Supreme Court of India
STATE OF DELHIversusRAM AVTAR@ RAMA
- Citation
- 2011 INSC 475
- Decided
- 7 July 2011
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
Compliance with Section 50 of the NDPS Act is mandatory; a failure to unambiguously inform the accused of his right renders the recovery illegal and inadmissible for conviction under Section 21.
Summary
The State of Delhi alleged that Ram Avtar was carrying heroin after a secret informer tipped off police, who raided him and served a written notice under Section 50 of the NDPS Act. The notice, however, failed to unambiguously inform the accused of his statutory right to be searched before a Gazetted Officer or a Magistrate. The police searched him anyway, recovered heroin, and he was convicted under Section 21 for unlawful possession. The High Court acquitted him on the ground that the Section 50 notice was non‑compliant, and the State appealed. The Supreme Court held that the safeguards in Section 50 are mandatory, not subject to “substantial compliance”, and that the notice must clearly convey the accused’s right; otherwise the recovery is illegal and cannot support a conviction under Section 21. Consequently, the appeal was dismissed and the conviction set aside.
Issues considered
- The notice served under Section 50 complied with the statutory requirement to inform the accused of his right to be searched before a Gazetted Officer or Magistrate.
- Whether the doctrine of substantial compliance applies to the procedural safeguards of Section 50 of the NDPS Act.
- Whether contraband recovered in violation of Section 50 can be used as evidence for conviction under Section 21.
Legislation cited
Subjects
NDPS ActSection 50search and seizureright to be searched before Gazetted Officer or Magistratesubstantial complianceillegal searchcontrabandSection 21 convictionprocedural safeguardscriminal jurisprudence
Judgment
[2011] 7 S.C.R. 1129
STATE OF DELHI A
v.
. RAM AVTAR@ RAMA
(Criminal Appeal No. 1101 of 2004)
JULY 7, 2011
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Narcotic Drugs and Psychotropic Substance Act, 1985:
s.50 - Search and seizure - Safeguards provided u/s.50 c
- Obligation of the searching officer to inform the person to
be searched about his right to be taken to _the nearest
Gazetted Officer or a Magistrate '.""' Held: The accused has
right to be informed of the choice available to· him as regards
his search - The duty is cast upon the searching officer to 0
a
make the accused aware of existence of such right - Failure
to provide such option in accordance with the provisions of
the Act, render the recovery of contraband /illicit substance
illegal - After amendment of s.50 and insertion of.sub-section
5, the mandate of s. 50(2) has not been nullified, and the
obligation upon the searching officer to inform the person to E
·be searched of his rights still remained - Obviously, the
legislative intent is that compliance with these provisions is
imperative and not merely substantial compliance - While
discharging the onus of s. 50, the prosecution has to establish
that information regarding the existence of such a right had F
been given to the suspect - Notice to the accused that a
Gazetted Officer or a Magistrate could be arranged for taking
his search, if he so required could not be treated as
communicating to him about rights available to him under law.
G
s.21 - Conviction under - Essential ingredients - Held:
For conviction u/s.21, the possession of the illicit article is a
sine qua non -Contraband article should be recovered in
accordance with the provisions of s.50 of the Act, otherwise,
1129 H
1130 SUPREME COURT REPORTS (2011] 7 S.C.R.
•
A the recovery itself shall stand vitiated in law - Illegal recovery
cannot be the foundation of conviction u/s.21 of the Act.
.
Criminal jurisprudence: Theory of 'substantial
compliance' - Held: It is a settled canon of criminal
8 jurisprudence that when a safeguard or a right is provided,
favouring the accused, compliance thereto should be strictly
construed - The theory of 'substantial compliance' would not
be applicable to situations where the punishment provided is
very harsh and is likely to cause serious prejudices against
the suspect - The safeguard cannot be treated as a formality,
C but it must be construed in its proper perspective, compliance
thereof must be ensured - Narcotic Drugs and Psychotropic
Substance Act, 1985 - Interpretation of statutes.
The prosecution case was that on 18th January
D 1998, a secret informer informed the Assistant Sub
Inspector (PW-8) that a person by the name 'R' (appellant)
was carrying contraband substance. The police party left
for the spot and apprehended th~ appellant. A police
officer in the raiding party requested few persons, who
E were passing by, to join the raid but they declined to do
so on some ground or the other. The police officer
served notice Ex.PW6/A in writing under Section 50 of the
Narcotic Drugs and Psychotropic Substances Act, 1985
upon the appellant but he declined to be searched either
F in presence of a Gazetted Officer or a Magistrate. On
search, three packets were recovered from his pocket
which after test were found to be heroin. The trial court
convicted the appellant under Section 21 of the Act. The
High Court held that the expression 'duly' used in
G Section 50 of the Act connoted not 'substantial' but 'exact
and definite compliance' and since the notice served on
the appellant was not in ·conformity with the provisions
of Section 50 of the Act, he deserved acquittal. The
instant appeal was filed challenging the order of the High
Court.
H
STATE OF DELHI v. RAM AVTAR@ RAMA 1131
. .
Dismissing the appeal, the Court A
HELD: 1. In terms of the provisions of Section 50 of
the Narcotic Drugs and Psychotropic Subs.tance Act,
1985, in force at the relevant time, i.e. the provisions as it
was, prior to amendments made by Amending Act 9 of
2001 w.e.f. 2.10.2001, the respondent had a right to be
8
informed of the choice available to him and making him
aware of the existence of such a right was an obligation
on the part of the searching officer. This duty cast upon
the officer was imperative and failure to provide such an
option, in accordance with the provisions of the Act, C
would render the recovery of the contraband or illicit
substance illegal. Satisfaction of the requirements in
terms of Section 50 of the Act is sine qua non prior to
prosecution for possession of an unlawful narcotic
substance. After the amendment to Section 50 of the Act D
and the insertion of sub~section 5, the mandate of
Section 50(2) of the Act has not been nullified, and the
obligation upon the searching officer to inform the
person searched of his rights still remained. In other
words, offering the option to the person to be searched E
before a Gazetted Officer or a Magistrate as contemplated
under the provisions of this Act, should be unambiguous
and definite and the searching officer should inform the
suspect of his statutory safeguards. [Para 18, 19] [1145-
E-O] F
State of Punjab v. Baldev Singh (1999) 6 SCC 172: 1999
(3) SCR 977; Vijaysinh Chandubha Jadeja v. State of Gujarat
(2007) 1 sec 433 - relied on.
2. It is a settled canon of criminal jurisprudence that G
when a safeguard or a right is provided, favouring the
accused, compliance thereto should be strictly
construed. The theory of 'substantial compliance' would
not be applicable to situations where the punishment
provided is very harsh and is likely to cause serious H
1132 SUPREME COURT REPORTS
..--
[2011] 7 S.C.R.
A . prejudices against the suspect. The safeguard cannot be
treated as a formality, but it must be construed in its
proper perspective, compliance thereof must be ensured.
The law has provided a right to the accused, and makes
it obligatory upon the officer concerned to make the
8 suspect aware of such right. The language of the
provision is plain and simple and has to be applied on
its plain reading as· it relates to penal consequences.
Section 50 of the Act states the conditions under which
the search of a person shall be conducted. The
C significance of this right is clear from the language of
Section 50(2) of the Act, where the officers have been
given the power to detain the person until he is brought
before a Gazetted Officer or Magistrate as referred to in
sub-section (1) of Section 50 of the Act. Obviously, the
legislative intent is that compliance with these provisions
D is imperative and not merely substantial compliance. If
the officer has prior information of the raid, he is expected
to be prepared for carrying out his duties of investigation
in accordance with the provisions of Section 50 of the
Act. While discharging the onus of Section 50 of the Act,
E the prosecution has to establish that information
regarding the existence of such a right had been given
to the suspect. If such information is incomplete and
ambiguous, then it cannot be construed to satisfy the
requirements of Section 50 of the Act. Non-compliance
F of the provisions of Section 50 of the Act would cause
prejudice to the accused, and, therefore, amount to the
denial of a fair trial. For conviction under Section 21 of
the Act, the possession of the illicit article is a sine qua
non. Such contraband article should be recovered in
G accordance with the provisions of Section 50 of the Act,
otherwise, the recovery itself shall stand vitiated in law.
Whether the provisions of Section 50 of. the Act were
complied with or not, would normally be a matter to be
determined on the basis of the evidence produced by the
H prosecution. An illegal. search cannot entitle the
.-.. STATE OF DELHI v. RAM AVTAR@ RAMA 1133
1prosecution to raise a presumption of validity of evidence A
-under Section 50 of the Act. [Para 22] [1147-B-G]
3. By Ex.PW-6/A, the appellant was informed that a
•Gazetted Officer or a Magistrate could be arranged for
taking his search, if he so required. This intimation could
8
not be treated as communicating to the appellant that he
had a right under law, to be searched before the said
authorities. The bare language of Ex.PW-6/A showed that
the accused was not made aware of his right that he
could be searched in the presence of Gazetted Officer or
a Magistrate and that he could exercise such choice. The C
writing did not reflect this most essential requirement of
Section 50 of the Act. Once the recovery itself is found
to be illegal, being in violation to the provisions of Section
50 of the Act, it cannot, on the basis of the statement of
the police officers, or even independent witnesses, form D
the foundation for conviction of the accused under
Section 21 of the Act. If recovery is held to be illegal, that
means the accused did not actually possess the illicit
article or contraband and that no such illicit article was
recovered from the possession of the accused such as E
to enable such conviction of a contraband article.
'Unlawful possession' of the contraband, under the Act,
is a factor that has to be established by the prosecution
beyond any reasonable doubt. [Paras 21 to 24] (1146-G-
H; 1147-H; 1148-A-D, F; 1149-E-F] F
4. Once the recovery itself is .made in an illegal
manner, its character cannot be changed, so as to be
admissible, on the strength of statement of witnesses.
What cannot be done directly cannot be permitted to be
done indirectly. If Ex.PW-6/A was not in conformity with G
the provisions of Section 50 of the Act, then. there was
patent violation of the provisions. Firstly, in the instant
cat.e, there was no public witness to Ex.PW-6/A; and the
recovery thereof; secondly, even the evidence of all the
witnesses, who were police officers, did not improve the H
1134 SUPREME COURT REPORTS [2011] 7 S.C.R.
..--
A case of the prosecution. The defect in Ex.PW-6/A was
incurable and incapable of being construed as
compliance with the requirements of Section 50 of the Act
on the strength of ocular statement. [Para 25) [1149-G-H;
1150-A-B]
5. An illicit article seized from the person of an
accused during search conducted in violation of the
safeguards provided in Section 50 of the Act cannot be
used as evidence of proof of unlawful possession of the
contraband on the accused, though any other material
C recovered during that search may be relied upon by the
prosecution in other proceedings, against the accused,
notwithstanding the recovery of that material during an
illegal search. An illegal recovery cannot take the colour
of a lawful possession even on the basis of oral evidence.
D But if any other material which is recovered is a subject
matter in some co-lateral or independent proceeding, the
same could be proved in accordance with law even with
the aid of such recovery. But in no event the illegal
recovery can be the foundation of a successful
E conviction under the provisions of Section 21 of the Act.
[Para 28) [1151-A-D]
State of Punjab v. Balbir Singh (1994) 3 SCC 299: 1994
(2) SCR 208;A/i Mustaffa Abdul Rahman Moosa v. State of
Kera/a (1994) 6 SCC 569: 1994 (4) Suppl. SCR 52; Saiyad
F Mohd. Saiyad Umar Saiyad v. State of Gujarat (1995) 3 SCC
510; Ahmed v. State of Gujarat (2000) 7 SCC 477: 2000 (2)
Suppl. SCR 642; K. Mohanan v. State of Kera/a (2010) 1O
SCC 222; Joseph Fernandez v. State of Goa (2000) 1 SCC
707; Prabha Shankar Dubey v. State of Madhya Pradesh
G (2004) 2 SCC 56: 2003 (6) Suppl. SCR 444; Krishna Kanwar
v. State of Rajasthan (2004) 2 SCC 608: 2004 (1) SCR 1101;
Manohar Lal v. State of Rajasthan (1996) 11 SCC 391;
Kamai/ Singh v. State of Haryana (2009) 8 SCC 539; Union
of India v. Satrohan (2008) 8 SCC 313; Vijaysinh Chandubha
H Jadeja v. State of Gujarat (2011) 1 SCC 609; Pooran Mal v.
-
1 19'
STATE OF DELHI v. RAM AVTAR@ RAMA 1135
Director of Inspection (1974) 1 SCC 345 - referred to. A
Case Law Reference:
1994 (2) SCR 208 referred to Para 6
1994 (4) Suppl. SCR 52 referred to Para 7
B
(1995) 3 sec 510 referred to Para 8
1999 (3) SCR 977 relied on Para 9, 10, 11,
12, 17.
2000 (2) Suppl. SCR 642 referred to Para10, 14 c
2010 (11) SCR 1033 referred to Para11
(2000) 1 sec 101 referred to Para 12, 21
2003 (6) Suppl. SCR 444 referred to Para 12,
D
2004 (1) SCR 1101 referred to Para 12
1996 (1) SCR 837 referred to Para 12,13
2009 (11) SCR 470 referred to Para 12
2008 (10) SCR 888 referred to Para14 E
2010 (13) SCR 255 referred to Para14
(2001) 1 sec 433 referred to Para 15, 16, 17
1974 (2) SCR 704 relied on Para 24
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1101 of 2004.
From the Judgment & Order dated 18.12.2002 of the High
Court of Delhi at New Delhi in Crl. Appeal No. 405 of 1999.
G
P.K. Dey, Sadhana Sandhu, Anil Katiyar, D.S. Mahra for
the Appellant.
Pawan Kumar Bahl (for Sudha Gupta) for the Respondent.
The Judgment of the Court was delivered by H
•·
1136 SUPREME COURT REPORTS [2011] 7 S.C.R.
..
.....
A SWATANTER KUMAR J. 1. Ingenuity of counsel
sometimes results in formulation propositions, which appear at
the first flush to be legally sound and relatable to recognized
cannons of criminal jurisprudence. When examined in greater
depth, their rationale is nothing but illusory; and the argument
B is without substance. One such argument has been advanced
in the present case by the learned counsel appearing for the
appellant who contends that 'even where the provisions of
Section 50 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereinafter referred to as 'the Act') have not been
c complied with the recovery can otherwise be proved without
solely relying upon the personal search of the accused'.
According to the learned counsel, the courts are required to
take into consideration evidence of recovery of illicit material
independently of the factum of personal search of the accused
D as stated by other witnesses as such evidence would be
admissible and can form the basis for conviction of an accused
in accordance with law.
2. Before we notice the judgments which have been
referred to on behalf of the State, it will be necessary for us to
E refer to the facts giving rise to the present appeal. On 18th
January, 1998 at about 8.15 a.m., a secret informer met
Assistant Sub inspector (ASI) - Dasrath Singh (who was
examined as PW8) and infonned him that a person by the name
of Ram Avtar@ Rama resident of House No. 71/144, Prem
F Nagar, Choti Subzi Mandi, Janakpuri would be going to his
house on a two wheeler scooter No. DL 4SL 2996 and if the
said person was searched and raid was conducted, smack
could be recovered from him. This information was passed on
by A&l-Dasrath Singh, to the Station House Officer (SHO) M.C.
G Sharma (who was examined as PW4), on telephone, who in
turn directed R.P. Mehta, Assistant Commissioner of Police
(Narcotics Bureau) ACP(NB) to conduct the raid immediately.
The secret information was recorded in the DD at SI. No.3. In
furtherance to this at around 8.30 A.M., ASI Dasrath Singh
H along with Sub Inspector (SI) Sahab Singh, Head Constable
-- STATE OF DEL.HI v. RAM AVTAR@ RAMA 1137
· [SWATANTER KUMAR, J.]
Narsingh, Constable Manoj Kumar, Lady Constable Nirmla and A
the informer left for. the spot in a Government vehicle. The
vehicle was parked in a hideout at some distance. At around
9.30 a:m. Ram Avtar was apprehended based on pointing out
by the informer while he was coming on a two wheeler scooter
from the side of the main road, Tilak Nagar near his house. It B
is the case of the prosecution that a police officer in the raiding
party had requested some persons, who were passing by, to
join the raid but they declined to do so on some ground or the
other. The police officer then served a notice Ex. PW6/A in
writing, under Section 50 of the Act upon the appellant but he c
declined to be searched either in presence of a Gazetted
Officer or a Magistrate. On search, three polythene packets
were recovered from left side pocket of his shirt. On opening
the packets, it was found to contain powder of light brown
colour, suspected to be smack. This recovered powder was 0
mixed together. The total weight of the recovered powder was
16 grams, out of which 5 grams were separated as sample.
Both the sample and the remaining powder were converted into
two parcels and sealed with the seal of OS which were the
initials of PW8. CFSL Form was filled and seal of OS also
affixed there.on. Parcels were seized vide memo Ex. PW-2/8. . E
PW8 sent the parcels, CFSL Form and copy of rukka, Ex.PW-
5/8 through Constable Manoj Kumar to Station House Officer
(PW4) for recording an FIR under Section 21 of the Act. The
samples, rukka etc. are now produced in carbon copy as
Ex.PW-5/A. Sample parcels were sent to CFSL, Chandigarh F
and as per their report, the sample gave positive test for
diacetylmorphine (heroin). Resultantly, Ram Avtar was taken into
custody, and charge-sheet for committing an offence under
Section 21 of the Act was filed against him.
G
3. As many as eight witnesses were examined by the
prosecution to bring home the guilt against the accused. In his
statement under Section 313 of the Cr.P.C., the plea taken by
the accused was that on the day of occurrenqe his house was
searched without a valid warrant and as nothing was recovered H
1
'
1138 SUPREME COURT REPORTS [2011] 7 S.C.R. •
A therefrom, he demanded a "no recovery certificate". He claims
that the police misbehaved and that he was taken to the Police
Station, Narcotic Branch on the pretext of issuing such "no
recovery certificate". He claims to have been falsely implicated
in this case. The accused had taken a specific objection, with
B regard to non-compliance with the provisions of Section 50 of
the Act, and had laid down this defense before the Trial Court.
The Trial Court was of the opinion that the prosecution has been
able to prove the case beyond any reasonable doubt and
therefore, convicted the accused and sentenced him to undergo
c rigorous imprisonment of ten years and pay a fine of
Rs.1,00,000/-; in default thereof, further undergo one year of
rigorous imprisonment.
4. An appeal was preferred by the accused challenging the
conviction and order of sentence dated 19th July, 1999. The
D High Court after taking note of the notice that was alleged to
have been issued to the accused under Section 50 of the Act,
Ex.PW-6/A, returned a finding in accordance with settled
principles of law, that the notice provided to the accused was
not in conformity with the provisions of Section 50 of the Act.
E Resultantly, there was no compliance with the provisions of
Section 50 of the Act in the eyes of law and therefore, the
accused was acquitted of the charge. The State of Delhi feeling
aggrieved by the order of the High Court filed the present
appeal.
F
5. We have already noticed that the High Court primarily
discussed only one issue, i.e. whether there was compliance
with the provisions of Section 50 of the Act or not; and had
answered this in the negative, against the State. The primary
G submission raised in the present appeal also relates to the
interpretation of the provisions of Section 50 of the Act. In order
to examine the merit of the contention raised on behalf of the
appellant, at the outset, it will be appropriate for us to refer to
the precedents on the issue of the principles applicable to
Section 50 of the Act.
H
-- STATE OF DELHI v. RAM AVTAR@ RAMA 1139
[SWATANTER KUMAR, J.]
6. One of the earliest and significant judgments of this A
Court, on the issue before us is the case of State of Punjab v.
Balbir Singh, ((1994) 3 SCC 299] where the Court considered
an important question i.e., whether failure by the empowered
or authorized officer to comply with the conditions laid down in
Section 50 of the Act while conducting the search, affects the B
prosecution case. In para 16 of the said judgment, after
referring to the words "if the person to be searched so desires';
the Court came to the conclusion that a valuable right has been
given to the person, to be searched in the presence of the
Gazetted Officer or Magistrate if he so desires. Such a search C
would impart much more authenticity and creditworthiness to
the proceedings, while equally providing an important safeguard
to the accused. It was also held that to afford this opportunity
to the person to be searched, such person must be fully aware
of his right under Section 50 of the Act and that can be
achieved only by the authorized officer explicitly informing him D
ofthe same. The statutory language is clear, and the provisions
implicitly make it obligatory on the authorized officer to inform
the person to be searched of this right. Recording its conclusion
in para 25 of the judgment, the Court clearly held that non-
compliance with Section 50 of the Act, which is mandatory, E
would affect the prosecution case and vitiate the trial. It also
noticed that after being so informed, whether such person
opted for exercising his right or not would be a question of fact,
which obviously is to be determined on the facts of each case.
F
7. This view was followed by another Bench of this Court
in the case of Ali Mustaffa Abdul Rahman Moosa v. State of
Kera/a, [(1994) 6 SCC 569], wherein the Court stated that the
searching officer was obliged to inform the person to be
searched of his rights. Further, the contraband seized in an G
illegal manner could hardly be relied on, to the advantage of
the prosecution. Unlawful possession of the contraband is the
sfne qua non for conviction under the NDPS Act, and that factor
has to be established beyond any reasonable doubt. The Court
further indic~ted that articles recovered may be used for other H
1140 SUPREME COURT REPORTS [2011] 7 S.C.R.
•
A purposes, but cannot be made a ground for a valid conviction
under this Act.
8. In th.e case of Saiyad Mohd. Saiyad Umar Saiyad v.
State of Gujarat, [(1995) 3 SCC 510], the Court followed the
principles stated in Balbir Singh's case (supra) and also
8 clarified that the prosecution must prove that the accused was
not only made aware of his right but also that the accused did
not choose to be searched before a Gazetted Officer or a
Magistrate.
C 9. Then the matter was examined by a Constitution Bench
of this Court, in the case of State of Punjab v. Baldev Singh
[(1999) 6 SCC 172], where the Court, after detailed discussion
on various cases, including the cases referred by us above,
recorded its conclusion in para 57 of the judgment . The
o relevant portions of this conclusion are as under:
"57. On the basis cf the reasoning and discussion above,
the following conclusions arise:
(1) That when an empowered officer or a duly authorised
E officer acting on prior information is about to search a
person, it is imperative for him to inform the person
concerned of his right under sub-section (1) of Section 50
of being taken to the nearest gazetted officer or the nearest
Magistrate for making the search. However, such
F information may not necessarily be in writing.
xxx xxx xxx •
( 4) That there is indeed need to protect society from
criminals. The societal intent in safety will suffer if persons
G who commit crimes are let off because the evidence
against them is to be treated as if it does not exist. The
answer, therefore, is that the investigating agency must
follow the procedure as envisaged by the statute
scrupulously and the failure to do so must be viewed by
H
-- STATE OF DELHI v. RAM AVTAR@ RAMA 1141
[SWATANTER KUMAR, J.]
the higher authorities seriously inviting action against the A
official concerned so that the laxity on the part of the
investigating authority is curbed. In every case the end
result is important but the means to achieve it must remain
above board. The remedy cannot be worse than the
disease itself. The legitimacy of the judicial process may B
come under a cloud if the court is seen to condone acts
of lawlessness conducted by the investigating agency
during search operations and may also undermine respect
for the law and may have the effect of unconscionably
compromising the administration of justice. That cannot be c
permitted. An accused is entitled to a fair trial. A conviction
resulting from an unfair trial is contrary to our concept of
justice. The use of evidence collected in breach of the
safeguards provided by Section 50 at the trial, would
render the trial unfair. D
xxx xxx xxx
(6) That in the context in which the protection has been
incorporated in Section 50 for the benefit of the person
intended to be searched, we do not express any opinion E
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 F
bad and unsustainable in law."
10. Still in the case of Ahmed v. State of Gujarat, [(2000)
7 sec 477), a Bench of this Court followed the above cases
including Baldev Singh's case (supra) and held that even
where search is made by empowered officer who may be a G
Gazetted Officer, it remains obligatory for the prosecution to
inform the person to be searched about his right to be taken
to the nearest Gazetted Officer or Magistrate before search. In
this case, the Court also noticed at sub-para (e) at page 482
of the judgment that the provisions of Section 50 of the Act, H
1142 SUPREME COURT REPORTS [2011] 7 S.C.R.
•
A which afford minimum safeguard to the accused, provide that
when a search is about to be made of a person under Section
41 or Section 42 or Section 43 of the Act, and if the person so
requires, then the said person has to be taken to the nearest
Gazetted Officer of any department mentioned in Section 42
B of the Act or to the nearest Magistrate.
11. In the case of K. Mohanan v. State of Kera/a, ((2010)
10 SCC 222] another Bench of this Court while following
Ba/dev Singh's case (supra) stated in unambiguous terms that
merely asking the accused whether he wished to be searched
C before a Gazetted Officer or a Magistrate, without informing him
that he enjoyed a right under law in this behalf, would not satisfy
the requirements of Section 50 of the Act.
12. We may also notice here that some precedents hold
D that though a right of the person to be searched existed under
Section 50 of the Act, these provisions are capable of
substantial compliance and compliance in absolute terms is not
a requirement under law. Reference in this regard can be made
to Joseph Fernandez v. State of Goa, [(2000) 1 SCC 707],
E Prabha Shankar Dubey v. State of Madhya Pradesh, [(2004)
2 SCC 56], Krishna Kanwar v. State of Rajasthan, ((2004) 2
SCC 608, Manohar Lal v. State of Rajasthan, [(1996) 11 SCC
391], Kamai/ Singh v. State of Haryana, ((2009) 8 SCC 539].
In the case of Prabha Shankar Dubey (supra), this Court while
F referring to Baldev Singh's case (supra) took the view that
Section 50 of the Act in reality provides additional safeguards
which are not elsewhere provided by the statute. As the stress
is on the adoption of reasonable, fair and just procedure, no
specific words are necessary to be used to convey the
G existence of this right. The notice served, in that case, upon the
person to be searched was as follows: 'By way of this notice
you are informed that we have received information that you are
illegally carrying opium with you, therefore, we are required to
search your scooter and you for this purpose. You would like
to give me search or you would like to be searched by any
H
-- STATE OF DELHI v. RAM AVTAR@ RAMA 1143
.[SWATANTER KUMAR, J.]
· gazetted officer or by a Magistrate?' Keeping the afore-referred A
language in mind, the Court applied the principle of substantial
compliance, and held that the plea of non-compliance with the
requirements of Section 50 of the Act was without merit on the
facts of that case. The Court held as under:
B
"12. The use of the expression "substantial compliance"
was made in the background that the searching officer had
Section 50 in mind and it was unaided by the interpretation
placed on it by the Constitution Bench in Ba/dev Singh
case. A line or a word in a judgment cannot be read in
isolation or as if interpreting a statutory provision, to impute C
a different meaning to the observations.
13. Above being the position, we find no substance in the
plea that there was non-compliance with the requirements
of Section 50 of the Act." D
13. Similarly, in Manohar Lat's case (supra) the option
provided to the accused, not to go to a Magistrate if so desired,
was considered to imply requirement of mere substantial
compliance; and that strict compliance was not necessary.
E
14. In the case of Union of India v. Satrohan, [(2008) 8
sec 313] though the Court was not directly concerned with the .
interpretation of the provisions of Section 50 of the Act, the
Court held that Section 42(2) of the Act was mandatory. It also
held that search under Section 41 (1) of the Act would not attract F
compliance to the provisions of Section 50 of the Act. To that
extent this judgment was taking a view different from that taken
by the equi-Bench in Ahmed's case (supra). This question to
some extent has been dealt with by the Constitution Bench in
the case of Vijaysinh Chandubha Jadeja v. State of Gujarat G
[(2011) 1 sec 609] (hereinafter referred to as VijaysinhI
Chandubha Jadeja'). As this question does not arise for
consideration before us in the present case, we do not consider
·.~
it necessary to deliberate on this aspect in any further detail. 1.
H
1144 SUPREME COURT REPORTS [2011] 7 S.C.R.
--
A 15. In the case of Vijaysinh Chandubha Jadeja v. State
of Gujarat, [(2007) 1 SCC 433], a three Judge Bench of this
Court had taken the view that the accused must be informed
of his right to be searched in presence of a Magistrate and/or
a Gazetted Officer, but in light of some of the judgments we
B have m13ntioned above, a referenc~ to the larger bench was
made, resulting.
16. Accordingly, a Constitution Bench was constituted and
in the case of Vijaysinh Chandubha Jadeja (supra) of this
Court, referring to the language of Section 50 of the Act, and
C after discussing the above-mentioned judgments of this Court,
took the view that there was a right given to the person to be
searched, which he may exercise at his option .• The Bench
further held that substantial compliance is not applicable to
Section 50 of the Act as its requirements were imperative. The
D Court, however, refrained from specifically deciding whether the
provisions were directory or mandatory. It will be useful to refer
the relevant parts of the Constitution Bench in Vijaysinh
Chandubha Jadeja (supra). In para 23, the Court said 'In the
above background, we shall now advert to the controversy at
E hand. For this purpose, it would be necessary to recapitulate
the conclusions, arrived at by the Constitution Bench in Baldev
Singh case'. After further referring to the conclusions arrived
at by the Constitution Bench in Baldev Singh's case (supra)
(which have been referred by us in para 9 of this judgment) and
F reiterating the same the Constitution Bench in Vijaysinh
Chandubha Jadeja (supra) this case concluded as under:
"31. We are of the opinion that the concept of "substantial
compliance" with the requirement of Section 50 of the
NDPS Act introduced and read into the mandate of the
G
said section in Joseph Fernandez and Prabha Shankar
Dubey is neither borne out from the language of sub-
section (1) of Section 50 nor it is in consonance with the
dictum laid down in Baldev Singh case. Needless to add
that the question whether or not the procedure prescribed
H
-- STATE OF DELHI v. RAM AVTAR@ RAMA 1145
[SWATANTER KUMAR, J.]
has been followed and the requirement of Section 50 had A
been met,. is a matter of trial. It would neither be possible
nor feasible to lay down any absolute formula in that behalf."
17. Analysis of the above judgments clearly show that the
scope of the provisions of Section 50 of the Act are no more 8
res integra and stand concluded by the above judgments
particularly the Constitution Bench judgments of this Court in
the cases of Bafdev Singh (supra) and Vijaysinh Chandubha
Jadeja (supra).
18. In the present case, we are concerned with the C
provisions of Section 50 of the Act as it was, prior to
amendments made by Amending Act 9 of 2001 w.e.f.
2.10.2001. In terms of the provisions, in force at the relevant
time, the petitioner had a right to be informed of the choice
available to him; making him aware of the existence of such a D ·
right was an obligation on the part of the searching officer. This
duty cast upon the officer is imperative and failure to provide
such an option, in accordance with the provisions of the Act,
would render the recovery of the contraband or illicit substance ·
illegal. Satisfaction of the requirements in terms of Section 50 E
of the Act is sine qua non prior to prosecution for possession
of an unlawful narcotic substance.
19. In fact, the Constitution Bench in the case of Vijaysinh
Chandubha Jadeja (supra), in para 25, has even taken a view
that after the amendment to Section 50 of the Act and the
F
insertion of sub-section 5, the mandate of Section 50(2) of the
Act has not been nullified, and the obligation upon the searching
officer to inform the person searched of his rights still remains.
In other words, offering the option to take the person to be
searched before a Gazetted Officer or a Magistrate as G
contemplated under the provisions of this Act, should be
unambiguous and definite and should inform the suspect of his
statutory safeguards.
20. Having stated the principles of law applicable to such H
1146 SUPREME COURT REPORTS [2011] 7 S.C.R.
•
A cases, now we revert back to the facts of the case at hand.
There is no dispute that the concerned officer had prior
intimation, that the accused was carrying smack, and the same
could be recovered if a raid was conducted. It is also
undisputed that the police party consisting of ASI - Dasrath
B Singh, Head Constable- Narsingh, Constable - Manoj Kumar
and lady constable-Nirmla had gone in a Government vehicle
to conduct the raid. The vehicle was parked and the accused,
who was coming on a scooter, had been stopped. He was
informed of and a notice in writing was given to him of, the
c suspicions of the police, that he was carrying smack. They
wanted to search him and, therefore, informed him of the option
available to him in terms of Section 50 of the Act. The option
was given to the accused and has been proved as Ex. PW-6/
A, which is in vernacular. The High Court in the judgment under
appeal has referred to it and we would prefer to reproduce the
0
same, which reads as under:
"Musami Ram Avtar urf Rama S/o late Sh. Mangat Ram
Rio 71/144, Prem Nagar, Choti Subzi Mandi, Janakpuri,
Delhi, apko is notice ke tehat suchit kiya jata hai ki
E hamare pas itla hai ki apko kabje me smack hai aur apki
talashi amal mein laye jati hai. Agar ap chahen to apki
talashi ke liye kisi Gazetted officer ya Magistrate ka
probandh kiya ja sakta hai."
F 21. The High Court while relying upon the judgment of this
Court in the case of Baldev Singh (supra) and rejecting the
theory of substantial compliance, which had been suggested
in the case of Joseph Fernandez (supra), found that the
intimation did not satisfy the provisions of Section 50 of the
Act. The Court reasoned that the expression 'duly' used in
G Section 50 of the Act connotes not 'substantial' but 'exact and
definite compliance'. Vide Ex.PW-6/A, the appellant was
informed that a Gazetted Officer or a Magistrate could be
arranged for taking his search, if he so required. This intimation
could not be treated as communicating to the appellant that he
H
--
STATE OF DELHI v. RAM AVTAR@ RAMA 1147
[SWATANTER KUMAR, J.]
had a right under law, to be searched before the said A
authorities. As the recovery itself was illegal, the conviction and
sentence has to be set aside.
22. It is a settled canon of criminal jurisprudence that when
a safeguard or a right is provided, favouring the accused, 8
compliance thereto should be strictly construed. As already held
by the Constitution Bench in the case of Vijaysinh Chandubha
Jadeja (supra), the theory of 'substantial compliance' would not
be applicable to such situations, particularly where· the
punishment provided is very harsh and is likely to cause
serious prejudices against the suspect. The safeguard cannot C
be treated as a formality, but it must be construed in its proper
perspective, compliance thereof must be ensured. The law has
provided a right to the accused, and makes it obligatory upon
the officer concerned to make the suspect aware of such right.
The officer had prior information of the raid; thus, he was D
expected to be prepared for carrying out his duties of
investigation in accordance with the provisions of Section 50
of the Act. While discharging the onus of Section 50 of the Act,
the prosecution has to establish that information regarding the
existence of such a right had been given to the suspect. If such E
information is incomplete and ambiguous, then it cannot be
construed to satisfy the requirements of Section 50 of the Act.
Non-compliance of the provisions of Section 50 of the Act
would cause prejudice to the accused, and, therefore, amount
to the denial of a fair trial. To secure a conviction under Section F
21 of the Act, the possession of the illicit article is a sine qua
non. Such contraband article should be recovered in
accordance with the provisions of Section 50 of the Act,
otherwise, the recovery itself shall stand vitiated in law. Whether
the provisions of Section 50 of the Act were complied with or G
not, would normally be a matter to be determined on the basis
of the evidence produced by the prosecution. An illegal search
cannot entitle the prosecution to raise a· presumption of validity
of evidence under Section 50 of the Act. As is obvious from
the bare language of Ex.PW-6/A, the accused was not made H
1148 SUPREME COURT REPORTS [2011] 7 S.C.R.
•
A aware of his right, that he could be searched in the presence
of Gazetted Officer or a Magistrate, and that he could exercise
such choice. The writing does not reflect this most essential
requirement of Section 50 of the Act. Thus, we have no
hesitation in holding that the judgment of the High Court does
B not suffer from any infirmity.
23. Now, we come to discuss the argument raised on
behalf of the State, that in the present case, generally and as
a proposition of law, even if there is apparent default in
compliance with the provisions of Section 50 of the Act, a
C person may still be convicted if the recovery of the contraband
can be proved by statements of independent witnesses or other
responsible officers, in whose presence the recovery is
effected. To us, this argument appears to be based upon not
only a misconstruction of the provisions of Section 50 of the
D Act but also on the mis-conception of the principles applicable
to criminal jurisprudence. Once the recovery itself is found to
be illegal, being in violation to the provisions of Section 50 of
the Act, it cannot, on the basis of the statement of the police
officers, or even independent witnesses, form the foundation
E for conviction of the accused under Section 21 of the Act. Once
the recovery is held to be illegal, that means the accused did
not actually possess the illicit article or contraband and that no
such illicit article was recovered from the possession of the
accused such as to enable such conviction of a contraband
F article.
24. We are also unable to appreciate how the provisions
of Section 50 of the Act can be read to support such a
contention. The language of the provision is plain and simple
G and has to be applied on its plain reading as it relates to penal
consequences. Section 50 of the Act states the conditions
under which the search of a person shall be conducted. The
significance of this right is clear from the language of Section
50(2) of the Act, where the officers have been given the power
to detain the person until he is brought before a Gazetted
H
-- STATE OF DELHI v. RAM AVTAR@ RAMA
[SWATANTER KUMAR, J.]
1149
Officer or Magistrate as referred to in sub-section (1) of Section A
50 of the Act. Obviously, the legislative intent is that compliance
with these provisions is imperative and not merely substantial
compliance. Even in the case of Ali Mustaffa Abdul Rahman .
Moosa (supra), this Court clearly stated that contraband seized
as a result of search made in contravention to Section 50 of 8
the Act, cannot be used to fasten the liability of unlawful
possession of contraband on the person from whom the
contraband had allegedly been seized in an illegal manner.
'Unlawful possession' of the contraband is the sine qua non
for conviction under the Act. In the case of Ali Mustaffa Abdul C
Rahman Moosa (supra), this Court. had considered the
observation made by a Bench of this Court, in an earlier
judgment, in the case of Pooran Mal v. Director of Inspection
[(1974) 1 sec 345] which had stated that the evidence
collected as a result of illegal search or seizure could be used
0
as evidence in proceedings against the party under the Income
Tax Act. The Court, while examining this principle, clearly held
that even this judgment cannot be interpreted to lay down that
contraband seized as a result of illegal s~arch or seizure can
be used to fasten the liability of unlawful possession of the
contraband on the person from whom the contraband had E
allegedly been seized in. an illegal manner. 'Unlawful
possession' of the contraband, under the Act, is a factor that
has to be established by the prosecution beyond any
reasonable doubt. Indeed, the seized contraband is evidence,
but in the absence of proof of possession of the same, an F
accused cannot be held guilty under the Act.
25. What the learned counsel for the appellant has argued
is exactly to the contrary. According to him, even if the recovery
was in violation of Section 50 of the Act, the accused should G
be held guilty of unlawful possession of contraband, on the
basis of the statement of the witnesses. Once the recovery itself
is made in an illegal manner, its character cannot be changed,
so as to be admissible, on the strength of statement of
. witnesses. What cannot be done directly cannot be permitted H
1150 SUPREME COURT REPORTS (2011] 7 S.C.R. •
A to be done indirectly. If Ex.PW-6/A is not in conformity with the
provisions of Section 50 of the Act, then there is patent violation
of the provisions. Firstly, in the present case, there is no public
witness to Ex.PW-6/A; and the recovery thereof; secondly, even
the evidence of all the witnesses, who are police officers, does
B not improve the case of the prosecution. The defect in Ex.PW-
6/ A is incurable and incapable of being construed as
compliance with the requirements of Section 50 of the Act on
the strength of ocular statement.
26. The Constitution Bench, in the case of Vijaysinh
C Chandubha Jadeja (supra) had spelt out the effects of failure
to comply with the mandatory provisions of Section 50 of the
Act, being (A) cause of prejudice to the suspect accused; (B)
rendering recovery of illicit article suspect and thereby, vitiating
the conviction, if the same is recorded only on the basis of
D recovery of illicit article from the person of the accused during
sue~ search.
27. The learned counsel for the appellant relied on the use
of the words 'only on the basis of the recovery' used in para
E 29 of that judgment, to contend that if there is other supporting
evidence of recovery, the conviction cannot be set aside. This
submission is nothing but based .upon a misreading of the
judgment; not only of para 29 but the judgment in its entirety.
What the Constitution Bench has stated is that where the
F recovery is from the person of the suspect, and that recovery
is found to be illegal, the conviction must be set aside as the
principles applicable to personal recovery are somewhat
different from recovery of contraband from a vehicle or a house.
28. In para 29 of the judgment itself, the Bench has held
G that 'we have no hesitation in holding that in so far as the
obligation of the authorized officer under sub-section(1) of
Section 50 of the NDPS Act is concerned, it is mandatory and
requires strict compliance.' In fact the contention raised by the
appellant has, in specific terms, been rejected by the
H Constitution Bench in clause 7 of para 23 of the judgment. The
-- STATE OF DELHI v. RAM AVTAR@ RAMA 1151
[SWATANTER KUMAR, J.]
Court clearly held that an illicit article seized from the person A
of an accused during search conducted in violation of the
safeguards provided in Section 50 of the Act cannot be used
as evidence of proof of unlawful possession of the contraband
on the accused, though any other material recovered during that
search may be relied upon by the prosecution in other B
proceedings, against the accused, notwithstanding the recovery
of that material during an illegal search. The proposition of law
having been so clearly stated, we are afraid that no argument
to the contrary may be entertained. What needs to be
understood is that an illegal recovery cannot take the colour of c
a lawful possession even on the basis of oral evidence. But if
any other material which is recovered is a subject matter in
some co-lateral or independent proceeding, the same could be
proved in accordance with law even with the aid of such
recovery. But in no event the illegal recovery can be the
0
foundation of a successful conviction under the provisions of
Section 21 of the Act.
29. For the reasons afore recorded, we do not find any
merit in the present appeal. The same stands dismissed
without any order as to costs. · E
D.G. Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "NDPS Act"Sign in to search