Holding

Non‑compliance with the mandatory provisions of Sections 42 and 50 of the NDPS Act vitiates the search and seizure, rendering the conviction illegal, and the High Court’s reversal was erroneous.

Summary

The appellants were stopped on a scooter and opium was seized from the vehicle, leading to their arrest under the NDPS Act. The trial court acquitted them, holding that the search and seizure were vitiated because Sections 42 and 50 of the NDPS Act were not complied with and the seizure witnesses were hostile. The High Court reversed the acquittal, finding the statutory requirements were not mandatory and sentencing the appellants to ten years' rigorous imprisonment and a fine. On appeal, the Supreme Court examined whether compliance with Sections 42, 50 and 57 of the NDPS Act is mandatory and whether a failure to comply vitiates the prosecution case. It held that the mandatory provisions were indeed breached, the High Court erred in ignoring the Sessions Judge’s findings, and the illegal search affected the credibility of the evidence. Consequently, the conviction was set aside and the appellants were ordered to be released.

Issues considered

Whether Sections 42 and 50 of the NDPS Act are mandatory statutory requirements for a valid search and seizure.
Whether non‑compliance with Section 50 vitiates the evidence and the trial.
Whether the High Court was justified in overturning the trial court’s acquittal without addressing the Sessions Judge’s reasoning.
Whether the provisions of Section 57 of the NDPS Act are mandatory.
Effect of an illegal search on the credibility of official witnesses.

Legislation cited

Code of Criminal Procedure, 1973s. 100, s. 161, s. 165
Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 42, s. 50, s. 57, s. 8

Subjects

NDPS Actsearch and seizuremandatory complianceSection 42Section 50illegal searchevidence credibilityacquittalconviction reversal

Judgment

r
....
I
"

A DILIP AND ANR.
v.
STATE OF M.P.

NOVEMBER 24, 2006

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985; Ss. 8118, 42,
50 and 57:

c Search and seizure of Narcotic Drugs-Recovery of Opium-Arrest of
accused-Acquitted by trial Court holding that the search and seizure vitiated
in law for non-compliance of mandatory statutory requirements in terms of
provisions of the Act-Reversed by High Court-On appeal, Held: Witnesses
to the seizure did not support the case of prosecution and declared hostile-
D High Court without assigning any reasons held that the provisions of Section
42 and also Section 50 of the Act are not required to be complied with-
First Information Report did not contain any statement about compliance qf
the provisions of Section 50 nor it forms an opinion about the possession of
contraband goods by accused-Notices did not confirm to the requirements
of law-High Court was dealing with a judgment of acquittal, it was bound
E to show that findings of trial Court not legally tenable, but it failed to do
so-Hence, impugned judgment cannot be sustained and set aside-Code of
Criminal Procedure, 1973-Section 161-Evidence-Official witnesses-
Credibility of

A Police Officer, SHO of a Police Station, found accused-appellants
F moving out on a Scooter at a fast speed. He stopped them and on search of the
scooter, opium was recovered. An FIR was lodged and accused were arrested
on the spot The Trial Court recorded a judgment of acquittal holding that the
search and seizure was vitiated in law as mandatory statutory requirements
contained in Sections 42 and 50 the Narcotic Drugs & Psychotropic
G. Substances Act (NDPS) were not complied with. The seizure witnesses did
not support the prosecution case. The informant also did not comply with the
requirements of Section 57 of the NDPS Act. Sealing of the contraband
materials was not carried out in accordance with law as no responsible officer
fixed seal on the seized samples. High Court reversed the said judgment of

H 390
DILIPv. STATEOFM.P. 391
Trial Court holding that the provisions contained in Section 57 of the NDPS A
Act are not mandatory and there has been a substantial compliance of the
relevant provisions; the question of obtaining any warrant from a Magistrate
or a Gazetted Officer under Section 41 did not arise; and there was no
opportunity to comply with Section 42 of the NDPS Act Accordingly, accused
were sentenced to undergo rigorous imprisonment for 10 years and pay a B
fine of Rs.l lakh each. Hence the present appeal.

Allowing the appeal, the Court

HELD:l.l. Witnesses of the seizure were P.W.l - a sweeper engaged in
the police station and P.W.2 - a cycle mechanic who was carrying on his C
business in front of the police station. They were examined before the Trial
Judge. They have not supported the case of the prosecution at all. They were
declared hostile. Having regard to the testimonies of the witnesses, as also
various other circumstances as noticed in his judgment, the Sessions Judge
opined that the likelihood of the informant, Police Officer having prior
information about the matter cannot be ruled out The Trial Court found that D
P.W.10, the Station House Officer, in his cross-examination accepted that he
entertained doubts that the accused had been in possession of contraband and,
therefore, he intended to comply with the provisions of Section 50 of the NDPS
Act. The High Court, however, without meeting the reasonings of the Sessions
Judge pl'oceeded to take the prosecution case as gospel truth and opined that
neitlrer the provisions of Section 50 of the NDPS Act nor Section 42 thereof E
were required to be complied with. (395-C-D-E)

· 1.2. First Information Report did not contain any statement that the
provisions of Section 50 had been complied with. But the prosecution
introduced two notices, which were said to have been issued to the accused F
informing them about their right to get themselves searched either before a
Magistrate or some gazetted officer. The Trial Court noticed that in the notices
there had been no mention of the fact that he had formed an opinion that the
scooter in question contained any contraband goods. Furthermore, date, name,
residence and age of the officer giving notice had not been disclosed. It had
furthermore not been mentioned that the accused were informed of their legal G
right. P. W.3 in his deposition before the Court categorically stated that P. W.10
did not inform the accused about their legal right in this behalf. Who scribed
the said documents was also in doubt, as according to P.W.l'J the same were
recorded by P.W.8, whereas the latter stated that it was P. W.10 who scribed
the same. (395-F-G-H; 396-A)
H
392 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A 1.3. Before seizure of the contraband from the scooter, personal search
of Appellants had been carried out and, admittedly, even at that time the
provisions of Section 50 of the Act, although required in law, had not been
complied with. P.W.10 did not offer any satisfactory explanation as to on what
basis the notices were purported to have been served. (396-8-CJ

B 1.4. Effect of a search carried out in violation of the provisions of law
would have a bearing on the credibility of the evidence of the official witnesses,
which would of course be considered on the facts and circumstances of each
case. [398-H; 399-A)

State of Punjab v. Balbir Singh, (1994] 3 SCC 299, relied on.
c
2.1. In the instant case, the provisions of Section 50 of the Narcotics
Drugs and Psychotropic Substances Act, 1985 might not have been required
to be complied with so far as the search of scooter is concerned, but, keeping
in view the fact that the persons of the appellants were also searched, it was
D obligatory on the part of P.W.10 to comply with the said provisions. It was not
done. (399-B)

2.2. Requirements of law in this case had been given a complete go bye.
The prosecution story as to how the SHO found the appellants on the road
near the police station is also not free from doubt. However, the High Court
E did not meet the reasonings of the Sessions Judge. The findings r,f the Trial
Judge that P.W.10 had prior information, had also not been met by the High
Court. The High Court was dealing with a judgment of acquittal. It was,
therefore, bound to show that the findings of the Sessions Judge were not
legally .tenable. It is well known that if two views are possible, benefit of doubt
should be given to the accused. (399-G-H; 400-A-B]
F
State of Punjab v. Baldev Singh, (1999) 6 SCC 172, relied on.

3. High Court could not have brushed aside the findings of the Sessions
Judge without meeting the reasonings assigned by it as it was dealing with a
judgment of acquittal. For these reasons, the impugned judgment cannot be
G sustained which is set aside accordingly. (400-C-D[

Jagdish v. State of MP., [2003) 9 SCC 159 and Ritesh Chakravarti v.
State of Madhya Pradesh, (2006) 9 SCALE 644, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1480 of
H
DIUPv. STATEOFM.P. [S.B. SINHA,J.] 393
2004. A
From the Final Judgment and Order dated 3-9-2003 of the High Court
of Madhya Pradesh (Gwalior Bench) in Criminal Appe.al No.524/1998.

N.R. Chaudhary, L.S. Chauhan and Dr. Kailash Chand for the Appellants.
B
Vibha Datta Makhija for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. Appellant was prosecuted for commission of an offence
under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, C
1985 ('the NDPS Act', for short) on the basis of a First Information Report
lodged by one Shri S.S. Tomar, the Officer in-charge of P.S. Kumbhraj alleging
that while he was posted as S.H.O. at the said police station, on 24.12.1996
when he came out of the gate for arresting one Shivraj Meena, he found two
persons coming out at a fast speed in a scooter. They were stopped. They
disclosed their names as Dilip Singh (Appellant) and Ramsharan. A search of D
their person was conducted. Nothing was found, but, on search of the
scooter, some black coloured liquid substance contained in six big plastic
bags and one small plastic bag were seen, which were said to be containing
opium. Allegedly, the S.D.O.P. of the place Raghogarh, named, Shri G.S. Jadon
was informed and 5 kgs. 890 gms opium was recovered. E
They were arrested at the spot. Learned Sessions Judge, Guna recorded
a judgment of acquittal, inter alia, holding that the search and seizure was
vitiated in law as mandatory statutory requirements contained in Sections 50
and 42 the NDPS Act were not complied with. The seizure witnesses did not
support the prosecution case. The informant also did not comply with the F
requirements of Section 57 of the NDPS Act. Sealing of the contraband
materials was not carried out in accordance with law as no responsible officer
fixed seal on the seized samples.

The State preferred an appeal before the High Court against the said
judgment of acquittal which was registered as Criminal Appeal No.524of1998. G
The High Court reversed the said judgment of the learned Sessions Judge
holding:

(l) provisions contained in Section 57 of the NDPS Act are not mandatory
and there has been a substantial compliance of the said provision as the
informant Shri S.S. Tomar did not have any prior information; H
394 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R. -
A (2) the question of obtaining any warrant from a Magistrate or a Gazetted
Officer under Section 41 did not arise;

(3) he has also no opportunity to comply with Section 42 of the NDPS
Act. The conduct of the appellants in speedily crossing the road which
aroused suspicion of police officers was enough to show that they had
B knowledge that contraband was concealed in the scooter.

On the aforementioned findings they were sentenced to undergo rigorous
imprisonment for l 0 years and. pay a fine of Rs. I lakh each, in default of which
they were directed to undergo rigorous imprisonment for· a further period of
C 2 years each.

The appellants are, thus, before us.

It is now well settled that the offence committed under the Act is a
grave one. Procedural safeguards provided therefor in terms of Sections 41,
D 42 and 50 of the NDPS Act should be complied with.

We may notice Section 50 of the NDPS Act, which reads as under:

"50. Conditions under which search of persons shall be
conducted (l) When any officer duly authorised under section 42 is
about to search any person under the provisions of section 41, section
E 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 Officer or the Magistrate
F referred to in sub-section ( l ).

(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 othenv,ise shall direct that search
be made.
G
(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason
to believe that it is not possible to take the person to be searched to
the nearest Gazetted Officer or Magistrate without the possibility of
H the person to be searched parting with possession of any narcotic
- DILIPv. STATEOFM.P. (S.B. SINHA,J.] 395
drug or psychotropic substance, or controlled substance or article or A
document, he may, instead of taking such person to the nearest
Gazetted Officer or Magistrate, proceed to search the person as
provided under section 100 of the Code of Criminal Procedure, 1973.

(6) After a search is conducted under sub-section (5), the officer
shall record the reasons for such belief which necessitated such B
search and within seventy-two hours send a copy thereof to his
immediate official superior."

The witnesses of the seizure were : P. W. l - a sweeper engaged in the
police station and P.W.2 - a cycle mechanic who was carrying on his business
in front of the police station. They were examined before the learned Trial C
Judge. They have not supported the case of the prosecution at all. They were
declared hostile.

Having regard to the testimonies of the said witnesses, as also various
other circumstances as noticed in his judgment, the learned Sessions Judge
opined that the likelihood of S.S. Tomar having prior information about the D
matter cannot be ruled out. The learned Judge found that P.W.10 in his cross-
examination accepted that he entertained doubts that the accused had been
in possession of contraband and, therefore, he intended to comply with the
provisions of Section 50 of the NDPS Act. The High Court, however, without
meeting the reasonings of the learned Sessions Judge proceeded to take the E
prosecution case as gospel truth and opined that neither the provisions of
Section 50 of the NDPS Act nor Section 42 thereof were required to be
complied with.

The First Infonnation Report did not contain any statement that the
provisions of Section 50 had been complied with. But the prosecution F
introduced two notices marked as Exhibits PIO and Pl l, which were said to
have been issued to the accused infonning them about their right to get
themselves searched either before S.D.O.P., a Magistrate or some gazetted
officer: The learned Sessions Judge noticed that in the aforementioned two
documents there had been no mention of the fact that he had formed an G
opinion that the scooter in question contained any contraband. Furthermore,
in the aforementioned two purported notices time, date, name, residence and
age of the officer giving notice had not been disclosed. It had furthermore
not been mentioned that the accused were infonned of their legal right.

P.W.3 Narendra Singh in his deposition before the Court categorically H
396 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A stated th<'lt P. W. l 0. did not inform the accused about their legal right in this
--
.
behalf. .-Who scribed.
. .
the said documents was also ~in doubt, as according to
.
P. W. l 0 the same '.were recorded by P. W.8 - Arvind Sanger, whereas the latter
stated that it W'as P:~. l 0 S.S. Tomar who scribed the same. P. W.8 has been
examined under Section \ . 161 of the Code of Criminal Procedure, 1973. His said
'

statement was marked ¥S ·Exhibit D2. He did not make any statement before
B the Investigating officer, as' to who prepared the notices.
7

Before seizure of the contraband from the scooter, personal search of
Appellants had been carried out and, admittedly, even at that time the
provisions of Section 50 of the Act, although required in law, had not been
C complied with.

P. W. l 0 did not offer any satisfactory explanation as to on what basis
the notices were purported to have been served.

Ms. Vibha Datta Makhija, learned Counsel appearing on behalf of the
D State, however, would support the judgment of the High Court contending
that this Court in State ofPunjab v. Balbir Singh, [l 994] 3 SCC 299 categorically
held that an illegal search may not have any direct impact on the prosecution
case. This Court therein opined as under :

"The questions considered above arise frequently before the·trial
E courts. Therefore we find it necessary to set out our conclusions
which are as follows :

(I) 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
F 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
G 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.
H
DILIPv. STATEOFM.P. [S.B. SINHA, J.] 397

(2-A) Under Section 41 (I) only an empowered Magistrate can A
issue warrant for the arrest or for the search in respect of offences
punishable under Chapter lV 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 B
illegal. Likewise only empowered officers or duly authorized officers
as enumerated in Sections 41 (2) and 42( l) 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. C
(2-B) Under Section 41(2) only the empowered officer can give the
authorisation to his subordinate officer to carry out the arrest of a
person or search as mentioned therein. Ifthere is a contravention, that
would affect the prosecution case and vitiate the conviction.
D
(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 E
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( l) if such officer has to carry out such
search between sunset and sunrise, he must record the grounds of his
belief.
F
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 G
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.

H
398 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A (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.
B
(4-B) If an empowered officer or an authorised officer under Sectfon
41 (2) of the Act carries out a search, he would be doing so under the
provisions ofCrPC 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.
c
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
D 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
E
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.
F
(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
G such failure will have a bearing on the appreciation of evidence
regarding arrest or seizure as well as on merits of the case."

This Court, therefore, clearly held as to what extent provisions of
Sections 41 and 42 are mandatory and to what extent they would not be.

H Indisputably, however, effect of a search carried out in violation of the
DILIPv. STATEOFM.P. [S.B. SINHA,J.] 399
provisions of law would have a bearing on the credibility of the evidence of A
the official witnesses, which would of course be considered on the facts and
circumstances of each case.

In this case, the provisions of Section 50 might not have been required
to be complied with so far as the search of scooter is concerned, but, keeping
in view the fact that the persons of the appellants were also searched, it was B
obligatory on the part of P. W. I 0 to comply with the said provisions. It was
not done.

In State of Punjab v. Baldev Singh, [1999] 6 SCC 172, a Constitution
Bench of this Court opined :
c
" ......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 D
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, E
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 F
the name of the female official who carried out the personal search of
the female concerned 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." G

Requirements of law in this case had been giving a· complete go bye.
The prosecution story as to how the SHO found the appellants on the road
near the police station is also not free from doubt.

Unfortunately, the High Court did not meet the reasonings of the learned H
400 SUPREME COURT REPORTS [2006] SUPP.; S.C.R.

A Sessions Judge. The findings of the learned Trial Judge that P. W. l 0 had prior
information, had also not been met by the High Court. The High Court was
dealing with a judgment of acquittal. It was, therefore, bound to show that
the findings of the learned Sessions Judge were not legally tenable.

It is well known that if two views are possible, benefit of doubt should
B be given to the accused.
We may notice that a Three Judge Bench of this Court in Jagdish v.
State of MP. [2003] 9 SCC 159, had set aside the judgment of conviction
where panch witnesses denied that search and seizure of the opium took
C place in their presence. {See also Ritesh Chakravarti v. State of Madhya
Pradesh, (2006) 9 SCALE 644].}

The High Court, in our opinion, could not have brushed aside the
findings of the learned Sessions Judge without meeting the reasonings
assigned by it as it was dealing with a judgment of acquittal. For the reasons
D aforementioned, the impugned judgment cannot be sustained which is set
aside accordingly.

The appeal is allowed. Appellants are directed to be set at liberty
forthwith, unless wanted in connection with any other case.

S.KS. Appeal allowed.

. ...