible in

evidence under the Evidence Act. The Court further observed

that even if search was found to be in violation of law,

what weight should be given to the evidence collected was a

question to be gone into during trial. With the above

observations, the Bench recorded a finding that the Sessions

Judge was not justified in discharging the accused after

filing of the charge sheet holding that mandatory

requirements of Section 50 had not been complied with. It,

however, appears that the Courts attention was not drawn to

Ali Mustaffa (supra). The view expressed in Pirthi Chand

(supra ) was reiterated in State of Punjab v. Labh Singh

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(1996 (5) SCC 520) wherein this Court considered the case of

Balbir Singh (supra), besides other cases and held as

follows :- In State of H.P. v. Pirthi Chand, this Court

further elaborately considered the effect of the violation

of Section 50 and held that any evidence recorded and

recovered in violation of the search and the contraband

seized in violation of the mandatory requirement does not

ipso facto invalidate the trial.

From the above resume, it would thus appear that

though a two-Judge Bench of this Court considered the

earlier judgments of this Court, it held in the case of

Pirthi Chand, [ and affirmed in the case of Labh Singh

(supra)], that breach of Section 50 does not affect the

trial while in the case of Ali Mustaffa (supra), another

Bench categorically laid down that breach of Section 50

makes the conviction illegal. In view of the divergent

opinions so expressed, we deem it fit to refer these matters

to a larger Bench.

Let the records be placed before the Chief Justice for

necessary orders.

The batch of cases was thereafter listed before a

three-Judge Bench. However, when the three-Judge Bench took

up the matter, it was of the opinion that the judgment of a

three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad and

ors. v. State of Gujarat, (supra), required

reconsideration and, therefore, the cases were required to

be considered still by a larger bench and on 19.11.1997, the

three-Judge Bench made the following order : 1. In this

bunch of appeals/special leave petitions the following

questions of law (besides other questions of law and facts)

fall for determination:

(i) Is it the mandatory requirement of Section 50 of

the Narcotic Drugs and Psychotropic Substances Act, 1985,

(Act for short) that when an officer, duly authorised

under Section 42 of the Act, is about to search a person he

must inform him of his right under sub- section (1) thereof

of being taken to the nearest Gazetted Officer or nearest

Magistrate for making the search?

(ii) If any search is made without informing the

person of his such right would the search be illegal even if

he does not of his own exercise his right under Section

50(1)? And

(iii) Whether a trial held in respect of any recovery

of contraband articles pursuant to such a search would be

void ab initio?

2. The above questions came up for consideration

before a two-Judge Bench of this Court in State of Punjab v.

Balbir Singh (1994) 3 SCC 299, and it answered them as

under: (SCC p.322, para 25) On prior information the

empowered officer or authorised officer while acting under

Sections 41(2) or 42 should comply with the provisions of

Section 50 before the search of the person is made and such

person should be informed that if he so requires, he shall

be produced before a Gazetted Officer or a Magistrate as

provided thereunder. It is obligatory on the part of such

officer to inform the person to be searched. Failure to

inform the person to be searched and if such person so

requires, failure to take him to the Gazetted Officer or the

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Magistrate, would amount to non-compliance of Section 50

which is mandatory and thus it would affect the prosecution

case and vitiate the trial. (Emphasis supplied)

3. In Ali Mustaffa Abdul Rahman Moosa v. State of

Kerala (1994) 6 SCC 569, a submission was made on behalf of

the State of Kerala to reconsider the judgment in Balbir

Singhs case (supra) in view of the judgment of the

Constitution Bench of this Court in Pooran Mal v. The

Director of Inspection (Investigation), New Delhi & others,

(1974) 1 SCC 345 wherein it was observed that where the test

of admissibility of evidence lay on relevancy (as in India

and England), unless there was an express or necessarily

implied prohibition in the Constitution or other law,

evidence obtained as a result of illegal search or seizure

was not liable to be shut out. Relying upon the above

observation it was contended that even if the search and

seizure of the contraband were held to be illegal and

contrary to the provisions of Section 50 it would not affect

the conviction because the seized articles could be used as

evidence of unlawful possession. In repelling this

contention the two-Judge Bench of this Court observed as

under:

The judgment in Pooran Mals case (supra) only lays

down that the evidence collected as a result of illegal

search or seizure, could be used as evidence in proceedings

against the party under the Income Tax Act. The judgment

cannot be interpreted to lay down that a contraband seized

as a result of illegal search or seizure, can be used to

fasten that liability of unlawful possession of the

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 NDPS Act and that factor has to be

established by the prosecution beyond a reasonable doubt.

Indeed the seized contraband is evidence but in the absence

of proof of possession of the same, an accused cannot be

held guilty under the NDPS Act.

In view of the law laid down in Balbir Singhs case

(supra) we hold that there has been violation of the

provisions of Section 50 of NDPS Act and consequently the

conviction of the appellant cannot be sustained.

4. The judgment in Balbir Singhs case (supra) was

affirmed by a three-Judge Bench in Saiyad Mohd. Saiyad Umar

Saiyad v. State of Gujarat, (1995) 3 SCC 610.

5. A discordant note was however struck by a

two-Judge Bench of this Court in State of H.P. v. Pirthi

Chand & another, (1996) 2 SCC 37, relying upon the judgment

of this Court in Pooran Mals case (supra), when it held

that the evidence collected in a search in violation of law

did not become inadmissible in evidence under the Evidence

Act. The Court further observed that even if the search was

found to be in violation of law, what weight should be given

to the evidence collected was a question to be gone into

during trial. The same view was reiterated by a two-Judge

Bench in State of Punjab v. Labh Singh, (1996) 5 SCC 520,

with the observation that any evidence recorded and

recovered in violation of the search and the contraband

seized in violation of the mandatory requirement did not

ipso facto invalidate the trial. (Emphasis supplied) 6. In

our considered opinion the judgment of this Court in Saiyad

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Mohd. Saiyad Umar Saiyads case (supra) (which was

delivered by a three-Judge Bench) requires re-consideration

and the questions formulated above answered by a larger

Bench, not only in view of the subsequent judgments of this

Court (delivered by a two- Judge Bench) referred to above,

but also in view of the Constitution Bench judgment in

Pooran Mals case (supra).

7. Let these matters be, therefore, placed before the

Honble Chief Justice for necessary orders.

That is how this batch of Criminal Appeals/Special

Leave Petitions has been placed before this Constitution

Bench. Drug abuse is a social malady. While drug addiction

eats into the vitals of the society, drug trafficking not

only eats into the vitals of the economy of a country, but

illicit money generated by drug trafficking is often used

for illicit activities including encouragement of terrorism.

There is no doubt that drug trafficking, trading and its

use, which is a global phenomena and has acquired the

dimensions of an epidemic, affects the economic policies of

the State, corrupts the system and is detrimental to the

future of a country. It has the effect of producing a sick

society and harmful culture. Anti-drug justice is a

criminal dimension of social justice. The United Nations

Conventions Against Illicit Trafficking In Narcotic Drugs &

Psychotropic Substances which was held in Vienna, Austria in

1988 was perhaps one of the first efforts, at an

international level, to tackle the menace of drug

trafficking throughout the comity of nations. The

Government of India has ratified this convention. Prior to

the passing of the NDPS Act, 1985 control over Narcotic

drugs was being generally exercised through certain Central

enactments though some of the States also had enacted

certain statutes with a view to deal with illicit traffic in

drugs. The Opium Act, 1857 related mainly to preventing

illicit cultivation of poppy, regulating cultivation of

poppy and manufacture of opium. Opium Act, 1878,

supplemented Opium Act, 1875 and made possession,

transportation, import, export, sale, etc. of opium also an

offence. The Dangerous Drug Act, 1930, was enacted with a

view to suppress traffic in contraband and abuse of

dangerous drugs, particularly derived from opium, Indian

hemp and coca leaf etc. The Act prescribed maximum

punishment of imprisonment for three years with or without

fine, insofar as first offence is concerned and for the

second or the subsequent offence the punishment could go

upto four years RI. These Acts, however, failed to control

illicit drug traffic and drug abuse on the other hand

exhibited an upward trend. New drugs of addiction known as

Psychotropic Substances also appeared on the scene posing

serious problems. It was noticed that there was an absence

of comprehensive law to enable effective control over

psychotropic substances in the manner envisaged by the

International Convention of Psychotropic Substances, 1971.

The need for the enactment of some comprehensive legislation

on Narcotics Drug and Psychotropic Substances was,

therefore, felt. The Parliament with a view to meet a

social challenge of great dimensions, enacted the NDPS Act,

1985 to consolidate and amend existing provisions relating

to control over drug abuse etc. and to provide for enhanced

penalties particularly for trafficking and various other

offences. The NDPS Act, 1985 provides stringent penalties

for various offences. Enhanced penalties are prescribed for

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second and subsequent offences. The NDPS, Act 1985 was

amended in 1988 w.e.f. 29th May, 1989. Minimum punishment

of 10 years imprisonment which may extend upto 20 years and

a minimum fine of Rs.1 lakh which may extend upto Rs.2 lakh

have been provided for most of the offences under the NDPS

Act, 1985. For second and subsequent offences, minimum

punishment of imprisonment is 15 years which may extend to

30 years while minimum fine is Rs.1.5 lakh which may extend

to Rs.3 lakhs. Section 31(a) of the Act, which was inserted

by the Amendment Act of 1988, has even provided that for

certain offences, after previous convictions, death penalty

shall be imposed, without leaving any discretion in the

Court to award imprisonment for life in appropriate cases.

Another amendment of considerable importance introduced by

the Amendment Act, 1988 was that all the offences under the

Act were made triable by a special court. Section 36 of the

Act provides for constitution of special courts manned by a

person who is a Sessions Judge or an Additional Sessions

Judge. Appeal from the orders of the special courts lie to

the High Court. Section 37 makes all the offences under the

Act to be cognizable and non-bailable and also lays down

stringent conditions for grant of bail. However, despite

the stringent provisions of the NDPS Act, 1985 as amended in

1988 drug business is booming; addicts are rapidly rising;

crime with its role to narcotics is galloping and drug

trafficking network is ever growing. While interpreting

various provisions of the statute, the object of the

legislation has to be kept in view but at the same time the

interpretation has to be reasonable and fair. With a view

to answer the questions framed by the referring Bench and

resolve the divergence of opinion expressed by different

benches particularly on the applicability of the law laid

down in Pooran Mals case (supra) to the admissibility of

evidence collected as a result of search conducted in

violation of the provisions of Section 50 of the NDPS Act,

to offences under the NDPS Act, it would be appropriate to

first notice some of the relevant statutory provisions. For

the purpose of this batch of cases we are primarily

concerned with Chapter V in general and Sections 35, 41, 42,

43, 50, 51, 54 and 57 of the Act in particular. Section 35

lays down :

35. Presumption of culpable mental state. (1) In

any prosecution for an offence under this Act which requires

a culpable mental state of the accused, the court shall

presume the existence of such mental state but it shall be a

defence for the accused to prove the fact that he had no

such mental state with respect to the act charged as an

offence in that prosecution.

Explanation In this section culpable mental state

includes intention, motive, knowledge of a fact and belief

in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to

be proved only when the court believes it to exist beyond a

reasonable doubt and not merely when its existence is

established by a preponderance of probability. Section 41

reads as follows:-

41. Power to issue warrant and authorisation.- (1) A

Metropolitan Magistrate or a Magistrate of the first class

or any Magistrate of the second class specially empowered by

the State Government in this behalf, may issue a warrant for

the arrest of any person whom he has reason to believe to

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have committed any offence punishable under Chapter IV, or

for the search, whether by day or by night, of any building,

conveyance or place in which he has reason to believe any

narcotic drug or psychotropic substance in respect of which

an offence punishable under Chapter IV has been committed or

any document or other article which may furnish evidence of

the commission of such offence is kept or concealed.

(2) Any such officer of gazetted rank of the

departments of central excise, narcotics, customs, revenue

intelligence or any other department of the Central

Government or of the Border Security Force as is empowered

in this behalf by general or special order by the Central

Government, or any such officer of the revenue, drugs

control, excise, police or any other department of a State

Government as is empowered in this behalf by general or

special order of the State Government, if he has reason to

believe from personal knowledge or information given by any

person and taken in writing that any person has committed an

offence punishable under Chapter IV or that any narcotic

drug, or psychotropic substance in respect of which any

offence punishable under Chapter IV has been committed or

any document or other article which may furnish evidence of

the commission of such offence has been kept or concealed in

any building, conveyance or place, may authorise any officer

subordinate to him but superior in rank to a peon, sepoy, or

a constable, to arrest such a person or search a building,

conveyance or place whether by day or by night or himself

arrest a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section

(1) is addressed and the officer who authorised the arrest

or search or the officer who is so authorised under sub-

section (2) shall have all the powers of an officer acting

under section 42.

Section 42 provides:-

42. Power of entry, search, seizure and arrest

without warrant or authorisation. (1) Any such officer

(being an officer superior in rank to a peon, sepoy or

constable) of the departments of central excise, narcotics,

customs, revenue intelligence or any other department of the

Central Government or of the Border Security Force as is

empowered in this behalf by general or special order by the

Central Government, or any such officer (being an officer

superior in rank to a peon, sepoy or constable) of the

revenue, drugs control, excise, police or any other

department of a State Government as is empowered in this

behalf by general or special order of the State Government,

if he has reason to believe from personal knowledge or

information given by any person and taken down in writing,

that any narcotic drug, or psychotropic substance, in

respect of which an offence punishable under Chapter IV has

been committed or any document or other article which may

furnish evidence of the commission of such offence is kept

or concealed in any building, conveyance or enclosed place,

may, between sunrise and sunset

(a) enter into and search any such building,

conveyance or place;

(b) in case of resistance, break open any door and

remove any obstacle to such entry;

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(c) such drug or substance and all materials used in

the manufacture thereof and any other article and any animal

or conveyance which he has reason to believe to be liable to

confiscation under this Act and any document or other

article which he has reason to believe may furnish evidence

of the commission of any offence punishable under Chapter IV

relating to such drug or substance; and

(d) detain and search, and, if he thinks proper,

arrest any person whom he has reason to believe to have

committed any offence punishable under Chapter IV relating

to such drug or substance:

Provided that if such officer has reason to believe

that a search warrant or authorisation cannot be obtained

without affording opportunity for the concealment of

evidence or facility for the escape of an offender, he may

enter and search such building, conveyance or enclosed place

at any time between sun set and sun rise after recording the

grounds of his belief.

(2) Where an officer takes down any information in

writing under sub-section (1) or records grounds for his

belief under the proviso thereto he shall forthwith send a

copy thereof to his immediate official superior.

43. Power of seizure and arrest in public places.

Any officer of any of the departments mentioned in section

42 may

(a) seize, in any public place or in transit, any

narcotic drug or psychotropic substance in respect of which

he has reason to believe an offence punishable under Chapter

IV has been committed, and, along with such drug or

substance, any animal or conveyance or article liable to

confiscation under this Act, and any document or other

article which he has reason to believe may furnish evidence

of the commission of an offence punishable under Chapter IV

relating to such drug or substance;

(b) detain and search any person whom he has reason to

believe to have committed an offence punishable under

Chapter IV, and, if such person has any narcotic drug or

psychotropic substance in his possession and such possession

appears to him to be unlawful, arrest him and any other

person in his company.

Explanation For the purposes of this section, the

expression public place includes any public conveyance,

hotel, shop, or other place intended for use by, or

accessible to, the public.

Section 50 of the N.D.P.S. Act reads as follows :

50. Conditions under which search of persons shall

be conducted. (1) When any officer duly authorised under

section 42 is about to search any person under the

provisions of section 41, section 42 or section 43, he

shall, if such person so requires, take such person without

unnecessary delay to the nearest Gazetted Officer of any of

the departments mentioned in section 42 or to the nearest

Magistrate.

(2) If such requisition is made, the officer may

detain the person until he can bring him before the Gazetted

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Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom

any such person is brought shall, if he sees no reasonable

ground for search, forthwith discharge the person but

otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a

female.

Section 51 provides :

51. Provisions of the Code of Criminal Procedure,

1973 to apply to warrants, arrests, searches and seizures.--

The provisions of the Code of Criminal Procedure, 1973 shall

apply, in so far as they are not inconsistent with the

provisions of this Act, to all warrants issued and arrests,

searches and seizures made under this Act.

Section 52 reads thus :

Disposal of persons arrested and articles seized.

(1) Any officer arresting a person under section 41, section

42, section 43 or section 44 shall, as soon as may be,

inform him of the grounds for such arrest.

(2) Every person arrested and article seized under

warrant issued under sub-section (1) of section 41 shall be

forwarded without unnecessary delay to the Magistrate by

whom the warrant was issued.

(3) Every person arrested and article seized under

sub- section (2) of section 41, section 42, section 43 or

section 44 shall be forwarded without unnecessary delay to--

(a) the officer-in-charge of the nearest police

station, or (b) the officer empowered under section 53.

(4) The authority or officer to whom any person or

article is forwarded under sub-section (2) or sub-section

(3) shall, with all convenient dispatch, take such measures

as may be necessary for the disposal according to law of

such person or article.

Section 54 provides :

54. Presumption from possession of illicit

articles. In trials under this Act, it may be presumed,

unless and until the contrary is proved, that the accused

has committed an offence under Chapter IV in respect of

(a) any narcotic drug or psychotropic substance; (b)

any opium poppy, cannabis plant or coca plant growing on any

land which he has cultivated; (c) any apparatus specially

designed or any group of utensils specially adopted for the

manufacture of any narcotic drug or psychotropic substance;

or (d) any materials which have undergone any process

towards the manufacture of a narcotic drug or psychotropic

substance, or any residue left of the materials from which

any narcotic drug or psychotropic substance has been

manufactured.

for the possession of which he fails to account

satisfactorily. Section 57 reads as follows:-

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57. Report of arrest and seizure.- Whenever any

person makes any arrest or seizure under this Act, he shall,

within forty-eight hours next after such arrest or seizure,

make a full report of all the particulars of such arrest or

seizure to his immediate superior official. Section 132

(13) of the Income Tax Act, 1961 provides :

132. Search and seizure.

xxx xxx xxx

(13) The provisions of the Code of Criminal Procedure,

1973 (2 of 1974), relating to searches and seizure shall

apply, so far as may be, to searches and seizure under

sub-section (1) or sub-section (1A).

Search and seizure are essential steps in the armoury

of an investigator in the investigation of a criminal case.

The Code of Criminal Procedure itself recognises the

necessity and usefulness of search and seizure during the

investigation as is evident from the provisions of Sections

96 to 103 and Section 165 of the Criminal Procedure Code.

In M.P. Sharma and others v. Satish Chandra, District

Magistrate, Delhi and others, [1954] S.C.R. 1077, the

challenge to the power of issuing a search warrant under

Section 96(1) Cr.P.C. as violative of the fundamental

rights was repelled by the Constitution Bench on the ground

that the power of search and seizure in any system of

jurisprudence is an overriding power of the State for the

protection of social security. It was also held that a

search by itself is not a restriction on the right to hold

and enjoy property, though a seizure may be a restriction on

the right of possession and enjoyment of the seized

property, but it is only temporary and for the limited

purpose of an investigation. The Court opined : A power

of search and seizure is in any system of jurisprudence an

overriding power of the State for the protection of social

security and that power is necessarily regulated by law.

When the Constitution makers have thought fit not to subject

such regulation to constitutional limitations by recognition

of a fundamental right to privacy, analogous to the American

Fourth Amendment, we have no justification to import it,

into a totally different fundamental right, by some process

of strained construction. Nor is it legitimate to assume

that the constitutional protection under Article 20(3) would

be defeated by the statutory provisions for searches.

The Court also opined : A search and seizure is,

therefore, only a temporary interference with the right to

hold the premises searched and the articles seized.

Statutory regulation in this behalf is necessary and

reasonable restriction cannot per se be considered to be

unconstitutional. The damage, if any, caused by such

temporary interference if found to be in excess of legal

authority is a matter for redress in other proceedings. We

are unable to see how any question of violation of article

19(1) (f) is involved in this case in respect of the

warrants in question which purport to be under the first

alternative of Section 96(1) of the Criminal Procedure

Code.

Section 41 of the NDPS Act provides that a

Metropolitan Magistrate or a Magistrate of the first class

or any Magistrate of the second class specially empowered by

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the State Government in this behalf, may issue a warrant for

the arrest of and for search of any person whom he has

reason to believe to have committed any offence punishable

under Chapter IV. Vide sub-Section (2) the power has also

been vested in Gazetted Officers of the Department of

Central Excise, Narcotics, Customs, Revenue Intelligence or

any other Department of the Central Government or of Border

Security Force, empowered in that behalf by general or

special order of the State Govt. to arrest any person, who

he has reason to believe to have committed an offence

punishable under Chapter IV or to search any person or

conveyance or vessel or building etc. with a view to seize

any contraband or document or other article which may

furnish evidence of the commission of such an offence,

concealed in such building or conveyance or vessel or place.

Sub-section (1) of Section 42 lays down that the empowered

officer, if has a prior information given by any person, he

should necessarily take it down in writing and where he has

reason to believe from his personal knowledge that offences

under Chapter IV have been committed or that materials which

may furnish evidence of commission of such offences are

concealed in any building etc. he may carry out the arrest

or search, without a warrant between sunrise and sunset, and

he may do so without recording his reasons of belief.

The proviso to sub-section (1) lays down that if the

empowered officer has reason to believe that a search

warrant or authorisation cannot be obtained without

affording opportunity for the concealment of evidence or

facility for the escape of an offender, he may enter and

search such building, conveyance or enclosed place, at any

time between sunset and sunrise, after recording the grounds

of his belief. Vide sub-section (2) of Section 42, the

empowered officer who takes down information in writing or

records the grounds of his belief under the proviso to

sub-section (1), shall forthwith send a copy of the same to

his immediate official superior. Section 43 deals with the

power of seizure and arrest of the suspect in a public

place. The material difference between the provisions of

Section 43 and Section 42 is that whereas Section 42

requires recording of reasons for belief and for taking down

of information received in writing with regard to the

commission of an offence before conducting search and

seizure, Section 43 does not contain any such provision and

as such while acting under Section 43 of the Act, the

empowered officer has the power of seizure of the article

etc. and arrest of a person who is found to be in

possession of any Narcotic Drug or Psychotropic Substances

in a public place where such possession appears to him to be

unlawful. Section 50 of the Act prescribes the conditions

under which search of a person shall be conducted.

Sub-section (1) provides that when the empowered officer is

about to search any suspected person, he shall, if the

person to be searched so requires, take him to the nearest

Gazetted Officer or the Magistrate for the purpose. Under

sub-section (2) it is laid down that if such request is made

by the suspected person, the officer who is to take the

search, may detain the suspect until he can be brought

before such Gazetted Officer or the Magistrate. Sub-section

(3) lays down that when the person to be searched is brought

before such a Gazetted Officer or the Magistrate and such

Gazetted Officer or the Magistrate finds that there are no

reasonable grounds for search, he shall forthwith discharge

the person to be searched, otherwise he shall direct that

the search be made. On its plain reading, Section 50 would

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come into play only in the case of a search of 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. 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. 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. In Balbir Singhs case after

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referring to a number of judgments, the Bench opined that

failure to comply with the provisions of Cr.P.C. in respect

of search and seizure and particularly those of Sections

100, 102, 103 and 165 per se does not vitiate the

prosecution case. If there is such a violation, what the

courts have to see is whether any prejudice was caused to

the accused. While appreciating the evidence and other

relevant factors, the courts should bear in mind that there

was such a violation and evaluate the evidence on record

keeping that in view. What is the import of the expression

if such person so requires he shall be taken to the

nearest Gazetted Officer or Magistrate and his search shall

be made before such Officer or Magistrate as occurring in

Section 50. Does the expression not visualise that to

enable the concerned person to require his search to be

conducted before a Gazetted Officer or a Magistrate, the

empowered officer is under an obligation to inform him that

he has such a right ? Learned counsel appearing for the

State of Punjab as also the learned counsel appearing for

the State of Gujarat argued that it would not be proper to

read into the provisions of Section 50, any legislative

intent of prescribing a duty on the part of the empowered

Officer to inform the suspect that if he so requires, the

search would be conducted before a Gazetted Officer or a

Magistrate, as the case may be. According to the learned

counsel, the view expressed in State of Punjab v. Balbir

Singh (supra), laying down that it is obligatory on the part

of such an officer to so inform the person to be searched or

if such person requires, failure to take him for search

before the Gazetted Officer or the Magistrate, would amount

to non- compliance with the provisions of Section 50 and

would affect the prosecution case and vitiate the trial

requires reconsideration. As a matter of fact, the order of

the referring bench itself, centers around whether there is

any requirement of Section 50, making, it obligatory for the

empowered officer, who is about to search a person, to

inform him of his right of being taken to the nearest

Gazetted Officer or nearest Magistrate for making the search

if he so requires. Learned counsel for the parties,

however, agree that in case the obligation to inform the

suspect of his right to be searched before a Gazetted

Officer or a Magistrate is read as a duty cast on the

empowered officer, then failure to give information

regarding that right to the suspect would be a serious

infirmity amounting to denial of a valuable right to an

accused and would render his conviction for an offence under

the NDPS Act bad and unsustainable. The question as to what

is the effect of non-compliance with the provisions of

Section 50 on the recovery of the contraband was answered in

State of Punjab v. Balbir Singh (supra). The common

question which arose for consideration in a batch of appeals

filed by the State of Punjab was whether any arrest or

search of a person or search of a place conducted without

conforming to the provisions of the NDPS Act would be

rendered illegal and consequently vitiate the conviction?

The Trial Court in those cases had acquitted the accused on

the ground that the arrest, search and seizure were

conducted in violation of some of the relevant and

mandatory provisions of the NDPS Act. The High Court

declined to grant appeal against the order of acquittal.

The State of Punjab thereupon filed appeals by special leave

in this Court. In some other cases, where the accused had

been convicted, they also filed appeals by special leave

questioning their conviction and sentence on the ground that

their trials were illegal because of non-compliance with the

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safeguards provided under Section 50 of the NDPS Act. A

two-Judge Bench speaking through K. Jayachandra Reddy, J.

considered several provisions of the NDPS Act governing

arrest, search and seizure and, in particular, the

provisions of Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57

of the NDPS Act as well as the provisions of the Code of

Criminal Procedure relating to search and seizure effected

during investigation of a criminal case. Dealing with

Section 50, it was held that in the context in which the

right had been conferred, it must naturally be presumed that

it is imperative on the part of the officer to inform the

person to be searched of his right that if he so requires he

shall be searched before a Gazetted Officer or Magistrate

and on such request being made by him, to be taken before

the Gazetted Officer or Magistrate for further proceedings.

The reasoning given in Balbir Singhs case was that to

afford an opportunity to the person to be searched if he so

requires to be searched before a Gazetted Officer or a

Magistrate he must be made aware of that right and that

could be done only by the empowered officer by informing him

of the existence of that right. The Court went on to hold

that failure to inform the person to be searched of that

right and if he so requires, failure to take him to the

Gazetted Officer or the Magistrate, would mean

non-compliance with the provisions of Section 50 which in

turn would affect the prosecution case and vitiate the

Trial. The following conclusions were arrived at by the

two-Judge Bench in State of Punjab v. Balbir Singh (supra)

: 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.

(2-A) Under Section 41(1) only an empowered Magistrate

can issue warrant for the arrest or for the search in

respect of offences punishable under Chapter IV of the Act

etc. when he has reason to believe that such offences have

been committed or such substances are kept or concealed in

any building, conveyance or place. When such warrant for

arrest or for search is issued by a Magistrate who is not

empowered, then such search or arrest if carried out would

be illegal. Likewise only empowered officers or duly

authorized officers as enumerated in Sections 41(2) and

42(1) can act under the provisions of the NDPS Act. If such

arrest or search is made under the provisions of the NDPS

Act by anyone other than such officers, the same would be

illegal.

(2-B) Under Section 41(2) only the empowered officer

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can give the authorisation to his subordinate officer to

carry out the arrest of a person or search as mentioned

therein. If there is a contravention, that would affect the

prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has

a prior information given by any person, that should

necessarily be taken down in writing. But if he has reason

to believe from personal knowledge that offences under

Chapter IV have been committed or materials which may

furnish evidence of commission of such offences are

concealed in any building etc. he may carry out the arrest

or search without a warrant between sunrise and sunset and

this provision does not mandate that he should record his

reasons of belief. But under the proviso to Section 42(1)

if such officer has to carry out such search between sunset

and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and

contravention of the same would affect the prosecution case

and vitiate the trial.

(3) Under Section 42(2) such empowered officer who

takes down any information in writing or records the grounds

under proviso to Section 42(1) should forthwith send a copy

thereof to his immediate official superior. If there is

total non-compliance of this provision the same affects the

prosecution case. To that extent it is mandatory. But if

there is delay whether it was undue or whether the same has

been explained or not, will be a question of fact in each

case.

(4-A) If a police officer, even if he happens to be an

empowered officer while effecting an arrest or search

during normal investigation into offences purely under the

provisions of CrPC fails to strictly comply with the

provisions of Sections 100 and 165 CrPC including the

requirement to record reasons, such failure would only

amount to an irregularity.

(4-B) If an empowered officer or an authorised officer

under Section 41(2) of the Act carries out a search, he

would be doing so under the provisions of CrPC namely

Sections 100 and 165 CrPC and if there is no strict

compliance with the provisions of CrPC then such search

would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by

the courts while appreciating the evidence in the facts and

circumstances of each case.

(5) On prior information the empowered officer or

authorised officer while acting under Sections 41(2) or 42

should comply with the provisions of Section 50 before the

search of the person is made and such person should be

informed that if he so requires, he shall be produced before

a Gazetted Officer or a Magistrate as provided thereunder.

It is obligatory on the part of such officer to inform the

person to be searched. Failure to inform the person to be

searched and if such person so requires, failure to take him

to the Gazetted Officer or the Magistrate, would amount to

non-compliance of Section 50 which is mandatory and thus it

would affect the prosecution case and vitiate the trial.

After being so informed whether such person opted for such a

course or not would be a question of fact. (Emphasis ours)

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(6) The provisions of Sections 52 and 57 which deal

with the steps to be taken by the officers after making

arrest or seizure under Sections 41 to 44 are by themselves

not mandatory. If there is non-compliance or if there are

lapses like delay etc. then the same has to be examined to

see whether any prejudice has been caused to the accused and

such failure will have a bearing on the appreciation of

evidence regarding arrest or seizure as well as on merits of

the case.

A three-Judge Bench in Saiyad Mohd. Saiyad Umar

Saiyad and others v. State of Gujarat (supra), upheld the

view taken in Balbir Singhs case (supra) on the point of

duty of the empowered officer to inform the suspect about

his right to be searched before a Gazetted Officer or a

Magistrate. It considered the provisions of Section 50 and

opined : 8. We are unable to share the High Courts view

that in cases under the NDPS Act it is the duty of the court

to raise a presumption, when the officer concerned has not

deposed that he had followed the procedure mandated by

Section 50, that he had in fact done so. When the officer

concerned has not deposed that he had followed the procedure

mandated by Section 50, the court is duty- bound to conclude

that the accused had not had the benefit of the protection

that Section 50 affords; that, therefore, his possession of

articles which are illicit under the NDPS Act is not

established; that the precondition for his having

satisfactorily accounted for such possession has not been

met; and to acquit the accused." (Emphasis ours)

In State of Himachal Pradesh v. Shri Pirthi Chand &

Anr., (supra), the Bench agreed with the view in Balbir

Singhs case regarding the duty to inform the suspect of his

right as emanating from Section 50 of the NDPS Act. The

Court opined : Compliance of the safeguards in Section 50

is mandatory obliging the officer concerned to inform the

person to be searched of his right to demand that search

could be conducted in the presence of a Gazetted Officer or

a Magistrate. The possession of illicit articles has to be

satisfactorily established before the court. The officer

who conducts search must state in his evidence that he had

informed the accused of his right to demand, while he is

searched, in the presence of a Gazetted Officer or a

Magistrate and that the accused had not chosen to so demand.

If no evidence to that effect is given, the court must

presume that the person searched was not informed of the

protection the law gives him and must find that possession

of illicit articles was not established. The presumption

under Article 114 Illustration (e) of the Evidence Act, that

the official duty was properly performed, therefore, does

not apply...

In State of Punjab v. Labh Singh, (supra) again it

was reiterated that the accused has been provided with a

protection of being informed of his right to be searched in

presence of a Gazetted Officer or a Magistrate and failure

to give an opportunity to the concerned person to avail of

the protection would render the prosecution case

unsustainable. In State of Punjab v. Jasbir Singh &

others, (1996) 1 SCC 288, it was opined : Having

considered the evidence we find it difficult to set aside

the order of acquittal recorded by the Additional Sessions

Judge. Though the offence involved is of a considerable

magnitude of 70 bags containing 34 kgs. Of poppy husk, each

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without any permit/licence, this Court is constrained to

confirm the acquittal for the reasons that the mandatory

requirements of Section 50 of Narcotic Drugs and

Psychotropic Substances Act, 1985 has not been complied

with. Protection given by Section 50 is a valuable right to

the offender and compliance thereof intended to be

mandatory. In case the police officers had prior knowledge

that illegal transport of the contraband is in movement and

persons are in unlawful possession and intends to intercept

it, conduct search and consequentially to seize the

contraband, they are required to inform the offender that he

has the right that the search will be conducted in the

presence of a gazetted officer or a Magistrate. Thereafter

on their agreeing to be searched by the police officers, the

search and seizure of the contraband from their unlawful

possession would become legal and valid. However, the

evidence collected in breach of mandatory requirement does

not become inadmissible. It is settled law that evidence

collected during investigation in violation of the statutory

provisions does not become inadmissible and the trial on the

basis thereof does not get vitiated. Each case is to be

considered on its own backdrop. (Emphasis added) In Ali

Mustaffa Abdul Rahman Moosa v. State of Kerala, (supra),

two-Judge Bench of this Court, (to which one of us (CJI) was

a party) it had been found that the appellant had not been

given any choice as to whether he desired to be searched in

the presence of a Gazetted Officer or a Magistrate as

envisaged under Section 50 of the NDPS Act. The argument

raised in that case to the effect that Section 50 of the Act

could not be said to have been violated because the

appellant did not require to have himself searched before

a Gazetted Officer or a Magistrate was rejected following

the law laid down in Balbir Singhs case (supra). The Court

opined that to enable the concerned person to require that

his search be carried out in the presence of a Gazetted

Officer or a Magistrate makes, it is obligatory on the part

of the empowered officer to inform the concerned person that

he has a right to require his search to be conducted in the

presence of a Gazetted Officer or a Magistrate. Mohinder

Kumar v. State, Panaji, Goa, (1998) 8 SCC 655, a

three-Judge Bench (to which one of us, Sujata V. Manohar,

J. was a party) once again considered the requirements of

Sections 42 and 50 of the Act. In that case the police

officer accidentally reached the house while on patrol

duty and had it not been for the conduct of the accused

persons in trying to run into the house on seeing the police

party, he would perhaps not have had any occasion to enter

the house and effect search. But when the conduct of the

accused persons raised a suspicion, he went into the house

and effected the search, seized the illicit material and

caused the arrest. The Court opined that in the facts and

circumstances of the case, when the Investigating Officer

accidentally stumbled upon the offending articles and

himself not being the empowered officer, then on coming to

know that the accused persons were in possession of illicit

articles, then from that stage onwards he was under an

obligation to proceed further in the matter only in

accordance with the provisions of the Act. On facts it was

found that the Investigating Officer did not record the

grounds of his belief at any stage of the investigation,

subsequent to his realising that the accused persons were in

possession of charas and since he had made no record, he did

not forward a copy of the grounds to his superior officer

nor did he comply with the provisions of Section 50 of the

Act, inasmuch as he did not inform the person to be searched

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that if he required, his search could be conducted before a

Gazetted Officer or a Magistrate, the Bench held that for

failure to comply with the provisions of Sections 42 and 50,

the accused was entitled to an order of acquittal and

consequently the appeal was allowed and the order of

conviction and sentence against the accused was set aside.

It would, thus, be seen that none of the decisions of the

Supreme Court after Balbir Singhs case have departed from

that opinion. At least none has been brought to our notice.

There is, thus, unanimity of judicial pronouncements to the

effect that 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. 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.

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. We have already noticed

that severe punishments have been provided under the Act for

mere possession of Illicit Drugs and Narcotic Substances.

Personal search, more particularly for offences under the

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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.

Requirement to inform has been read in by this Court in

other circumstances also, where the statute did not

explicitly provide for such a requirement. While

considering the scope of Article 22(5) of the Constitution

of India and various other provisions of COFEPOSA Act and

the NDPS Act as amended in 1988, a Constitution Bench of

this Court in Kamelesh Kumar Ishwardas Patel vs. Union of

India & Ors., (1995) 4 SCC 51, concluded : Article 22(5)

must, therefore, be construed to mean that the person

detained has a right to make a representation against the

order of detention which can be made not only to the

Advisory Board but also to the detaining authority, i.e.,

the authority that has made the order of detention or the

order for continuance of such detention, which is competent

to give immediate relief by revoking the said order as well

as to any other authority which is competent under law to

revoke the order for detention and thereby give relief to

the person detained. The right to make a representation

carries within it a corresponding obligation on the

authority making the order of detention to inform the person

detained of his right to make a representation against the

order of detention to the authorities who are required to

consider such a representation. (Emphasis ours)

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

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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.

In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, it

was opined : We are conscious of the fact that the police

in India have to perform a difficult and delicate task,

particularly in view of the deteriorating law and order

situation, communal riots, political turmoil, student

unrest, terrorist activities, and among others the

increasing number of underworld and armed gangs and

criminals. Many hardcore criminals like extremists,

terrorists, drug peddlers, smugglers who have organised

gangs, have taken strong roots in the society. It is being

said in certain quarters that with more and more

liberalisation and enforcement of fundamental rights, it

would lead to difficulties in the detection of crimes

committed by such categories of hardened criminals by soft

peddling interrogation. It is felt in those quarters that

if we lay too much of emphasis on protection of their

fundamental rights and human rights, such criminals may go

scot-free without exposing any element or iota of

criminality with the result, the crime would go unpunished

and in the ultimate analysis the society would suffer. The

concern is genuine and the problem is real. To deal with

such a situation, a balanced approach is needed to meet the

ends of justice. This is all the more so, in view of the

expectation of the society that police must deal with the

criminals in an efficient and effective manner and bring to

book those who are involved in the crime. The cure cannot,

however, be worst than the disease itself.

(Emphasis ours)

In D.K. Basus case (supra), the Court also noticed

the response of the Supreme Court of the United States of

America to such an argument in Miranda v. Arizona, 384 US

436 : 16 L Ed 2d 694 (1966), wherein that Court had said :

The Latin maxim salus populi suprema lex (the safety of

the people is the supreme law) and salus republicae suprema

lex (safety of the State is the supreme law) coexist and are

not only important and relevant but lie at the heart of the

doctrine that the welfare of an individual must yield to

that of the community. The action of the State, however,

must be right, just and fair (Emphasis supplied)

There is indeed, a 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

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answer, therefore, is that the investigating 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

investigating authority is curbed. 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 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

omission may not vitiate the trial as such, but 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. 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. The next question

which arises for our consideration is whether evidence

collected in a search conducted in violation of Section 50,

is admissible in evidence? This question arises in the

context of the judgment of the Constitution Bench in Pooran

Mals case (supra). A submission was made in Ali Mustaffa

Abdul Rahman Moosas case (supra) before the Bench on behalf

of the State of Kerala to reconsider the judgment in Balbir

Singhs case in view of the judgment of this Court in Pooran

Mal v. The Director of Inspection (Investigation), New

Delhi and others. It was urged in Ali Mustaffa's case that

even if search and seizure of the contraband was held to be

illegal having been conducted in violation of the provisions

of Section 50, it could not affect the conviction because

the recovered articles could still be used as "admissible

evidence" under the Evidence Act to establish unlawful

possession of the contraband on the concerned person from

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whom it was recovered during that search. This Court

repelled that contention and held that the judgment in

Pooran Mals case (supra) could not be read to have laid

down that a contraband seized as a result of an illegal

search or seizure could still be used as admissible evidence

of unlawful possession of the contraband on the person from

whom the contraband had allegedly been seized in an illegal

manner. The Bench in Ali Mustaffas case (supra) observed

: The last submission of the learned counsel for the

respondents is that even if the search and seizure of the

contraband are held to be illegal and contrary to the

provisions of Section 50 of the NDPS Act, it would still not

affect the conviction because the seized articles could be

used as evidence of unlawful possession of a contraband.

Reliance for this submission is placed on the judgment of

this Court in Pooran Mal v. Director of Inspection. We are

afraid the submission is misconceived and the reliance

placed on the said judgment is misplaced. The judgment in

Pooran Mal case only lays down that the evidence collected

as a result of illegal search or seizure, could be used as

evidence in proceedings against the party under the Income

Tax Act. The judgment cannot be interpreted to lay down

that a contraband seized as a result of illegal search or

seizure, can be used to fasten that liability of unlawful

possession of the 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 NDPS Act and that factor has to be

established by the prosecution beyond a reasonable doubt.

Indeed the seized contraband is evidence but in the absence

of proof of possession of the same, an accused cannot be

held guilty under the NDPS Act.

However, a later two-Judge Bench in Pirthi Chands

case (supra) relying upon Pooran Mals case (supra),

observed : The evidence collected in a search in violation

of law does not become inadmissible in evidence under the

Evidence Act. The consequence would be that evidence

discovered would be to prove unlawful possession of the

contraband under the Act. It is founded in Panchnama to

seize the contraband from the possession of the

suspect/accused. Though the search may be illegal but the

evidence collected, i.e., Panchnama etc., nonetheless would

be admissible at the trial. At the stage of filing

charge-sheet it cannot be said that there is no evidence and

the Magistrate or the Sessions Judge would be committing

illegality to discharge the accused on the ground that

Section 50 or other provisions have not been complied with.

At the trial an opportunity would be available to the

prosecution to prove that the search was conducted in

accordance with law. Even if search is found to be in

violation of law, what weight should be given to the

evidence collected is yet another question to be gone into

(Emphasis supplied)

This view was reiterated in Jasbir Singhs case also.

It appears that the earlier judgment in Ali Mustaffas case

was not brought to the notice of their Lordships in both the

above cases. Let us, therefore, first examine the fact

situation and the law as laid down in Pooran Mals case and

the question of its applicability to cases arising out of

offences under the NDPS Act, based only on proof of unlawful

possession of an illicit drug or a psychotropic substance on

the person of an accused, where the illicit article only was

seized during the search conducted in breach of the

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provisions of Section 50. In Pooran Mals case, the relief

claimed by the main appellant in his case was in respect of

action taken under Section 132 of the Income Tax Act, 1961

by way of search and seizure of certain premises on the

ground that the authorisation for the search as also the

search and seizure of the materials were illegal. In that

case articles consisting of account books and documents

besides some cash, jewelry and other valuables were seized

by the Income Tax Authorities purporting to act under the

authorisation of a search and seizure issued under Section

132 of the Income Tax Act. The Constitution Bench dealt

both with the challenge on constitutional and

non-constitutional grounds to the search and seizure. The

Court opined that the power of search and seizure in any

system of jurisprudence is an overriding power of the State

for the protection of social security and that power is

necessarily regulated by law. The Court then noticed the

safeguards provided in Section 132 of the Act and observed :

We are, therefore, to see what are the inbuilt safeguards

in Section 132 of the Income-tax Act. In the first place,

it must be noted that the power to order search and seizure

is vested in the highest officers of the department.

Secondly the exercise of this power can only follow a

reasonable belief entertained by such officer that any of

the three conditions mentioned in Section 132(1)(a), (b) and

(c) exists. In this connection it may be further pointed

out that under sub-rule (2) of Rule 112, the Director of

Inspection or the Commissioner, as the case may be, has to

record his reasons before the authorisation is issued to the

officers mentioned in sub-section (1). Thirdly, the

authorisation for the search cannot be in favour of any

officer below the rank of an Income-tax Officer. Fourthly,

the authorisation is for specific purposes enumerated in (i)

to (v) in sub-section (1) all of which are strictly limited

to the object of the search. Fifthly when money, bullion,

etc. is seized the Income- tax Officer is to make a summary

enquiry with a view to determine how much of what is seized

will be retained by him to cover the estimated tax liability

and how much will have to be returned forthwith. The object

of the enquiry under sub-section (5) is to reduce the

inconvenience to the assessee as much as possible so that

within a reasonable time what is estimated due to the

Government may be retained and what should be returned to

the assessee may be immediately returned to him. Even with

regard to the books of account and documents, seized, their

return is guaranteed after a reasonable time. In the

meantime the person from whose custody they are seized is

permitted to make copies and take extracts. Sixthly, where

money, bullion, etc. is seized, it can also be immediately

returned to the person concerned after he makes appropriate

provision for the payment of the estimated tax dues under

sub-section (5) and lastly, and this is most important, the

provisions of the Criminal Procedure Code relating to search

and seizure apply, as far as they may be, to all searches

and seizures under Section 132. Rule 112 provides for the

actual search and seizure being made after observing normal

decencies of behaviour. The person in charge of the

premises searched is immediately given a copy of the list of

articles seized. One copy is forwarded to the authorising

officer. Provision for the safe custody of the articles

after seizure is also made in Rule 112. In our opinion, the

safeguards are adequate to render the provisions of search

and seizure as less onerous and restrictive as is possible

under the circumstances. The provisions, therefore,

relating to search and seizure in Section 132 and Rule 112

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cannot be regarded as violative of Article 19(f) and (g).

(Emphasis supplied) Dealing with the effect of search

and seizure conducted in breach of the provisions of Section

132 of the Income Tax Act,

the Court opined : In that view, even assuming, as

was done by the High Court, that the search and seizure were

in contravention of the provisions of Section 132 of the

Income-tax Act, still the material seized was liable to be

used subject to law before the Income-tax authorities

against the person from whose custody it was seized and,

therefore, no Writ of Prohibition in restraint of such use

could be granted. It must be, therefore, held that the High

Court was right in dismissing the two writ petitions. The

appeals must also fail and are dismissed with costs.

Now, if the Evidence Act, 1872 which is a law

consolidating, defining and amending the law of evidence, no

provision of which is challenged as violating the

Constitution permits relevancy as the only test of

admissibility of evidence (See Section 5 of the Act) and,

secondly, that Act or any other similar law in force does

not exclude relevant evidence on the ground that it was

obtained under an illegal search or seizure, it will be

wrong to invoke the supposed spirit of our Constitution for

excluding such evidence

It, therefore, follows that neither by invoking the

spirit of our Constitution nor by a strained construction of

any of the fundamental rights can we spell out the exclusion

of evidence obtained on an illegal search. (Emphasis

supplied)

On facts, the Court in Pooran Mals case, however,

found : On the whole, therefore, we are not inclined to

hold that the search and seizure in this writ petition was

vitiated by any illegality.

Similarly, in the other writ petitions dealt with in

Pooran Mals case, the Court opined : .The search and

seizure, therefore, impugned in this illega l. writ

petition cannot be regarded as ( Emphasis supplied ) The

Judgement in Pooran Mals case (supra) has to be considered

in the context in which it was rendered. It is well-settled

proposition of law that a decision is an authority for what

it decides and not that everything said therein constitutes

a precedent. The courts are obliged to employ an

intelligent technique in the use of precedents bearing it in

mind that a decision of the court takes its colour from the

questions involved in the case in which it was rendered. In

C.I.T. v. Sun Engineering Works (P) Ltd., (1992) 4 SCC

363, this Court rightly pointed out : It is neither

desirable nor permissible to pick out a word or a sentence

from the judgment of this Court, divorced from the context

of the question under consideration and treat it to be the

complete law declared by this Court. The judgment must be

read as a whole and the observations from the judgment have

to be considered in the light of the questions which were

before this Court. A decision of this Court takes its

colour from the questions involved in the case in which it

is rendered and while applying the decision to a later case,

the courts must carefully try to ascertain the true

principle laid down by the decision of this Court and not to

pick out words or sentences from the judgment, divorced from

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the context of the questions under consideration by this

Court, to support their reasonings.

(Emphasis supplied)

The judgment in Pooran Mals case (supra), therefore,

cannot be understood to have laid down that an illicit

article seized during the search of person, on prior

information, conducted in violation of the provisions of

Section 50 of the Act can be used as evidence of unlawful

possession of the illicit article on the person from whom

that contraband had been seized during an illegal search.

Apart from the position that in Pooran Mals case, on facts,

it was found that the search and seizure conducted in the

cases under consideration in that case were not vitiated by

any illegality, the import of that judgment, in the present

context, can only be to the effect that material seized

during search and seizure, conducted in contravention of the

provisions of Section 132 of the Income Tax Act cannot be

restrained from being used, subject to law, before the

Income Tax Authorities in other legal proceedings against

the persons, from whose custody that material was seized by

issuance of a writ of prohibition. It was not the seized

material, in Pooran Mals case, which by itself could

attract any penal action against the assessee. What is

implicit from the judgment in Pooran Mals case 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

Mals case can be said to 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. If Pooran Mals judgment is

read in the manner in which it has been construed in The

State of Himachal Pradesh v. Pirthi Chand and Anr. (though

that issue did not strictly speaking arise for consideration

in that case), then there would remain no distinction

between recovery of illicit drugs etc. seized during a

search conducted "after" following the provisions of Section

50 of the NDPS Act and a seizure made during a search

conducted "in breach of" the provision of Section 50 of the

NDPS Act. 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. In R. vs.

Collins : 1987 (1) SCR 265 the Supreme Court of Canada

speaking through Lamer, J. (as His Lordship, Chief Justice

of the Supreme Court of Canada then was) opined that the use

of evidence collected in violation of the Charter rights of

an accused would render a trial unfair and the evidence

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inadmissible. In the words of the Supreme Court of Canada:

The situation is very different with respect to cases

where, after a violation of the Charter, the accused is

conscripted against himself through a confession or other

evidence emanating from him. The use of such evidence would

render the trial unfair, for it did not exist prior to the

violation and it strikes at one of the fundamental tenets of

a fair trial. (Emphasis ours)

The opinion in Collins case has been relied upon by

the majority of the Supreme Court of Canada in R. v.

Stillman, [1997] 1 R.C.S. 607 also. The question of

admissibility of evidence, which may be relevant to the

question in issue, has thus to be decided in the context and

the manner in which the evidence was collected and is sought

to be used. In view of the provisions of Chapter IV of NDPS

Act, mere unlawful possession of a contraband amounts to an

offence and is punishable with rigorous imprisonment for

terms which shall not be less than 10 years but can extend

to 20 years or 30 years in addition to a fine which shall

not be less than one lakh of rupees but which may extend to

two lakhs or three lakhs of rupees. On a charge of

possession of a dangerous drug or a psychotropic substance,

if it is established that the accused had the contraband in

his possession without authority, he is liable to be

punished. "Unlawful possession" of the contraband is the

sine qua non for recording conviction under the NDPS Act and

the most important ingredient of an offence under the NDPS

Act. Explaining the concept of possession, in Bocking v.

Roberts, (1973) 3 All E.R. 962, Lord Widgery, C.J.

observed : In my judgment it is quite clear that when

dealing with a charge of possession of a dangerous drug

without authority, the ordinary maxim of de minimis is not

to be applied, in other words if it is clearly established

that the accused had a dangerous drug in his possession

without authority, it is no answer to him to say : oh, but

the quantity of the drug which I possessed was so small that

the law should take no account of it. The doctrine of de

minimis as such in my judgment does not apply but, on the

other hand, since the accused is possessing a dangerous

drug, it is quite clear that the prosecution have to prove

that there was some drug in the possession of the accused to

justify the charge ( Emphasis ours )

In R. v. Young, (1984) 2 All E.R. 164, it was held

that if an accused being in possession of the prohibited

substance on seeing the police party swallows the same to

avoid detection, he can be convicted for possession of the

prohibited substance and not for consumption thereof.

Similarly, in Louis Beaver v. Her Majesty The Queen, [1957]

S.C.R. 531, the Supreme Court of Canada while dealing with

a case relating to an offence of possession of forbidden

narcotic substance held that the element of knowledge formed

a part of the ingredient of possession, where mere

possession of the forbidden substance amounts to an offence.

A Constitution Bench of this Court in Sanjay Dutt v. The

State through C.B.I., Bombay (II), (1994) 5 SCC 410, while

dealing with Section 5 of the Terrorist and Disruptive

Activities (Prevention) Act, 1987 (TADA), which reads :

Section 5 Possession of certain unauthorised arms, etc.,

in specified areas. Where any person is in possession of

any arms and ammunition specified in Columns 2 and 3 of

Category I or Category III (a) of Schedule I to the Arms

Rules, 1962, or bombs, dynamite or other explosive

substances unauthorisedly in a notified area, he shall,

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notwithstanding anything contained in any other law for the

time being in force, be punishable with imprisonment for a

term which shall not be less than five years but which may

extend to imprisonment for life and shall also be liable to

fine.

spelt out the ingredients of the offence created by

Section 5 of TADA and opined : The position which emerges

is this. For constituting the offence made punishable under

Section 5 of the TADA Act, the prosecution has to prove the

aforesaid three ingredients. Once the prosecution has

proved unauthorised conscious possession of any of the

specified arms and ammunition etc. in a notified area by

the accused, the conviction would follow on the strength of

the presumption unless the accused proves the non-existence

of a fact essential to constitute any of the ingredients of

the offence. Undoubtedly, the accused can set up a defence

of non-existence of a fact which is an ingredient of the

offence to be proved by the prosecution.

(Emphasis ours)

The Constitution Bench in Sanjay Dutt's case, thus

clearly held that once the prosecution has proved

unauthorised conscious possession of any of the specified

arms and ammunition etc. in a notified area by the accused,

the offence is complete and the conviction must follow on

the strength of the statutory presumption, unless the

accused proves the non-existence of a fact essential to

constitute any of the ingredient of that offence. Indeed,

the presumption, even though statutory in nature, was held

to be rebuttable. Thus, 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. We, therefore,

hold 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 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/independent

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.

Thus, considered we are of the opinion that the judgment in

Ali Mustaffas case correctly interprets and distinguishes

the judgment in Pooran Mals case and the broad observations

made in Pirthi Chands case and Jasbir Singhs case are not

in tune with the correct exposition of law, as laid down in

Pooran Mal's case. 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

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is imperative for him to inform the concerned person of his

right under Sub-section (1) of Section 50 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 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 investigating

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

investigating 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

50 have 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- sho

rt 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, 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,

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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

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. The above

conclusions are not a summary of our judgment and have to be

read and considered in the light of the entire discussion

contained in the earlier part.

We, accordingly, answer the reference in the manner

aforesaid.

Let the Criminal Appeals and Special Leave Petitions

be now placed for disposal before an appropriate Bench.