Holding

The Supreme Court held that the search and seizure were not in substantial compliance with Section 42 of the NDPS Act and the procedural safeguards of Section 50 were violated, rendering the conviction unsustainable.

Summary

The appellants were arrested after a police patrol, acting on an informer's tip, searched them and seized morphine. The search was conducted by the Station House Officer (SHO) without a gazetted officer present, using consent letters that were allegedly prepared after arrest and without proper authority. The FIR, witness statements, and the lack of an independent witness raised serious doubts about the legality of the search and seizure. The Supreme Court examined whether the provisions of Section 42 and Section 50 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act were substantially complied with, and whether the seized contraband could be used as evidence. It held that the procedural safeguards were not observed, the search was illegal, and the conviction could not stand. Consequently, the appellate court set aside the judgments of the trial and High Courts and ordered the appellant’s release.

Issues considered

The search and seizure complied with Section 42 of the NDPS Act?
Was the accused informed of his right to be searched by a gazetted officer under Section 50?
Are consent letters obtained after arrest valid for authorising the search?
Can contraband seized in violation of procedural safeguards be used as evidence under Sections 54 and 54A?
Whether Section 33 of the NDPS Act and the Probation of Offenders Act can be invoked for one accused only.

Legislation cited

Code of Criminal Procedure, 1973s. 100, s. 165, s. 311, s. 4
Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 33, s. 42, s. 50, s. 54, s. 8
Probation of Offenders Act, 1958s. 33

Subjects

NDPS Actsearch and seizureSection 42 complianceSection 50 rightsillegal searchevidence admissibilityprobation of offenders actconsent letterspolice authority

Judgment

[2009] 12 S.C.R. 611

SARJU@ RAMU A
' v. .
STATE OF U.P.
(Criminal Appeal No. 1446 of 2009)

AUGUST 7,. 2009
B
[S.B. SINHA AND DEEPAK VERMA, JJ.)

Narcotic Drugs and Psychotropic Substances Act, 1985
- SS. 8/21 and 42 - I/legal sale of morphine by appellants - ·
Search and seizure by SHO and others - Conviction and C
. sentence u/s. 8121 by courts below - Sustainability of - Held: .
Not sustainable -s. 42 not substantially complied with -
, Prosecution case cannot be believed - Discrepancies in FIR
\
I
- No independent witness to the search . -:- Accused not
informed of their right to be searched by Gazetted Officer - D
Discrepancy in the preparation of consent letter:. Statement ·
by SHO manipulated and had no authority to make search -
Different case alleged by wife of accused - They filed··.
application and sent telegram but no investigation carried out
~ Also Special Judge erred in letting off one of the accused E
under the Probation of Offenders Act."'"'." Thus, order of courts
below set aside.

SHO and other members including a constable-PW-
3 were on patrolling duty. The informer reported to the
police party that appellants were illegally selling F
morphine. SHO obtained the authority letter to carry
search and seizure and meanwhile the other constables
kept eye on them. The search was carried out. 40 packets
as also 70 gms. of morphine were recovered from the
appellant, 82 gms from SB and 53 gms was recovered G
from RD. Trial court convicted the appellant and RD uls.
8121 of Narcotic Drugs and Psychotropic Substances Act
and sentenced them to 10 yea ts rigorous imprisonment.
However, SB was given benefit of s. 33 and was let off
611 H
612 SUPREME COURT REPORTS [2009] 12 S.C.R.

A under the Probation of Offenders Act. High Court upheld ' '" :
the order. Hence the present appeal.

Allowing the appeal, the Court

HELD: 1. In a case under the Narcotic Drugs and
B Psychotropic Substances Act, 1985, particularly where
such serious allegations are made against the police
officials, recovery of contraband in presence of the
independent witness assumes significance. The
provisions of the NDPS Act being harsh in nature, the
C procedural safeguards contained therein must
scrupulously be complied therewith. [Paras 14 and 15]
[622-E-F]

2.1. The prosecution case is shrouded in mystery.
0 Although in the FIR, it was stated that information was
received from the informer, but the PW 1 in his deposition
before the trial judge stated differently. FIR disclosed that
the information was given at about 6 0' clock in the
morning and the raid was conducted at about 6.15 a.m.
E A closer look to the statement made in the FIR would
show that in fact according to the informer the accused
had been sitting on the road side from before 6 O'clock
in the morning. Thus, it is difficult to believe the
prosecution story. [Paras 9 and 13] [618-D; 622-B]

F 2.2. The accused were said to have been sitting near
the house of a Member of the Legislative Assembly. There
is no explanation as to why he could not be asked to be
a witness to the search. The time when the information
was received was not mentioned in the General Diary.
G Even the distance of the place where such information
is received from the police station was not noticed. The
names of the persons who refused to be a witness was
not recorded. He accepted that in terms of Cr.P.C., the
same should have been noted but the said provisions
H were not complied with. [Paras 11) [620-C-D]
SARJU.@ RAMU v. STATE OF U.P. 613

2.3. PW-3 informed that appellants had committed an A
·~ • offence punishable u/s. 8/18 of the NDPS Act and they
have been taken in custody before the Fard was read
over to them and signatures and left thumb impression
were obtained. It is accepted that the patrolling duty starts
at 6-8 O' clock in the evening and finishes at 8 O'clock in B
the morning. The village 'BH' was about 5 to 6 furlongs
before place B. According to PW 3, informer had met them
3-4 hours prior to the raid and they were sitting in the jeep
when the intimation was given by the informer. The
}
intimation was said to have been given at 'BH' road but c
they did not go in the search of the accused in the village
wherefor no reason could be assigned. [Para 12) [621-F-
H; 622-A]
2.4. The statement of OW 1-wife of the appellant that
they had been sitting near the gate of the Superintendent D
\. of Police at place 'B' had not been denied or disputed.
The fact that an application as also a telegram had been
sent has not also been denied or disputed. In a case of
this nature, at least, for fair investigation, if not the
prosecution, the Special Judge himself should have E
exercised his jurisdiction u/s. 311 Cr.P.C. He should have
called the Superintendent of Police and recorded his
1
statement; he could have also called for the original
telegram from the Superintendent of Police's office or
even from the Post Office. [Para 13) [622-C-D] F
2.5. Appellant at no point of time was informed that
he had a statutory right of being searched by a Gazetted
Officer. The combined reading of the depositions of the
prosecution witnesses are pointers to the fact that the so-
called consent letters were obtained only after they had G
been arrested. Even in relation to preparation of consent
letters, there is a glaring discrepancy. According to PW
3, it was SHO himself who wrote the said letters but SHO
had different story to tell, namely, that he himself had
suffered an injury on his finger and as such he had asked H
614 SUPREME COURT REPORTS [2009) 12 S.C.R.

A some other person to write the said consent letters. It is
also difficult to believe that SHO leaving the accused in • ~··

the mercy of PW 2 and PW 3, would go back to place 'B'
to obtain letters of approval. The nature of the statements
made by him before the court clearly shows that the
B same was manipulated. Even, SHO had no authority to
make search. Nothing has been brought on record to
show that the provisions of s. 42 of the NDPS Act were
substantially complied with. [Paras 16 and 17) (625-G-H;
626-A-B; 629-G]
c 2.6. The Special Judge let off accused No. 3 under
the Probation of Offenders Act. He referred to s. 33 of the
NDPS Act. He misread the entire provision. There is no
reason as to why such a provision had to be resorted to
in the case of one of the accused only. High Court also
D should have drawn the attention of the trial judge on the
glaring mistake committed by him. [Para 18] (630-0)

Ritesh Chakarvarti vs. State of M.P. (2006) 12 SCC 321;
State of Punjab vs. Baldev Singh (1999) 6 SCC 172; Noor
E Aga v. State of Punjab and Anr. 2008 (9) SCALE 681; Ranu
Premji v. Customs Ner Shillong Unit 2009 (7) SCALE 568;
State of Punjab v. Balbir Singh (1994) 3 SCC 299; Kamai/
Singh v. State of Haryana 2009 (10) SCALE 255; Abdul /

Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC
F 513; Sajan Abraham v. State of Kera/a (2001) 6 SCC 692 -
referred to.

Case Law Reference:
(2006) 12 sec 321 Referred to. Para 14
G (1999) 6 sec 112 Referred to. Para 15
t
2008 (9) SCALE 681 Referred to. Para 15
2009 (7) SCALE 568 Referred to. Para 15

H (1994) 3 sec 299 Referred to. Para 16
SARJU @ RAMU v. STATE OF U.P. 615

..... • 2009 (10) SCALE 255 Referred to . Para 17 A
(2000) 2 sec 513 Referred to. Para 17

(2001) s sec 692 Referred to. Para 17

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal B
No. 1446 of 2009.

From the Judgment & Order dated 30.01.2008 of the High
Court of Judicature at Allahabad at Lucknow in Criminal Appeal
).
No. 491 of 1991.
c
Anup Kumar, Shoeb Alam, Gaurav, Ashok Anand (for Dr.
Kailash Chand) for the Appellants ..

Mohd. Fuzail Kha.n, Anil Kumar Jha for the Respondents.

The Judgment of the. Court was delivered by D
•
S.B. SINHA, J. 1. Leave granted.

2. This appeal by special leave arises out of a judgment
and order dated 30th January 2008 passed by a learned single
E
judge of the High Court of Judicature at Allahabad, Lucknow
Bench, Lucknow in Criminal Appeal No. 491 of 1991 whereby
and whereunder the judgment of conviction and sentence dated
::-
4th September 1991 passed by the V Additional Sessions
Judge, Barabanki in Sessions Trial Nos. 393 of 1989 and 395
of 1989 convicting the appellant for commission of an offence F
punishable under Section 8/21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, "NDPS Act") and
sentencing him to undergo 10 years' rigorous imprisonment as
also the fine of Rs.1 lakh, and in default, to undergo one year's
rigorous imprisonment, was affirmed. G
-I
3. Shrikant Mishra was the Station House Officer (SHO)
of Safdarganj Police Station situate in the district of Barabanki.
He and other members of the police party were on a patrolling
duty. They came out of the Police Station in the night of 5th H
616 SUPREME COURT REPORTS [2009] 12 S.C.R.

A January 1989 with Constable No.56 Ram Shankar Srivastava ;
"'
(P.W.3) and Constable No.277 -Vidya Prasad Pandey. They
reached near a village commonly known as "Baghaura" in the
official jeep No. UHG 4682, which was driven by one Satyadev
Ojha.
B
4. An informer allegedly reported to the appellants as also
one Shobhalal of village Baghaura and Ramdutt @ Dutta of
village Bariarpur illegally selling morphine in packets to the
truck drivers and the people of the area. According to the said
informer, they were said to have been sitting on the road side
c near the rnill of one Vishwanath Kashyap from 6 O'clock in the
morning. Appellant along with said Shobhalal and Ramdutt were
said to have been identified by the said police party to be
sitting on the road side at about 6.15 a.m. They became a bit
perplexed and frightened after seeing the police party. "Being
D assured", Shrikant Mishra, Officer-in-charge, went to Barabanki
to obtain authority letter for the purpose of carrying out search
and seizure. He instructed the other constables to keep an eye
on them. He upon obtaining the authority letter allegedly came
back from Barabanki after some time. He requested some
E passer-by to become witness to the seizure. They allegedly
refused.

5. Letters of consent were prepared in the names of -
•'

accused to the effect that they were ready and willing to be
F searched by the Officer-in-Charge in stead and place of a
Gazetted Officer. Persons of all the accused were searched.
From the right pocket of the sweater of the appellant 40 packets
of morphine and from his left pocket about 70 grams of
morphine wrapped in a paper were found. From the person of
G Shobhalal about 82 grams of morphine was found; whereas
from the person of Ram Dutt about 53 grams of morphine was 'r

recovered.

6. Appellant, however, has a different story to tell.
According to him, the SHO as also the constables had an evil
H eye on the appellant's wife. They came to his house at about
SARJU @ RAMU v. STATE OF U.P. [S.B. SINHA, J.] 617

=- 1 9.00 p.m. in the night of 5/6.1.1989 while his wife was serving A
the food to the children. He was not well. When the door of his
house was knocked by a constable, his wife who examined
herself as D.W .1 came out of the house and saw the Constable
and the SHO. The constable was used to be called by local
people as "Lala". They enquired about him. When D.W. 1 B
wanted to call him, the said constable said that there was no
work with him but it was with her. He thereafter told the SHO
that this was the same woman who goes to Chakki for grinding.
., On hearing that, she started going back to her house. The said
constable advanced towards her. She shouted loudly. On her c
shouting, Sohan Lal and the appellant came. D.W. 1 was
slapped by the said constable 2-3 times and thereafter the

- appellant was arrested. D.W.1 along with Sohan Lal and her
brother-in-law went to Barabanki to the house of the
Superintendent of Police by truck. The Superintendent of Police
D
t
was described as 'Captain Sahib". They could not meet him
'
at that time and on being informed that he had been sleeping
and the Superintendent of Police would meet them only by 7.30
in the morning. They kept sitting in front of the gate; they met
the Superintendent of Police at about 8-9 O'clock in the
morning. An application was given to him. Admittedly, a
E
telegram was also sent.

· 7. The learned trial judge, relying on or on the basis of the
~·
evidence of Shrikant Mishra, SHO (P.W.1) &nd Rama Shankar
Srivastava (P.W.3) recorded a judgment of conviction. In regard F
to the sentence imposed to the accused, it was ordered:

"Accused Sarju @ Ramu and Ramdutt @ Dutta under
Section 8/21 of the N.D.P.S. Act, thus 10 years (10)
rigorous punishment to each and Rs.1,00,000/-,
.... G
Rs.1,00,000/- (Rupees One One Lac only) each is
imposed fine. On non-payment of fine punishment of
additional imprisonment shall have to be undergone.

By giving benefit of Section 33 N.D.P.S. Act to accused
Shobha Lal of Prohibition (sic Probation) of Offenders Act H
618 SUPREME COURT REPORTS [2009] 12 S.C.R.

A of bond of good conduct of 2 years and 2 bails of
Rs.10,000/-, Rs.10,000/-(Rupees Ten Ten Thousand only)
and on filing the sureties of the same amount may be
released, subject to the condition that he may give written
undertaking to this effect that during this period he shall not
B do any act against law and shall remain of good conduct
during this period and shall maintain peace. Whenever he
summoned by the Court he by being present shall received
the punishment, which the Court may give him."
f
8. The High Court by reason of the impugned judgment
C has affirmed the said judgment while rejecting the appeals
preferred by the appellant.

9. The prosecution case is shrouded in mystery. Although -
in the First Information Report ('FIR'), it was stated that
D information was received from the informer, but the P.W. 1 in
his deposition before the learned trial judge stated:

"10. From the police station had gone in the night for the
gasht. At what time went, this I can intimate by looking to
E the Roznamcha. Informer had met on the road. At what time
he met, do not remember. That place also do not
remember as to where he met. But had met on the
Lucknow, Faizabad Marg. At the time had reached at
Baghora Chhaki, that time do not remember. But it was
F
recorded in the Fard. That Fard was prepared by me. Was ·-
written on my directions. The Fard which I have got written
from Constable Vidhya Prasad Pandey by speaking, in the
finger of my hand was injured. That is why I had not written
it.. ....

G 11. Faizabad Barabanki Road is sufficiently operation
road. Every time people keep on coming going. Kharkhara,
truck, buses, and jeeps keep on coming going. We people
had gone in uniform. After the meeting with the Informer
the witnesses were not searched because after looking to
H the situation, would have looked for the witnesses when we
SARJU @ RAMU v. STATE OF U.P. [S.B. SINHA, J] 619

__,,, people reached at the chhaki, then accused Ramu was A
<I
standing in front of Chhaki. I recognized him before hand.
I had no specific acquaintance with him but these people
usually used to keep sitting at the chhaki of Vishwanath,
· that is why I knew. Those days were sitting on the chhaki
of Vishwanath. I knew and recognized him. I do not B
remember at this time as to who else used to sit at a
distance of 5 - 7 steps from Ramu had stopped the jeep.
·By looking to us the accused went towards the chaki,
) . cannot intimate this that he went running. The constable by
getting down stopped him. The constable said stop, then
he stopped. Behind the chhaki, leaving to fields there is
c
village. In front of the chhaki is road and field. In the field

- crop was sown. After the stopping by the constable_ I
. immediately reached. Whatever the informer had intimated
me, in connection with that, enquiry from the accused then
he said that this matter is correct that I have Morphine. D
'>
~
·· Direction was given to the employees that keep on
-or watching them, I am going to get the authority letter. For
going to Barabanki and coming back, it took me how much
time I do not remember. As to at what time I reached on
the spot by getting the authority letter. When I reached back .E
at the place of the incident, then mob had not assembled
there. What is important to write in the recovery Fard; I
know. Stopping of jeep, going towards the chhaki of the
accused, mention of stopping the accused by the constable
is not in. the Fard, because it was not necessary to write F
this. Whatever was considered necessary that was
recorded. 2 - 4 people came on the spot, I asked them to
witness, but they did not get prepared. I do not remember
now as to which which constable were there along with. In
those days at my police station Ram Shankar Srivastava G
was posted at the police station who was also with me at
the time of the incident. His appointment was also in that
very Halka. I do not know that the wife of accused Ram on
date 5.1.89 night gave one application before Captain
Sahib that to her husband, Daroga and contable Ram H
620 SUPREME COURT REPORTS [2009] 12 S.C.R.

A Shankar by catching have taken him away. On the same
night took him away in the night by catching. I do not know "' "'=

that in this context his wife has sent telegram to Captain
Sahib and the Home Secretary also."

10. The learned Trial Judge accepted that an application
B and telegram were brought to his notice but he had not carried
any investigation in relation thereto.

11. Vishwanath Kashyap near whose house the accused
were said to have been sitting was a Member of the Legislative
c Assembly. Why he could not be asked to be a witness to the
search has not been explained. The time when the information
was received was not mentioned in the General Diary. Even
the distance of the place where such information is received
from the police station was not noticed. The names of the
D persons who refused to be a witness had not been recorded,
-
He accepted that in terms of the Code of Criminal Procedure,
the same should have been noted but the said provisions have
not been complied with. Shrikant Mishra did not state that the
accused persons were informed about their right to be
searched by a Gazetted Officer and/or that the purported
E
consent letters marked as Exhibits A-3, A-4 and A-5 were not
written by him.
12. P.W. 3 - Ram Shanker Srivastava, in his evidence,
however, stated:
-
F
"1. On date 6.1.89, I was posted in Police Station
Safdarjung as Constable. On that day, I along with the
Head Daroga Shri Kant Mishra by jeep were going on
road holder duty. Vidhya Prasad Pandey Constable and
...
G Driver Satyadev had come. When we people at Ferozabad
Barabanki road, then the Informer of Darogaji met. He
talked to Daroga Ji. Then Daroga Ji by taking we people
reached at the Chakki of Vishwanath Neta in village
Baghora. At that time it was the time of 6.15 O' clock in
the morning. At the chakki, Ramu @ Sarju, Shobha Lal
H
SARJU @ RAMU v. STATE OF U.P. [S.B. SINHA, J.] 621

~
• and Dutta @ Ramdutt were sitting. By looking to we people, A
got perplexed. We people got assured that they have some
illegal material, as was intimated by the Informer. Daroga
Ji said that you people stop, I am going to Barabanki to
obtain the authority letter and he went away by jeep to
obtain the authority letter. Constable Vidhya Pras~d kept B
stopped those people. Daroga ji came back at 8.1 O
O'clock of the day. Then Daroga ji asked the mob
assembled there to give evidence. Then those people
) denied to give evidence due to fear of Vishwanath Neta.
c
Then Daroga ji enquired about their names and
addresses and said that you will give the search to me, or
to Gazetted Officer or the Magistrate. Then he said we shall
• give the search to you. In this connection Daroga ji
prepared 3 separate separate consent Fards. It was read
over and by hearing it we people consented. The accused D

- • also had put their signatures and Tl. The witnesses were
shown. Ex. 3 and 5, by looking and reading to which, the
witness is said that these are the same Fards which were
prepared by Daroga ji at the site and on this are my
signatures." E

He furthermore informed that they have committed an
" offence punishable under Section 8/18 of the NDPS Act and
they have been taken in custody before the Fard was read over
to them and signatures and left thumb impression were F
obtained.

It is accepted that the patrolling duty starts at 6 - 8 O' clock
in the evening and finishes at 8 O'clock in the morning. The
Baghaura village was about 5 to 6 furlongs before Barabanki.
,. According to P.W.3, the informer had met them 3 - 4 hours G
prior to the raid. According to P.W. 3, they were sitting in the
jeep when the intimation was given by the informer. The
intimation was said to have been given at the Baghaura road
but they did not go in the search of the accused in the village
H
622 SUPREME COURT REPORTS [2009) 12 S.C.R.

A wherefor no reason could be assigned.

13. The FIR disclosed that the information was given at
..
-
about 6 O' clock in the morning and the raid was conducted at
about 6.15 a.m. A closer look to the statement made in the FIR
would show that in fact according to the informer the accused
8
had been sitting on the road side from before 6 O'clock in the
morning. It is, therefore, difficult to believe the prosecution story.

The statement of D.W.1- Smt. Kusum Devi, wife of the
appellant that they had been sitting near the gate of the
c Superintendent of Police at Barabanki had not been denied or
disputed. The fact that an application as also a telegram had
been sent has not also been denied or disputed. In a case of
this nature, at least, for fair investigation, if not the prosecution, "
the learned Special Judge himself should have exercised his
D jurisdiction under Section 311 of the Code of Criminal
Procedure. He should have called the Superintendent of Police
and recorded his statement; he could have also called for the .....
original telegram from the Superintendent of Police's office or
even from the Post Office.
E
14. In a case under the NDPS Act, particularly where such
serious allegations are made against the police officials,
recovery of contraband in presence of the independent witness
assumes significance. [See Ritesh Chakarvarti vs. State of
M.P. (2006) 12 sec 3211
F
15. It is now also well settled that the provisions of the
NDPS Act being harsh in nature, the procedural safeguards
contained therein must scrupulously be complied therewith.

G It was so held by a Constitution Bench of this Court in
State of Punjab vs. Baldev Singh [1999) 6 SCC 172)] in the
following terms:
"57. On the basis of the reasoning and discussion above,
the following conclusions arise:
H
SARJU @ RAMU v. STATE OF U.P. [S.B. SINHA, J.] 623

(1) That when an empowered officer or a duly A
~

" authorized 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, B
such information may not necessarily be in writing.

(2) That failure to inform the person concerned about
the existence of his right to be searched before a gazetted
/
t officer or a Magistrate would cause prejudice to an
accused.
c
(3) That a search made by an empowered officer,
on prior information, without informing the person of his
. right that if he so requires, he shall be taken before a
gazetted officer or a Magistrate for search and in case he D
.._ .. so opts, failure to conduct his search before a gazetted

- officer or a Magistrate, may not vitiate the trial but would
render the recovery of the illicit article suspect and vitiate
the conviction and sentence of an accused, where the
conviction has been recorded only on the basis of the E
possession of the illicit article, recovered from his person,
during a search conducted in violation. of the provisions of .

.. . Section 50 of the Act.

(4) That there is indeed need to protect society from
~,

criminals. The societal intent in safety will suffer if persons F
who commit crimes are let off because the evidence
against them is to be treated as if it does not exist. The
,.. answer, therefore, is that the investigating agency must
follow the procedure as envisaged by the statu,te
scrupulously and the failure to do so must be viewed by G
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 H
624 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 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
B compromising the administration of justice. That cannot be
permitted. An accused is entitled to a fair trial. A conviction
resulting from an unfair trial is contrary to our concept of
justice. The use of evidence collected in breach of the

c
safeguards provided by Section 50 at the trial, would
render the trial unfair. •
(5) That whether or not the safeguards provided in
Section 50 have been duly observed would have to be
determined by the court on the basis of the evidence led •
at the trial. Finding on that issue, one way or the other,
D would be relevant for recording an order of conviction or
-
acquittal. Without giving an opportunity to the prosecution
to establish, at the trial, that the provisions of Section 50
and, particularly, the safeguards provided therein were duly
complied with, it would not be permissible to cut short a
-
~

E criminal trial.

-
(6) That in the context in which the protection has
been incorporated in Section 50 for the benefit of the
person intended to be searched, we do not express any
F 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.
G
(7) That an illicit article seized from the person of an
accused during search conducted in violation of the
safeguards provided in Section 50 of the Act cannot be
used as evidence of proof of unlawful possession of the
H contraband on the accused though any other material
SARJU @ RAMU v. STATE OF U.P. [S.B. SINHA, J.] 625

... • recovered d,uring that search may be relied upon by the
prosecution, .in other proceedings, against an accused,
A

notwithstanding the recovery of that material during an
illegal search.

(8) A presumption under Section 54 of the Act can
B
only be raised after the prosecution has established that
the accused was found to be in possession of the
contraband in a search conducted in accordance with the

. mandate of Section 50. An illegal search cannot entitle the
prosecution to raise a presumption under Section 54 of
the Act." c
{See also Noor Aga v. State of Punjab & Anr. [2008 (9)
SCALE 681] and Ranu Premji v. Customs Ner Shillong Unit
[2009 (7) SCALE 568]}
D
In Ba/dev Singh (supra), this Court noticed Miranda v.
Arizona [384 US 436] in the following terms:

"30. In D.K. Basu case the Court also noticed the response
of the Supreme Court of the United States of America to
such an argument in Miranda v. Arizona wherein that E
Court had said: (SCC pp. 434-35, para 33)

• _. "The Latin maxim salus populi suprema lex (the
· safety of the people is the supreme law) and salus
republicae suprema lex (safety of the State is the F
supreme law) coexist and are not only important
and relevant but lie at the heart of the doctrine that
the welfare of an individual must yield to that of the
community. The action of the State, however, must
be 'right, just and fair'."" G
16. Appellant at no point of time was informed that he had
a statutory right of being searched by a Gazetted Officer. The
combined reading of the depositions of the prosecution
witnesses are pointers to the fact that the so-called consent
letters were obtained only after they had been arrested. Even H
626 SUPREME COURT REPORTS [2009] 12 S.C.R.

• ...
A in relation to preparation of consent letters, there is a glaring
discrepancy. According to P.W. 3, it was SHO himself who
wrote the said letters but Shrikant Mis.hra has different story to
tell, namely, that he himself had suffered an injury on his finger
and as such he had asked some other person to write the said
B consent letters. It is also difficult to believe that Mishra, leaving
the accused in the mercy of P.W. 2 and P.W.3, would go back
to Barabanki to obtain letters of approval. The nature of the
statements made by him before the court clearly shows that the

c
same was manipulated.

We must place on record that- in State of Punjab v. Balbir
.
Singh [(1994) 3 SCC 299], this Court observed as under:

"10. It is thus clear that by a combined reading of Sections
41, 42, 43 and 51 of the NDPS Act and Section 4 CrPC
D regarding arrest and search under Sections 41, 42 and 43,
the provisions of CrPC namely Sections 100 and 165
would be applicable to such arrest and search.
Consequently the principles laid down by various courts as
discussed above regarding the irregularities and illegalities
E in respect of arrest and search would equally be applicable
to the arrest and search under the NDPS Act also
depending upon the facts and circumstances of each case.

11. But there are certain other embargoes envisaged •
under Sections 41 and 42 of the NDPS Act. Only a
F Magistrate so empowered under Section 41 can issue a
warrant for arrest and search where he has reason to
believe that an offence under Chapter IV has been
committed so on and so forth as mentioned therein. Under
sub-section (2) only a Gazetted Officer or other officers
G mentioned and empowered therein can give an
authorization to a subordinate to arrest and search if such t
officer has reason to believe about the commission of an
offence and after reducing the information, if any, into
writing. Under Section 4? only officers mentioned therein
H and so empowered can make the arrest or search as
SARJU @ RAMU v. STATE OF U.P. [S.B. SINHA, J.] 627

provided if they have reason to believe from personal A
~

• knowledge or information. In both these provisions there
are two important requirements. One is that the Magistrate
or the officers mentioned therein firstly be empowered and
they must have reason to believe that an offence under
Chapter IV has been committed or that such arrest or B
search was necessary for other purposes mentioned in the
provision. So far as the first requirement is concerned, it
can be seen that the Legislature intended that only certain
Magistrates and certain officers of higher rank and
.;
> empowered can act to effect the arrest or search. This is c
a safeguard provided having regard to the deterrent
sentences contemplated and with a view that innocent
persons are not harassed. Therefore if an arrest or search
contemplated under these provisions of NDPS Act has to
be carried out, the same can be done only by competent
D
and empowered Magistrates or officers mentioned
) thereunder.
~
12. Nand Lal v. State of Rajasthan is a case where a
police head constable and a station house officer were not
empowered to carry out investigation and it was contended E
that the whole investigation was illegal and consequently
the trial was vitiated. The Rajasthan High Court held that

- -i
for launching the prosecution or for initiating the
proceedings under the· Act, the authority doing so must
have a clear and unambiguous power. In Bhajan Singh v. F
State of Haryana .it was observed that only officers
empowered under the Act can take steps regarding entry,
search, seizure and arrest and that the relevant provisions
of the Act are mandatory. In Umrao v. State of Rajasthan
it was held that the search
I
made by a police constable G
without jurisdiction and investigation made by an officer not
empowered, vitiate the trial. In Shanti Lal v. State of
Rajasthan it was similarly held that search and arrest
made by SHO who was not authorised under the Act, were
illegal." H
628 SUPREME COURT REPORTS [2009) 12 S.C.R.

A 17. We must, however, notice that recently a Constitution
Bench of this Court in Kamai/ Singh v. State of Haryana [2009
(10) SCALE 255) in view of difference of opinion in Abdul
• ~

Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC
513) opining that compliance of Section 42 of NDPS Act is
8 mandatory in nature and in Sajan Abraham v. State of Kera/a
[(2001) 6 sec 692) holding the said principle to be directory,
opined as under:

"(a) The officer on receiving the information (of the
nature referred to in Sub-section (1) of section 42) ~ ...
c from any person had to record it in writing in the
concerned Register and forthwith send a copy to
his immediate official superior, before proceeding
to take action in terms of clauses (a) to (d) of
section 42(1).
D
(b) But if the information was received when the officer
was not in the police station, but while he was on ~

the move either on patrol duty or otherwise, either
by mobile phone, or other means, and the
E information calls for immediate action and any
delay would have resulted in the goods or evidence
being removed or destroyed, it would not be
feasible or practical to take down in writing the ~

information given to him, in such a situation, he
F could take action as per clauses (a) to (d) of section
42(1) and thereafter, as soon as it is practical,
record the information in writing and forthwith inform
the same to the official superior .

(c) In other words, the compliance with the
G requirements of Sections 42 (1) and 42(2) in
regard to writing down the information received and
sending a copy thereof to the superior officer,
should normally precede the entry, search and
seizure by the officer. But in special circumstances
H involving emergent situations, the recording of the
SARJU @ RAMU v. STATE OF U.P. [S.B. SINHA, J.] 629

-::" information in writing and sending a copy thereof A
to the official superior may get postponed by a
reasonable peri~d, that is after the search, entry and
seizure. The question is one of urgency and
expediency.
B
(d) While total non-compliance of requirements of sub-
sections (1) and (2) of section 42 is impermissible,
delayed compliance with satisfactory explanation
) about the delay will be acceptable compliance of
section 42. To illustrate, if any delay may result in
the accused escaping or the goods or evidence
c
being destroyed or removed, not recording in
writing the information received, before initiating
action, or non-sending a copy of such information
to the official superior forthwith, may not be treated
as violation of section 42. But if the information was D
'r received when the police officer was in the police
station with sufficient time to take action, and if the
police officer fails to record in writing the information
received, or fails to send a copy thereof, to the
official superior, then it will be a suspicious E
circumstance being a clear violation of section 42
of the Act. Similarly, where the police officer does
~
not record the information at all, and does not inform
the_ official superior at all, then also it will be a clear
violation of section 42 of the Act. Whether there is F
adequate or substantial compliance with section 42
or not is a question of fact to be decided in each
case. The above position got strengthened with the
amendment to section 42 by Act 9 of 2001."
G
1 Even, admittedly, Shrikant Mishra had no authority to make
search. Nothing has been brought on record to show that the
provisions of Section 42 of the NDPS Act were substantially
complied with.

18. Before parting, however, we may notice a disturbing H
630 SUPREME COURT REPORTS [2009] 12 S.C.R.

A fact. The learned Special Judge has let off accused No.3
Shobha Lal under the Probation of Offenders Act. He referred
to Section 33 of the NDPS Act.
·,
Section 33 of the NDPS Act reads as under:
B "33. Application of section 360 of the Code of Criminal
Procedure, 1973 and of the Probation of Offenders Act,
1958.- Nothing contained in section 360 of the Code of
Criminal Procedure, 1973 (2 of 1974) or in the Probation
of Offenders Act, 1958 (20 of 1958) shall apply to a
c person convicted of an offence under this Act unless such
person is under eighteen years of age or that the offence
for which such person is convicted is punishable under
Section 26 or Section 27."

0 He, therefore, misread the entire provision. We do not see
any reason as to why such a provision had to be resorted to in
the case of one of the accused only. The High Court, in our
opinion, also should have drawn the attention of the learned trial
judge on the glaring mistake committed by him.

E 19. For the reasons aforementioned, the impugned
judgment cannot be sustained. It is set aside accordingly. The
appeal is allowed. The appellant is in custody. He is directed
to be set at liberty forthwith unless wanted in any other case.

F N.J. Appeal allowed.