Holding

The Court held that the prosecution had duly complied with Sections 42, 50 and 57 of the NDPS Act, that no specific form is required for Section 50 intimation, and therefore the convictions stand and the acquittals are affirmed.

Summary

The appellants, Smt. Krishna Kanwar and co‑accused, were seized with heroin after a police interception and were convicted under Sections 8 and 21 of the NDPS Act. They challenged the conviction on the ground that the prosecution had breached procedural requirements of Sections 42, 50 and 57 of the NDPS Act, alleging lack of independent witnesses, improper forwarding of information to superiors, and non‑compliance with the right‑to‑be‑searched safeguards. The Supreme Court examined whether the information under Section 42(2) was duly communicated, whether the intimation required by Section 50 needed a specific form, and whether the custody of seized samples complied with Section 57. Relying on precedent, the Court held that no specific form is prescribed for Section 50 intimation, that the prosecution had complied with the statutory requirements, and that the seized heroin was lawfully obtained. Consequently, the convictions of Krishna Kanwar were upheld and the acquittals of Mangi Lal and Nathu Singh were affirmed. Both appeals were dismissed.

Issues considered

Whether the prosecution complied with Section 42(2) of the NDPS Act by forwarding the information to the immediate superior officer.
Whether the requirements of Section 50 of the NDPS Act regarding intimation of the accused's right to be searched before a gazetted officer or magistrate were satisfied.
Whether there was any violation of Section 57 of the NDPS Act concerning the safe custody of seized samples.
Whether the conviction based solely on possession of heroin is sustainable in view of alleged procedural lapses.
Whether the acquittal of Mangi Lal and Nathu Singh should be set aside due to alleged non‑compliance with Sections 42 and 50 in the searches of their premises.

Legislation cited

Indian Evidence Act, 1872s. 27
Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 42(2), s. 50, s. 57, s. 8

Subjects

NDPS ActSection 42Section 50Section 57search and seizureprocedural safeguardsdrug possessionconvictionacquittalevidence

Judgment

I'

SMT. KRISHNA KANWAR@ THAKURAEEN A
V.

STATE OF RAJASTHAN

JANUARY 27, 2004

[DORAISWAMY RAJU AND ARIJIT PASA YAT, JJ.] B

Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 8, 21,
42(2) & 50-Accused found in possession of heroin during search-Trial
Court and High Court convicted the accused-Compliance by the prosecution C
of Sections 42(2), 50 and 57 of the Act-Held, there is no specific form
prescribed or intended for conveying the information required to be given
under Section 50 of the Act-On facts and evidence, there is no violation of
any of the sections under the Act-Thus accused rightly convicted and
sentenced.
D
Appellants-accused were found in possession of heroin during search
by the Police on interception of their vehicle. They disclosed that they
purchased heroin from accused M and N and earned money by selling
them. This led to the arrest of accused M and N by the police. The
prosecution framed charges against all the accused including the
appellants. The trial court found the appellants guilty of offences E
punishable under sections 8 and 21 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 and sentenced them to undergo rigorous
imprisonment for 14 years and to pay a fine of Rs. 2 lakhs with default
stipulation. Accused M and N were acquitted. The appellants preferred
appeals before High Court. The State also filed an appeal before High F
Court challenging the acquittal of accused M and N by the trial court.
The High Court dismissed the appeals of the appellants and the State.
Hence, the appeals by the appellants and the .State. During the pendency
of the appeals before this Court, one of the appellants died and hence the
appeal against him abated.
G
The appellant-accused contended that the prosecution has violated
the procedures envisaged under sections 42, 50 and 57 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 since it did not tender any
evidence of any independent witness; that the independent witnesses, who

I IOI H
1102 SUPREME COURT REPORTS [2004) I S.C.R.

A were examined, did not support the prosecution version on the ground that
they had put the signatures on blank papers; that ther,t! are certain
suspicious circumstances which corrode the prosecution version about safe
dispatch of the alleged samples collected; that since accused Mand N have
been acquitted, the source of procurement as allegedly done by the
B appellants has not been established; and that the heroin recovered from
the appellant was a fairly small quantity for which the sentence and fine
are extremely high.

The respondent-State contended that three highly placed officials
were involved in the process of search and seizure and that there is no
C reason for the appellant to falsely implicate her; that there was
communication to the higher authorities and hence no violation of Section
42 of the Act as alleged by the appellants; that the requirements of Section
50 of the Act were complied with by intimating the appellants of her option
and choice about the existence of her right of being searched by the police
officer or by a gazetted officer and that on exercise of the option by the
D appellant, there is no violation as alleged by the appellant; that the forensic
laboratory report clearly indicates that the samples were sealed and the
seals and tags were intact and on analysis the contents was found to be
heroin.

Dismissing the appeals, the Court
E
HELD: I.I. It is seen that Exb. P-32 contains the secret information
that was received by PW-16. Constable PW-9 had categorically stated that
he had taken the intimation to the S.P. and the Addi. S.P. The envelope
was handed over to the S.P. The Addi. S.P. has been examined as PW-14
and presence of S.P. has been deposed by the witnesses. This clearly goes
F
to show that there was receipt of information dispatched by Dy. S.P. PW-
16. That being so, merely because particulars of the dispatch number were
not stated that would not corrode credibility of the evidence of the
witnesses examined to establish that the information was conveyed to the
higher officials. [1108-B, C, DJ
G
1.2. The Trial Court and the High Court, after analysing the
evidence, have come to hold that there was compliance of section 42(2) of
the Narcotic Drugs and Psychotropic Substances Act, 1985 in the sense
that requisite documents were sent to the superior officer. Though the
appellant tried to submit that there was no definite evidenc:e about sending
H copies of the requisite documents to the superior officers, yet in view of
1'

KRISHNA KANWAR@THAKURAEEN r. STATE OF RAJASTHAN 1103

the analysis of evidence done by the trial Court arid also by the High Court, A
with which no infirmity of any kind could be substantiated effectively, this
Court finds no substance in the plea that there was violation of Section
42(2) of the Act. 11111-B, C, D]

State of Punjab v. Balbir Singh, 11994] 3 SCC 299 and State of Punjab,
v. Baldev Singh, 119991 6 sec 172, referred to. B
2. The language of section 50 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 is implicitly clear that the search has to be in relation
to a person as contrasted to search of premises, vehicles or articles. There
is no specific form prescribed or intended for conveying the information C
required to be given under Section 50 of the Act. What is necessary is that
the accused (suspect) should be made aware of the existence of his right
to be searched in the presence of one of the officers named in the Section
itself. Since no specific mode or manner is prescribed or intended, the
Court has to see the substance and not the form of intimation. Whether
the requirements of Section 50 have been met is a question which is to be D
decided on the facts of each case and there cannot be any sweeping
generalization and/or strait-jacket formula. Section 50 of the Act does not
involve any self-incrimination. It is only a procedure required to protect
the rights of an accused (suspect) being made aware of the existence of
his right to be searched if so required by him before any of the specified
officers. The object seems to be to ensure that at a later stage the accused E
(suspect) does not take a plea that the articles were planted on him or that
those were not recovered from him. To put it differently, fair play and
transparency in the process of search has been given the primacy. Section
50 of the Act in reality provides for additional safeguards which are not
specifically provided by the statute. The~ stress is on the adoption of a F
reasonable, fair and just procedure. No specific words are necessary to
be used to convey existence of the right.
11112-A, B, 1113-G, H; 1114-A, B, C; 1115-CI

State of Punjab v. Baldev Singh, 119991 6 SCC 172; Kalema Tumba v.
State of Maharashtra and Anr., JT (1999) 8 SC 293; Gurbax Singh v. State G
of !-latyana, [2001 J 3 SCC 28; Raghbir Singh v. State of /-laryana, [ 1996] 2
SCC 201; Prabha Shankar Dubey v. State of Madhya Pradesh, (2003) AIR
SCW 6592 and Madan Lal and Anr. v. State of /-limahal Pradesh, 12003] 6
sec 382, referred to.
3. The quantity recovered by no stretch of imagination is small. H
I I04 SUPREME COURT REPORTS [2004] I S.C.R.

A Further, nothing could be shown as to how there was violation of Section
57 of the Act. The safe custody of seized articles and samples has been
established by cogent evidence. Forensic Laboratory report shows that the
samples were received in sealed conditions with seals and tags intact. That
being so, there is no infraction as alleged. When the factual position is
B tested on the legal principles indicated above, the inevitable conclusion is
that the prosecution has established its case beyond a shadow of doubt
and the conviction and sentence imposed are well merited. [1115-E, Ff

4. With regard to cross-appeal filed by the State questioning acquittal
of accused M and N, it is seen that the Trial Court and the High Court
C found lack of material to connect them with the crime. The Trial Court
categ.orically observed that the requirements of Section 42(1) and 42(2)
of the Act were not com plied with. The houses of these accused were
straightaway searched. Even there was no compliance with the
requirements of Sections 50 of the Act though there was personal search
involved. The so-called disclosure is allegedly made by the appellants-
D accused. The Courts below have found evidence to be inadequate. In view
of the infirmities noticed by the Trial Court and the High Court, they were
justified in directing acquittal of accused M and N. (1115-G, H; ll 16-A, B[

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
53 of 2003.
E
From the Judgment and Order dated 25.2.2002 of the Rajasthan High
Court in S.B. Crl. A. No. 476 of 1999.
WITH
Crl.A.No. 52 of 2003.
F
Rana Ranjit Singh for the Appellant in Crl.A.No. 53/2003.

Manish Singhvi for Ashok K. Mahajan for State of Rajasthan.

Mrs. K. Sarada Devi for the Respondents in Cr!. A.No. 52/7.003.
G
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Originally three appeals were filed against the
common judgment of the Rajasthan High Court, Jodhpur, whereby three
appeals were disposed of. During the pendency of Criminal Appeal no. 51/
H 2003, the appellant Shamshuddin died and by order dated 20.1.2004 the
KRISHNA KANWAR@THAKURAEEN v. STATE OF RAIASTHAN [ARl.nT PASAYAT, J.l l J05

appeal has been dismissed having abated. The consideration, therefore, is A
restricted to other two appeals i.e. Criminal Appeal nos. 52/2003 and 53/
2003.

Of the two appeals one has been filed by convict-accused Smt. Krishna
Kanwar i.e. Crl. Appeal No.53 of 2003 and the other appeal has been filed
by the State of Rajasthan (Crl. Appeal No. 52 of 2003) questioning the B
acquittal of accused Mangi Lal and Nathu Singh, as directed by the Trial
Court and upheld by the High Court. Initially, seven persons were treated to
be accused persons. Four of them, namely, Shamshuddin, Smt. Krishan
Kanwar, Mangi Lal and Nathu Singh were tried by District and Sessions
Judge, Pratapgarh, who found accused Shamshuddin and Smt. Krishna Kanwar C
guilty of offences punishable under Sections 8 and 21 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (in short 'the Act') and sentenced
each to undergo rigorous imprisonment for 14 years and to pay a fine of Rs.2
lakh with default stipulation. Nathu Singh and Mangi Lal (A-6 and A-7)
respectively, were acquitted.
D
Prosecution case as unfolded during trial is as follows:

Prassan Kumar Khamesara (PW-16), Dy. S.P. Chhoti Sadri received
information at about 8.30 p.m. on 5.7.1994 to the effect that on 6.7.I994
between 5.00 a.m. to 9.00 a.m., one Shamshuddin S/o Shakoor Khan, resident
of Dharakhedi, shall be coming on a Rajdoot motorcycle, from Chittorgarh E
side and will be proceeding towards Udaipur, alongwith contraband heroin.

The above information was not only recorded but also forwarded to
S.P., Chittorgarh and Addi. S.P., Pratapgarh through Indermal (PW-9). Upon
above information, Shiv Prasad (PW-I4), Addi. S.P., Pratapgarh alongwith
lady constable Smt. Vimla Chaudhary (PW-5) and other members of staff F
reached Police Station, Chhoti Sadri on 6.7.I994 in the morning at about
4.00 a.m. Rajeev Daso!, S.P. Chittorgarh reached at Ghomana Choraya in the
morning of6.7.I994, where Datar Singh SHO (PW-I I) alortgwith other staff
of his Police Station were present. After discussing the matter with S.P. and
Addi. S.P., Dy. S.P. Prassan Kumar Khamesara (PW-I6) staged a nakabandi G
at Ghomana Choraya, in which Yudhishtar Singh (PW-8) and Wardichand
(PW-I3), independent attesting witnesses were also associated.

At about half past six in the morning, one motorcycle came from
Pratapgarh side, which was apprehended by the police party. The person who
was driving the motorcycle, disclosed his name as Shamshuddin and pillon H
1106 SUPREME COURT REPORTS [2004) I S.C.R.

A rider disclosed her name to be 'Smt. Krishna Kanwar. Both the persons were
apprised of the secret information that they were carrying contraband heroin
and, therefore, their search is to be conduced and, if they desire, same can
be undertaken in the presence of a Magistrate or a Gazetted Officer. Written
notices (Exb.P-9 and P-10 respectively) were given to them whereupon both
B of them wanted to be searched by Dy. S.P. Prassan Kumar Khamesara (PW-
16) himself.

Thereafter their personal search was conducted in the presence of not
only police personnel but also in the presence of attesting witnesses Yudhisthar
(PW-8) and Wardichand (PW-13). A plastic bag was found tied on the stomach
C and waist of Shamshuddin in which 2 Kgs. heroin was kept. Similarly, from
the personal search of Smt. Krishna Kanwar, 600 gms. heroin wa!; recovered.
They were not having any license to carry the above contraband; therefore,
same was seized and two samples of 30 gms. from each lot were drawn and
sealed separately. The remaining mal-mudda was also sealed separately.
Seizure memo, (Exb.P-3) was prepared simultaneously, on which thumb
D impression of not only both the accused persons but signatures & thumb
impression of both the attesting witnesses and police party were taken, and
seal impression was placed on the memo. The sealed articles were deposited
in Malkhana.

Upon interrogation, Shamshuddin gave a disclosure statement (Exb.P-
E 33) and regarding Rs.33,000 which he earned by selling heroin and other
household articles purchased from such earning. Thereafter, Shamshuddin
took the police party to his house in village Batalganj (U.P.) and in the
presence of Kanhaiya Lal and Magni Ram, attesting witnesses, Rs.33,000, an
FDR of Rs.20,000 dated 30th May, 1994 issued by SBBJ Branch, Chetak
F Circle, Udaipur were recovered. Other household articles and jewellery were
also recovered vide Exb.P-5.

Shamshuddin also disclosed that the contraband heroin so seized from
both the accused was purchased from Mangi Lal and Nathu. Singh. This led
to arrest of both of these persons, and upon their disclosure statement, their
G houses were also searched on 6.7.1994 from 4.00 p.m. to 6.00 p.m. 27 gms.
heroin was recovered from the house of Mangi Lal whereas 225 gms. heroin
was recovered from house of Nathu Singh. Seizure memos Exb.P-1 and P-
2 respectively were prepared. Rupees 41,980/- were recovered from the house
of Nathu Singh. Other necessary memos were prepared.

H After completion cf investigation, charge sheet was placed . Accused
KRISHNA KANWAR@THAKURAEEN 1·. STATE OF RNASTHAN [ARIJIT PASAYAT, J.] J J07

_.\. persons pleaded innocence and in order to substantiate· their plea examined A
seven witnesses. The Trial Court found two of the accused persons guilty, but
acquitted Mangi Lal and Nathu Singh as noted above. Convicted accused
persons preferred appeals before the High Court. State also filed an appeal
questioning the acquittal. Before the High Court it was submitted that no
independent witness was examined and in addition there was non-compliance B
of mandatory provision contained in Sections 42, 50 and 57 of the Act. The
High Court did not find any substance and upheld the conviction and the
sentence. The appeal filed by the State of Rajasthan questioning acquittal of
Nathu Singh and Mangi Lal was also dismissed holding that there was no
infirmity in the conclusions of the Trial Court.
c
In support of the appeal filed by Smt. Krishan Kanwar, learned counsel
for the appellant submitted that this is a case where the prosecution has not
tendered evidence of any independent witness. Only official witnesses have
been examined. The independent witnesses who were examined did not support
the prosecution version and, in fact, stated that they only put signatures on
blank papers; the arrest of the accused persons was done on 4.7.1994 and not D
on 6.7.1994 as claimed. There are ceriain suspicious circumstances which
corrode prosecution version, about safe dispatch of the alleged collected
samples. Though the case of the prosecution was that alleged contraband
articles were procured by the accused Shamshuddin and Smt. Krishan Kanwar
from Mangi Lal and Nathu Singh, they have been acquitted, and therefore, E
the source of procurement as allegedly done by the accused has not been
established. The quantity recovered from Smt. Krishan Kanwar cannot be
said to be huge quantity, as observed by the Trial Court and the High Court.
It was a fairly small quantity. The evidence regarding alleged search of
accused-appellant Smt. Krishan Kanwar by lady constable (PW-5) is also full
of contradictions. No reliance should be placed on her evidence. It was a F
fairly small quantity. Residually it was submitted that the sentence of 14
years and fine of Rs.2 lakhs is extremely high.

Per contra, learned counsel for the State supported the judgment and
conviction and submitted that three high placed officials were involved in the
process of search and seizure. There is no reason as to why they would G
falsely implicate the accused persons. PW-16 monitored the entire operation
in the presence of Addi. S.P. Pratapgarh (PW-14). The S.P. was also present
though he has not been examined as witness. The moment the information
was received, there was communication to the higher authorities, and therefore,
there is no _violation of Section 42 as alleged. The requirements of Section H
'°' ·

I I08 SUPREME COURT REPORTS (2004) I S.CR.

· A 50 were complied with by intimating the accused of his option and choice
and the existence of his right of being search by the police officer (PW-16)
or by a gazetted officer. The accused opted to be searched by the police
officer. So; there is no violation as alleged. So far as samples are concerned,
the forensic laboratory report clearly indicates that the samples were received
B sealed and tags, seals were in tact and on analysis found to be heroin.

It is seen that Exb.P-32 contains the secret information that was received
by the Dy. S.P. (PW-16). Constable lndermal (PW-9) had categorically stated
that he had taken the intimation to the S.P. and the Addi. S.P. The envelope
was handed over to the S.P. at 9.00 p.m. and at 11.00 p.m. to the S.P.
C Pratapgarh and Chhoti Sadri. On the same day, at about 4.00 a.m. he returned
to the police station. The Addi. S.P. has been examined as PW-14 and also
presence of S.P. has been deposed by the witnesses. This clearly goes to
show that there was receipt of information dispatched by Dy. S.P. PW-16.
That being so, merely because particulars of the dispatch number were not
stated that would not corrode credibility of the evidence of the witnesses
D examined to establish that the information was conveyed to the higher officials.

The requirements vis-a-vis Sections 42 and 50 have been dealt with in
many cases, more particularly by a Constitution Bench in State of Punjab v.
Baldev Singh, [ 1999) 6 SCC 172. In para 17 the conclusions in an earlier
E judgment State of Punjab v. Balbir Singh, [1994] 3 SCC 299 at para 25 were
quoted and approved. We are concerned with conclusions (2-C) and (3)
which read as follows:

"(2-C) Under Section 42( I) the empowered officer if has a prior
information given by any persons, that should necessarily be taken
down in writing. But if he has reason to believe from personal
F knowledge that offences under Chapter IV have been committed or
materials which may furnish evidence of commission of such offences
are concealed in any building etc. he may carry out the arrest or
search without a warrant between sunrise and sunset and this provision
does not mandate that he should record his reasons of belief. But
G under the proviso to Section 42( I) if such officer has to carry out
such search between sunset and sunrise, he must record the grounds
of his belief.

(3) Under Section 42(2) such empowered officer who takes down any
information in writing or records the grounds under proviso to Section
H 42(1) should forthwith send a copy thereof to his immediate official
KRISHNA KANWAR@THAKURAEEN v. STATE OF RAJASTHAN (ARIJIT PASAYAT, J.JJ J09

~ superior. If there is total non-compliance of this provision the same A
..l
affects the prosecutions 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."

Section 42 deals with power of entry, search, seizure and arrest without
of authorization. The provision reads as follows: B
"42. Power of entry, search, seizure and arrest without warrant or
authorisation.-(]) Any such officer (being an officer superior in rank
to a peon, sepoy or constable) of the Departments of Central Excise,
Narcotics, Customs, Revenue Intelligence or any other department ,of
the Central Government or of the Border Security Force as is c
empowered in this behalf by general or special order by the Central
Government, or any such officer (being an officer superior in rank to
a peon, sepoy or constable) of the Revenue, Drugs Control, Excise,
Police or any other department of a State Government as is empowered
in this behalf by general or special order of the State Government, if D
he has reason to believe from personal knowledge or information
given by any person and taken down in writing, that any narcotic
drug, or psychotropic substance, in respect of which an offence
punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such
offence is kept or concealed in any building, conveyance or enclosed E
place, may, between sunrise and sunset,-

(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle
to such entry;
F
;
(c) such drug or substance and all materials used in the manufacture
thereof and any other article and any animal or conveyance which he
has reason to believe to be liable to confiscation under this Act and
any document or other article which he has reason to believe may
furnish evidence of the commission of any offence punishable under
G
Chapter IV relating to such drug or substance; and
(d) detain and search, and, if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence
punishable under Chapter IV relating to such drug or substance :
Provided that if such officer has reason to believe that a search warrant H
1110 SUPREME COURT REPORTS [2004) I S.C.R.

A or authorisation cannot be obtained without affording opportunity for
the concealment of evidence or facility for the escape of an offender,
he may enter and search such building, conveyance or enclosed place
at any time between sunset and sunrise after recording the grounds of
his belief.
B (2) Where an officer takes down any information in writing under
sub-section (I) or records grounds for his belief under the proviso
thereto, he shall forthwith send a copy thereof to his immediate official
superior."

Section 42 enables certain officers duly empowered in this behalf by
C the Central or State Government, as the case may be, to enter into and search
any building, conveyance or enclosed place for the purpose mentioned therein
without any warrant or authorization. Section 42 deal with "building,
conveyance or enclosed place" whereas Section 43 deals with power of seizure
and arrest in public place. Under sub-section (I) of Section 42 the method to
D be adopted and the procedure to be followed have been laid down. If the
concerned officer has reason to believe from personal knowledge, or
information given by any person and has taken down in wr.iting, that any
narcotic drugs or substance in respect of which an offence punishable under
Chapter IV of the Act has been committed or any other articles which may
furnish evidence of the commission of such offence is kept or concealed in
E any "building or conveyance or enclosed place" he may between sunrise and
sunset, do the acts enumerated in clauses (a), (b), (c) and (d) of sub-section
(I).

The proviso came into operation if such officer has reason to believe
that search warrant or authorization cannot be obtained without affording
F opportunity for the concealment of evidence or facility for the escaped
offender, he may enter and search such building, conveyanc1~ or enclosed
place any time between sunrise and sunset after recording grounds of his
belief. Section 42 comprises of two components. One relates to the basis of
information i.e, (i) from personal knowledge (ii) information given by person
G and taken down in writing. The second is that the information must relate to
commission of offence punishable under Chapter IV and/or keeping or
concealment of document or article in any building, conveyance or enclosed
place which may furnish evidence of commission of such offence. Unless .
both the components exist Section 42 has no application. Sub-section (2)
mandates as was noted in Baldev Singh 's case (supra) that where an officer ,.
H takes down any information in writing under sub-section (\)or records grounds
KRISHNA KANWAR@THAKURAEENv. STATE OF RAJASTHAN [ARinTPASAYAT,l.Jl) J)

~ ..I. for his belief under the proviso thereto, he shall forthwith send a copy thereof A
~ to his immediate official superior. Therefore, sub-section (2) only comes into
operation where the officer concerned does the enumerated acts, in case any
offence under Chapter IV has been committed or documents etc. are concealed
in any building, conveyance or enclosed place. Therefore, the commission of
the act or concealment of document etc. must be in any building, conveyance
or enclosed place. B

The Trial Court and the High Court after analyzing the evidence have
come to hold that there was compliance of Section 42(2) in the sense that
requisite documents were sent to the superior officer. Though learned counsel
for the appellant tried to submit that there was no definite evidence about
sending copies of the requisite documents to the superior officers, yet in view
c
of the analysis of evidence done by the trial Court and also by the High
Court, with which no infirmity of any kind could be substantiated effectively,
r we do not find any substance in the plea that there was violation of Section
42(2).
D
So far as the alleged non-compliance of Section 50 is concerned, the
said provision reads as follows:

"50. Conditions under which search of persons shall be conducted. -

(1) When any officer duly authorised under Section 42 is about to E
search any person under the provisions of Section 41, Section 42 or
Section 43, he shall, if such person so requires, take such person
without unnecessary delay to the nearest gazetted officer of any of
the departments mentioned in Section 42 or to the nearest Magistrate.

[ :J
(2) If such requisition is made, the officer may detain the person until
he can bring him before the gazetted officer or the Magistrate referred
F
to in sub-section ( 1).

(3) The gazetted officer or the Magistrate before whom any such
person is brought shall, if he sees no reasonable ground for search,
forthwith discharge the person but otherwise shall direct that search G
be made.
'Y
(4) No female shall be searched by anyone excepting a female."

A bare reading of Section 50 shows that it only applies in case of
personal search of a person. It does not extend to search of a vehicle or a H
1112 SUPREME COURT REPORTS [2004) I S.C.R.

A container or a bag, or premises. (See Kalema Turnbo v. State of Maharashtra
and Anr., JT (1999) 8 SC 293, Baldev Singh's case (supra), Gurbax Singh v.
State of Haryana, [200 I] 3 SCC 28). The language of Section 50 is implicitly
clear that the search has to be in relation to a person as contrasted to search
of premises, vehicles or articles. This position was settled beyond doubt by
B the Constitution Bench in Baldev Singh 's case (supra).

In order to appreciate rival submissions, some of the observations made
by the Constitution Bench in Baldev Singh 's case (supra) are required to be
noted. It is also to be noted that the Court did not !n the abstract decide
whether Section 50 was directory or mandatory in nature. It was held that the
C provisions to the Act implicitly make it imperative and obligatory and cast
a duty on the investigating officer (empowered officer) to ensure that search
of the person (suspect) concerned is conducted in the manner prescribed by
Section 50 by intimating to the person concerned about the existence of his
right that if he so requires, he shall be searched before a Gazetted Officer or
a Magistrate and in case he so opts, failure to conduct his search before a
D Gazetted Officer or a Magistrate would cause prejudice to the accused and
render the recovery of the illicit articles suspect and vitiate the conviction
and sentence of the accused. Where the conviction has been recorded only on
the basis of the possession of the illicit article, recovered during a search
conducted in violation of the provisions of Section 50 of the Act, it was
E illegal. It was further held that the omission may not vitiate the trial as such,
but because of the inherent prejudice which would be caused to an accused
by the omission to be informed of the existence of his right, it would render
his conviction and sentence unsustainable. In paragraph 32 of the judgment
(at page 200) this position was highlighted. In para 57, inter alia, the following
conclusions were arrived at:
F
"(I) That when an empowered officer or a duly authorized officer
acting on prior infonnation is about to search a person, it is imperative
for him to inform the person concerned of his right under sub-section
(I) of Section 50 of the Act of being taken to the nearest gazetted
officer or nearest Magistrate for making the search. However, such
G 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 officer or a Magistrate
would cause prejudice to an accused.

H (3) That a search made by an empowered officer, on prior
KRISHNA KANWAR@THAKURAEEN v. STATE OF RA.IASTHAN [ARIJIT l'ASAYAT, .1.Jl J J3

information, without informing the person of his right that if he· so A
requires, he shall be taken before a gazetted officer or a Magistrate
for search and in case he so opts, failure to conduct his search before
a gazetted officer or a Magistrate, may not vitiate the trial but would
render the recovery of the illicit article suspect and vitiate the
conviction and sentence of an accused, where the conviction has been B
recorded only on the basis of the possession of the illicit article,
recovered from his person, during .a search conclucted in violation of
the provisions of Section 50 of the Act.

(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 C
basis of the evidence led at the trial. Finding on that issue, one way
or the other would be relevant for recording an order of conviction
or acquittal. Without giving an opportunity to the prosecution to
establish, at the trial, that the provisions of Section 50 and, particularly,
the safeguards provided therein were duly complied with, it would
not be permissible to cut short a criminal trial. D
(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 (!) of Section E
50 and render the recovery of the contraband suspect and the
conviction and sentence of an accused bad and unsustainable in law.

(7) That an illicit article seized from the person of an accused during
search conducted in violation of the safeguards provided in Section F
50 of the Act cannot be used as evidence of proof of unlawful
possession of the contraband on the accused though any other material
recovered during that search may be relied upon by the prosecution,
in other proceedings, against an accused, notwithstanding the recovery
of that material during an illegal search."
G
It is not disputed that there is no specific form prescribed or intended
for conveying the information required to be given under Section 50. What
is necessary is that the accused (suspect) should be made aware of the existence
of his right to be searched in pr.:sence of one of the officers named in the
Section itself. Since no specific mode or manner is prescribed or intended, H
1114 SUPREME COURT REPORTS (2004] I S.C.R.

A the Court has to see the substance and not the form of intimation. Whether
the requirements of Section 50 have been met is a question which is to be
decided on the facts of each case and there cannot be any sweeping
generalization and/or strait-jacket formula.

Section 50 does not involve any self-incrimination. It is only a procedure
B required to protect the rights of an accused (suspect) being made aware of the
existence of his right to be searched if so required by him before any of the
specified officers. The object seems to be to ensure that at a later stage the
accused (suspect) does not take a plea that the articles were planted on him
or that those were not recovered from him. To put it differently, fair play and
C transparency in the process of search has been given the primacy. In Raghbir
Singh v. State of HatJiana, [1996] 2 SCC 201, the true essence of Section 50
was highlighted in the following manner:

"8. The very question that is referred to us came to be considered by
a Bench of two learned Judges on 22.1.1996 in Manohar Lal v. State
D of Rajasthan, (Crl. M.P. No.138/96 in SLP(Crl.)No.184/1996). One
of us (Verma, J), speaking for the Bench, held:
"It is clear from Section 50 of the NDPS Act that the option
given thereby to the accused is only to choose whether he would
like to be searched by the officer making the search or in the
E presence of the nearest available Gazetted Officer or the nearest
available Magistrate. The choice of the nearest Gazetted Officer
or the nearest Magistrate has to be exercised by the officer making
the search and not by the accused".

9. We concur with the view taken in Manohar Lal 's case supra.
F I0. Finding a person to be in possession of articles which are illicit
under the provisions of the Act has the consequence of requiring him
to prove that he was not in contravention of its provisions and it
renders him liable to severe punishment. It is, therefore, that the Act
affords the person to be searched a safeguard. He may require the
G search to be conducted in the presence of a senior officer. The senior
officer may be a Gazetted Officer or a Magistrate, depending upon
who is conveniently available.

11. The option under Section 50 of the Act, as it plainly reads, is only
of being searched in the presence of such senior officer. There is no
H further option of being searched in the presence of either a Gazetted
KRISHNA KANWAR@THAKURAEEN I'. STATE or RA.lASTHAN (ARIJIT PASAYAT, .1.1111 s
Officer or of being searched in the presence of a Magistrate. The use A
of the word 'nearest' in Section 50 is relevant. The search has to be
conducted at the earliest and, once the person to be searched opts to
be searched in the presence of such senior officer, it is for the police
officer who is to conduct the search to conduct it in the presence of
whoever is the most conveniently available, Gazetted Officer or B
Magistrate'',

As has been highlighted in Ba/dev Singh 's case (supra) it has to be seen
and gauzed whether the requirements of Section 50 have been met. Section
50 in reality provides for additional safeguards which are not specifically
provided by the statute. The stress is on the adoption of a reasonable, fair and C
just procedure. No specific words are necessary to be used to convey existence
of the right.

The above position was elaborately dealt with in Prabha Shankar Dubey
v. State of Madhya Pradesh (2003) AIR SCW 6592.
D
A similar question was also examined in Madan Lal and Anr. v. State
of Himahal Pradesh, (2003) 6 Supreme 382.

The quantity recovered by no stretch of imagination is small. Further,
nothing could be shown as to how there was violation of Section 57 of the
Act. The safe custody of seized articles and samples has been established by E
cogent evidence. Forensic Laboratory report shows that the samples were
received in sealed conditions with seals and tags intact. That being so, there
is no infraction as alleged.

When the factual position is tested on the legal principles indicated
above, the inevitable conclusion is that the prosecution has established its F
# case beyond a shadow of doubt and the conviction and sentence imposed are
well merited. The appeal filed by the accused Smt. Krishna Kanwar stands
dismissed.

Coming to the appeal filed by the State of Rajasthan, questioning
acquittal of Nathu Singh and Mangi Lal, we find that the Trial Court and the G
High Court found lack of material to connect them with the crime. The Trial
Court categorically observed that the requirements of Section 42(1) and 42(2)
~- were not complied with. The houses of these accused were straightaway
searched. Even there was no compliance with the requirements of Sections
50 though there was personal search involved. It was submitted by learned H
1116 SUPREME COURT REPORTS rzo04] I S.C.R.

A counsel for the State that on the basis of infonnation given by the co-accused,
recovery was made and, therefore, Section 27 of the Indian Evidence Act,
1872 was applicable. The so-called disclosure is allegedly made by accused
Shamshuddin and Smt. Krishan Kanwar. Here again the Courts below have
found evidence to be inadequate.

B In view of the infinnities noticed by the Trial Court and the High
Court, they were justified in directing acquittal of Nathu Singh and Mangi ·
Lal. The said appeal is sans merit and stands dismissed.

Both Criminal Appeal Nos. 52 and 53 of2003 are accordingly dismissed.

C B.S. Appeals dismissed.