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Ingenuity of counsel sometimes results in formulation propositions, which appear at the first flush to be legally sound and relatable to recognized cannons of criminal jurisprudence. When examined in greater depth, their rationale is nothing but illusory; and the argument is without substance. One such argument has been advanced in the present case by the learned counsel appearing for the appellant who contends that `even where the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act’) have not been complied with the recovery can otherwise be proved without `we have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section(1) of Section 50 of the NDPS Act is concerned, it is mandatory and 46 . requires strict compliance.’ In fact the contention raised by the appellant has, in specific terms, been rejected by the Constitution Bench in clause 7 of para 23 of the judgment. The Court clearly held that an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of 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 the accused, notwithstanding the recovery of that material during an illegal search. The proposition of law having been so clearly stated, 47 . we are afraid that no argument to the contrary may be entertained. What needs to be understood is that an illegal recovery cannot take the colour of a lawful possession even on the basis of oral evidence. But if any other material which is recovered is a subject matter in some co-lateral or independent proceeding, the same could be proved in accordance with law even with the aid of such recovery. But in no event the illegal recovery can be the foundation of a successful conviction under the provisions of Section 21 of the Act.

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                                         REPORTABLE

I
                                         REPORTABLE

            IN THE SUPREME COURT OF INDIA

          CRIMINAL APPELLATE JURISDICTION

           CRIMINAL APPEAL NO.1101 OF 2004

State of Delhi                           ... Appellant

                          Versus

Ram Avtar @ Rama                         ... Respondent

                      J U D G M E N T

Swatanter Kumar J.

                             1

      Ingenuity   of   counsel   sometimes   results   in   formulation 

propositions,   which   appear   at   the   first   flush   to   be   legally 

sound   and   relatable   to   recognized   cannons   of   criminal 

jurisprudence.   When   examined   in   greater   depth,   their 

rationale is nothing but illusory; and the argument is without 

substance.     One   such   argument   has   been   advanced   in   the 

present   case   by   the   learned   counsel   appearing   for   the 

appellant   who   contends   that   `even   where   the   provisions   of 

Section 50 of the Narcotic Drugs and Psychotropic Substances Act,   1985   (hereinafter   referred   to   as   `the   Act')   have   not   been 

complied   with   the   recovery   can   otherwise   be   proved   without 

                                        2

solely   relying   upon   the   personal   search   of   the   accused'. 

According   to   the   learned   counsel,   the   courts   are   required   to 

take   into   consideration   evidence   of   recovery   of   illicit   material 

independently of the factum of personal search of the accused 

as   stated   by   other   witnesses   as   such   evidence   would   be 

admissible and can form the basis for conviction of an accused 

in accordance with law.

      Before we notice the judgments which have been referred 

to on behalf of the State, it will be necessary for us to refer to 

the  facts   giving   rise  to   the   present  appeal.     On  18th  January, 

1998 at about 8.15 a.m., a secret informer met Assistant Sub 

                                       3

Inspector   (ASI)   -   Dasrath   Singh   (who   was   examined   as   PW8) 

and informed him that a person by the name of Ram Avtar @ 

Rama resident of House No. 71/144, Prem Nagar, Choti Subzi 

Mandi,   Janakpuri   would   be   going   to   his   house   on   a   two 

wheeler   scooter   No.   DL  4SL  2996   and  if   the   said   person  was 

searched   and   raid   was   conducted,   smack   could   be   recovered 

from   him.     This   information   was   passed   on   by   ASI-Dasrath 

Singh,   to   the   Station  House   Officer   (SHO)   M.C.   Sharma   (who 

was   examined   as   PW4),   on   telephone,   who   in   turn   directed 

R.P.   Mehta,   Assistant Commissioner of Police   (Narcotics 

Bureau) ACP(NB) to conduct the raid immediately.  The secret 

information was recorded in the DD at Sl. No.3. In furtherance 

                                     4

to this at around 8.30 A.M., ASI Dasrath Singh along with Sub Inspector   (SI)   Sahab   Singh,   Head   Constable   Narsingh, 

Constable   Manoj Kumar,   Lady   Constable   Nirmla   and   the 

informer left for the spot in a Government vehicle.  The vehicle 

was   parked   in   a   hideout   at   some   distance.     At   around   9.30 

a.m.   Ram   Avtar   was   apprehended   based   on   pointing   out   by 

the   informer   while   he   was   coming   on   a   two   wheeler   scooter 

from the side of the main road, Tilak Nagar near his house.  It 

is   the   case   of   the   prosecution   that   a   police   officer   in   the 

raiding party had  requested some persons, who were passing 

by, to join the raid but they declined to do so on some ground 

or the other.  The police officer then served a notice Ex. PW6/A 

                                        5

in writing, under Section 50 of the Act upon the appellant but 

he   declined   to   be   searched   either   in   presence   of   a   Gazetted 

Officer   or   a   Magistrate.     On   search,   three   polythene   packets 

were recovered from left side pocket of his shirt.   On opening 

the   packets,   it   was   found   to   contain   powder   of   light   brown 

colour,   suspected   to   be   smack.     This   recovered   powder   was 

mixed together.   The total weight of the recovered powder was 

16   grams,   out   of   which   5   grams   were   separated   as   sample. 

Both   the   sample   and   the   remaining   powder   were   converted 

into two parcels and sealed with the seal of DS which were the 

initials   of   PW8.     CFSL   Form   was   filled   and   seal   of   DS   also 

affixed   thereon.     Parcels   were   seized   vide   memo   Ex.   PW-2/8. 

                                        6

PW8 sent the parcels, CFSL Form and copy of rukka, Ex.PW-

5/8 through Constable Manoj Kumar to Station House Officer 

(PW4)  for  recording an  FIR  under  Section 21  of the  Act.   The 

samples,   rukka   etc.   are   now   produced   in   carbon   copy   as 

Ex.PW-5/A.     Sample   parcels   were   sent   to   CFSL,   Chandigarh 

and   as   per   their   report,   the   sample   gave   positive   test   for 

diacetylmorphine (heroin).   Resultantly, Ram Avtar was taken 

into   custody,   and   charge-sheet   for   committing   an   offence 

under Section 21 of the Act was filed against him.

      As   many   as   eight   witnesses   were   examined   by   the 

prosecution   to   bring   home   the   guilt   against   the   accused.     In 

                                       7

his statement under Section 313 of the Cr.P.C., the plea taken 

by   the   accused   was   that   on   the   day   of   occurrence   his   house 

was   searched   without   a   valid   warrant   and   as   nothing   was 

recovered therefrom, he demanded a "no   recovery certificate". 

He claims that the police misbehaved and that he was taken to 

the   Police Station,   Narcotic   Branch   on   the   pretext   of   issuing 

such "no recovery certificate".   He claims to have been falsely 

implicated   in   this   case.     The   accused   had   taken   a   specific 

objection,   with   regard   to   non-compliance   with   the   provisions 

of Section 50 of the Act, and had laid down this defense before 

the   Trial Court.     The   Trial   Court   was   of   the   opinion   that   the 

prosecution   has   been   able   to   prove   the   case   beyond   any 

                                         8

reasonable   doubt   and   therefore,   convicted   the   accused   and 

sentenced him to undergo rigorous imprisonment of ten years 

and   pay   a   fine   of   Rs.1,00,000/-;   in   default   thereof,   further 

undergo one year of rigorous imprisonment.

      An  appeal was  preferred  by   the  accused  challenging   the 

conviction   and   order   of   sentence   dated   19th  July,   1999.     The 

High Court after taking note of the notice that was alleged to 

have been issued to the accused under Section 50 of the Act, 

Ex.PW-6/A,   returned   a   finding   in   accordance   with   settled 

principles of law, that the notice provided to the accused was 

not in conformity with the provisions of Section 50 of the Act. 

                                      9

Resultantly,   there   was   no   compliance   with   the   provisions   of 

Section   50   of   the   Act   in   the   eyes   of   law   and   therefore,   the 

accused   was   acquitted   of   the   charge.     The   State   of   Delhi 

feeling   aggrieved   by   the   order   of   the   High   Court   filed   the 

present appeal.

       We   have   already   noticed   that   the   High   Court   primarily 

discussed   only   one   issue,   i.e.   whether   there   was   compliance 

with   the   provisions   of   Section   50   of   the   Act   or   not;   and   had 

answered this in the negative, against the State.   The primary 

submission   raised   in   the   present   appeal   also   relates   to   the 

                                        10

interpretation   of   the   provisions   of   Section   50   of   the   Act.     In 

order to examine the merit of the contention raised on behalf 

of the appellant, at the outset, it will be appropriate for us to 

refer to the precedents on the issue of the principles applicable 

to Section 50 of the Act.

      One   of   the   earliest   and   significant   judgments   of   this 

Court, on the issue before us is the case of  State  of  Punjab v.  

Balbir   Singh,   [(1994)   3   SCC   299]   where   the   Court   considered 

an important question  i.e., whether failure by the empowered 

or  authorized   officer   to  comply   with  the   conditions  laid  down 

                                        11

in   Section   50   of   the   Act   while   conducting   the   search,   affects 

the  prosecution   case.     In  para   16   of  the   said  judgment,   after 

referring to the words "if the person to be searched so desires", 

the   Court   came   to   the   conclusion   that   a   valuable   right   has 

been given to the person, to be searched in the presence of the 

Gazetted Officer or Magistrate if he so desires. Such a search 

would impart much more authenticity and creditworthiness to 

the   proceedings,   while   equally   providing   an   important 

safeguard to the accused.   It was also held that to afford this 

opportunity   to   the   person   to   be   searched,   such   person   must 

be fully aware of his right under Section 50 of the Act and that 

can   be   achieved   only   by   the   authorized   officer   explicitly 

                                       12

informing   him   of   the   same.     The   statutory   language   is   clear, 

and   the   provisions   implicitly   make   it   obligatory   on   the 

authorized  officer  to inform  the  person  to be searched  of this 

right.     Recording   its   conclusion   in   para   25   of   the   judgment, 

the Court clearly held that non-compliance with Section 50 of 

the Act, which is mandatory, would affect the prosecution case 

and   vitiate   the   trial.     It   also   noticed   that   after   being   so 

informed,   whether   such   person   opted   for   exercising   his   right 

or   not   would   be   a   question   of   fact,   which   obviously   is   to   be 

determined on the facts of each case.  

                                        13

      This view was followed by another Bench of this Court in 

the   case   of  Ali   Mustaffa   Abdul   Rahman   Moosa   v.   State   of  

Kerala, [(1994) 6 SCC 569], wherein the Court stated that the 

searching   officer   was   obliged   to   inform   the   person   to   be 

searched   of  his   rights.     Further,   the   contraband   seized   in  an 

illegal   manner   could   hardly   be   relied   on,   to   the   advantage   of 

the prosecution. Unlawful possession of the contraband is the 

sine   qua   non  for   conviction   under   the   NDPS   Act,   and   that 

factor has to be established beyond any reasonable doubt. The 

Court further indicated that articles recovered may be used for 

other   purposes,   but   cannot   be   made   a   ground   for   a   valid 

conviction under this Act.

                                       14

       In the case of Saiyad Mohd. Saiyad Umar Saiyad v. State  

of   Gujarat,   [(1995)   3   SCC   510],   the   Court   followed   the 

principles   stated   in  Balbir   Singh's  case   (supra)   and   also 

clarified that the prosecution must prove that the accused was 

not only made aware of his right but also that the accused did 

not   choose   to   be   searched   before   a   Gazetted   Officer   or   a 

Magistrate.

       Then the matter was examined by a Constitution Bench 

of   this   Court,   in   the   case   of  State   of   Punjab   v.   Baldev   Singh 

[(1999) 6 SCC 172], where the Court, after detailed discussion 

on   various   cases,   including   the   cases   referred   by   us   above, 

                                        15

recorded   its   conclusion   in   para   57   of   the   judgment   .   The 

relevant portions of this conclusion are as under: 

            "57.  On   the   basis   of   the   reasoning   and
            discussion           above,          the         following
            conclusions arise:

            (1)  That  when   an  empowered  officer   or  a
            duly   authorised   officer   acting   on   prior
            information is about to search a person, it 

            is imperative for him to inform the person
            concerned  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.

                XXX                 XXX                       XXX

            (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 

                                      16

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 official concerned 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   the   judicial
process   may   come   under   a   cloud   if   the
court   is   seen   to   condone   acts   of
lawlessness            conducted           by         the
investigating   agency   during   search
operations   and   may   also   undermine
respect   for   the   law   and   may   have   the
effect   of   unconscionably   compromising
the administration of justice. That cannot
be permitted. 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 

                          17

             breach   of   the   safeguards   provided   by
             Section   50   at  the   trial,   would   render   the
             trial unfair.

                 XXX                  XXX                  XXX

               (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   person   concerned   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."

      Still   in   the   case   of  Ahmed   v.   State   of   Gujarat,   [(2000)   7 

SCC   477),   a   Bench   of   this   Court   followed   the   above   cases 

including  Baldev   Singh's  case   (supra)   and   held   that   even 

                                        18

where   search   is   made   by   empowered   officer   who   may   be   a 

Gazetted   Officer,   it   remains   obligatory   for   the   prosecution   to 

inform the person to be searched about his right to be taken to 

the   nearest   Gazetted   Officer   or   Magistrate   before   search.     In 

this case, the Court also noticed at sub-para (e) at page 482 of 

the   judgment   that   the   provisions   of   Section   50   of   the   Act, 

which afford minimum safeguard to the accused, provide that 

when a search is about to be made of a person under Section 

41 or Section 42 or Section 43 of the Act, and if the person so 

requires, then the said person has to be taken to the nearest 

Gazetted Officer of any department mentioned in Section 42 of 

the Act or to the nearest Magistrate.

                                      19

      In  the  case   of  K.  Mohanan  v.  State  of  Kerala,   [(2010)   10 

SCC 222] another Bench of this Court while following  Baldev  

Singh's case (supra) stated in unambiguous terms that merely 

asking the accused whether he wished to be searched before a 

Gazetted   Officer   or   a   Magistrate,   without   informing   him   that 

he enjoyed a right under law in this behalf, would not satisfy 

the requirements of Section 50 of the Act.

      We may also notice here that some precedents hold that 

though   a   right   of   the   person   to   be   searched   existed   under 

Section   50   of   the   Act,   these   provisions   are   capable   of 

substantial   compliance   and   compliance   in   absolute   terms   is 

                                     20

not a requirement under law.  Reference in this regard can be 

made to Joseph Fernandez v. State of Goa, [(2000) 1 SCC 707], 

Prabha Shankar  Dubey v. State  of  Madhya Pradesh, [(2004) 2 

SCC 56], Krishna Kanwar v. State of Rajasthan, [(2004) 2 SCC 

608,  Manohar  Lal v. State  of Rajasthan, [(1996) 11 SCC 391], 

Karnail Singh v. State  of Haryana, [(2009) 8 SCC 539].   In the 

case   of  Prabha   Shankar   Dubey  (supra),   this   Court   while 

referring   to  Baldev   Singh's  case   (supra)   took   the   view   that 

Section 50 of the Act in reality provides additional safeguards 

which are not elsewhere provided by the statute.  As the stress 

is   on   the   adoption   of   reasonable,   fair   and   just   procedure,   no 

specific words are necessary to be used to convey the existence 

                                       21

of this right. The notice served, in that case, upon the person 

to  be  searched  was  as  follows:  `By  way  of  this  notice   you  are 

informed   that   we   have   received   information   that   you   are 

illegally carrying opium with you, therefore, we are required to 

search your scooter and you for this purpose.   You would like 

to   give   me   search   or   you   would   like   to   be   searched   by   any 

gazetted officer or by a Magistrate?'  Keeping the afore-referred 

language   in   mind,   the   Court   applied   the   principle   of 

substantial   compliance,   and   held   that   the   plea   of   non-

compliance with the requirements of Section 50 of the Act was 

without   merit   on   the   facts   of   that   case.     The   Court   held   as 

under:

                                       22

          "12.     The   use   of   the   expression 

          "substantial compliance" was made in the 

          background   that   the   searching   officer 

          had   Section   50   in   mind   and   it   was 

          unaided by the interpretation placed on it 

          by   the   Constitution   Bench   in  Baldev  

          Singh   case.   A   line   or   a   word   in   a 

          judgment   cannot   be   read   in   isolation   or 

          as if interpreting a statutory provision, to 

          impute   a   different   meaning   to   the 

          observations.

          13.  Above being the position, we find  no 

          substance in the plea that there was non-

          compliance   with   the   requirements   of 

          Section 50 of the Act."

     Similarly,   in  Manohar   Lal's  case   (supra)   the   option 

provided to the accused, not to go to a Magistrate if so desired, 

                                  23

was   considered   to   imply   requirement   of   mere   substantial 

compliance; and that strict compliance was not necessary.

      In  the  case   of  Union  of  India  v. Satrohan,   [(2008)   8 SCC 

313]   though   the   Court   was   not   directly   concerned   with   the 

interpretation   of   the   provisions   of   Section   50   of   the   Act,   the 

Court   held   that   Section   42(2)   of   the   Act   was   mandatory.     It 

also held that search under Section 41(1) of the Act would not 

attract   compliance   to   the  provisions   of  Section   50   of  the   Act. 

To that extent this judgment was taking a view different from 

that   taken   by   the   equi-Bench   in  Ahmed's  case   (supra).     This 

question   to   some   extent   has   been   dealt   with   by   the 

                                       24

Constitution Bench in the case of Vijaysinh Chandubha Jadeja  

v. State  of  Gujarat  [(2011) 1 SCC 609] (hereinafter  referred to 

as   `Vijaysinh   Chandubha   Jadeja').     As   this   question   does   not 

arise for consideration before us in the present case, we do not 

consider   it   necessary   to   deliberate   on   this   aspect   in   any 

further detail.

      In   the   case   of  Vijaysinh   Chandubha   Jadeja  v.   State   of  

Gujarat, [(2007) 1 SCC 433], a three Judge Bench of this Court 

had taken the view that the accused must be informed of his 

right   to   be   searched   in   presence   of   a   Magistrate   and/or   a 

Gazetted Officer, but in light of some of the judgments we have 

                                     25

mentioned   above,   a   reference   to   the   larger   bench   was   made, 

resulting.                           

       Accordingly, a Constitution Bench was constituted and in 

the case of  Vijaysinh Chandubha Jadeja  (supra) of this Court, 

referring   to   the   language   of   Section   50   of   the   Act,   and   after 

discussing the above-mentioned judgments of this Court, took 

the   view   that   there   was   a   right   given   to   the   person   to   be 

searched,   which   he   may   exercise   at   his   option.     The   Bench 

further   held   that   substantial   compliance   is   not   applicable   to 

Section 50 of the Act as its requirements were imperative.  The 

Court,   however,   refrained   from   specifically   deciding   whether 

                                         26

the provisions were directory or mandatory.  It will be useful to 

refer the relevant parts of the Constitution Bench in Vijaysinh  

Chandubha Jadeja  (supra). In para 23, the Court said `In the 

above  background,   we  shall   now advert   to  the   controversy  at 

hand. For this purpose, it would be necessary to recapitulate 

the   conclusions,   arrived   at   by   the   Constitution   Bench   in 

Baldev Singh case'.   After further referring to the conclusions 

arrived   at   by   the   Constitution   Bench   in  Baldev   Singh's  case 

(supra)   (which   have   been   referred   by   us   in   para   9   of   this 

judgment) and reiterating the same the Constitution Bench in 

Vijaysinh   Chandubha   Jadeja  (supra)   this   case   concluded   as 

under:

                                      27

              "31.  We   are   of   the   opinion   that   the
              concept   of   "substantial   compliance"   with
              the   requirement   of   Section   50   of   the
              NDPS   Act   introduced   and   read   into   the
              mandate   of   the   said   section   in  Joseph
              Fernandez  and  Prabha Shankar  Dubey  is
              neither   borne   out   from   the   language   of
              sub-section   (1)   of   Section   50   nor   it   is   in
              consonance with the dictum laid down in
              Baldev   Singh   case.   Needless   to   add   that
              the   question   whether   or   not   the
              procedure   prescribed   has   been   followed
              and   the   requirement   of   Section   50   had
              been   met,   is   a   matter   of   trial.   It   would 

              neither   be   possible   nor   feasible   to   lay
              down   any   absolute   formula   in   that
              behalf."

       Analysis   of   the   above   judgments   clearly   show   that   the 

scope   of   the   provisions   of   Section   50   of   the   Act   are   no   more 

res   integra  and   stand   concluded   by   the   above   judgments 

particularly the Constitution Bench judgments of this Court in 

                                         28

the   cases   of  Baldev   Singh  (supra)   and  Vijaysinh   Chandubha  

Jadeja (supra).  

      In the present case, we are concerned with the provisions 

of Section 50 of the Act as it was, prior to amendments made 

by Amending Act 9 of 2001 w.e.f. 2.10.2001.   In terms of the 

provisions,   in   force   at   the   relevant   time,   the   petitioner   had   a 

right to be informed of the choice available to him; making him 

aware of the existence of such a right was an obligation on the 

part of the searching officer.  This duty cast upon the officer is 

imperative   and   failure   to   provide   such   an   option,   in 

accordance   with   the   provisions   of   the   Act,   would   render   the 

                                        29

recovery   of   the   contraband   or   illicit   substance   illegal. 

Satisfaction of the requirements in terms of Section 50 of the 

Act   is  sine   qua   non  prior   to  prosecution   for   possession   of   an 

unlawful narcotic substance.

      In   fact,   the   Constitution   Bench  in   the   case   of  Vijaysinh  

Chandubha Jadeja  (supra), in para 25, has even taken a view 

that   after   the   amendment   to   Section   50   of   the   Act   and   the 

insertion of sub-section 5, the mandate of Section 50(2) of the 

Act   has   not   been   nullified,   and   the   obligation   upon   the 

searching   officer   to   inform   the   person   searched   of   his   rights 

still   remains.    In   other   words,   offering   the   option   to   take   the 

                                        30

person to be searched before a Gazetted Officer or a Magistrate 

as   contemplated   under   the   provisions   of   this   Act,   should   be 

unambiguous   and   definite   and   should   inform   the   suspect   of 

his statutory safeguards.                                

      Having   stated   the   principles   of   law   applicable   to   such 

cases,   now   we   revert   back   to   the   facts   of   the   case   at   hand. 

There   is   no   dispute   that   the   concerned   officer   had   prior 

intimation,   that   the   accused   was   carrying   smack,   and   the 

same   could   be   recovered   if   a   raid   was   conducted.     It   is   also 

undisputed   that   the   police   party   consisting   of   ASI   -   Dasrath 

Singh,   Head   Constable-   Narsingh,   Constable   -   Manoj   Kumar 

                                        31

and  lady  constable-Nirmla   had  gone  in  a  Government   vehicle 

to conduct the raid.  The vehicle was parked and the accused, 

who   was   coming   on   a   scooter,   had   been   stopped.         He   was 

informed   of   and   a   notice   in   writing   was   given   to   him   of,   the 

suspicions   of   the   police,   that   he   was   carrying   smack.   They 

wanted   to   search   him   and,   therefore,   informed   him   of   the 

option available to him in terms of Section 50 of the Act.   The 

option   was  given   to   the  accused   and  has   been  proved   as  Ex. 

PW-6/A,   which   is   in   vernacular.     The   High   Court   in   the 

judgment under appeal has referred to it and we would prefer 

to reproduce the same, which reads as under :

                                        32

             "Musami   Ram   Avtar   urf   Rama   S/o   late 

             Sh.   Mangat   Ram   R/o   71/144,   Prem 

             Nagar,   Choti   Subzi   Mandi,   Janakpuri, 

             Delhi, apko is notice ke tehat suchit kiya 

             jata   hai   ki   hamare   pas   itla   hai   ki   apko 

             kabje   me   smack   hai   aur   apki   talashi 

             amal mein laye jati hai.   Agar ap chahen 

             to apki talashi ke liye kisi Gazetted officer 

             ya   Magistrate   ka   probandh   kiya   ja  sakta 

             hai."

      The  High   Court   while   relying   upon  the   judgment   of  this 

Court   in   the   case   of  Baldev   Singh  (supra)   and   rejecting   the 

theory of substantial compliance, which had been suggested in 

the   case   of  Joseph   Fernandez  (supra),   found   that   the 

intimation   did   not   satisfy   the   provisions   of   Section   50   of   the 

                                       33

Act.     The   Court   reasoned   that   the   expression   `duly'   used   in 

Section 50 of the Act connotes not `substantial' but `exact and 

definite   compliance'.     Vide   Ex.PW-6/A,   the   appellant   was 

informed   that   a   Gazetted   Officer   or   a   Magistrate   could   be 

arranged   for   taking   his   search,   if   he   so   required.   This 

intimation   could   not   be   treated   as   communicating   to   the 

appellant that he had a right under law, to be searched before 

the   said   authorities.     As   the   recovery   itself   was   illegal,   the 

conviction and sentence has to be set aside.  

      It is a settled canon of criminal jurisprudence that when 

a   safeguard   or   a   right   is   provided,   favouring   the   accused, 

                                       34

compliance   thereto   should   be   strictly   construed.   As   already 

held   by   the   Constitution   Bench   in   the   case   of  Vijaysinh  

Chandubha   Jadeja          (supra),   the   theory   of   `substantial 

compliance'   would   not   be   applicable   to   such   situations, 

particularly where the punishment provided is very harsh and 

is likely to cause serious prejudices against the suspect.   The 

safeguard   cannot   be   treated   as   a   formality,   but   it   must   be 

construed   in   its   proper   perspective,   compliance   thereof   must 

be ensured.  The law has provided a right to the accused, and 

makes   it   obligatory   upon   the   officer   concerned   to   make   the 

suspect aware of such right.  The officer had prior information 

of the raid; thus, he was expected to be prepared for carrying 

                                      35

out   his   duties   of   investigation   in   accordance   with   the 

provisions   of   Section   50   of   the   Act.     While   discharging   the 

onus of Section 50 of the Act, the prosecution has to establish 

that   information   regarding   the   existence   of   such   a   right   had 

been  given   to   the   suspect.    If  such   information   is   incomplete 

and   ambiguous,   then   it   cannot   be   construed   to   satisfy   the 

requirements  of Section 50 of the Act.  Non-compliance of the 

provisions   of   Section   50   of   the   Act   would   cause   prejudice   to 

the   accused,   and,   therefore,   amount   to   the   denial   of   a   fair 

trial.   To secure a conviction under Section 21 of the Act, the 

possession   of   the   illicit   article   is   a  sine   qua   non.     Such 

contraband article should be recovered in accordance with the 

                                      36

provisions   of   Section   50   of   the   Act,   otherwise,   the   recovery 

itself   shall   stand   vitiated   in   law.     Whether   the   provisions   of 

Section   50   of   the   Act   were   complied   with   or   not,   would 

normally   be   a   matter   to   be   determined   on   the   basis   of   the 

evidence   produced   by   the   prosecution.     An   illegal   search 

cannot   entitle   the   prosecution   to   raise   a   presumption   of 

validity of evidence under Section 50 of the Act.  As is obvious 

from   the   bare   language   of   Ex.PW-6/A,   the   accused   was   not 

made   aware   of   his   right,   that   he   could   be   searched   in   the 

presence of Gazetted Officer or a Magistrate, and that he could 

exercise   such   choice.     The   writing   does   not   reflect   this   most 

essential requirement of Section 50 of the Act.  Thus, we have 

                                       37

no hesitation  in holding  that the  judgment  of the  High Court 

does not suffer from any infirmity.

      Now, we come to discuss the argument raised  on behalf 

of   the   State,   that   in   the   present   case,   generally   and   as   a 

proposition   of   law,   even   if   there   is   apparent   default   in 

compliance   with   the   provisions   of   Section   50   of   the   Act,   a 

person may still be convicted if the recovery of the contraband 

can   be   proved   by   statements   of   independent   witnesses   or 

other   responsible   officers,   in   whose   presence   the   recovery   is 

effected.   To us, this argument appears to be based upon not 

only   a   misconstruction   of   the   provisions   of   Section   50   of   the 

                                       38

Act but also on the mis-conception of the principles applicable 

to criminal jurisprudence.  Once the recovery itself is found to 

be illegal, being in violation to the provisions of Section 50 of 

the Act, it cannot, on the basis of the statement of the police 

officers,   or   even   independent   witnesses,   form   the   foundation 

for   conviction   of   the   accused   under   Section   21   of   the   Act. 

Once the recovery is held to be illegal, that means the accused 

did   not   actually   possess   the   illicit   article   or   contraband   and 

that no such illicit article was recovered from the possession of 

the accused such as to enable such conviction of a contraband 

article.

                                      39

      We   are   also   unable   to   appreciate   how   the   provisions   of 

Section   50   of   the   Act   can   be   read   to   support   such   a 

contention.   The language of the provision is plain and simple 

and has to be applied on its plain reading as it relates to penal 

consequences.     Section   50   of   the   Act   states   the   conditions 

under which the search of a person shall be conducted.   The 

significance of this right is clear from the language of Section 

50(2) of the Act, where the officers have been given the power 

to   detain   the   person   until   he   is   brought   before   a   Gazetted 

Officer or Magistrate as referred to in sub-section (1) of Section 

50   of   the   Act.     Obviously,   the   legislative   intent   is   that 

compliance with these provisions is imperative and not merely 

                                      40

substantial   compliance.     Even   in   the   case   of  Ali   Mustaffa  

Abdul   Rahman   Moosa  (supra),   this   Court   clearly   stated   that 

contraband seized as a result of search made in contravention 

to Section 50 of the Act, cannot be used to fasten the liability 

of   unlawful   possession   of   contraband   on   the   person   from 

whom   the   contraband   had   allegedly   been   seized   in   an   illegal 

manner.     `Unlawful  possession'   of  the   contraband   is   the  sine  

qua   non  for   conviction   under   the   Act.    In   the   case   of  Ali  

Mustaffa   Abdul   Rahman   Moosa  (supra),   this   Court   had 

considered the observation made by a Bench of this Court, 

in   an   earlier   judgment,   in   the   case   of  Pooran   Mal   v. 

Director of Inspection [(1974) 1 SCC 345] which had stated that 

                                     41

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   Court,   while   examining   this 

principle,   clearly   held   that   even   this   judgment   cannot   be 

interpreted   to  lay   down   that 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,   under   the 

Act,  is  a  factor  that  has to  be  established   by  the   prosecution 

beyond any reasonable doubt.   Indeed, the seized contraband 

                                         42

is   evidence,   but   in   the   absence   of   proof   of   possession   of   the 

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

      What the learned counsel for the appellant has argued is 

exactly to the contrary.  According to him, even if the recovery 

was  in  violation   of  Section  50   of  the   Act,  the   accused  should 

be   held   guilty   of   unlawful   possession   of   contraband,   on   the 

basis   of   the   statement   of   the   witnesses.     Once   the   recovery 

itself   is   made   in   an   illegal   manner,   its   character   cannot   be 

changed, so as to be admissible, on the strength of statement 

of   witnesses.     What   cannot   be   done   directly   cannot   be 

permitted   to   be   done   indirectly.     If   Ex.PW-6/A   is   not   in 

                                        43

conformity   with   the   provisions   of   Section   50   of   the   Act,   then 

there   is   patent   violation   of   the   provisions.     Firstly,   in   the 

present case, there is no public witness to Ex.PW-6/A; and the 

recovery   thereof;   secondly,   even   the   evidence   of   all   the 

witnesses, who are police officers, does not improve the case of 

the   prosecution.     The   defect   in   Ex.PW-6/A   is   incurable   and 

incapable   of   being   construed   as   compliance   with   the 

requirements of Section 50 of the Act on the strength of ocular 

statement.

      The   Constitution   Bench,   in   the   case   of  Vijaysinh  

Chandubha  Jadeja  (supra)  had spelt  out  the  effects  of  failure 

                                       44

to comply with the mandatory provisions of Section  50 of the 

Act,   being   (A)   cause   of   prejudice   to   the   suspect   accused;   (B) 

rendering   recovery   of   illicit   article   suspect   and   thereby, 

vitiating   the   conviction,   if   the   same   is   recorded   only   on   the 

basis   of   recovery   of   illicit   article   from   the   person   of   the 

accused during such search. 

      The learned counsel for the appellant relied on the use of 

the words `only on the basis of the recovery' used in para 29 of 

that   judgment,   to   contend   that   if   there   is   other   supporting 

evidence of recovery, the conviction cannot be set aside.   This 

submission   is   nothing   but   based   upon   a   misreading   of   the 

                                       45

judgment; not only of para 29 but the judgment in its entirety. 

What   the   Constitution   Bench   has   stated   is   that   where   the 

recovery is from the person of the suspect, and that recovery is 

found   to   be   illegal,   the   conviction   must   be   set   aside   as   the 

principles   applicable   to   personal   recovery   are   somewhat 

different   from   recovery   of   contraband   from   a   vehicle   or   a 

house. 

      In para 29 of the judgment itself, the Bench has held that 

`we   have   no   hesitation   in   holding   that   in   so   far   as   the 

obligation   of   the   authorized   officer   under   sub-section(1)   of 

Section 50 of the NDPS Act is concerned, it is mandatory and 

                                       46

requires   strict   compliance.'     In   fact   the   contention   raised   by 

the   appellant   has,   in   specific   terms,   been   rejected   by   the 

Constitution   Bench   in   clause   7   of   para   23   of   the   judgment. 

The   Court   clearly   held   that   an   illicit   article   seized   from   the 

person of an accused during search conducted  in violation of 

the   safeguards   provided   in   Section   50   of   the   Act   cannot   be 

used   as   evidence   of   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   the   accused, 

notwithstanding the recovery of that material during an illegal 

search.   The proposition of law having been so clearly stated, 

                                       47

we   are   afraid   that   no   argument   to   the   contrary   may   be 

entertained.     What   needs   to   be   understood   is   that   an   illegal 

recovery cannot take the colour of a lawful possession even on 

the basis of oral evidence.   But if any other material which is 

recovered   is   a   subject   matter   in   some   co-lateral   or 

independent   proceeding,   the   same   could   be   proved   in 

accordance with law even with the aid of such recovery.   But 

in   no   event   the   illegal   recovery   can   be   the   foundation   of   a 

successful conviction under the provisions of Section 21 of the 

Act.

                                       48

      For the reasons afore recorded, we do not find any merit 

in   the   present   appeal.     The   same   stands   dismissed   without 

any order as to costs.

                                          .....................................J.

                                            [Dr. B.S. Chauhan]

                                          .....................................J.

                                         [Swatanter Kumar]

New Delhi;

July 7, 2011

                                    49

N THE SUPREME COURT OF INDIA

          CRIMINAL APPELLATE JURISDICTION

           CRIMINAL APPEAL NO.1101 OF 2004

State of Delhi                           ... Appellant

                          Versus

Ram Avtar @ Rama                         ... Respondent

                      J U D G M E N T

Swatanter Kumar J.

                             1

      Ingenuity   of   counsel   sometimes   results   in   formulation 

propositions,   which   appear   at   the   first   flush   to   be   legally 

sound   and   relatable   to   recognized   cannons   of   criminal 

jurisprudence.   When   examined   in   greater   depth,   their 

rationale is nothing but illusory; and the argument is without 

substance.     One   such   argument   has   been   advanced   in   the 

present   case   by   the   learned   counsel   appearing   for   the 

appellant   who   contends   that   `even   where   the   provisions   of 

Section 50 of the Narcotic Drugs and Psychotropic Substances 

Act,   1985   (hereinafter   referred   to   as   `the   Act')   have   not   been 

complied   with   the   recovery   can   otherwise   be   proved   without 

                                        2

solely   relying   upon   the   personal   search   of   the   accused'. 

According   to   the   learned   counsel,   the   courts   are   required   to 

take   into   consideration   evidence   of   recovery   of   illicit   material 

independently of the factum of personal search of the accused 

as   stated   by   other   witnesses   as   such   evidence   would   be 

admissible and can form the basis for conviction of an accused 

in accordance with law.

      Before we notice the judgments which have been referred 

to on behalf of the State, it will be necessary for us to refer to 

the  facts   giving   rise  to   the   present  appeal.     On  18th  January, 

1998 at about 8.15 a.m., a secret informer met Assistant Sub 

                                       3

Inspector   (ASI)   -   Dasrath   Singh   (who   was   examined   as   PW8) 

and informed him that a person by the name of Ram Avtar @ 

Rama resident of House No. 71/144, Prem Nagar, Choti Subzi 

Mandi,   Janakpuri   would   be   going   to   his   house   on   a   two 

wheeler   scooter   No.   DL  4SL  2996   and  if   the   said   person  was 

searched   and   raid   was   conducted,   smack   could   be   recovered 

from   him.     This   information   was   passed   on   by   ASI-Dasrath 

Singh,   to   the   Station  House   Officer   (SHO)   M.C.   Sharma   (who 

was   examined   as   PW4),   on   telephone,   who   in   turn   directed 

R.P.   Mehta,   Assistant   Commissioner   of   Police   (Narcotics 

Bureau) ACP(NB) to conduct the raid immediately.  The secret 

information was recorded in the DD at Sl. No.3. In furtherance 

                                     4

to this at around 8.30 A.M., ASI Dasrath Singh along with Sub 

Inspector   (SI)   Sahab   Singh,   Head   Constable   Narsingh, 

Constable   Manoj   Kumar,   Lady   Constable   Nirmla   and   the 

informer left for the spot in a Government vehicle.  The vehicle 

was   parked   in   a   hideout   at   some   distance.     At   around   9.30 

a.m.   Ram   Avtar   was   apprehended   based   on   pointing   out   by 

the   informer   while   he   was   coming   on   a   two   wheeler   scooter 

from the side of the main road, Tilak Nagar near his house.  It 

is   the   case   of   the   prosecution   that   a   police   officer   in   the 

raiding party had  requested some persons, who were passing 

by, to join the raid but they declined to do so on some ground 

or the other.  The police officer then served a notice Ex. PW6/A 

                                        5

in writing, under Section 50 of the Act upon the appellant but 

he   declined   to   be   searched   either   in   presence   of   a   Gazetted 

Officer   or   a   Magistrate.     On   search,   three   polythene   packets 

were recovered from left side pocket of his shirt.   On opening 

the   packets,   it   was   found   to   contain   powder   of   light   brown 

colour,   suspected   to   be   smack.     This   recovered   powder   was 

mixed together.   The total weight of the recovered powder was 

16   grams,   out   of   which   5   grams   were   separated   as   sample. 

Both   the   sample   and   the   remaining   powder   were   converted 

into two parcels and sealed with the seal of DS which were the 

initials   of   PW8.     CFSL   Form   was   filled   and   seal   of   DS   also 

affixed   thereon.     Parcels   were   seized   vide   memo   Ex.   PW-2/8. 

                                        6

PW8 sent the parcels, CFSL Form and copy of rukka, Ex.PW-

5/8 through Constable Manoj Kumar to Station House Officer 

(PW4)  for  recording an  FIR  under  Section  21  of the  Act.   The 

samples,   rukka   etc.   are   now   produced   in   carbon   copy   as 

Ex.PW-5/A.     Sample   parcels   were   sent   to   CFSL,   Chandigarh 

and   as   per   their   report,   the   sample   gave   positive   test   for 

diacetylmorphine (heroin).   Resultantly, Ram Avtar was taken 

into   custody,   and   charge-sheet   for   committing   an   offence 

under Section 21 of the Act was filed against him.

      As   many   as   eight   witnesses   were   examined   by   the 

prosecution   to   bring   home   the   guilt   against   the   accused.     In 

                                       7

his statement under Section 313 of the Cr.P.C., the plea taken 

by   the   accused   was   that   on   the   day   of   occurrence   his   house 

was   searched   without   a   valid   warrant   and   as   nothing   was 

recovered therefrom, he demanded a "no   recovery certificate". 

He claims that the police misbehaved and that he was taken to 

the   Police   Station,   Narcotic   Branch   on   the   pretext   of   issuing 

such "no recovery certificate".   He claims to have been falsely 

implicated   in   this   case.     The   accused   had   taken   a   specific 

objection,   with   regard   to   non-compliance   with   the   provisions 

of Section 50 of the Act, and had laid down this defense before 

the   Trial   Court.     The   Trial   Court   was   of   the   opinion   that   the 

prosecution   has   been   able   to   prove   the   case   beyond   any 

                                         8

reasonable   doubt   and   therefore,   convicted   the   accused   and 

sentenced him to undergo rigorous imprisonment of ten years 

and   pay   a   fine   of   Rs.1,00,000/-;   in   default   thereof,   further 

undergo one year of rigorous imprisonment.

      An  appeal was  preferred  by   the  accused  challenging   the 

conviction   and   order   of   sentence   dated   19th  July,   1999.     The 

High Court after taking note of the notice that was alleged to 

have been issued to the accused under Section 50 of the Act, 

Ex.PW-6/A,   returned   a   finding   in   accordance   with   settled 

principles of law, that the notice provided to the accused was 

not in conformity with the provisions of Section 50 of the Act. 

                                      9

Resultantly,   there   was   no   compliance   with   the   provisions   of 

Section   50   of   the   Act   in   the   eyes   of   law   and   therefore,   the 

accused   was   acquitted   of   the   charge.     The   State   of   Delhi 

feeling   aggrieved   by   the   order   of   the   High   Court   filed   the 

present appeal.

       We   have   already   noticed   that   the   High   Court   primarily 

discussed   only   one   issue,   i.e.   whether   there   was   compliance 

with   the   provisions   of   Section   50   of   the   Act   or   not;   and   had 

answered this in the negative, against the State.   The primary 

submission   raised   in   the   present   appeal   also   relates   to   the 

                                        10

interpretation   of   the   provisions   of   Section   50   of   the   Act.     In 

order to examine the merit of the contention raised on behalf 

of the appellant, at the outset, it will be appropriate for us to 

refer to the precedents on the issue of the principles applicable 

to Section 50 of the Act.

      One   of   the   earliest   and   significant   judgments   of   this 

Court, on the issue before us is the case of  State  of  Punjab v.  

Balbir   Singh,   [(1994)   3   SCC   299]   where   the   Court   considered 

an important question  i.e., whether failure by the empowered 

or  authorized   officer   to  comply   with  the   conditions  laid  down 

                                        11

in   Section   50   of   the   Act   while   conducting   the   search,   affects 

the  prosecution   case.     In  para   16   of  the   said  judgment,   after 

referring to the words "if the person to be searched so desires", 

the   Court   came   to   the   conclusion   that   a   valuable   right   has 

been given to the person, to be searched in the presence of the 

Gazetted Officer or Magistrate if he so desires. Such a search 

would impart much more authenticity and creditworthiness to 

the   proceedings,   while   equally   providing   an   important 

safeguard to the accused.   It was also held that to afford this 

opportunity   to   the   person   to   be   searched,   such   person   must 

be fully aware of his right under Section 50 of the Act and that 

can   be   achieved   only   by   the   authorized   officer   explicitly 

                                       12

informing   him   of   the   same.     The   statutory   language   is   clear, 

and   the   provisions   implicitly   make   it   obligatory   on   the 

authorized  officer  to inform  the  person  to be searched  of this 

right.     Recording   its   conclusion   in   para   25   of   the   judgment, 

the Court clearly held that non-compliance with Section 50 of 

the Act, which is mandatory, would affect the prosecution case 

and   vitiate   the   trial.     It   also   noticed   that   after   being   so 

informed,   whether   such   person   opted   for   exercising   his   right 

or   not   would   be   a   question   of   fact,   which   obviously   is   to   be 

determined on the facts of each case.  

                                        13

      This view was followed by another Bench of this Court in 

the   case   of  Ali   Mustaffa   Abdul   Rahman   Moosa   v.   State   of  

Kerala, [(1994) 6 SCC 569], wherein the Court stated that the 

searching   officer   was   obliged   to   inform   the   person   to   be 

searched   of  his   rights.     Further,   the   contraband   seized   in  an 

illegal   manner   could   hardly   be   relied   on,   to   the   advantage   of 

the prosecution. Unlawful possession of the contraband is the 

sine   qua   non  for   conviction   under   the   NDPS   Act,   and   that 

factor has to be established beyond any reasonable doubt. The 

Court further indicated that articles recovered may be used for 

other   purposes,   but   cannot   be   made   a   ground   for   a   valid 

conviction under this Act.

                                       14

       In the case of Saiyad Mohd. Saiyad Umar Saiyad v. State  

of   Gujarat,   [(1995)   3   SCC   510],   the   Court   followed   the 

principles   stated   in  Balbir   Singh's  case   (supra)   and   also 

clarified that the prosecution must prove that the accused was 

not only made aware of his right but also that the accused did 

not   choose   to   be   searched   before   a   Gazetted   Officer   or   a 

Magistrate.

       Then the matter was examined by a Constitution Bench 

of   this   Court,   in   the   case   of  State   of   Punjab   v.   Baldev   Singh 

[(1999) 6 SCC 172], where the Court, after detailed discussion 

on   various   cases,   including   the   cases   referred   by   us   above, 

                                        15

recorded   its   conclusion   in   para   57   of   the   judgment   .   The 

relevant portions of this conclusion are as under: 

            "57.  On   the   basis   of   the   reasoning   and
            discussion           above,          the         following
            conclusions arise:

            (1)  That  when   an  empowered  officer   or  a
            duly   authorised   officer   acting   on   prior
            information is about to search a person, it 

            is imperative for him to inform the person
            concerned  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.

                XXX                 XXX                       XXX

            (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 

                                      16

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 official concerned 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   the   judicial
process   may   come   under   a   cloud   if   the
court   is   seen   to   condone   acts   of
lawlessness            conducted           by         the
investigating   agency   during   search
operations   and   may   also   undermine
respect   for   the   law   and   may   have   the
effect   of   unconscionably   compromising
the administration of justice. That cannot
be permitted. 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 

                          17

             breach   of   the   safeguards   provided   by
             Section   50   at  the   trial,   would   render   the
             trial unfair.

                 XXX                  XXX                  XXX

               (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   person   concerned   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."

      Still   in   the   case   of  Ahmed   v.   State   of   Gujarat,   [(2000)   7 

SCC   477),   a   Bench   of   this   Court   followed   the   above   cases 

including  Baldev   Singh's  case   (supra)   and   held   that   even 

                                        18

where   search   is   made   by   empowered   officer   who   may   be   a 

Gazetted   Officer,   it   remains   obligatory   for   the   prosecution   to 

inform the person to be searched about his right to be taken to 

the   nearest   Gazetted   Officer   or   Magistrate   before   search.     In 

this case, the Court also noticed at sub-para (e) at page 482 of 

the   judgment   that   the   provisions   of   Section   50   of   the   Act, 

which afford minimum safeguard to the accused, provide that 

when a search is about to be made of a person under Section 

41 or Section 42 or Section 43 of the Act, and if the person so 

requires, then the said person has to be taken to the nearest 

Gazetted Officer of any department mentioned in Section 42 of 

the Act or to the nearest Magistrate.

                                      19

      In  the  case   of  K.  Mohanan  v.  State  of  Kerala,   [(2010)   10 

SCC 222] another Bench of this Court while following  Baldev  

Singh's case (supra) stated in unambiguous terms that merely 

asking the accused whether he wished to be searched before a 

Gazetted   Officer   or   a   Magistrate,   without   informing   him   that 

he enjoyed a right under law in this behalf, would not satisfy 

the requirements of Section 50 of the Act.

      We may also notice here that some precedents hold that 

though   a   right   of   the   person   to   be   searched   existed   under 

Section   50   of   the   Act,   these   provisions   are   capable   of 

substantial   compliance   and   compliance   in   absolute   terms   is 

                                     20

not a requirement under law.  Reference in this regard can be 

made to Joseph Fernandez v. State of Goa, [(2000) 1 SCC 707], 

Prabha Shankar  Dubey v. State  of  Madhya Pradesh, [(2004) 2 

SCC 56], Krishna Kanwar v. State of Rajasthan, [(2004) 2 SCC 

608,  Manohar  Lal v. State  of Rajasthan, [(1996) 11 SCC 391], 

Karnail Singh v. State  of Haryana, [(2009) 8 SCC 539].   In the 

case   of  Prabha   Shankar   Dubey  (supra),   this   Court   while 

referring   to  Baldev   Singh's  case   (supra)   took   the   view   that 

Section 50 of the Act in reality provides additional safeguards 

which are not elsewhere provided by the statute.  As the stress 

is   on   the   adoption   of   reasonable,   fair   and   just   procedure,   no 

specific words are necessary to be used to convey the existence 

                                       21

of this right. The notice served, in that case, upon the person 

to  be  searched  was  as  follows:  `By  way  of  this  notice   you  are 

informed   that   we   have   received   information   that   you   are 

illegally carrying opium with you, therefore, we are required to 

search your scooter and you for this purpose.   You would like 

to   give   me   search   or   you   would   like   to   be   searched   by   any 

gazetted officer or by a Magistrate?'  Keeping the afore-referred 

language   in   mind,   the   Court   applied   the   principle   of 

substantial   compliance,   and   held   that   the   plea   of   non-

compliance with the requirements of Section 50 of the Act was 

without   merit   on   the   facts   of   that   case.     The   Court   held   as 

under:

                                       22

          "12.     The   use   of   the   expression 

          "substantial compliance" was made in the 

          background   that   the   searching   officer 

          had   Section   50   in   mind   and   it   was 

          unaided by the interpretation placed on it 

          by   the   Constitution   Bench   in  Baldev  

          Singh   case.   A   line   or   a   word   in   a 

          judgment   cannot   be   read   in   isolation   or 

          as if interpreting a statutory provision, to 

          impute   a   different   meaning   to   the 

          observations.

          13.  Above being the position, we find  no 

          substance in the plea that there was non-

          compliance   with   the   requirements   of 

          Section 50 of the Act."

     Similarly,   in  Manohar   Lal's  case   (supra)   the   option 

provided to the accused, not to go to a Magistrate if so desired, 

                                  23

was   considered   to   imply   requirement   of   mere   substantial 

compliance; and that strict compliance was not necessary.

      In  the  case   of  Union  of  India  v. Satrohan,   [(2008)   8 SCC 

313]   though   the   Court   was   not   directly   concerned   with   the 

interpretation   of   the   provisions   of   Section   50   of   the   Act,   the 

Court   held   that   Section   42(2)   of   the   Act   was   mandatory.     It 

also held that search under Section 41(1) of the Act would not 

attract   compliance   to   the  provisions   of  Section   50   of  the   Act. 

To that extent this judgment was taking a view different from 

that   taken   by   the   equi-Bench   in  Ahmed's  case   (supra).     This 

question   to   some   extent   has   been   dealt   with   by   the 

                                       24

Constitution Bench in the case of Vijaysinh Chandubha Jadeja  

v. State  of  Gujarat  [(2011) 1 SCC 609] (hereinafter  referred to 

as   `Vijaysinh   Chandubha   Jadeja').     As   this   question   does   not 

arise for consideration before us in the present case, we do not 

consider   it   necessary   to   deliberate   on   this   aspect   in   any 

further detail.

      In   the   case   of  Vijaysinh   Chandubha   Jadeja  v.   State   of  

Gujarat, [(2007) 1 SCC 433], a three Judge Bench of this Court 

had taken the view that the accused must be informed of his 

right   to   be   searched   in   presence   of   a   Magistrate   and/or   a 

Gazetted Officer, but in light of some of the judgments we have 

                                     25

mentioned   above,   a   reference   to   the   larger   bench   was   made, 

resulting.                           

       Accordingly, a Constitution Bench was constituted and in 

the case of  Vijaysinh Chandubha Jadeja  (supra) of this Court, 

referring   to   the   language   of   Section   50   of   the   Act,   and   after 

discussing the above-mentioned judgments of this Court, took 

the   view   that   there   was   a   right   given   to   the   person   to   be 

searched,   which   he   may   exercise   at   his   option.     The   Bench 

further   held   that   substantial   compliance   is   not   applicable   to 

Section 50 of the Act as its requirements were imperative.  The 

Court,   however,   refrained   from   specifically   deciding   whether 

                                         26

the provisions were directory or mandatory.  It will be useful to 

refer the relevant parts of the Constitution Bench in Vijaysinh  

Chandubha Jadeja  (supra). In para 23, the Court said `In the 

above  background,   we  shall   now advert   to  the   controversy  at 

hand. For this purpose, it would be necessary to recapitulate 

the   conclusions,   arrived   at   by   the   Constitution   Bench   in 

Baldev Singh case'.   After further referring to the conclusions 

arrived   at   by   the   Constitution   Bench   in  Baldev   Singh's  case 

(supra)   (which   have   been   referred   by   us   in   para   9   of   this 

judgment) and reiterating the same the Constitution Bench in 

Vijaysinh   Chandubha   Jadeja  (supra)   this   case   concluded   as 

under:

                                      27

              "31.  We   are   of   the   opinion   that   the
              concept   of   "substantial   compliance"   with
              the   requirement   of   Section   50   of   the
              NDPS   Act   introduced   and   read   into   the
              mandate   of   the   said   section   in  Joseph
              Fernandez  and  Prabha Shankar  Dubey  is
              neither   borne   out   from   the   language   of
              sub-section   (1)   of   Section   50   nor   it   is   in
              consonance with the dictum laid down in
              Baldev   Singh   case.   Needless   to   add   that
              the   question   whether   or   not   the
              procedure   prescribed   has   been   followed
              and   the   requirement   of   Section   50   had
              been   met,   is   a   matter   of   trial.   It   would 

              neither   be   possible   nor   feasible   to   lay
              down   any   absolute   formula   in   that
              behalf."

       Analysis   of   the   above   judgments   clearly   show   that   the 

scope   of   the   provisions   of   Section   50   of   the   Act   are   no   more 

res   integra  and   stand   concluded   by   the   above   judgments 

particularly the Constitution Bench judgments of this Court in 

                                         28

the   cases   of  Baldev   Singh  (supra)   and  Vijaysinh   Chandubha  

Jadeja (supra).  

      In the present case, we are concerned with the provisions 

of Section 50 of the Act as it was, prior to amendments made 

by Amending Act 9 of 2001 w.e.f. 2.10.2001.   In terms of the 

provisions,   in   force   at   the   relevant   time,   the   petitioner   had   a 

right to be informed of the choice available to him; making him 

aware of the existence of such a right was an obligation on the 

part of the searching officer.  This duty cast upon the officer is 

imperative   and   failure   to   provide   such   an   option,   in 

accordance   with   the   provisions   of   the   Act,   would   render   the 

                                        29

recovery   of   the   contraband   or   illicit   substance   illegal. 

Satisfaction of the requirements in terms of Section 50 of the 

Act   is  sine   qua   non  prior   to  prosecution   for   possession   of   an 

unlawful narcotic substance.

      In   fact,   the   Constitution   Bench  in   the   case   of  Vijaysinh  

Chandubha Jadeja  (supra), in para 25, has even taken a view 

that   after   the   amendment   to   Section   50   of   the   Act   and   the 

insertion of sub-section 5, the mandate of Section 50(2) of the 

Act   has   not   been   nullified,   and   the   obligation   upon   the 

searching   officer   to   inform   the   person   searched   of   his   rights 

still   remains.    In   other   words,   offering   the   option   to   take   the 

                                        30

person to be searched before a Gazetted Officer or a Magistrate 

as   contemplated   under   the   provisions   of   this   Act,   should   be 

unambiguous   and   definite   and   should   inform   the   suspect   of 

his statutory safeguards.                                

      Having   stated   the   principles   of   law   applicable   to   such 

cases,   now   we   revert   back   to   the   facts   of   the   case   at   hand. 

There   is   no   dispute   that   the   concerned   officer   had   prior 

intimation,   that   the   accused   was   carrying   smack,   and   the 

same   could   be   recovered   if   a   raid   was   conducted.     It   is   also 

undisputed   that   the   police   party   consisting   of   ASI   -   Dasrath 

Singh,   Head   Constable-   Narsingh,   Constable   -   Manoj   Kumar 

                                        31

and  lady  constable-Nirmla   had  gone  in  a  Government   vehicle 

to conduct the raid.  The vehicle was parked and the accused, 

who   was   coming   on   a   scooter,   had   been   stopped.         He   was 

informed   of   and   a   notice   in   writing   was   given   to   him   of,   the 

suspicions   of   the   police,   that   he   was   carrying   smack.   They 

wanted   to   search   him   and,   therefore,   informed   him   of   the 

option available to him in terms of Section 50 of the Act.   The 

option   was  given   to   the  accused   and  has   been  proved   as  Ex. 

PW-6/A,   which   is   in   vernacular.     The   High   Court   in   the 

judgment under appeal has referred to it and we would prefer 

to reproduce the same, which reads as under :

                                        32

             "Musami   Ram   Avtar   urf   Rama   S/o   late 

             Sh.   Mangat   Ram   R/o   71/144,   Prem 

             Nagar,   Choti   Subzi   Mandi,   Janakpuri, 

             Delhi, apko is notice ke tehat suchit kiya 

             jata   hai   ki   hamare   pas   itla   hai   ki   apko 

             kabje   me   smack   hai   aur   apki   talashi 

             amal mein laye jati hai.   Agar ap chahen 

             to apki talashi ke liye kisi Gazetted officer 

             ya   Magistrate   ka   probandh   kiya   ja  sakta 

             hai."

      The  High   Court   while   relying   upon  the   judgment   of  this 

Court   in   the   case   of  Baldev   Singh  (supra)   and   rejecting   the 

theory of substantial compliance, which had been suggested in 

the   case   of  Joseph   Fernandez  (supra),   found   that   the 

intimation   did   not   satisfy   the   provisions   of   Section   50   of   the 

                                       33

Act.     The   Court   reasoned   that   the   expression   `duly'   used   in 

Section 50 of the Act connotes not `substantial' but `exact and 

definite   compliance'.     Vide   Ex.PW-6/A,   the   appellant   was 

informed   that   a   Gazetted   Officer   or   a   Magistrate   could   be 

arranged   for   taking   his   search,   if   he   so   required.   This 

intimation   could   not   be   treated   as   communicating   to   the 

appellant that he had a right under law, to be searched before 

the   said   authorities.     As   the   recovery   itself   was   illegal,   the 

conviction and sentence has to be set aside.  

      It is a settled canon of criminal jurisprudence that when 

a   safeguard   or   a   right   is   provided,   favouring   the   accused, 

                                       34

compliance   thereto   should   be   strictly   construed.   As   already 

held   by   the   Constitution   Bench   in   the   case   of  Vijaysinh  

Chandubha   Jadeja          (supra),   the   theory   of   `substantial 

compliance'   would   not   be   applicable   to   such   situations, 

particularly where the punishment provided is very harsh and 

is likely to cause serious prejudices against the suspect.   The 

safeguard   cannot   be   treated   as   a   formality,   but   it   must   be 

construed   in   its   proper   perspective,   compliance   thereof   must 

be ensured.  The law has provided a right to the accused, and 

makes   it   obligatory   upon   the   officer   concerned   to   make   the 

suspect aware of such right.  The officer had prior information 

of the raid; thus, he was expected to be prepared for carrying 

                                      35

out   his   duties   of   investigation   in   accordance   with   the 

provisions   of   Section   50   of   the   Act.     While   discharging   the 

onus of Section 50 of the Act, the prosecution has to establish 

that   information   regarding   the   existence   of   such   a   right   had 

been  given   to   the   suspect.    If  such   information   is   incomplete 

and   ambiguous,   then   it   cannot   be   construed   to   satisfy   the 

requirements  of Section 50 of the Act.  Non-compliance of the 

provisions   of   Section   50   of   the   Act   would   cause   prejudice   to 

the   accused,   and,   therefore,   amount   to   the   denial   of   a   fair 

trial.   To secure a conviction under Section 21 of the Act, the 

possession   of   the   illicit   article   is   a  sine   qua   non.     Such 

contraband article should be recovered in accordance with the 

                                      36

provisions   of   Section   50   of   the   Act,   otherwise,   the   recovery 

itself   shall   stand   vitiated   in   law.     Whether   the   provisions   of 

Section   50   of   the   Act   were   complied   with   or   not,   would 

normally   be   a   matter   to   be   determined   on   the   basis   of   the 

evidence   produced   by   the   prosecution.     An   illegal   search 

cannot   entitle   the   prosecution   to   raise   a   presumption   of 

validity of evidence under Section 50 of the Act.  As is obvious 

from   the   bare   language   of   Ex.PW-6/A,   the   accused   was   not 

made   aware   of   his   right,   that   he   could   be   searched   in   the 

presence of Gazetted Officer or a Magistrate, and that he could 

exercise   such   choice.     The   writing   does   not   reflect   this   most 

essential requirement of Section 50 of the Act.  Thus, we have 

                                       37

no hesitation  in holding  that the  judgment  of the  High Court 

does not suffer from any infirmity.

      Now, we come to discuss the argument raised  on behalf 

of   the   State,   that   in   the   present   case,   generally   and   as   a 

proposition   of   law,   even   if   there   is   apparent   default   in 

compliance   with   the   provisions   of   Section   50   of   the   Act,   a 

person may still be convicted if the recovery of the contraband 

can   be   proved   by   statements   of   independent   witnesses   or 

other   responsible   officers,   in   whose   presence   the   recovery   is 

effected.   To us, this argument appears to be based upon not 

only   a   misconstruction   of   the   provisions   of   Section   50   of   the 

                                       38

Act but also on the mis-conception of the principles applicable 

to criminal jurisprudence.  Once the recovery itself is found to 

be illegal, being in violation to the provisions of Section 50 of 

the Act, it cannot, on the basis of the statement of the police 

officers,   or   even   independent   witnesses,   form   the   foundation 

for   conviction   of   the   accused   under   Section   21   of   the   Act. 

Once the recovery is held to be illegal, that means the accused 

did   not   actually   possess   the   illicit   article   or   contraband   and 

that no such illicit article was recovered from the possession of 

the accused such as to enable such conviction of a contraband 

article.

                                      39

      We   are   also   unable   to   appreciate   how   the   provisions   of 

Section   50   of   the   Act   can   be   read   to   support   such   a 

contention.   The language of the provision is plain and simple 

and has to be applied on its plain reading as it relates to penal 

consequences.     Section   50   of   the   Act   states   the   conditions 

under which the search of a person shall be conducted.   The 

significance of this right is clear from the language of Section 

50(2) of the Act, where the officers have been given the power 

to   detain   the   person   until   he   is   brought   before   a   Gazetted 

Officer or Magistrate as referred to in sub-section (1) of Section 

50   of   the   Act.     Obviously,   the   legislative   intent   is   that 

compliance with these provisions is imperative and not merely 

                                      40

substantial   compliance.     Even   in   the   case   of  Ali   Mustaffa  

Abdul   Rahman   Moosa  (supra),   this   Court   clearly   stated   that 

contraband seized as a result of search made in contravention 

to Section 50 of the Act, cannot be used to fasten the liability 

of   unlawful   possession   of   contraband   on   the   person   from 

whom   the   contraband   had   allegedly   been   seized   in   an   illegal 

manner.     `Unlawful  possession'   of  the   contraband   is   the  sine  

qua   non  for   conviction   under   the   Act.    In   the   case   of  Ali  

Mustaffa   Abdul   Rahman   Moosa  (supra),   this   Court   had 

considered the observation made by a Bench of this Court, 

in   an   earlier   judgment,   in   the   case   of  Pooran   Mal   v. 

Director of Inspection [(1974) 1 SCC 345] which had stated that 

                                     41

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   Court,   while   examining   this 

principle,   clearly   held   that   even   this   judgment   cannot   be 

interpreted   to  lay   down   that 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,   under   the 

Act,  is  a  factor  that  has to  be  established   by  the   prosecution 

beyond any reasonable doubt.   Indeed, the seized contraband 

                                         42

is   evidence,   but   in   the   absence   of   proof   of   possession   of   the 

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

      What the learned counsel for the appellant has argued is 

exactly to the contrary.  According to him, even if the recovery 

was  in  violation   of  Section  50   of  the   Act,  the   accused  should 

be   held   guilty   of   unlawful   possession   of   contraband,   on   the 

basis   of   the   statement   of   the   witnesses.     Once   the   recovery 

itself   is   made   in   an   illegal   manner,   its   character   cannot   be 

changed, so as to be admissible, on the strength of statement 

of   witnesses.     What   cannot   be   done   directly   cannot   be 

permitted   to   be   done   indirectly.     If   Ex.PW-6/A   is   not   in 

                                        43

conformity   with   the   provisions   of   Section   50   of   the   Act,   then 

there   is   patent   violation   of   the   provisions.     Firstly,   in   the 

present case, there is no public witness to Ex.PW-6/A; and the 

recovery   thereof;   secondly,   even   the   evidence   of   all   the 

witnesses, who are police officers, does not improve the case of 

the   prosecution.     The   defect   in   Ex.PW-6/A   is   incurable   and 

incapable   of   being   construed   as   compliance   with   the 

requirements of Section 50 of the Act on the strength of ocular 

statement.

      The   Constitution   Bench,   in   the   case   of  Vijaysinh  

Chandubha  Jadeja  (supra)  had spelt  out  the  effects  of  failure 

                                       44

to comply with the mandatory provisions of Section  50 of the 

Act,   being   (A)   cause   of   prejudice   to   the   suspect   accused;   (B) 

rendering   recovery   of   illicit   article   suspect   and   thereby, 

vitiating   the   conviction,   if   the   same   is   recorded   only   on   the 

basis   of   recovery   of   illicit   article   from   the   person   of   the 

accused during such search. 

      The learned counsel for the appellant relied on the use of 

the words `only on the basis of the recovery' used in para 29 of 

that   judgment,   to   contend   that   if   there   is   other   supporting 

evidence of recovery, the conviction cannot be set aside.   This 

submission   is   nothing   but   based   upon   a   misreading   of   the 

                                       45

judgment; not only of para 29 but the judgment in its entirety. 

What   the   Constitution   Bench   has   stated   is   that   where   the 

recovery is from the person of the suspect, and that recovery is 

found   to   be   illegal,   the   conviction   must   be   set   aside   as   the 

principles   applicable   to   personal   recovery   are   somewhat 

different   from   recovery   of   contraband   from   a   vehicle   or   a 

house. 

      In para 29 of the judgment itself, the Bench has held that 

`we   have   no   hesitation   in   holding   that   in   so   far   as   the 

obligation   of   the   authorized   officer   under   sub-section(1)   of 

Section 50 of the NDPS Act is concerned, it is mandatory and 

                                       46

requires   strict   compliance.'     In   fact   the   contention   raised   by 

the   appellant   has,   in   specific   terms,   been   rejected   by   the 

Constitution   Bench   in   clause   7   of   para   23   of   the   judgment. 

The   Court   clearly   held   that   an   illicit   article   seized   from   the 

person of an accused during search conducted  in violation of 

the   safeguards   provided   in   Section   50   of   the   Act   cannot   be 

used   as   evidence   of   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   the   accused, 

notwithstanding the recovery of that material during an illegal 

search.   The proposition of law having been so clearly stated, 

                                       47

we   are   afraid   that   no   argument   to   the   contrary   may   be 

entertained.     What   needs   to   be   understood   is   that   an   illegal 

recovery cannot take the colour of a lawful possession even on 

the basis of oral evidence.   But if any other material which is 

recovered   is   a   subject   matter   in   some   co-lateral   or 

independent   proceeding,   the   same   could   be   proved   in 

accordance with law even with the aid of such recovery.   But 

in   no   event   the   illegal   recovery   can   be   the   foundation   of   a 

successful conviction under the provisions of Section 21 of the 

Act.

                                       48

      For the reasons afore recorded, we do not find any merit 

in   the   present   appeal.     The   same   stands   dismissed   without 

any order as to costs.

                                          .....................................J.

                                            [Dr. B.S. Chauhan]

                                          .....................................J.

                                         [Swatanter Kumar]

New Delhi;July 7, 2011                                    49

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