Holding

Mandatory provisions of the NDPS Act (e.g., Sections 41, 42, 50) must be complied with and their breach vitiates the trial, whereas directory provisions (e.g., Sections 52, 57 and procedural CrPC requirements) do not invalidate the conviction unless prejudice is demonstrated.

Summary

The Supreme Court examined a series of cases where the State of Punjab alleged that arrests, searches and seizures under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) were illegal because police officers failed to comply with certain statutory provisions. The Court held that the NDPS Act is not a complete code; where it incorporates provisions of the Criminal Procedure Code (CrPC) they apply unless inconsistent. Mandatory provisions such as Sections 41, 42 and 50 of the NDPS Act must be strictly complied with, and non‑compliance vitiates the prosecution. By contrast, provisions that are directory – notably Sections 52, 57 and procedural requirements of CrPC Sections 100 and 165 – do not automatically invalidate a trial unless prejudice to the accused is shown. The Court dismissed the State’s special leave petitions and appeals, upheld the acquittals where mandatory safeguards were breached, and ordered that pending appeals of convicted respondents be heard on merits.

Issues considered

The arrest, search or seizure under the NDPS Act without compliance with its statutory provisions is illegal and vitiates the conviction.
Whether Sections 41, 42 and 50 of the NDPS Act are mandatory or directory.
Effect of non‑compliance with CrPC Sections 100 and 165 in searches conducted under the NDPS Act.
Whether failure to inform an accused of his right under Section 50 (search before a gazetted officer or magistrate) per se defeats the prosecution.
Whether provisions after arrest – Sections 52 and 57 of the NDPS Act – are mandatory and their breach vitiates the trial.

Legislation cited

Code of Criminal Procedure, 1973s. 100, s. 165, s. 4, s. 51
Indian Penal Code, 1860s. 26
Narcotic Drugs and Psychotropic Substances Act, 1985s. 41, s. 42, s. 43, s. 44, s. 49, s. 50, s. 51, s. 52, s. 57

Subjects

NDPS ActArrestSearch and seizureMandatory vs directory provisionsSection 41Section 42Section 50Criminal Procedure CodeProcedural safeguardsVitiation of trialPrior information

Judgment

!

A STATE OF PUNJAB .
v.
BALBIR SINGH AND ORS. ETC. ETC.

MARCH l, 1994

B [S. RATNAVEL PANDJAN AND K. JAYACHANDRA REDDY, JJ.]

Narcotic Drugs and l'sychotropic Substances Ac4 1985 : Sections 41,
42 and l'rovistr-Search and Amst-Wa"ant issued by a Magistrate not em-
powered-Action would be illegal-Section 42(2) held mandatory.
c l'roviso to Section 42-Search without warrant between sunrise and
sunset-Officer must record thl! grounds of belief-To this extent provision is
mandatory.

Section SO-Applicability of-When officer pnceeds under Cr.l'.C.
D without prior infonnation under N_Dl's Act Section SO is not attracted-When
there is chance recovery of Narcotic Drugs from that stage provisions of
Section SO are applicable.

It is obligatory on the part of the officer to infonn the accused that he
has a right to be searched before a Gazetted Officer or magistrate-Section
E SO held mandatory.
Section SJ-Search and Seizure-Provisions in Cr.P.C. in so far as they
are not inconsistent with NDPS Act are applicable to Search and Seizure
under NDPS Act.
F Sections S2 and 57-Provisions dealing with steps to be taken after
search and seizure-Held not mandatory-Violation of these provisions does
not vitiate trial-Court should examine whether non-compliance has caused
prejudice to the accused.

G Code of Criminal Procedure, 1973 : Section 4-£xpression "otherwise
dea_lt with''-Meaning and Scope of· •

Sections JOO and 165-Non-compliance with-Effect of

Indian Penal Code, 1860 : Section 26-'Reason to believe'-Meaning
H of.
208
STATE OF PUNJAB v. BALBIRSINGH 209
-
Intepretation of statutes-Statutory Provision-Detennination whether A
directory or mandatory-Court should keep in mind legislative intent and
)
Scope of Act-Provisions creating public duties are generally directory.

The present petitions and appeals have been filed by the State or
Punjab questioning the order passed by the Trial Court acquitting the
respondents on the ground that the arrest, search al!d seizure were In B
violation of some of the relevant and mandatory provisions of the Narcotic
Drugs and Psychotropic Substances Act, 1985. In the other connected cases
~
the accused persons have questioned their conviction on the ground that
their arrest and trial was illegal.

The question in all these cases is whether any arrest and search of
c
a person or search of a place with1>ut conforming to the provisions or the
NDPS Act becomes illegal and consequently vitiates the conviction. On·
behalf of the State of Punjab, it was contended that as the police officers
effected arrest, search and seizure on reasonable suspicion that a cog-
oizable offence bas been committed and not on any prior information that D
any offence punishable under NDPS Act bas been committed, the question
., of complying with some of the provisions of the NDPS Act in this,regard
at the time of the said arrest, search and seizre would not arise and as
long as such arrest, search and seizure are substantially in accordence
with the provisions or the Code of Criminal Procedure, such arrest, S\!31'Cb E
and seizure cannot he declared as illegal; even if it was not in strict
conformity with the provisions of the Code or Criminal Procedure, at that
stage, the same may at the most be irregnlar and the courts should only
see whether any prejudice is caused to the accused but it cannot throw out
the whole prosecution case as such.
F
• For the respondents-accused it was contended that since deterrent .
punishments are prescribed under the NDPS Act, the Legislature has
taken care to incorporate several provisions in Chapter V or the Act
governing the arrest, search and seizure to afford safeguards so that
innocent persons are not harassed and these provisions are mandatory in G
nature and non-compliance of the same vitiates the trial.

Disposing the appeals, this Court
' ... HELD : 1. NDPS Act is not a complete code incorporating all the
provisions relating to search, seizure or arrest etc. The said Act after H
/

210 SUPREME COURT REPORTS (1994) 2 S.C.R.

A incorporating the broad principles regarding search, seizure or arrest etc.
in Sections 41, 42, 43 and 49 has laid down in Section 51 that the provisions
of Cr.P.C. shall apply in so far as they are not inconsistent with the
provisions of the NDPS Act to all warrants issued and arrests, searches
and seizures made under that Act. Therefore, the provisions of Sections
100 and 165 Cr.P.C. which are not inconsistent with the provisions of the
B NDPS Act are applicable for effecting search, seizure or arrest under the
NDPS Act also. The words 'in so far as they are not inconsistent with the
provisions of this Act in Sectlom1 51 of the NDPS Act" are .~ignilicant.
Consequently the provisions of the Cr.P.C. shall be applicable in so far as •
tbey are not inconsistent with the NDPS Act to all warrants, searches,
c seizures or arrest made under tht! Act. [219-F-G, 220-D)

2. If a police officer without any prior information as contemplated
under the provisions of the NDPS Act makes a search or arrests a person
in the normal course of investigation into an offence or suspected offence
as provided under the provisions of Cr.P.C. and when such search is
D completed at that stage Section 50 of the NDPS Act would not be attracted
and the question of complying with the requirements thereunder would not
~
arise. If during such search or arrest there is a chance recovery of any
narcotic drug or psychotrophic substance then the police officer, who is
not empowered, should inform the empowered officer who should there-
E after proceed in accordance wi~~ the provisions of the NDPS Act. If he
happens to be an empowered oflr.cer also, then from that stage onwards,
he should carry out the investigation in accordance with the other
provisions of the NDPS Act. [235-D-F)

F 3. Under Section 41(1) only an empowered Magistrate can issne
warrant for the arrest or for the search in respect of offences punishable '
under Chapter IV of the Act etc., when he has reason to believe that such
offence have been committed or snch substances are kept or concealed in
any building, conveyance or place. When such warrant for arrest or for
search is issued by a Magistrate who is not empowered, then such search
G or arrest if carried ont would be illegal. [235-G)

4. Likewise only empowered officers or duly authorised officers as
enumerated in Sections 41(2) and 42(1) can act under the provisions of > .
the NDPS Act. If such arrest or search is made under the provisio11s of
H the NDPS Act by any one other than such officers, the same would be
STATE OF PUNJAB v. BALBIR SINGH 211

illegal. [235·H, 236-A) A
Nand Lal v. The State of Rajasthan, (1987) 3 Crimes 629; Bhajan
Singh v. State of Haryana, (1988) 1 Crimes 444; Umrao v. State of Rajasthan,
(1988) 2 Raj. Law Weekly 25 and Shanti Lal v. State of Rajasthan, (1989) 1
Crimes 276, approved.
B
S. Under Sectionn 41(2) only the empowered officer can give the
.... authorisation to his subordinate officer to carry out the arrest of a person
or search as mentioned therein. If there is a contravention that would
affect the prosecution case and vitiate the conviction. [236-B)

6. Under Section 42(1) the empowered officer if has a prior informa·
c
lion given by any person, that should necessarily be taken down in writing.
But if be has reason to believe from personal knowledge that offences
under Chapter IV have been committed or materials which may furnish
evidence of commission of such offences are concealed in any building, etc.,
... be may carry out the arrest or search without a warrant between sunrise D
and sunset and this provision does not mandate that be should record bis
reasons of belief. But under the proviso to Section 42(1) if such officer bas
to carry out such search between sunset and sunrise, be must record the
grounds of bis belief. To this extent these provisions are mandatory and
contravention of the same would affect the prosecution case and vitiate the
E
trial. [236-C-D)

Bai Radha v. State of Gujarat, [1969) 2 SCR 799, followed.

~
Dr. Pratap Singh and Ors. v. Director of Enforcement, Foreign Ex-
chan[;" Regulation and Ors., AIR (1985) SC 989; K.L. Subhayya v. State of F
Kamataka, AIR (1979) SC 711; Shyam Lal Shanna and Anr. v. State of
Madhya Pradesh, AIR (1972) SC 886 and R.S. Seth Gopikisan Agarwal v.
R.N. Sen, Asstt. Collector of Customs and Central Excise and Ors., AIR
(1967) SC U98, referred to.

7. Under Section 42(2) such empowered officer who takes down any G

. information in writing or records the grounds under proviso to Section
42(1) should forthwith send· a copy thereof to bis immediate official
superior. If there is total non-compliance of this provision the same .affects
the prosecution case. To that extent it is mandatory. But if there is delay
whether it was nndue or whether the same bas been explained or not, will H
r

212 SUPREME COURT REPORTS [1994] 2 S.C.R.

A be a question of fact in each case. [236-E·F]

8. If a police officer, even if he happens to be an "empowered" officer
while effeeting an arrest or search during normai investigation into olTen·
ces purely under the provisions of Cr.P.C. fails to strictly comply with the
provisions of Seetions 100 and 165 Cr.P.C. including the requirement to
B record reasons, such failure would only amount to an Irregularity. The
effect of the same on the main case depends upon the facts and circumstan- ...
ces of each case. Of course, in such a situation, the court has to consider
whether any prejudice has been caused to the accused and also examine
the evidence in respect of search in the light of the fact that these
C provi~ions have not been complied with and fcrther consider whelher the
.weight of evidence is in any ma11ner affected because of non-compliance.
[236-G-222·E]

Wasan Singh v. State, [1981] 2 SCC; Sunder Singh v. State of Uttar
Pradesh, AIR (1956) SC 411; The State of Maharashtra v. P.K Pathak, AIR
D (1980) SC U24; Radha Kishan v. State of Utter Pradesh, (1963) SC 822;
Matajog Dubey v. H.C. Behri, AIR (1956) SC 44; State of Maharashtra v.
Natwarlal Demodardas Soni, AIR (1980) SC 593; Deepak Ghanshyam Naik
v. State of Maharashtra, (1989) Crl. LJ. 1181 and Sunil Kumar v. The State
(1990) Crl. W. 414, referred to.
E
9. It Is well-settled that the testimony of a witness is not to be doubted
or discarded merely on the ground that he happens to be an official but
as a rule of caution and depending upon the circumstances of the case, the
courts look for independent corroboration. This again depends o.n ques· "
F tion whether the official has deliberately failed to comply with these
provisions or failure was due l:o lack of time and opportunity to associate
some independent witnesses with the search and strictly comply with these
provisions. [222-FJ

10. If an empowered officer or an authorised officer under Section
G 41(2) of the Act carries out a search, he would be doing so under the
provi•ions of Cr.P.C. namely Sections 100 and 165 Cr.P.C. and if there is i
no strict compliance with the provisions of Cr.P.C. then such search would
not per se be illegal and would not vitiate the trial. The effect of such failure
has to be borne in mind by the courts while appreciating the evidence in
H the facts and circumstances of each case. [236-H, 237-A) .
STATEOFPUNJAB v. BALBIRSINGH 213

11. On prior information, the empowered officer or authorised officer A
while acting under Section 41 (2) or 42 should comply with the provisions of
Section SO before the search of the person is made and such person should
be informed that if he so requires, he shall be produced before a gazetted
officer or a rnagistrate as provided tllereunder. It is obligatory on the part
of such officer to inform the person to be searched. Failure to inform the
person to be searched and if such person so requires, failure to take him to
B
the gazetted officer or the magistrate, would amount to non-compliance of
Section SO which is mandatory and thus it would affect the prosecution case
and vitiate the trial. After being so informed whether such person opted for
such a course or not would be a question offact. [237-B-D)
c
12. The provisions of Section SO are mandatory. In the context in
which this right bas been conferred, it must naturally be presumed that it
is imperative on the part of the officer to inform the person to be searched
of his right that if he so requires to be searched before a gazetted officer
or a magistrate. This is a valuable right given to the person to be searched D
in the presence of a gazetted officer or a magistrate if he so requires, since
such a search would impart much more authenticity and credit worthiness
to the proceedings while equally providing an important safeguard to the
accused. To afford such an opportunity to the person to be search•d, he
must be aware of his right and that can be done only by the authorised
officer informing him. The language is clear and the provision implicitly E
makes it obligatory on the authorised officer to inform the person to be
searched of his right. [231-E, 229-E-FJ

Jang Singh v. State of Haryana, (1988) 1 Crimes 446; State of Himachal
Pradesh v. Sudershan Kumar @ Kala & Ors., (1989) 3 Crimes 608 and
Miranda v. Arizona, 1966 (Vol. 384) US 436, referred to. F

Lewis mayers; Shell We amend the 5th Amendment p. 228, referred
to.

13. Considering whether a provision in a statute Is mandatory and G
the effect of non-compliance of the same, the courts should keep in mind
the real intention of the legislature keeping in view the whole scope of the
Act and the particular provisions to be construed in the context. (229-G)

Re Presidential Election 1974, AIR (1974) SC 1682 and Govind Lal
Chaggan Lal Patel v. The Agricultural Produce Market Committee & Ors., H
!

214 SUPREME COURT REPORTS [1994] 2 S.C.R.

A AIR (1976) SC 263.

14. Sections 52 and 57 come into operation after the arrest and
seizure under the Act. While determining whether the provisions of the Act
lo be followed after the arrest or search are directory or mandatory, it will
have to be kept in mind that the provisions of a statute creating public
B duties are generally speaking dlrccl:ory. The provisions of these two Sec·
lions contain certain procedural instructions for strict compliance by the
officers. But if there is no strict compliance of any of these instructions
that by itself cannot render the acts done by these officers null and void
and at the most it may affect the probative value of the evidence regarding
C arrest or search and in some cases it may invalidate such arrest or search.
But such violation by itself does no't Invalidate the trial or the conviction
if otherwise there is sufficient material. Therefore, it has to be shown that
such non-compliance has caused prejudice and resulted in failure of
justice. The officers, however, cannot totally ignore these provisions and if
there is no proper explanation for non-compliance or where the officers
D totally ignore the provisions then that will definitely have an adverse effect
on the prosecution case and the coairts have to appreciate the evidence and
the merits of the case bearing these aspects In view. However, a mere
non-compliance or failure to strictly comply by itself will not vitiate the
prosecution. [234-G, 235·A·Cl
E
CRIMINAL APPELLATE JURISDICTION: Special Leave Peti·
lion {Crl.) No. 1698 of 1990 etc. etc.

From the Judgment and Order dated 1.2.89 of the Punjab & Haryana
High Court in Crl. Misc. No. 8782M{A) of 1989.
F
R.S. Suri, Salish Vig, P.S . .Iha, R.S. Sodhi, G.K. Bansal, Miss. S.
Janan~ Ashok Kumar Sharma, Sanjeev Malhotra, Ms. Naresh Baks~ A.M.
Khanwilkar, A.S. Bhasme, Rarneshwar Gupta, M. Karnaruddin, Harjinder
Singh and M.T. George for the appearing parties.
G Tlie Judgment of the Court was delivered by

K. JAYACHANDRA REDDY, J. In almost all the above cases the
State of Punjab is the petitioner. The common question that arises for
consideration is whether any arrest and search of a person or search of a
H place without conforming to the provisions of the Narcotic Drugs and
\

STATE OF PUNJAB v. BALBIRSINGH [K.J.REDDY,J.] 215

Psychotropic Substances Act, 1985 ('NDPS Act' for short), become illegal A
and coosequently .vitiate the conviction. The trial court in these cases
acquitted . .le accused on the ground that the arrest, search and seizure
were in violation of some of the relevant and mandatory provisioos of the
NDPS Act. The High Court declined to grant leave to appeal against the
said order of acquittal. Qestioning the saame the State of Punjab has filed B
these special leave petitioos and appeals. In a few cases, the convicted
accused also have questioned their convictioos on the ground that arrest
and trial were illegal. Since a common question arises in all these matters,
they are being disposed of by a common judgment.

The principal contention of Mr. Sur~ learned counsel appearing for C
the State of Punjab is that in all these cases, the police officers effected
arres~ search and seizure on reasonable suspicion that a cognizable offence
has been committed and not on any prior information that any offence
punisbable under NDPS Act has been committed and therefore the ques-
tion of complying with some of the provisioos of the NDPS Act in this D
regard at the time of the said arres~ search and seizure would not arise
and as long as such arres~ search and seizure are substantially in accord-
ance with the provisioos of Code of Criminal Procedure, such arrest, search
and seizure cannot be declared as illegal. The further submission is that
even if such arrest, search and seizure are not in strict conformity with the
provisioos of Code of Criminal Procedure, at that stage, the same may at E
the most be irregular and the courts have to consider the prosecution case
and appreciate the relevant evidence from that background and should
only see whether any prejudice is caused to the accused but cannot throw
out the whole prosecution case as such. Several learned counsel appearing
for the respondents-accused on the other hand contended that since deter- F
rent punishments are prescribed under the NDPS Act, the Legislature has
taken care to incorporate several provisioos in Chapter V of the NDPS Act
governing the arrest, search and saizure to afford safeguards so that
innocent persoos are not harassed and these provisions are mandatory in
nature and non-compliance of the same vitiates the trial.
G
To appreciate the questioos involved, it may not be necessary to
extract the said provisions in the NDPS Act extensively. Suffice if we give
, a gist of the said provisions since we are mainly concerned \vith the
compliance of the provisions of Code of Criminal Procedure in respect of
arrest, search and seizure subject lo the Iimitatioos under NDPS Act. H
r

216 SUPREME COURT REPORTS [1994) 2 S.C.R

A The NpPS Act was enacted in the year 1985 with a view to con-
solidate and amend the Jaw relating to narcotic drugs, to make stringen.t
provisions for the control and regnlation of operations relating to narcotic
drugs and psychotropic substances, lo provide for the forefeiture of
property derived from, or used in, illicit traffic in narcotic drugs and
B psychotropic substances, to implement the provisions of the International
Conventions on Narcotic Drugs and Psychotropic Substaces and for mat-
ters connected therewith. Sections 1 to 3 in Chapter I deal with definitions
and connected matters. The provisions in Chapter II deal with the powers
of the Central Government to take measures for preventing and combating
abnse of and illicit traffic in narcotic drugs and to appoint authorities and
C officers to exercise the powers under the Act. The provisions in Chapter
III deal with prohibition, control and regulation of cnltivation of coca plant,
opium poppy etc. and to regnlate the possession, transport, purchase and
consumption of poppy straw etc. Chapter IV deals with varions offences
and penalties for contravention in relation to opium poppy, coca plant,
D narcotic drugs and psychotropic substances and prescribes deterrent sen-
tences. The provisions of Chapter V deals with the procedure regarding
the entry, arrest, search and seizure. Chapter VA deals with forefeiture of
property derived from or used in illicit traffic of such drugs and substan-
ces. The provisions of Chapter VI deals with miscellaneons matters. We
. '
are mainly concerned witb Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57.
E Under Section 41 certain classes of magistrates are competent to iss\ie
warrants for the arrest of any person whom they have reason to believe to
have committed any offence punishable under Chapter IV or for search of
any building, conveyance or place in which they have reason to believe that
any narcotic drug or psychotropic substance in respect of which an offence
F punishable under Chapter IV has been committed, is kept or concealed.
Section 42 empowers certain officers to enter, search, seize and arrest
without warrant or authorisation. Such officer should be superior in rank
to a peon, sepoy or constable of the departments of central excise, nar-
cotics, cnstoms, revenue, intelligence or any other department of the
Central Government or an officer of similar superior rank of the revenue,
G drugs contro~ excise, police or any other department of a State Govern-
ment as is empowered in this behalf by general or special order of the State
Government. Such officer, if he has reason to believe from personal
knowledge or information taken down in writing, that any offence punish-
able under Chapter IV has been committed, he may enter into and search
H
STATE OF PUNJAB v. BALBIR SINGH IK. J. REDDY, J.] 217

in the manner prescribed thereunder between sunrise and sunset. He can A
detain and search any person if he thinks proper and if he has reason to
believe such person to have committed an offence punishable under Chap-
ter IV. Under the proviso, snch officer may also enter and search a building
or conveyance at any time between sunset and sunrise also provided he has
reason to believe that search warrant or authorisation cannot be obtained B
without affording opportunity for concealment of the evidence or facility
for the escape of an offender. But before doing so, he must record the
grounds of his belief and send the same to his immediate official superior.
Section 43 empowers such officer as mentioned in Section 42 to seize in
any public place or in transit, any narcotic drug or psychotropic substance
in respect of which he has reason to believe that an offence punishable C
under Chapter IV has been committed and shall also confiscate any animal
or conveyance alongwith such substance. Such officer can also detain and
search any person whom he has reason to believe to have committed such
offence and can arrest him and any other person in his company. Section
44 merely lays down that provisions of Sections 41 to 43 shall also apply in D
relation to offences regarding coca plant, opium poppy or cannabis plant.
Under Section 49, any such officer authorised under Section 42, if he has
reason to suspect that any animal or conveyance is, or is about to be, used
for the trans port of any narcotic drug or psychotropic substance, can
rummage and search the conveyance or part thereof, examine and search
any goods in the conveyance or on the animal and he can stop the animal E
or conveyance by using all lawful means and where such means fail, the
animal or the conveyance may be fired upon. Then comes Section 50. Since
sufficient emphasis has been laid on this Section, we shall extract the same
in full. It reads as under :
F
'50. Conditions under which search of persons shall be conducted:-
(1) When any officer duly authorised under section 42 is about to
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 dday. to the nearest Gazetted Officer of any
of the departments mentioned in section 42 or to the nearest G
magistrate.

· (2) If such requisition is made, the officer may detain the
person until he C<llt'bting hiin before the Gazetted Officer or the
Magistrate referred to in sub-section (1). H
218 SUPREME COURT REPORTS [1994) 2 S.C.R.
'
A (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 be made.

(4) No female shall be searched by anyone excepting a female.'
B
This provision obviously is introduced to avoid any hann to the innocent
persons and to avoid raising of allegation of planting or fabrication by the
prosecuting authorities. It lays down that if the .person to be searched so
requires, the officer who is about to search him under the provisions of
C Sections 41 to 43, shall take such person without any unnecessary delay to
the nearest Gazetted Officer of any of the departments mentioned in
Section 42 or to the nearest magistrate. One of the questions raised is that
what meaning is to be given to the words 'if the person to be searched so
requires'. Do they cast a duty upon the officer about to make the search
to intimate such person that if he so requires he would be taken before the
D nearest Gazetted Officer or the nearest magistrate for the purpose of
making search in their presence or ·it is for such person to make such a
request on his own without being informed by the officer? We shall
consider this question at a later stage. Section 51 is also important for our
purpose. It reads as under :
E "51. Provisions of the Code of Criminal Procedure 1973 to apply ,.
to warrants, arrests, searches and seizures- The provisions of the
Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so
far as they are not inconsistent with the provisions of this Act, to
all warrants issued an.d arrests, searches and seizures made under
F this Act.'

This is a general provision under which the provisions of Code of Criminal
Procedure, ("Cr.P.C." for short) are made applicable to warrants, searches,
arrests and seizures under the Act. Section 52 lays down that any officer
G arresting a person under Sections 41 to 44 shall inform the arrested person
all the grounds for such arrest and the person arrested and the articles
seized should be forwarded without unnecessary delay to the Magistrate
by whom the warrant was issued or to the officer-in-charge of the nearest
police station, as the case may be and such Magistrate or the officer to
whom the articles seized or the person arrested are forwarded may take
H such measures neassary for disposal of the person and the articles. This
STATE OF PUNJAB v. BALBIRSINGH [K..J.REDDY,J.) 219

Section thus provides some of the safeguards within the parameters of A
Article 22{1) of the Constitution of India. In addition to this, Section 57
further requires that whenever any person makes arrest or seizure under
the Act, he shall within forty-eight hours after such arrest or seizure make
a report of the particulars of arrest or seizure to his immediate official
superior. This Section provides for one of the valuable safegaurds and tries B
to check any belated fabrication of evidence after arrest or seizure. Section
57 reads as under :

'57. Report of arrest and seizure - Whenever any person makes
any arrest or seizure under this Act, he shall, within forty-eight
hours next after such arrest or seizure, make a full report of all C
the particulars of such arrest or seizure to his immediate official
superior."

These are some of the provisions which are relevant and out of them
sections 41, 42, 50, 51, 52 and 57 are important for appreciating the D
questions raised before us.

In most of the cases before us, the police officers did not proceed to
act under the provisions of the NDPS Act after having necessary informa-
tion or after having reasons to believe as contemplated under Section 42.
The search, seizure or arrest carried out by them were obviously under the E
provisions of the Cr.P.C. The provisions of arrest, warrant, search and
seizure are incorporated in Sections 41 to 60, 70 to 81, 93 to 105 and 165
Cr.P.C. It may also be noticed at this stage that NDPS Act is not a
complete code incorporating all the provisions relating to search, seizure
or arrest etc. The said Act after incorporating the broad principles regard- F
ing search, seizure or arrest etc. in Sections 41, 42, 43 and 49 has laid down
in Section 51 that the provisions of Cr.P.C. shall apply in so far as they are
not inconsistent with the provisions of the ND PS Act to all warrants issued
and arrests, searches and seizures made under that Act. Therefore the
provisions of Sections 100 an_d 165 Cr.P.C. which are not inconsistent with
the provisions of the NDPS Act are applicable for effecting search, seizure G
or arrest under the NDPS Act also. The words "in so far as they are not
inconsistent with tl1e provisions of this Act in Section 51 of the NDPS Act"
are significant. It n1ay also be noted that Section 4 of the Cr.P.C. 1973
provides that all offences under any other law shall be investigated and
inquired as mentioned therein. Section 4 of the Cr.P.C. 1973 reads thus: H
!

220 SUPREME COURT REPORTS (1994] 2 S.C.R ..

A "4. Trial of offences under the Indian Penal code and other laws.
(1) All offences under the Indian Penal Code (45 of 1860) shall
be investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.

B (2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to the same
provisions, but subject to any enactment for the time being in force
regulating the manner or place of invi;stigating, inquiring into,
trying or otherwise dealing with such offences."
c
Therefore under this Section the provisions of the Cr.P.C. are applicable
where an offence under the Indian Penal Code or under any other law is
being inquired into, tried and otherwise dealt with. From the words "other-
wise dealt with" it does not necessarily mean something which is not
D included in the investigation, inquiry or trial and the words "otherwise"
points to the fact that the expression "dealt with" is all comprehensive and
that investigation, inquiry and trial are some of the aspects dealing with the
offence. Consequently the provisions of the Cr.P.C. shall be applicable in
so far as they are not inconsistent with the NDPS Act to all warrants,
searches, seizures or arrests made under the Act. But when a Police Officer
E carrying on the investigation including search, seizure or arrest empowered
under the provisions of the Cr.P.C. comes across a person being in posses-
sion of the narcotic drugs or psychotropic substances then two aspects will
arise. If he happens to be one of those empowered officers under the
· NDPS Act also then he must follow thereafter the provisions of the NDPS
F Act and continue the investigation as provided thereunder. If on the other
hand, he is not impowered then the obvious thing he should do is that he
must inform the empowered officer under the ND PS Act who should
thereafter proceed fro.n that stage in accordance with the pro\isions of the
NDPS Act. But at this stage the question of resorting to Section 50 and
informing the accused person that if be so wants, he would be taken to a
G gazetted officer and taking to gazetted officer thus would not arise because
by1hen search would have been over. As laid down in Section 50 the steps
contemplated thereunder namely informing and taking him to the gazetted
officer should be done before the search. When the sea.rch is already over
in the usual course of investigation under the provisions of Cr.P.C. then
H the question of complying with Section 50 would not arise.
STATEOFPUNJAB v.BALBIRSINGH (K.J.REDDY,J.] 221

At this juncture we may also dispose of one of the contentions that A
failure to comply with the provisions of Cr.P.C. in respect of search and
seizure even upto that stage would also vitiate the trial. This aspect has
been considered in a number of cases and irhas been held that the violation
of the provisions particularly that of Sections 100, 102, 103 or 165 Cr .P. C.
strictly per se does not vitiate the prosecntion case. If there is such violation, B
what the courts have to see is whether any prejudice was caused to the
accused and in appreciating the evidence and other relevant factors, the
courts should bear in mind that there was such a violation and from that
point of view evaluate the evidence on record. Under Section 100 Cr.P.C.
the officer conducting search under a warrant should call upon two or
more independent and respectable inhabitants of the locality in which the C
place to be searched is situate or of any other locality of no such inhabitant
of the said locality is available or is willing to be a witness to the search,
to aitend and witness the search. Section 165 Cr.P.C. lays down that
whenever an officer incharge of a police station or a police officer making
an investigation has reasonable grounds for believing that anything neces- D
sary for the purposes of an investigation into any offence which he is
authorised to investigate may be found in any place within the limits of the
police· station of which he is incbarges, or to which be is attached, and that
such thing cannot in bis opinion be otherwise obtained without undue
delay, such officer after recording in writing the grounds of his belief and
specifying in such writing, may proCJ:ed to search to cause search to be E
made. Section 165(4) lays down that the provisions of this Code as to
search warrants and the general provisions as to searches contained in
section 100 shall, so far as may be, apply to a search made under Section
165 also. The scope of these two sections have been examined in a number
of cases. In Wasan Singh v. State, (1981] 2 sec this Court has clearly held F
that irregularity in a search cannot vitiate the seizure of the articles. In
Sunder Singh v. State of Uttar Pradesh, AIR (1956) SC 411 it is held that
irregularity cannot vitiate the trial unless the accused has been prejudiced
by the defeet and it is also held that if reliable local witnesses are not
available the search would not be vitiated. In The State of Maharastra v.
P.K. Pathak, AIR (1980) SC 1224 it is held that absence of any independent G
witness from the locality to witness the search does not affect the trial and
the conviction of the accused under the Customs Act. In Radha /(jshan v.
State of Uttar Pradtsh, (1963) SC 822 it is held that irregularity in a search
would, however, cast a duty upon the court to scrutinise the evidence
H
!

222 SUPREME COURT REPORTS (1994] 2 S.C.R.

A regarding the search very carefully. In Matajog Du/Jey v. H.C. Bahri, AIR
(1956) SC 44 it is held that when the salutory provisions have not been
complied with, it may, however, affect.the weight of the evidence in support
of the search or may furnish a reason for disbelieving the evidence
produced by the prosecution unless the prosecution properly explains such
c.ircumstance which made it impossible for it to comply with these
B provisions. In State of Maharashtra v. Natwarlal Damodardas Soni, AIR
{1980) SC 593, after referring to the above mentioned decisions, this Court
observed as under :

"Taking the first contention first, it may be observed that the police
c had powers under the Code of Criminal Procedure to search and
seize this gold if they had reason to believe that a cognizable
offence had been committed in respect thereof. Assuming arguen-
do, that the search was illegal, then also, it will not affect the
validity of the seizure and further investigation by the Customs
Authorities or the validity of the trial which followed on the
D
complaint of the Assistant Collector of Customs.'

It therefore emerges that non-compliance of these provisions i.e.
Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect
of the same on the main case depends upon the facts and circumstances
E of each case. Of course, in such a situation, the court has to consider
whether any prejudice has been caused to the accused and also examine
the evidence in respect of search in the light of the fact that these
provisions have not been complied with and further consider whether the
weight of evidence is in any manner affected because of the non-com-
F pliance. It is well-settled that the testimony of a witness is not to be doubted
or discarded merely on the ground that he happens to be an official but as
a rule of caution and depending upon the circumstances of the case, the
courts look for independent corroboration. This again depends on question
whether the official has deliberately failed to comply with these provisions
or failure was due to lack of time and opportunity to associate some
G inderendent witnesses with the search and strictly comply with these
provisions. In Deepak Ghanshyam Naik v. State of Maharashtra, {1989)
Crl.L.J. 1181, a case arising under the NDPS Act, a Division Bench of the
Bombay High Court considered the effect of non-compliance of Section
100(4) namely that two or more independent respectable inhabitabts of the
H locality were not called to be present during the seach and that on the other
\

STATEOFPUNJAB v. BAJ..BJRSINGH [K.J.REDDY,J.) 223

hand two Panchas of different locality were called to be present. The A
Division Bench considered the explanation that Parnaka was at a distance
of half a kilometre from the place of distance and they called the Panch
witnesses from that place and that they could not call some.body present
on the road where the incident took place and held that there was no
material to hold that Panch witnesses from Parnaka were in any way B
motivated to falsely implicate the accused. In Sunil Kumar v. The State,
(1990) Crl.LJ. 414 again a case arising under the NDPS Act, the Delhi
High Court while considering the scope of Section 42 of the NDPS Act
and Section 100(4) of Cr.P.C. observed that failure to associate inde-
pendent persons in the search in a given situation would not affect the
prosecution case in toto and the same cannot be thrown out or doubted on C
that ground alone. In this case it has also been observed that provisions of
Sections 41 or 42 would not be attracted at this stage when the police had
secret information that some persons would be reaching in a public place
while in transit and the information was not about the specific presence of
a contraband but was only about the likelihood of such articles being D
brought. It thus emerges that when the police, while acting under the
provisions of Cr.P.C. as empowered therein and while exercising surveil-
lance or investigating into other offences, had to carry out the arrests or
searches they would be acting under the provisions of Cr.P.C. At this stage
if there is any non-compliance of the provisions of Sections 100 or 165
Cr.P.C. that by itself cannot be a ground to reject the prosecution case E
outright. The effect of such non-compliance will have a hearing on the
appreciation of evidence of the official witness and other material depend-
ing upon the facts and circumstances of each case. In carrying out such
searches if they come across any substance covered by the NDPS Act
question of complying with the provisions of the said Act including Section
F
50 at that stage would not arise. When the contraband seized during such
arrests or searches attracts' the provisions of NDPS Act then from that
stage the remaining relevant provisions of NDPS Act would be attracted
and the further steps have to be taken in accordance with the provisions
of the said Act.
G
But if on a prior information leading to a reasonable belief that an
offence under. Chapter IV of the Act has been committed, then in such a
case, the Magistrate or the Officer empowertd.-have to proceed and act
under the provisions ·of Sections 41 and 42. Under Section 42, the em-
powered officer even without a warrant issued as provided under Section H
!

224 SUPREME COURT REPORTS [1994) 2 S.C.R

A 41 will have the power to enter, search, seize and arrest between sunrise
and sunset if he has reason to believe from personal knowledge or infor-
mation given by any other person and taken down in writing that an offence
under Chapter IV has been committed or any document or other article
which may furnish the evidence of the commission of such offence is kept
or concealed in any building or in any place. Under the. proviso if such
B officer has reason to believe that search warrant or authorisation cannot
be obtained without affording opportunity for the concealment of the
evidence or facility for the escape of the offender, he can carry out the
arrest or search between sunset and sunrise also after recording the
grounds of his belief. Sub-section (2) of Section 42 further lays down that
C when such officer takes down any information in writing or records grounds
for his belief under the proviso, he shall forthwith send a copy thereof to
his immediate official superior.

As already noted Chapter V contains the provisions from Section 41
onwards regarding the power to arres~ issue warrants and carrying out
D seizure etc. and the procedure tp be followed. These provisions are at-
tracted if any of the steps mentioned thereunder are to be taken when there
is reason to believe that any person who is sought to be arrested and
searched, has committed any offence punishable under Chapter IV of the
Act. The Magistrate of Officers especially empowered under the Act can
E proceed under Sections 41 and 42 on the prior information and/or having
reason to believe thereupon that an offence under the Act has been
committed. We may mention here that Section 43 which deals with the
power of seizure and arrest in public places is slightly different from
Section 42 in certain respects. Under this provision any empowered officer
under Section 42 has the power to seize, detain, search or arrest in public
F place or in transit if he has reason to believe that an offence punishable
under Chapter IV relating to such drug or substance has been committed
and seize any document or other article which may furnish evidence of the
commission of such offence and can seize any animal or conveyance or
article liable to confiscation and can detain and search any person similarly.
The empowered officer while acting under Section 43 need not record any
G reasons of his belief. This Section also does not mention anything about
the empowered officer having prior information given by any person or
about recording the same, as compared to Section 42.

It is thus clear that by a combined reading of Sections 41, 42 43 and
H 51 of the NDPS Act and Section 4 Cr.P.C. regarding arrest and search
'
STATEOFPUNJAB v. BALBIRSINGH [K.J.REDDY,J.) 225

under Sections 41, 42 and 43, the provisions of Cr.P.C. namely Sections 100 A
and 165 would be applicable to such arrest and search. Consequently the
Principles laid down by various courts as discu'8ed above regarding the
i~regularities and illegalities 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.
B
But there are certain other embargos envisaged under Sections 41
and 42 of the NDPS Act. Only a 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 C
other officers mentioned and empowered therein can give an authorization
to a subordinate to arrest and search if such officer has reason to believe
about the commission of an offence and after reducing the information, if
any into writing. Under Section 42 only officers mentioned therein and so
empowered can make the arrest or search as provided if they have reason D
to believe from personal knowledge or information. In both these
provisions there arc two important requirments. One is that the Magistrate
or the Officers mentioned therein firstly be empowered and they mllj;t have
reason to believe that an offence under Chapter IV has been committed
or that such arrest or search was necessary for other purposes mentioned
in the provision. So far as the first requirement is concerned, it can be seen E
that the Legislature intends to only certain Magistrates and certain Officers
of higher rank and empowered can act to effect the arrest or search. This
is a safeguard provided having regard to the deterrent sentences con-
templated and with a view that innocent persons are not harassed. There-
fore if an arrest or search contemplated under these provisions 6f ND PS F
Act has to be carried out, the same can be done only by competent and
empowered Magistrates or Officers mentioned thereunder.

Nand Lal v. The State of Rajasthan, (1987) 3 Crimes 629 is a case
where a Police Head Constable and a Station House Officer, were not
empowered to carry out investigation and it was contended that the whole G
investigation was illegal and consequently the trial was vitiated. The Rajas-
than High Court held that 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. State of Haryana, (1988) 1
Crimes 444, it was observed ·that only officers empowered under the Act H
!

226 SUPREME COURT REPORTS (1994]2 S.C.R.

A can take steps regarding entry, search, seizure and arrest and that the
relevant provisions of the Act are mandatory. In Umrao v. State of Rajas-
than, (1988) 2 Rajasthan Law Weekly 25, it was held that the search made
by a Police Constable without jurisdiction and investigation made by an
officer not empowered, vitiate the trial. In Shanti Lal v. State of Rajasthan,
B (1989) 1 Crimes 276 it was similarly held that the search and arrest made
by S.H.O. who was not authorised under the Act, were illegal.

Therefore, if an arrest or search contemplated under Sections 41 and
42 is made under a warrant issued by any other Magistrate or is made by
any Officer not empowered or authorised, it would per se be illegal and
C would affect the prosecution case and consequently vitiate the trial.

The other requirement is that the Magistrate or the Officer em-
powered while acting under Section 41 or 42 should have 'reason to
believe' that such an offence under Chapter IV has been committed and,
therefore, an arrest or search was necessary as contemplated under these
D provisions. Section 26 l.P.C. gives the meaning of this term as under :

11
"26. "Reason to believe A person is said to. have "reason to
-

believe" a thing, if he has sufficient cause to believe that thing but
not otherwise."
E
In Dr. Pratap Singh and others v. Director of Enforcement, Foreign Exchange
Regulation and Others, AIR (1985) SC 989 it was observed as under :
11
The expression "reason to believe" is not synonymous with subjec-
tive satisfaction of the officer. The belief must be held in good
F faith; it cannot be merely a pretence.... When an officer of the
Enforcement Department proposes to act under Section 37 of the
Foreign Exchange Regulation Act for ordering search, undoubted-
ly, he must have reason to believe that the documents useful for
investigation or proceeding under the Act are secreted. The
material on which the belief is grounded may be secret, may be
G obtained through intelligence or occasionally may be conveyed
orally by informants. It is not obligatory upon the officer to disclose
this material on the mere allegation that there was no material on
which his reason to believe can be grounded."

H Whether there was such reason to believe and whether the Officer em-
\
STATE OF PUNJAB v. BALBIRSINGH (K.J.REDDY,J.] 227

powered acted in a bonafide manner, depends upon the facts and cir- A
cumstances of ~e case and will have a bearing in appreciation of the
evidence. However, if such information is given by any person, the same
should be take~ in writing as provided both under Sections 41(2) and 42(1).
But under the proviso to Section 42(1) if such empowered officer has
reason to believe that search warrant or authorisation cannot be obtained B
without affording opportunity for the concealment of evidence or facility
for the escape of offender, he may enter and search at any time between
sunset and sunrise after recording the grounds of his belief. However, if
such arrest, search or seizure are to be made by the empowered officer
between sunrise and sunset, there is no such mandatory provision for
recording of the reasons to belief. C
In KL. Subhayya v. State of Kamataka, AIR (1979) SC 711 this Court
considering the scope of Section 54 in the Mysore Excise Act whereunder
the Officer was required to "record the grounds of his belief" and the
failnre to do so was held to be rendering the entire search without juris-
diction and thus vitiated the conviction. Commenting on the failnre to do D
so, it was observed as under :

"This, therefore, renders the entire search without jnrisdiction and
as a logical corollary vitiates the conviction. We feel that both Ss.
53 and 54 contain valuable safeguards for the liberty of the. citizen E
in order to protect them from ill- founded or frivolous prosecntion
or harassment."

The very fact that Sub-section (2) of Secion 42 requires that where an
officer takes down any information in writing under sub-section (1) or
records grounds for his belief under the proviso thereto, he shall forthwith F
send a copy thereof to his immediate official superior, itself is a strong
indication of the mandate that the officer should record his reasons for his
belief as required under the proviso and also that the information received
should be reduced to writing so that it can be verified whether there were
sufficient reasons for belief. In Re Presidential Election 1974, AIR (1974) G
SC 1682 this Conrt observed as under :

"In determining the question whether a provision is mandatory or
directory, the subject matter, the importance of the provision, the
relation of that provision to the general object intended to be
secured by the Act will decide whether the provision is directory H
I

228 SUPREME COURT REPORTS [1994] 2 S.C.R.

A or mandatory. !tr is the duty of the courts to get at the real intention
of the legislature by carefully attending to the whole scope of the
provision to be construed. "The key to the opening of every law is
the reason and spirit of the law, it is the animus imponentis, the
intention of the law make·r expressed in the law itself, taken as a
whole." (See Brett v. Bret4 (1826) 3 Addams 210 at p.216)."
B
In Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Com-
mittee and others, AIR ( 1976) SC 263 it was observed thus :

"Thus, the governing factor is the meaning and intent of the
legislature, which should be gathered not merely from the words
c used by the legislature but from a variety of other circumstances
and considerations. In other words, the use of the word 'shall' or
'may' is not conclusive on the question whether the particular
requirement of law is mandatory or dirctory. But the circumstances
that the legislature has used a language of compulsive force is
D always of great relevance and in the absence of anything contrary
in the context indicating that a permissive interpretation is pennis-
sible, the statute ought to be construed as peremptory. One of the
fundamental rules of interpretation is that if the words of a statute
are themselves precise and unambiguous, no more is necessary
E than to expound these words in their natural and ordinary sense,
the words themselves in such case best declaring the intention of
the legislature."

The object of NDPS Act is to make stringent provisions for control and
regulation of operations relating to those drugs and substances. At the
F same time, to. avoid harm to the innocent persons and to avoid abuse of
the provisions by the officers, certain safeguards are provided which in the
context have to· be observed strictly. Therefore these provisions make it
obligatory that such of those officers mentioned therein, on receiving an
information, should reduce the same to writing and also record reasons for
G the belief while carrying out arrest or search as provided under the proviso
.,l Section 42(1). To that extent they are mandatory. Consequently the
failure to comply with these requirements thus affects the prosecution case
and therefore vitiates the trial.

One another important question that arises for consideration is
H whether failure to comply with the conditions laid down in Section 50 of
'
STATE OF PUNJAB v. BALBIRSINGH [K.J.REDDY,J.] 229

the NDPS Act by the empowered or authorised officer while conducting A
the search, affects the prosecution case. The said provision (Section 50)
lays down that any officer duly authorised under Section 42, who is about
to search any person under the provisions of Sections 41, 42 and 43, shall,
if such person so requires, take him without unnecessary delay to the
nearest gazetted officer of any of the departments mentioned in Section 42 B
or to the nearest magistrate and if such requisition is made by the person
to be searched, the concerned authorised officer can detain him until he
', can produce him before such gazetted officer or the magistrate. After such
production, the gazetted officer or the magistrate, if sees no reasonable
ground for search, may discharge the person. But otherwise be shall direct
that $earch be made. To avoid humiliation to females, it is also provided C
that no female shall be searched by anyone except a female. The words ''If
the person to be searched so desires" are important. One of the submissions
is whether the person who is about to be searched should by hiniself make
a request or whether it is obligatory on the part of the empowered or the
authorised officer to inform such person that if be so requires, be would D
be produced before a gazetted offier or a magistrate and thereafter the
search would be conducted. In the context in which this right has been
conferred, it must naturally be presumed that it is imperative on the· part
of the officer to inform the person to be searched of his right that if he so
requires to be searched before a gazetted officer or a magistrate. To us, it
appears that this is a valuable right given to the person to be searched in E
the presence of a gazetted officer or a magistrate if he so requires, since
such a search would impart much more authenticity and creditworthiness
to the proceedings while equally providing an important safeguard. to the
accused. To afford such an opportunity to the person to be searched, he
must be aware of his right and that can be done only by the authorised F
officer informing him. The language is clear and the provision implicitly
makes it obligatory on the authorised officer to inform the person to be
searched of his right.

As discussed above, in considering whether a provision in a statute
is mandatory and the effect of non-compliance of the same, the courts G
should keep in mind the real intention of the legislature keeeping in view
the whole scope of the Act and the particular provisions to be construed
in the context. Keeping these principles in view, we shall proceed to
consider the nature of some of these relevant provisions.

H
I

230 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Under the Act wide powers are conferred on the officers and deter-
rent sentences are also provided for the offences under the Act. It is
obvious that the legislature while keeping in view the menace of illicit drug
trafficking deemed it fit to provide for corresponding safeguards to check
the misuse of power thus conferred so that any harm to the innocent
persons is avoided and to minimise the allegations of planting or fabricating
B by the prosecution, Section 50 is enacted.

The author Lewis Mayers in his book titled "Shall We Amend the 5th
Amendment" p. 228 stated as under :

c "to strike the balance between the needs of law enforcement on
the one hand and the protection of the citizen from oppression
and injustice at the hands of the law-enforcement machinery on
the other is a perennial problem of statecraft. The pendulum over
the year has swung to the right. Even as long ago as the opening
of the twentieth century, Justice Holmes declared that "at the
D present time in this country there is more danger that criminals
will escape justice than that they will be subject to tyranny." As the
century has unfolded the danger has increased.

Conspiracies to defeat the law have in recent decades become
more widely and powerfully organised and have been able to use
E
modem advances in communication and movement to make detec-
tion more difficult. Lawbreaking tends to increase. During the
same period an increasing awareness of the petentialities of abuse
of power by law-enforcement officials have resulted, in both the
judicial and the legislative spheres, in a tendency to tighten restric-
F tions, on such officials, and to safeguard even more jealously the
rights of the accused, the suspect, and the witness. It is not too
much to say that at mid-cei1tury we confront a real dilemma in law
enforcement."

G In Miranda v.Arizona, [1966] (Voi. 384) US 436, the Court, consider-
h~g the question whether the accused be apprised of his right not to answer
and keep silent while being interrogated by the police, observed thus :

"At the outset, if a person in custody is to be subjected to inter-
rogation, he ~ust first be informed in clear and unequivocal terms
H that he has the right to remain silent. For those unaware of the
S"iATE OF PUNJAB v. BALBIR SINGH [K. J. REDDY, J.] 231

privilege, the warning is needed simply to make them aware of A
it-the threshold requirement for an intelligent decision as to its
exercise. More important, such a warning is an absolute prereq-
uisite in overcoming the inherent pressures of the interrogation
atmosphere."

It was further observed thus : B

"The warning of the right to remain silent must be accompanied
by the explanation that anything said can and will be used against
the individual in court. This warning is needed in order to make
him aware not only of the privilege, but also of the consequences C
of forgoing it. ii is only through an awareness of these consequen-
ces that there can be any assurance of real understanding and
intelligent exercise of the privilege. Moreover, this warning may
serve to make the individual more acutely aware that he is faced
with a phase of the adversary system-that he is not in the presence
of persons acting solely in his interest." D
When such is the importance of a right given to an accused person in
custody in general, the right by way of safeguard conferred under Section
50 in the context is all the more important and valuable. Therefore it is to
be taken as an imperative requirement on the part of the officer intending E
to search to inform the person to be searched of his right that if he so
chooses, he will be searched in the presence of a gazetted officer or a
magistrate. Thus the provisions of Section 50 are mandatory.

Both' under Sections 41 and 42, the officers empowered can enter
and search the place and also arrest the person suspected to have com- F
mitted the offence either on the basis of his own knowledge or on the basis
of information reduced to writing. If an arrest is made and a person is to
be searched, then as noted above Section 50 comes into operation and the
search of the person has to be carried out in the manner provided there-
under. Some of the High Courts also have taken the same view. In Jang
Singh v. State of Haryana, (1988) 1 Crimes 446 it was held that it is an G
imperative requirement on the part of the officer intending to search to
inform the person to be searched of his right to be searched in the presence
of a gazetted officer. or a magistrate and failure to do so warrants his
acquittal. In State of Him'achal Pradesh v. Sudershan Kumar @ Kala & Ors.,
(1989) 3 Crimes 608, a Division Bench of the High Court held that the H
!
232 SUPREME COURT REPORTS 1199412 S.C.R.

A provisions of Section 50 sub-section (1) are mandatory and violation there•
of per se would be fatal to the prosecution case.

We have also already noted that the searches under the NDPS Act
by virtlle of Section 51 have to be carried under the provisions of Cr.P.C.
B particularly Sections 100 and 165. The irregularities, if any committed like
independent witnesses not being associated or the witnesses not from the
locality, while carrying out the searches etc. under Sections 100 and 165
Cr.P.C. would not, a:i discussed above, vitiate the trial. But a question may
still arise that when an empowered officer acting ilnder Sections 41 and 42
of the Act, carries out a search under Section .165 Cr.P.C. without record·
C ing the grounds of bis belief as provided under Section 165, whether such
failure also would vitiate the trial particularly in view of the fact that such
a search is connected with offences under the NDPS Act. Neither Section
41(2) nor Section 42(1) mandates such empowered officer to record the
grounds of his belief. It is only proviso to Section 42(1) read with Section
42(2) which makes it obligatory to record grounds for his belief. To that
D extent we have already held the provisions being mandatory. A fortiori, the
empowered officer though is expected to record reasons of belief as
required under Section 165, failure to do so cannot vitiate the trial par-
ticularly when Sections 41 or 42 do not mandate to record reasons while
making a search. Section 165 in the context has to be read alongwith
E Sections 41(2) and 42(1) whi:reunder he is not required to record his
re.asons.

The counsel for the respondents, however, contended that an ex-
amination of Section 165 Cr.P.C., as it stands, would show that recording
F . such grounds is obligatory and failure to do so will vitiate the trial. In our
view, the general principles laid down regarding the irregularities com-
mitted in such searches, equally apply even to cases where the grounds of
belief as required under Section 165 are not recorded. In Bai Radha v.
State of Gujara~ (1969) 2 SCR 799, while considering the scope of Section
15 of the Suppression of linrtloral Traffic Act, whereunder the authorised
G officer had to record the grounds of his belief, on the effect of failure to
do so, this Court observed thus :

'The principles which have been settled with regard to the effect
of an irregular search made in exercise of the powers under s. 165
H of the Code of Criminal Procedure would be fully applicable even
\

STATE OF PUNJAB v. BALBIRSINGH [K.J.REDDY.J.j 233

to a case under the Act where the search has nol been made in A
strict compliance with its provisions. It is significant r:hat there is
no provision in the Act according to which any search carried out
in contravention of s. 15 would 1 ender the trial illegal. In the
absence of such a provision we must apply the law which has been
laid down with regard to searches made under the provisions of B
the Criminal Procedure Code."

While concluding on the legal effect with regard to an irregular search
under Section 165 of the Code, it was observed .thus :

'In conclusion it may be observed that the investigating agencies C
cannot and ought not to show complete disregard of such
provisions as are contained in sub-ss. (1) and (2) of s. 15 of the
Act. The legislature in its wisdom provided special safeguards
owing to the nature of the premises which have to be searched
invoMng inroads on the privacy of citizens and handling of delicate D
situations in respect of females. But the entire proceedings and
the trial do not become illegal and vitiated owing to the non-ob-
servance of or non-compliance with the direction containe4 in the
aforesaid provisions. The court, however, has to be very careful
and circumspect in weighing the evidence where there has been
such a failure on the part of the investigating agency but unless E
and until some prejudice is shown to have been caused to the
accused person or persons the conviction and the sentence cannot
be set aside.'

The observations made in the above case have been relied upon by this F
Court in Shyam Lal Shanna and Anr. v. State of Madhya Pradesh AIR .
(1972) SC 886. No doubt in K.L. Subhayya's case (supra) failure to record
the grounds of belief as required under Section 54 of the Mysore Excise
Act amounted to an illegality vitiating the tr.ial. But there it must be noted
that Section 54 itself gives a mandate that such grounds of belief should be G
recorded. But under the NDPS Act, Sections 41 and 42(1) do not give any
such mandate. It is only proviso to Section 42(1) which makes the recording
of grounds obligatory. In R.S. Seth Gopikisan Agarwal v. R.N. Sen, Assistant
Collector of Customs and Central Excise and Others, AIR ( 1967) SC 1298,
. a question arose whether the custom officer while acting under Section 105
of the Customs Act and making a search as provided under Section 165(1) H
!
234 SUPREME COURT REPORTS [1994] 2 S.C.R.

A should record reasons. This argument was based upon Section 105(2)
which lays down that the provisions of the Cr.P.C. relating to search so far
as may be applied to search under this Section. Considering this submission
it was held thus :

"The argument is that the expression" so far as may be" in S.105(2)
B of the Act attracts S. 165(1) of the Code of Criminal Procedure
and under that section, as the police officer has to record in writing
the grounds of his belief the Assistant Collector of Customs shall
also in authorizing the search record his reasons for doing so. But,
in our view, s. 105 of the Act and s.165(1) of the Code of Criminal
c Procedure are intended to meet totally different situations. While
under s. 105 of the Act the Assistant Collector of Customs either
makes the search personally or authorises any officer of Customs
to do so, if he has reason to believe the facts mentioned therein,
under s. 165(1) of the Code of Criminal Procedure the recording
of the reasons for believing the facts is only to enable him to make
D a search urgently in a case where search warrants in the ordinary
course cannot be obtained. it is, therefore, not possible to invoke
that condition and apply it to a situation arising under s. 105 of
the Act."

E It therefore emerges that the empowered officer while effecting the search
or arrest without warrant as provided under Sections 41 and 42(1) has to
carry out search in cccordance with Section 165 Cr.P.C., but if he fails to
record reasons, such a failure will not amount to an illegality vitiating the
trial. The effect of such a failure has Lo be kept in view in appreaciating
the evidence as held in Bai Radha's case (supra).
F
Sections 52 and 57 come into operation after the arrest and seizure
under the Act. Somewhat similar provisions also arc there in the Cr.P.C.
If there is any violation of these provision.s, then the Court has to examine
the effect of the same. In that context while determining whether the
G provisions of the Act to be followed after the arrest or search are directory
or mandatory, it will have to be kept in mind that the provisions of a statute
creating public duties are generally speaking directory. The provisions of
these two Sections contain certain procedural instructions for strict com·
pliancc by the officers. But if there is no strict compliance of any of these
instructions that by itself can not render the acts done by these officers 1111//
H and i-oid and at the most it may affect the probative value of the e;idence
STATE OF PUNJAB v. BALBIRSINGH [K.J.REDDY,J.] 235

regarding arrest or search and in some cases it may invalidate such arrest A
or search. But such violation by itself does not invalidate the trial or the
conviction if otherwise there is sufficient material. Therefore it has to be
shown that such non-compliance has caused prejudice and resulted in
failure of justice. The officers, however, can not totally ignore these
provisions and if there is no proper explanation for non-compliance or
where the officers totally ignore the provisions the that will definitely have B
an adverse effect on the prosecution case an.d the courts have to appreciate
the evidence and the merits of the case bearing these aspects in view.
However, a mere non-compliance or failure to strictly comply by itself will
not vitiate the prosecution.

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

(1) If a police officer without any prior information as contemplated
under the provisions of the NDPS Act makes a search or arrests a person D
in the normal course of investigation into an offence or suspected offence
+ as provided under the provisions of Cr.P.C. and when such search is
completed at that stage Section 50 of the ND PS Act would not be attracted
and the question of complying with the requirements thereunder would not
arise. If during such search or arrest there is a chance recovery of any E
narcotic drug or psycotrophic substance then the police officer, who is not
empowered, should inform the empowered officer who should thereafter .
proceed in accordance with the provisions of the NDPS Act. If he happens
to be an empowered officer also, then from that stage onwards, he should
carry out the investigation in accordance with the other provisions of the
NDPSAct. F
(2A) Under Section 41(1) only an empowered Magistrate can issue
warrant for the arrest or for the search in respect of offences punishable
under Chapter IV of the Act etc., when he has reason to believe that such
offences have been committed or such substances are kept or concealed in G
any building, conveyance or place. When such warrant for arrest or for
search is issued by a Magistrate who is not empowered, then such search
or arrest if carried out would be illegal.

Likewllie only empowered officers or duly authorised officers as
enumerated in Sections 41(2) and 42(1) can act under the provisions of the H
I

236 SUPREME COURT REPORTS [1994] 2 S.C.R.

A ND PS Act. If such arrest or search is made under the provisions of the
ND PS Act by any one other than such officers, the same would be illegal.

(2B) Under Section 41(2) only the empowered officer can give the
authorisation to his subordinate officer to carry out the arrest of a person
or search as mentioned therein. If there is a contravention that would affect
B the prosecution case and vitiate the conviction.

(2C) Under Section 42(1) the empowered officer if has a prior
information given by any person, that shonld necessarily be taken down in
writing. But if he has reason to believe from personal knowledge that
C 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 under the proviso to Section 42(1)
if such officer has to carry out such search between sunset and sunrise, he
D must record the grounds of his belief.

To this extent these provisio~s are mandatory and contravention of
the same would affect the prosectution case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes down any
E
information in writing or records the grounds under proviso to Section
42(1) should forthwith send a copy thereof to his immediate official supe-
rior. If there is total non-compliance of this provision the same affects the
prosecution case. To that extent it is mandatory. But if there is delay
whether it was undue or whether the same has been explained or not, will
F be a question of fact in each case.

( 4A) If a police officer, even if he happens to be an "empowered"
officer while effecting an arrest or search during normal investigation into
offences purely under the provisions of Cr.P.C. fails to strictly comply with
G the provisions of Sections 100 and 165 Cr.P.C. including the requirement
to record-reasons, such failure would only amount to an irregul"}ity.

(4B) If an empowered officer or an authorised officer under Section
41(2) of the Act carries out a search, he would be doing so under the
provisions of Cr.P.C. namely Sections 100 and 165 Cr.P.C. and if there is
H no strict compliance with the provisions of Cr.P.C. then such search would
\

STATE OF PUNJAB v. BALB!RSINGH [K.J.REDDY,J.] 237

not per se be illegal and would not vitiate the trial. A
The effect of such failure has to be borne in mind by the courts while
appreciating the evidence in the facts and circumstances of each case.

(5) On prior information, the empowered officer or authorised of-
ficer while acting under Section 41(2) or 42 should comply with the B
provisions of Section 50 before the search of the person is made an such
person should be informed that if he so requires, he shall be produced
before a gazetted officer or a magistrate as provided thereunder. It is
obligatory on the part of such officer to inform the person to be searched
Failure to inform the person to be searched and if such person so requires, C
failure to take him to the gazetted officer or the magistrate, would amount
to non-compliance of Section 50 which is mandatory and thus it would
affect the prosecution case and vitiate the trial. After being so informed
whether such person opted for such a course or not would be a question
of fact.
D
(6) The provisions of Sections 52 and 57 which deal with the steps
to be taken by the officers after making arrest or seizure under Sections
41 to 44 are by themselves not mandatory. If there in non-compiiance or if
tilere are lapses like delay etc. then the same has to be examfued to see
whether any prejudice has been caused to the accused and such failure will E
have a bearing on the appreciation· of evidence regarding arrest or seizure
as well as on merits of the case.

We will now proceed to consider the question whether any inter-
ference is called for in these matters in view of above conclusions. In most
of the cases filed by the State of Punjab, arrest or search were carried out p
by police officers who were not empowered and in such a situation, as held
above, compliance of Section 50 did not arise. But the cases have been
thrown out on the ground that Section 50 has not been complied with in
all these cases. All the S.L.Ps listed above except SLP (Cr!.) No. 2437/92
are filed by the State of Punjab questionin.1 the order of acquittal passed G
by the trial court. The offences are said to have taken place a long time
back and after bearing both sides on notice stage, we do not think that it
is expedient to order retrial in all these cases at this distance of time
particularly in view of the fact that most of the incriminating evidence
would have disappeared. So in this view of the matter, S.L.Ps. filed by the
State of Punjab are dismissed. H
I

238 SUPREME COURT REPORTS [1994] 2 S.C.R.

A All the other Criminal Miscellaneous petitions are also filed by the
State of Punjab for condonation of delay in filing the S.L.Ps., against
acquittal on the same grands. In all these cases, there is considerable delay
and we do not think ihese are fit cases for condonation of delay. They are
accordingly dismissed.

B Criminal Appeal No. 212193
This appeal pursuant to the leave granted, L~ filed by the State of
Punjab against the order of acquittal on the same grounds. In view ~f the
above conclusions reached, this appeal is also dismissed.

C Criminal Appeal Nos. 334/90 348191 and S.L.P. (Crl.) No. 2437192. .
These two appeals and one S.L.P. are filed by the accused who are
convicted under the NDPS Act. These matters have to be decided on
merits after hearing the parties in the light of the above conclusions.
Therefore they are delinked and they may be posted in due course for
· regular bearing.

T.N.A. Appeals disposed of.