Holding

A search and seizure conducted without complying with the mandatory safeguards of Section 50(1) of the NDPS Act invalidates the evidence of possession and renders a conviction based solely on that evidence unsustainable.

Summary

The appellant was charged under Section 21 of the NDPS Act for possessing 1.75 grams of brown sugar after police searched him at a bridge based on prior information. The defence argued that the police failed to comply with the mandatory safeguards of Section 50(1), which require informing the accused of his right to be searched before a Gazetted Officer or Magistrate. The Supreme Court examined the statutory purpose of Section 50(1) and held that non‑compliance vitiates the search and renders any contraband recovered therein inadmissible. It further noted that a presumption under Section 54 cannot be raised unless the search complies with Section 50. Since the conviction rested solely on the possession evidence obtained from the illegal search, the Court found the judgment of the lower courts unsustainable. Consequently, the appeal was allowed and the appellant was acquitted.

Issues considered

Whether the failure to comply with the procedural safeguards of Section 50(1) of the NDPS Act invalidates the search and seizure of the accused's person.
Whether evidence of possession obtained from a search conducted in violation of Section 50(1) can support a conviction under Section 21 of the NDPS Act.
Whether the prosecution may invoke the presumption of possession under Section 54 when the search was illegal.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 41, s. 42, s. 43, s. 50(1), s. 54

Subjects

NDPS ActSection 50(1) safeguardssearch and seizureillegal possessionevidence admissibilitypresumption under Section 54acquittal

Judgment

T. HAMZA A
v.
STATE OF KERALA

AUGUST l l, 1999

[K.T. THOMAS AND D.P. MOHAPATRA, JJ.] B

Criminal Law:

Narcotic Drugs and Psychotropic Substances Act, 1985:

Section 50(1)-Non-compliance of-Before search and seizure-
c
Accused found in possession of contraband article as a result of search of
his person-Provisions of S.50(1) not complied with-No other evidence in
support ofthe charge-Effect-Held, in the circumstances ofthe case, judgment
and order of conviction, clearly unsustainable.
D
The appellant-accused was convicted under Section 21 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 by the Sessions Court. The
High Court upheld the conviction. Hence this appeal.

According to the prosecution, having received the information that the
appellant-accused was selling brown sugar, Police went to the scene of E
occurrence and on searching the accused found brown sugar in his possession.

On behalf of the accused it was contended that the mandatory
requirements prescribed under Section 50(1) of the Act were not complied
with and, therefore, the conviction of the accused is unsustainable.
F
Allowing the appeal, this Court

HELD : 1. The Narcotic Drugs and Psychotropic Substances Act, 1985
provides a reasonable safeguard to the accused before a search of his person
is made by an officer authorised under Section 42 to make it. The provision
is also intended to avoid criticism of arbitrary and high handed action G
against authorised officers. The Legislature in its wisdom considered it
necessary to provide such a statutory safeguard to lend credibility to the
procedure keeping in view the severe punishment prescribed in the statute.
(344-E; 346-A-BJ

2. There was no compliance of the provisions of Section 50(1) of the H
343
344 SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

• A Act before the search and seizure in this case were effected. Therefore, the
search and seizure thus effected cannot be relied upon by the prosecution.
The prosecution case of illegal possession of the contraband article is based
entirely on the search of the person of the accused leading to recovery of
the article and there is no other evidence in support of the charge. Therefore,
B the judgment and order of conviction against the appellant by the Sessions
Court, which was confirmed by the High Court, is clearly unsustainable.
(350-B-D)

State of Punjab v. Baldev Singh, JT (1999) 4 SC 595, followed.

State ofPunjab v. Balbir Singh, JT (1994) 2 SC 108, held inapplicable.
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
798of1997.

From the Judgment and Order dated 1.9.95 of the Kerala High Court in
Cr!. A. No. 243 or 1993.
D Somnath Mukherjee, (A. C.) for the Appellant.

K.M.K. Nair for the Respondent.

The Judgment of the Court was delivered by

E D.P. MOHAPATRA, J. This appeal filed by the accused in Sessions
case No. I 00/90 of the Court of Sessions Kozhikode Division, is directed
against the Judgment and order of conviction and sentence u/s 21 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ' the NDPS
Act'), and sentence of I 0 years R.I. and a fine of Rs. I lakh, which was
F confirmed in 'appeal by the High Court of Kerala with slight modification
regarding the default sentence which was reduced from 2 years to l year R.I.

The charge against the appellant was that on 18.7.1990 at 6.05 P.M. he
was found in possession of 1750 milligram of brown sugar at AKG Memorial
over-bridge at Francis Road in, Nagaram, in violation of the provisions of the
G NDPS Act and thereby committed an offence punishable u/s 21 of the NDPS
Act.

The case of the prosecution, shortly stated is that the sub-inspector of
police, Chemmangad Police Station, having received information that the
accused was selling brown sugar went along with two constables PW2 and
·H CW2 to the scene of occurrence. On searching the accused nine small poly- I.
T. HAMZA v. STATE OF KERALA [D.P. MOHAPATRA, J.) 345

thene bags containing brown sugar were found in his possession. The articles A
were seized. The articles were found on weighing as 1750 milligram. After
completing the procedural paraphernalia a sample was sent for chemical analysis.
The sample which was sent for chemical analysis was found to be diacetyl
morphine (Heroin) commonly known as brown sugar.

The prosecution mainly relied on the evidence of Shri T. Raman PW I, B
the police officer, who effected the search and seizure and other witnesses
to establish the charge of illegal possession of brown sugar. The Courts
below on appreciation of the evidence on record accepted the prosecution
case and passed the order of conviction and sentence as noted earlier.

The main thrust of the arguments of Shri Somnath Mukherjee, learned C
sounsel for the appellant was that the Courts below erred in placing reliance .
on the recovery of the brown sugar from the appellant since the mandatory
requirements prescribed u/s 50 of the NDPS Act had not been followed by
the police officer before making the search which led to the seizure of the
articles. D
The contention of Shri K.M.K.Nair, learned counsel for the respondent
on the other hand was that there was substantial compliance with the provisions
/ ' of Section 50 of the NDPS Act, inasmuch as the police officer (PWI) had
asked the accused whether he would like to be produced before a Magistrate
or a Gazetted Officer to which he replied in the negative. E
The question that falls for determination is whether on the facts and
in the circumstances of the case as revealed from the evidence on record the
search of the person of the accused and the recovery of the packets of brown
sugar from his possession was vitiated on account of non-compliance with
the requirements of section 50 of the NDPS Act. From the discussions in the
F
impugned judgments it appears that the contention did not find favour with
the courts.

Sub-section(l) of Section 50 which is the relevant provision in this
regard reads thus : G
"50 Conditions under which search of person 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 delay to the nearest Gazetted Officer of any of the H
A
346 SUPREME COURT REPORTS [1999) SUPP. I S.C.R.

departments mentioned in Section 42 or to the nearest Magistrate." ..
On a bare reading of the provision it is clear that the statute provides
a reasonable safeguard to the accused before a search of his person is made

B
by an officer authorised under Section 42 to make it. The provision is also
intended to avoid criticism of arbitrary and high handed action against
•
authorised officers. The Legislature in its wisdom considered it necessary to
provide such a statutory safeguard to lend credibility to the procedure keeping
in view the severe punishment prescribed in the statute. Various questions
relating to interpretation of Section 50, obligatory character of the provisions
therein and the consequence of non-compliance with the requirements have
C been considered' by a Constitution Bench of this Court in the case of State
of Punjab v. Baldev Singh JT (1999) 4 SC 595. On a detailed discussion of
the various contentions raised and the previous decisions of the Court in the
matter this Court held as follows;

"To be searched before a Gazetted Officer or a Magistrate, if the
D suspect so requires, is an extremely valuable right which the legislature
has given to the concerned person having regard to the grave
consequences that may entail the possession of illicit articles under
the NDPS Act. It appears to have been incorporated in the Act
keeping in view the severity of the punishment. The rationale behind
the provision is even otherwise manifest. The search before a Gazetted
E
Officer or a Magistrate would impart much more authenticity and
credit-worthiness to the search and seizure proceeding. It would also
verily strengthen the prosecution case. There is, thus, no justifica- ·
tion for the empowered officer, who goes to search the person, on
prior information, to effect the search, of not informing the concerned
·p person of the existence of his right to have his search conducted
before a Gazetted Officer or a Magistrate, so as to enable him to avail
of that right. It is, however, not necessary to give the information to
the person to be searched about his right in writing. It is sufficient
if such information is communicated to the concerned person orally
and as far as possible in the presence of some independent and
G
respectable persons witnessing the arrest and search. The prosecution
must, however, at the trial, establish that the empowered officer had
conveyed the information to the concerned person of his right of
being searched in the presence of the Magistrate or a Gazetted Officer,
at the time of the intended search. Courts have to be satisfied at the
H trial of the case about due compliance with the requirements provided
T. HAMZA v. STATE OF KERALA [D.P. MOHAPATRA, J.] 347

>'
in· Section 50. No presumption under Section 54 of the Act can be A
raised against an accused, unless the prosecution establishes it to the
satisfaction of the court, that the requirements of Section 50 were duly
complied with."

In para 55 of the judgment the conclusions arrived at by the Court
have been summed up thus : B
"On the basis of the reasoning and .discussion above, the following
conclusions arise:

L That when an empowered officer or a duly authorised officer
.- acting on prior information is about to search a person, it is c
imperative for him to inform the concerned person of his right
under sub-section(!) of Section 50 of being taken to the nearest
Gazetted Officer or the nearest Magistrate for making the search.
However, such information may not necessarily be in writing;

(2) That failure to inform the concerned person about the existence D
of his right to be search,....,._ before a Gazetted Officer or a
Magistrate would cause pr1,..Jo.1dice to an accused;

(3) That a search made, by an empowered officer, on prior information,
without informing the person of his right that, if he so requires,
he ahall be taken before a Gazetted Officer or a Magistrate for E
search and in case he so opts, failure to conduct his search
before a Gazetted Officer or a Magistrate, may not vitiate the trial
,,,. but would render the recovery of the illicit article suspect and
vitiate the trial but would render the recovery of the illicit article
suspect and vitiate the conviction and sentence of an accused,
where the conviction has been recorded only on the basis of the F
possession of·the illicit article, recovered from his person, during
a search conducted in violation of the provisions of Section 50
of the Act;

(4) That there is indeed need to protect society from criminals. The
G
societal intent in safety will suffer if persons 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 the
higher authorities seriously inviting action against the concerned H
348 SUPREME COURT REPORTS (1999] SUPP. I S.C.R.

A official 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 judicial process
may come under cloud if the court is seen to condone acts of
lawlessness conducted by the investigating agency during search
B operations and may also undermine respect for law and may
have the effect of unconscionably compromising the
administration of justice. That cannot be permitted. An accused
is entitled to a fair trial. A conviction resulting from an unfair
trial is contrary bo our concept of Justice. The use of evidence ;:;
c collected in breach of the safeguards provided by Section 50 at
the trial, would render the trial unfair;

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

a criminal trial;
E
(6) That in the context in which the protection has been incorporated
in Section 50 for the benefit of the person intended to be
searched, we do not express any opinion whether the provisions
of Section 50 are mandatory or directory, but, hold that failure
to inform the concerned person of his right as emanating from
F Sub-section (I) of Section 50, may render the recovery of the
contraband suspect and the conviction and sentence of an
accused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accused during
search conducted in violation of the safeguards provided in
G
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 proceedings, against an
accused, notwithstanding the recovery of that material, d~ring an
H illegal search;
T. HAMZA v. STATE OF KERALA [D.P. MOHAPATRA, J.] 349

(8) A presumption under Section 54 of the Act can only be raised A
after the prosecution has established that the accused was found
to be in possession of the contraband in a search conducted in
accordance with the mandate of Section 50. An illegal search
cannot entitle the prosecution to raise a presumption under
Section 54 of the Act;
B
(9) That the judgment in Pooran Mal's case cannot be understood
to have laid down that an illicit article seized during a search of
a person, on prior information, conducted in violation of the
provisions of Section 50 of the Act, can by itself be used as
evidence of unlawful possession of the illicit article on the
person from whom the contraband has been seized during the
c
illegal search;
·-r
(10) That the judgment in All Mustaffa's case correctly interprets
and distinguishes the judgment in Pooran Mal's case and the
broad observations made in Pirthi Chand'o case and Jasbir Singh's
D
case are not in tune with the correct exposition of law as laid
down in Pooran Mal's case."

Testing the case in hand on the touchstone of the principles laid down
in the aforementioned decision the conclusion is inevitable that the requirements
of Section 50(1) of the NDPS Act were not complied before making the search E
of the person of the accused. The trial court in para I 0 of its judgment while
discussing the evidence of PWI observed that the witness admitted that
before searching the accused he did not ask him whether he should be
searched in presence of a Gazetted Officer. The Court further observed that
the witness was not aware whether the inquiry about the Gazetted Officer
should be made before the search was effected. F

In paragraph 12 of the judgment referring to the evidence of PW 2 the
Police Constable who accompanied PWI to the place of search, the Court
observed tliat the witness admitted that before the search was made, no
question was put to the accused whether he should be searched in presence G
of a Magistrate or a Gazetted Officer. In paragraph 6 of the judgment the Court
observed that on seeing the police party the accused had attempted to escape
but was apprehended; it was then that the accused was questioned by PWI
and he answered that he was havipg
,__, brown sugar; the accused had taken out
the bags and the same were handed over to PWI and it was then that the
accused was asked as to whether the presence of a Gazetted Officer was H
350 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A required to which he answered in the negative,

The High Court placing reliance on the decision of the State of Punjab
v. Balbir Singh, JT (1994) 2 SC 108 held that the search and seizure in the
case has not been adversely effected by non-compliance with the provisions
of Section 50(1) of the NDPS Act.
B
The position is clear and it was also not seriously disputed before us
that there was no compliance of the provisions of Section 50(1) of the Act
before the search and seizure in the case were effected. Therefore the search
and seizure thus effected cannot be relied upon by the prosecution. The
C learned counsel for the State fairly accepted the position and in our view
rightly that the prosecution caae of illegal possession of the contraband
article is based entirely on the search of the person of the accused leading
to recovery of the article and there is no other evidence in support of the
charge. It follows, therefore, that the judgment and order of conviction against
the appellant by the Sessions Court which was confirmed by the High Court
D is clear~y unsustainable.

Accordingly, the appeal i.e. allowed. The impugned judgment of the
High Court confirming the judgment and order of conviction of the Sessions
Court is set aside. The appellant is acquitted. He shall be released forthwith
unless his detention is required in any other case.
E
V.S.S. Appeal allowed.