Holding

Section 50 imposes an imperative duty on the empowered officer to inform the suspect of his right to be searched before a Gazetted Officer or Magistrate, and non‑compliance renders the recovery of the illicit article suspect and vitiates any conviction based solely on that possession, while such seized contraband cannot be used as evidence of unlawful possession.

Summary

The Supreme Court examined a batch of appeals concerning searches under the Narcotic Drugs and Psychotropic Substances Act, 1985. It held that an empowered officer must inform a suspect of his right to be searched before a Gazetted Officer or Magistrate, and that this duty is imperative, not merely directory. Failure to give this information renders the recovery of the illicit article suspect and vitiates any conviction based solely on possession of that article, although the seizure does not automatically invalidate the trial. Evidence of the contraband obtained in such an illegal search cannot be used to prove unlawful possession, though other material seized may be admissible in separate proceedings. The Court also clarified that the presumption under Section 54 can be raised only when the search complies with Section 50. Consequently, the appeals and special leave petitions were disposed of.

Issues considered

Whether Section 50 of the NDPS Act imposes a mandatory duty on the officer to inform the suspect of his right to be searched before a Gazetted Officer or Magistrate
Whether a search conducted without such information is illegal even if the suspect does not exercise the right
Whether a trial based solely on possession of contraband recovered in violation of Section 50 is void ab initio
Whether evidence seized in violation of Section 50 is admissible to prove unlawful possession
Whether the presumption of possession under Section 54 can be raised after an illegal search
Whether Section 50 applies only to searches of persons and not premises

Legislation cited

Code of Criminal Procedure, 1973s. 100, s. 102, s. 103, s. 165, s. 51, s. 52
Constitution of Indias. Article 141, s. Article 21, s. Article 22(5)
Income Tax Act, 1961s. 132
Indian Evidence Act, 1872
Narcotic Drugs and Psychotropic Substances Act, 1985s. 41, s. 42, s. 43, s. 50, s. 51, s. 52, s. 54, s. 57

Subjects

NDPS ActSection 50search and seizureillegal searchadmissibility of evidencepresumption under Section 54fair trialprocedural safeguardsright to be searched before Gazetted Officercriminal procedure

Judgment

THE STATE OF PUNJAB A
v.
BALDEV SINGH

JULY 21, 1999

[DR. A.S. ANAND, C.J., S.B. MAJMUDAR, SUJATA V. MANOHAR, B
K. VENKATASWAMI AND V.N. KHARE, JJ.]

Criminal Law :

Narcotic Drugs and Psychotropic Substances Act, 1985 : c
Section 50-Search-Provisions-Due compliance of-Held : It is
imperative and obligatory for the Investigating Officer to inform the suspect
of his right to be searched in the presence of a Gazetted Officer or a
Magistrate-However, it is not necessary to give this information in writing;
it is sufficient if it is communicated orally-Omission to give such information D
would not vitiate the trial but would render the recovery of illicit article
illegal-The conviction and sentence, if recorded on the sole basis of
possession of such illicit article, would be unsustainable-S.50 provides for
a reasonable, fair and just procedure which must be honoured

Section 50(1)-Searcli- "If such person so requires "-Meaning of- E
Held : If the person (suspect) concerned requires to be searched in the
presence of a Gazetted Ojficer or a Magistrate, the empowered officer is
obliged to do so or else the conviction and sentence based solely on the
recovery of illicit article would be bad-Court must give opportunity to the
·prosecution to establish due compliance with S.50 and must be satisfied p
about such compliance.

Sections 50 and 54-Search-Jn violation of S.50-Jllicit article seized
during such search-Use of-Held : Cannot by itself be used as evidence of
proof of unlawful possession-Other material recovered during that search
can, however, be relied upon by the prosecution in other proceedings against G
an accused-An illegal search cannot entitle the prosecution to raise a
presumption under S.54. Section 50-Search-Person and premises-
Applicability of-Held : Applies only in the case of a search of a person as
distinguished from search of any premises etc.

Sections 50 and 42-Search-Contraband article-Recovery of-In H
977
978 SUPREME COURT REPORTS [1999) 3 S.C.R.

A the course of normal investigation-field: Requirements ofS.50, not attracted.
Section 51 (2)-Search of a female-Procedure-Held: Search must be
made by a female-Failure to do so not only affects the credibility of the
prosecution but also violative of the basic right of a female to be treated with
decency and proper dignity-Criminal Procedure Code, 1973. Constitution
B of India, 1950 :
Article 21-Fair trial-Object of-Held: It is for the benefit of sociefy
as well as for the accused-Nature of evidence obtained and nature of
safeguard violated are both relevant factors-Hence, evidence collected in
C violation of a statutory provision, inadmissible.

Article 141-Preceden.t-A decision is an authority for what it decides-
Everything said in a decision does not constitute a precedent-A decision
has to be considered ·in the context in which it is rendered.

Criminal Procedure Code, 1973 : Sections 100, 102, 103 and 165.
D
Narcotic drug or psychotropic substance-Recovery of-During normal
course of investigation under Cr. P.C.-Duty of Investigating Officer-Held:
Must follow the provisions of NDPS Act-If Investigating Officer is not the
empowered officer he must inform one under the Act who should proceed from
E that stage in accordance with NDPS Act.

Words and Phrases:

"If such a person so requires"-Meaning of-In the context of S.50(1)
of the Narcotic Drugs and Psychotropic Substances Act, 1985.
F Doctrine:

Doctrine of Stare decisis-Discussed.

The present batch of appeals/special leave petitions was initially placed
G before a two Judge Bench and it was noticed that there was divergence of
opinion between different Benches of this Court with regard to the ambit and
scope of Section 50 of the Narcotic Drugs and Psychotropic Substances Act,-
1985. Therefore, this batch of cases was placed before a three Judge Bench,
which was of the opinion that the Judgement of a three-Judge Bench is
Saiyad Mohd. Saiyad Umar Saiyad's case required reconsideration and,
H therefore, this batch of cases was required to be considered by a still larger
STATE OF PUNJAB v. B. SINGH 979

Bench. A
The threL'-Judge Bench, therefore, referred the following questions of
law to this Constitution Bench :-
980 SUPREME COURT REPORTS [1999] 3 S.C.R.

A 1>rior information, to effect the search, of not informing the concerned
person of the existence of his right to have his search conducted ~efore 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
B communicated to the person orally and as far as possible in the presence of
some independent and respectable persons witnessing the arrest and search.
Tlie prosecution must, however, at the trial, establish that the empowered
officer had conveyed the information to the concerned 1>erson of his right of
being searched in the presence of the Magistrate or a Gazetted Officer, at
the time of the intended search. Comis have to be safo.iied at the trial of the
C case about due compliance with the requirements provided in Section 50.
(1009-F-H; 1010-A-B]

1.3. However, the question whether the provisions of Section 50 are
mandatory or directory and if mandatory to what extent and the consequences
of non-compliance with it does not strictly speaking arise in the context in
D which the protection has been incorporated in Section 50 for the benefit of
the person intended to be searched. Therefore, without expressing any opinion
as to whether the provisions of Section 50 are mandatory or not, but bearing
in mind the l>Urpose for which the safeguard has been made, it is held that
the provisions of S'1ction 50 of the Act implicitly make it imperative and
E obligatory and cast a duty on the Investigating Officer (empowered officer)
to ensure that search of the concerned person (suspect) is conducted in the
manner 1>rescribed by Section 50, by intimating to the concerned person
about the existence of his right, that if he so requires, he shall be searched
before a Gazetted Officer or a Magistrate and in case he so opts, failure to
conduct his search before a Gazetted Officer or a Magistrate, would cause
F prejudice to an accused and 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 possession of the illicit article,
recovered during a search conducted in violation of the provisions of Section
50 of the Act. The omission may not vitiate the trial as such, but because
G of the inherent prejudice, which would be caused to an accused by the
omission to be informed of the existence of his right, it would render his
conviction and sentence unsustainable. The protection provided in the Section
to an accused to be intimated that he has the right to have his personal
search conducted before a Gazetted Officer or a Magistrate, if he so requires,
is sacrosanct and indefeasible-it cannot be disregarded by the prosecution
H except at its own peril. [1013-C-G]
ST ATE OF PUNJAB v. B. SINGH

2.1. The safeguard or protection to be searched in the presence of a A
Gazetted Officer or a Magistrate has been incorporated in Section 50 to
ensure that persons are only searched with a good cause and also with a view
to maintaining veracity of evidence derived from such search. Severe
punishments have been provided under the Act for mere possession of Illicit
Drugs and Narcotic Substances. Personal search, more particularly for B
offences under NDPS Act, are critical means of obtaining evidence of
possession and it is, therefore, necessary that the safeguards provided in
Section 50 of the Act are observed scrupulously. The duty to inform the
suspect of his right to be searched in the presence ofa Gazetted Officer or
a magistrate is a necessary sequence for enabling the concerned person to
exercise that right under Section 50. (1010-C-E) C

2.2. It cannot be said that the right to personal liberty can be curtailed
even temporarily, by a procedure, which is not "reasonable, fair and just",
and when a statute itself provides for a 'just' procedure, it must be honoured.
Conducting a search under Section 50, without intimating the suspect that
he has a right to be searched before a Gazetted Officer or a Magistrate, D
would be violative of the 'reasonable, fair and just procedure' and the safeguard
contained in Section 50 would be rendered illusory, otiose and meaningless.
Procedure based on systematic and unconscionable violation of law by the
officials responsible for the enforcement of law, cannot be considered to be
'fair', just or reasonable procedure. It cannot be said that reading into E
Section 50, the existence of a duty on the part of the empowered officer, to
intimate to the suspect, about the existence of his right to be searched in
presence of a Gazetted Officer or a Magistrate, if he so requires, would place
any premium on ignoran~e of law. The argument losses sight of a clear
distinction between ignorance of the law and ignorance of the right to a
'reasonable, fair and just procedure.' [1010-E-H] F
3. The Court cannot overlook the context Ht which the NDPS Act
operates and particularly the factor of widespread illiteracy among persons
subject to investigation for drug offences. It must be borne in mind that
severer the punishment, greater has to be the care taken to see that an the G
safeguards provided in a statute are scrupulously followed. There is no
reason as to why the empowered officer should shirk from affording a real
opportunity to the suspect, by intimating him that he has a right "that if he
requires" to be searched in the presence of a Gazetted Officer or a Magistrate,
he shall be searched only in that manner. The compliance with the procedural
safeguards contained in Section 50 are intended to serve dual purpose- to~ H
982 SUPREME COURT REPORTS [1999] 3 S.C.R.

A protect a person against false accusation and frivolous charges as also to
lend credibility to the search and seizure conducted by the empowered officer.
The argument that keeping in view the growing drug menace, an insistence
on compliance with all safeguards contained in Section 50 may result in
more acquittals does not appeal to this Court. If the empowered officer fails
B to comply with ~he requirements of Section 50 and an order of acquittal is
recorded on that ground, the prosecution must thank itself for its lapses.
Indeed 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
C during search operations and may also undermine respect for law and may
have the effect of unconscionably com promising the administration of justice.
That cannot be permitted. [1011-E-H; 1012-A]
4. There is indeed, a need to protect society from criminals. The
societal intent in safety will suffer if persons who commit crimes are let off
D 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 failure to do so must be viewed
by the higher authorities seriously, inviting action against the concerned
official so that the laxity on the part of the investigating authority is curbed.
[1013-A-B]
E
5. The questions whether or not the safeguards provided in Section 50
were observed would have, however, to be determined by the court on the basis
of the evidence led at the trial and the finding on that issue, one way or the
other, would be relevant for recording an order of conviction or acquittal.
Without giving an opportunity to the prosecution to establish at the trial that
F the provisions of Section 50, and particularly, the safeguards provided in that
Section were complied with, it would not b~ ad~isable to cut short a criminal
trial. [1013-G-H; 1014-A]

State of Punjab v. Balbir Singh, [1-994] 3 SCC 209; Ali Mustaffa Abdul
G Rahman Moosa v. State of Kera/a, [1994] 6 SCC 569; Saiyad Mohd Saiyad
Umar Saiyad v. State of Gujarat, [1995) 3 SCC 610; State of H.P. v. Pirthi
Chand, [1996] 2 SCC 37; State of Punjab v. Labh Singh, 11996] 5 SCC 520;
State of Punjab v. Jasbir Singh, [1996) 1 SCC 288 and Mohinder Kumar v.
State, Panaji, Goa, (1998] 8 SCC 655, followed.

H MP. Sharma v. Satish Chandra, District Magistrate, Delhi, (1954)
STATE OF PUNJAB v. B. SINGH 983

~ SCR 1077; Maneka Gandhi v. Union of India, [1978) 1 SCC; Kamlesh A
Kumar lshwardas Patel v. Union of India, [1995) 4 SCC 51 and D.K. Basu
v. State of W.B., [1997) 1 SCC 416, relied on.

Miranda v. Arizona 384 US 436, referred to.

6.1. The prosecution cannot be permitted to take advantage of its own B
wrong. Conducting a fair trial for those who are accused of a criminal
offence is the cornerstone of our democratic society. A conviction i·esulting
from an unfair trial is contrary to our concept of _justice. Conducting a fair
trial is both for the benefit of the society as well as for an accused and cannot
be abandoned. While considering the aspect of fair trial, the nature of the C
evidence obtained and the nature of the safeguard violated are both relevant
factors. Courts cannot allow admission of evidence against an accused, where
the court is satisfied that the evidence had been obtained by a conduct of
which prosecution ought not to take advantage particularly when that conduct
had caused prejudice to the accused. Hafter careful consideration of the
material on the record it is found by the court that the admission of evidence D
collected in search conducted in violation of Section 50 would render the
trial unfair, then that evidence must be excluded. [1019-E-G]

6.2. Therefore, an illicit article seized from the person of an accused,
during search conducted in violation of the safeguards provided in Section
50 of the Act, cannot by itself be used as admissible evidence of proof of E
unlawful possession of the contraband on the accused. Any other material/
a1iicle recovered during that search may, however, be relied upon by the
prosecution in other/ independent proceedings against an accused'
notwithstanding the recovery of that material during an illegal search and
its admissibility would depend upon the relevancy of the material and the F
facts and circumstances of that case. [1022-E-F]

7. Thus, even if it be assumed for the sake of argument that all the
materials seized during an illegal search, may be admissible as relevant
evidence in other proceedings, the illicit drug or psychotropiC substance
seized in an illegal search cannot by itself be used as proof of unlawful G
conscious possession of the contraband by the accused. An illegal search
cannot also entitle the prosecution to raise a presumption under Section 54
of the Act because presum1ltion, is an inference of fact dra,vn from the facts,
which are known as proved. A presumption under Section 54 of the Act can
only be raised after the prosecution has established that the accused was
found to be in possession of the contraband in a search conducted in H
984 SUPREME COURT REPORTS [1999] 3 S.C.R.

A accordance with the mandate of Section 50. [1022-C-E)
8. The ,judgment in Pooran 1\1al's case cannot be understood to have
laid down that an illicit miicle seized during the search of person, on prior
information, conducted in violation of the provisions of Section 50 of the Act
can be used as evidence of unlawfiil possession of the illicit article on the
B person from whom that contraband had been seized during an illegal search.
[1024-G-H; 1025-A]
9. The judgment in Ali !vlustajfa's case correctly interprets and
di!.1inguishes the ,judgment in Pooran A1al's case, and the broad observations
made in Pirthi Chand's case and Jasbir Singh's case are not in tune with
C the correct exposition of law, as laid down in Pooran !vial's case. [1025-B]

Ali Mustajfa Abdul Rahman Moosa v. State of Kera/a, [1994) 6 SCC
569, followed.·

Pooran Mal v. Director of Inspection (Investigation), [1974] 1 SCC
D 345, held inapplicable.
/

Sanjay Dutt v. State through CBI, [1994) 5 SCC 410, relied on.
State of HP. v. Pirthi Chand, [1996] 2 SCC 37 and State of Punjab v.
Jas.bir Singh, [1996) 1 SCC 288, overruled.
R v. Co/lions, [1987] 1 SCR 265 (Canada), R v. Stillman, (1997) 1 RCS
E 607, Booking v. Roberts, (1973) 3 All ER 962; R v. Young, (1984) 2 All ER
164 and Louis Beaver v. Her Majesty The Queen, [1957] SCR 531 (Canada),
referred to.

10. On its plain reading, Section 50 would come into play only in the
case of a search of a person :;.s distinguished from search of any premises
F etc. However, if the empowered officer, without any prior information as
contemplated by Section 42 of the Act makes a search or causes arrest of
person during the normal course of investigation into an offence or suspected
offence and on completion of that search, a contraband under the NDPS Act
is also recovered, the requirement of Section 50 of the Act are not attracted.
G [1000-G-H; 1001-A]

11.1. The provisions of Sections 100 and 165 of the Criminal Procedure
C.ide, 1973 are not inconsistent ''ith the provisions. of the NDPS Act and are
applica'1le for affecting search, seizure or arrest under the provisions of the
NDJ>S Act also. However, when an empowered officer carrying on the
H investigation including search, seizure or arre!.1 under the provisions of the
STATE OF PUNJAB v. 8. SINGH 985
Code of Criminal Procedure, comes across a person being in possession of A
the narcotic drugs or the psychotropic substance, then he must follow from
that stage onwards the provisions of the NDPS Act and continue the
investigation as provided thereunder. If the Investigating Officer is not an
empowered officer then it is expected of him that he must inform the empowered
officer under the NDPS Act, who should thereafter proceed from that stage
in accordance with the provisions of the NDPS Act. Failure to comply with B
the provisions of CR. P.C. in respect of search and seizure and particularly
those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution
case. If there is such violation, what the courts have to see is whether any
prejudice was caused to the accused. While appreciating the evidence and
other relevant factors, the courts should bear in mind that there was such C
a violation and evaluate the evidence on record keeping that in view.
[1001-A; 1002-A-D]
State_ of Punjab v. Balbir Singh, (1994] 3 SCC 299, relied on.

11:2. While conducting search and seizure, in addition to the safeguards D
provided under the .Code of Criminal Procedure, the safeguards provided
under the NDPS Act are also required to be followed. Section 50(4) of the
NDPS Act lays' down that no female shall be searched by anyone excepting
~ femal~ This provision is similar to the one contained in Section 52 of the
ctrimin~I Procedure Code, 1898 and Section 51(2) of the Criminal Procedure
Code, 1973 relating to search of females. Section 51(2) of the_~riminal E
Procedure Code, 1973 lays down that whenever it is necessary to ccause a
female to be searched, the search shall be made by another female with strict
r~ard to decency. The empowerec:I officer must, therefore, act in the manner
provided by Section 50(4) of the NDPS Act read with Section 51(2) of the
Criminal Procedure Code, 1973 whenever it is found necessary to cause a
female to be searched. The document prepared by the Investigating Officer F
at the spot must invariably disclose that the search was conducted in the
aforesaid manner and the name of the female official who carried out the.
personal search of the concerned female should also be disclosed. The
personal search memo of the female concerned should indicate compliance
with the aforesaid provisions. Failure to do so may not only affect the G
credibility of the prosecution case but may also be found as violative of the
basic right of a female to be treated with decency and proper dignity.
[1001-D-G)

· 12. A decision has to be considered in the context in which it waf'
rendered. It is a well-settled proposition of law that a decision is an a~thority H
986 SUPREME COURT REPORTS [1999] 3 S.C.R.

A for what it decides and not that everything said therein constitutes a precedent.
The courts are obliged to employ an intelligent technique in the use of
precedents bearing it in mind that a decision of the court takes its colour
from the questions involved in the case in which it was rendered.
(1018-C-D)

B C!Tv. Sun Engineering Works (P) ltd., (1992) 4 SCC 363, relied on.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
396 of 1990 Etc. Etc.
From the Judgment and Order dated 31.1.89 of the Punjab & Haryana
High Court in Crl. M.P. No. 8797-M(A) of 1988. •
c V.A. Mohta, N.N. Goswami, M.S. Nargolkar, R.S. Sodhi, Lokesh Kumar,
Kuldip Singh, V.B. Saharya, K.K. Mehrotra, (A.C), S.M. Walawikar, S.V.
Deshpande, Vimal Dave, Shailendra Narayan Singh, Ms. Kamini Jaiswal, Ms.
K. Sarada Devi, A.L. Trehan, Devasis Misra, N.S. Bisht, (Sudhir Nandrajog
and N.K. Aggarwal) (A.C.), Rajiv Dawar, Sanjeey Malhotra, D.S. Mehra, K.C.
D Kaushik, Sanjeev Malhotra, R.C. Kohli, Harijinder Singh, Ms. Priya Saxena,
C.P. Pandey, S.S. Shinde, D~M. Nargolkar, Yashank Adhyaru, Ms. H. Wahi,
Ms. A. Subhashini and K.M.K. Nair for the appearing parties.

The Judgment of the Court was delivered by

E DR. A.S. ANAND, CJ. On 15.7.1997 when this batch of appeals/special
leave petitions was placed before a two-Judge Bench, it was noticed that
there was divergence of opinion between different Benches of this Court with
regard to the ambit and scope of Section 50 of Narcotic Drugs and -
Psychotropic Substances Act, 1985 (hereinafter 'NDPS Act') and in particular
with regard to the admissibility of the evidence collected by an investigating
F officer during search and seizure conducted in violation of the provisions of
Section 50 of NDPS Act. In. the cases of State of Punjab v. Ba/bir Singh,
[1994] 3 SCC 299; Ali Mustaffa Abdul Rahman Moosa v. State of Kera/a,
[J 994] 6 SCC 569 and Saiyad Mohd. Saiyad Umar Saiyad and others v. State
of Gujarat, [l 995] 3 SCC 610 and a number of other cases, it was laid down
G that fail~re to observe the safeguards, while conducting search and seizure,
as provided by Section 50 would render the conviction and sentence of an
accused illegal. In Ali Mustaffa' s case (supra), the judgment in Pooran Mal
v. The Director ofInspection (Investigation), New Delhi & Ors., (1974] 1 SCC
345, was also considered and it was opined that the judgment in Pooran Mal's
case could not be interpreted to have laid down that a contraband seized as
H a result of illegal search or seizure could by itself be treated as evidence of
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 987

possession of the contraband to fasten liability, arising out of unlawful A
possession of the contraband, on the person from whom the alleged contraband
had been seized during an illegal search conducted in violation of the
provisions of Section 50 of ND PS Act. However, in State ofHimachal Pradesh
v. Pirthi Chand andAnr., (1996] 2 SCC 37, and State ofPunjab v. Labh Singh,
(1996] 5 sec 520, relying upon a judgment of this Court in Pooran Mal's case B
(supra), a discordant note was stuck and it was held that evidence collected
in a search conducted in violation of Section 50 of NDPS Act did not become
inadmissible in evidence under the Evidence Act. The two-Judge Bench,
therefore, on 15.7.1997, by the following order, referred the batch of cases to
a larger bench :

"One of the questions that has been raised in these appeals/special
c
leave petitions is whether compliance with Section 50 of the Narcotics
Drugs and Psychotropic Substances Act, 1985 is mandatory and, if
so, what is the effect of the breach thereof. This question has been
engaging the attention of this Court and answered in a number of
cases. In State of Punjab V. Balbir Singh, (1994] 3 sec 299, a two- D
Judge Bench of this Court held that the above section is mandatory
and it is obligatory on the part of the officer concerned to infonn the
person to be searched of his right to demand that the search be
conducted in the presence of a Gazetted .Officer or a Magistrate. It
was further held that non-compliance with the above section would E
affect the prosecution case and vitiate the trial. This Judgment was
affirmed by a three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad
v. State of Gujarat, (1995] 3 SCC 610. InA/i MustaffaAbdu/ Rahman
Moosa v. State ofKera/a, (1994] 6 SCC 569, a submission was made
on behalf of the State of Kerala to reconsider the judgment in Balbir
Singh 's case (supra) keeping in view the judgment of this Court in F
Puran Mal v. Director of Inspection, (1974] 1 SCC 345. It was
contended that even if the search and seizure of the contraband was
held to be illegal and contrary to the provisions of Section 50, it would
not affect the conviction because the seized articles could be used as
eviqence of unlawful possession of the contraband. In repelling the G
contention, the Court observed :

The judgment in Pooran Mal case only lays down that the evidence
collected as a result· of illegal search or seizure, could be used as
evidence in proceedings against the party under the Income Tax Act.
The judgment cannot be interpreted to lay down that a contraband H
988 SUPREME COURT REPORTS [1999] 3 S.C.R.

A seized as a result of illegal search or seizure, can be used to fasten
the liability of unlawful possession of the contraband on the person
from whom the contraband had allegedly been seized in an illegal
manner. 'Unlawful possession' of the contraband is the sine qua non
for conviction under the NDPS Act and that factor has to be
established by the prosecution beyond a reasonable doubt. Indeed
B the seized contraband is evidence but in the absence of proof of
possession of the same, an accused cannot be held guilty under the
NDPS Act.

In view of the law laid down in Balbir Singh case we hold that
there has been violation of the provisions of Section 50 of the NDPS
c Act and consequently the conviction of the appellant cannot be
sustained. (Emphasis supplied)

It, however, appears that while dealing with Section 50 in State of
Himachal Pradesh v. Pirthi Chand andAnr., [1996] 2 SCC 37, another
D two-Judge Bench of this Court referred to and relied upon the judgment
in Pooran Mal's case (supra) and held that the evidence collected in
a search in violation oflaw does not become inadmissible in evidence
under the Evidence Act. The Court further observed that even if
search was found to be in violadon of law, what weight should be
given to the evidence collected was a quest.ion to be gone into during
E trial. With the above observations, t11e Bench recorded a finding tl1at.
the Sessions Judge was not justified in discharging the accused after
filing of the charge sheet holding tl1at mandatory requirements of
Section 50 had not been complied with. It, however, appears that the
Court's attention was not drawn to Ali Mustaffa (supra). The view
F expressed in Pirthi Chand (supra) was reiterated in State of Punjab
v. Labh Singh, [1996] 5 SCC 520, wherein this Court ,considered the
case of Balbir Singh (supra), besides other cases and held as follows :-

"In State of HP. v. Pirthi Chand, this Court further elaborately
considered the effect of the violation of Section 50 and held that any
G evidence recorded and recovered in violation of the search and the
contraband seized in violadon of the mandatory requirement does not
ipso facto invalidate the trial."

From the above resume, it would thus appear that though a two-
Judge Bench of this Court considered the earlier judgments of this
H Court, it held in the case of Pirthi Chand, [and affirmed in the case of
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 989
Labh Singh (supra)], that breach of Section 50 does not affect the trial A
while in the case of Ali Mustaffa (supra), another Bench categorically
laid down that breach of Section 50 makes the conviction illegal. In
view of the divergent opinions so expressed, we deem it fit to refer
these matters to a larger Bench.

Let the records be placed before the Chief Justice for necessar: t>,
orders."

The batch of cases was thereafter listed before a three-Judge Bench.
However, when the three-Judge Bench took up the matter, it was of the
opinion that the judgment of a three-Judge Bench in Saiyad Mohd Saiyad
Umar Saiyad and Ors. v. State of Gujarat, (supra), required reconsideration C
and, therefore, the cases were required to be considered still by a larger
bench and on 19.11.1997, the three-Judge Bench made the following order:

"I. In this bunch of appeals/special leave petitions the following
questions of law (besides other questions of law and facts) fall for D
determination:
(i) Is it the mandatory requirement of Section 50 of the Narcotic
Drugs and Psychotropic Substances Act, 1985, ("Act" for short) that
when an officer, duly authorised under Section 42 of the Act, is about
to search a person he must inform him of his right under sub- section E
(I) thereof being taken to the nearest Gazetted Officer or nearest
Magistrate for making the search?

(ii) If any search is made without informing the person of his such
right would the search be illegal even if he does not of his own
exercise his right under Section 50(1)? and
F
(iii) Whether a trial held in respect of any recovery of contraband
articles pursuant to such a search would be void ab initio?

2. The above questions came up for consideration before a two-Judge
Bench of this Court in State of Punjab v. Balbir Singh, [1994] 3 SCC
299, and it answered them as under: (SCC p.322, para 25). G
"On prior information the empowered officer or authorised officer
while acting under Sections 41(2) or 42 should comply with the
provisions of Section 50 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 Magistrate as provided H
990 SUPREME COURT REPORTS [1999] 3 S.C.R.

A thereunder. It is obligatory on the part of such officer to 1 infonn the
person to be searched. Failure to inform the person to be searched
and if such person so requires, 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."
B (Emphasis supplied)

3. In Ali Mustaffa Abdul Rahman Moosa v. State of Kera/a, [1994] 6
SCC 569, a submission was made on behalf of the State of Kerala to
reconsider the judgment in Balbir Singh's case (supra) in view of the
judgment of the Constitution Bench of this Court-in Pooran Mal v.
c The Director of Inspection (Investigation), New Delhi & others,
[1974] I SCC 345, wherein it was observed that where the test of
admissibility of evidence lay on relevancy (as in India and England),
unless there was an express or necessarily implied prohibition in the
Constitution or other law, evidence obtained as a result of illegal
D search or seizure was not liable to be shut out. Relying upon the
above observation it was contended that even if the search and
seizure of the contraband were held to be illegal and contrary to the
provisions of Section 50 it would not affect the conviction because
the seized articles could be used as evidence of unlawful possession.
In repelling this contention the two-Judge Bench of this Court observed
E as under:

"The judgment in Pooran Mal's case (supra) only lays down that the
evidence collected as a result of illegal search or seizure, could be
used as evidence in proceedings against the party under the Income
Tax Act. The judgment cannot be interpreted to lay down that a
F
contraband seized as a result of illegal search or seizure, can be used
to fasten that liability of unlawful possession of the contraband on
the person from whom the contraband had allegedly been seized in
an illegal manner. "Unlawful possession" of the contraband is the sine
qua non for conviction under the NDPS Act and that factor has to
G be established by the prosecution beyond a reasonable doubt. Indeed
the seized contraband is evidence but in the absence of proof of /
\
possession of the same, an accused cannot be held guilty under the
NDPS Act.

In view of the law laid down in Balbir Singh's case (supra) we hold
H that there has been violation of the provisions of Section 50 ofNDPS
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.) 991

Act and consequently the conviction of the appellant cannot be A
sustained."

4. The judgment in Balbir Singh's case (supra) was affim1ed by a three-
Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat,
[1995) 3 sec 610.
B
5. A discordant note was however struck by a two-Judge Bench of
this Court in State of H.P. v. Pirthi Chand & another, [1996) 2 SCC
37, relying upon the judgment of this Court in Pooran Mal's case
(supra), when it held that the evidence collected in a search in violation
of law did not become inadmissible in evidence under the Evidence
Act. The Court further observed that even if tl1e search was found to C
be in violation of law, what weight should be given to the evidence
collected was a question to be gone into during trial. The same view
was reiterated by a two-Judge Bench in State of Punjab v. Lahh
Singh, [1996] 5 SCC 520, with the observation that any evidence
recorded and recovered in violation of the search and the contraband D
seized in violation of the mandatory requirement did not ipso facto
invalidate the trial.
(Emphasis supplied)

6. In our considered opinion the judgment of this Court in Saiyad
Mohd. Saiyad Umar Saiyad's case (supra) (which was delivered by E
a three-Judge Bench) requires re-consideration and the questions
formulated above answered by a larger Bench, not only in view of the
subsequent judgments of this Court (delivered by a two- Judge Bench)
referred to above, but also in view of the Constitution Bench judgment
in Pooran Mal's case (supra).
F
7. Let these matters be, therefore, placed before the Hon'ble Chief
Justice for necessary orders."

That is how this batch of Criminal Appeals/Special Leave Petitions has
been placed before this Constitution Bench.
G
Drug abuse is a social malady. While drug addiction eats into the vitals
of the society, drug trafficking not only eats into the vitals of the economy
of a country, but illicit money generated by drug trafficking is often used for
illicit activities including encouragement of terrorism. There is no doubt that
drug trafficking, trading and its use, which is a global phenomena and has
acquired the dimensions of an epidemic, affects the economic policies of the H
992 SUPREME COURT REPORTS [1999] 3 S.C.R.

A State, cotnipts the system and is detrimental to the future of a country. It Ms
the effect of producing a sick society and hannful culture. Anti-drug justice
is a criminal dimension of social justice. The United Nations Conventions
Against Illicit Trafficking In Narcotic Drugs & Psychotropic Substances which
was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at
an international level, to tackle the menace of drug trafficking throughout the
B comity of nations. The Government of India has ratified this convention.

Prior to the passing of the NDPS Act, 1985 control over Narcotic drugs
was being generally exercised through certain Central enactments though
some of the States also had enacted certain statutes with a view to deal with
C illicit traffic in drugs .. The Opium Act, 1857 related mainly to preventing illicit
cultivation of poppy, regulat11g cultivation of poppy and mam.Jfacture of
opium. Opium Act, 1878, supplemented Opium Act, 1875 and made possession,
transportation, import, export, sale, etc. of opium also an offence. The
Dangerous Drug Act, 1930, was enacted with a. view to suppress traffic in
contraband and abuse of dangerous drugs, particularly derived from opium,
D Indian hemp and coca leaf etc. The Act prescribed maximum punishment of
imprisonment for three years with or without fine, insofar as first offence is
concerned and for the second or the subsequent offence the punishment
could go upto four years RI. These Acts, however, failed to control illicit drug
traffic and drug abuse on the other hand exhibited an upward trend. New
E drugs of addiction known as Psychotropic Substances also appeared on the
scene posing serious problems. It was noticed that there was an absence of
comprehensive law to enable effective control over psychotropic substances
in the manner envisaged by the International Convention of Psychotropic
Substances, 1971. The need for the enactment of some comprehensive
legislation on Narcotics Drug and Psychotropic Substances was, therefore,
F felt. The Parliament with a view to meet a social challenge of great dimensions,
enacted the NDPS Act, 1985 to consolidate and amend existing provisions.
relating to control over drug abuse etc. and to provide for enhanced penalties
particularly for trafficking and various other offences. The NDPS Act, 1985
provides stringent penalties for various offences. Eiµianced penalties are
G prescribed for second and subsequent offences. The NDPS, Act 1985 was
amended in 1988 w.e.f. 29th May, 1989. Minimum punishment of 10 years'
imprisonment which may e>..1end upto 20 years and a minimum fine of Rs. l lakh
which may extend upto Rs.2 lakh have been provided for most of the offences
under the NDPS Act, 1985. For second and subsequent offences, minimum
punishment of imprisonment is 15 years which may extend to 30 years while
H minimum fine is Rs.1.5 lakh which may extend to Rs.3 lakhs. Section 3I(a) of
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 993
the Act, which was inserted by the Amendment Act of 1988, has even A
provided that for certain offences, after previous convictions, death penalty.·
shall be imposed, without leaving any discretion in the Court to award
imprisonment for life in appropriate cases. Another amendment of considerable
importance introduced by the Amendment Act, 1988 was that all the offences
under the Act were made triable by a special court. Section 36 of the Act
provides for constitution of special courts manned by a person who is a B
Sessions Judge or an Additional Sessions Judge. Appeal from the orders of
the special courts lie to the High Court. Section 37 makes all the offences
under the Act to be cognizable and non-bailable and also lays down stringent
conditions for grant of bail. However, despite the stringent provisions of the
NDPS Act, 1985 as amended in 1988 drug business is booming; addicts are C
rapidly rising; crime with its role to narcotics is galloping and drug trafficking
network is ever growing. While interpreting various provisions of the statute,
the object of the legislation has to be kept in view but at the same time the
interpretation has to be reasonable and fair.

With a view to answer the questions framed by the referring Bench and D
resolve the divergence of opinion expressed by different benches particularly
on the applicability of the law laid down in Pooran Mal's case (supra) to the
admissibility of evidence collected as a result of search conducted in violation
of the provisions of Section 50 of the NDPS Act, to offences under the NDPS
Act, it would be appropriate to first notice some of the relevant statutory
provisions. For the purpose of this batch of cases we are primarily concerned E
with Chapter Vin general and Sections 35, 41, 42, 43, 50, 51, 54 and 57 of the
Act in particular.

Section 35 lays down :

-· "35. Presumption of culpable mental state.-- (1) In any prosecution
for an offence under this Act which requires a culpable mental state
of the accused, the court shall presume the existence of such mental
F

state but it shall be a defence for the accused to prove the fact that
he had no such mental state with respect to the act charged as an
offence in that prosecution.
G
Explanation - In this secti6fl 'culpable mental state' includes
intention, motive, knowledge of a fact and belief in, or reason to
believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only
when the court believes it to exist beyond a reasonable doubt and not H
994 SUPREME COURT REPORTS [1999] 3 S.C.R.

A merely when its existence is established by a preponderance of
probability.'' Section 41 reads as follows:-
--
"41. Power to issue warrant and authorisation.- ( l) A Metropolitan
Magistrate or a Magistrate of the first class or any Magistrate of the
second class specially empowered by the State Government in this
B behalf, may issue a warrant for the arrest of any person whom he has
reason to believe to have committed any offence punishable under
Chapter IV, or for the search, whether by day or by night, of any
building, conveyance or place in which he has reason to believe any
narcotic drug or psychotropic substance in respect of which an offence
punishable under Chapter IV has been committed or any document or
c other article which may furnish evidence of the commission of such
offence is kept or concealed.

(2) Any such officer of gazetted rank of the departments of central
excise, narcotics, customs, revenue intelligence or any other department ·
of the Central Government or of the Border Security Force as is
D
empowered in this behalf by general or special order by the Central
Government, or any such officer of the revenue, drugs control, excise,
police or any other department of a State Government as is empowered
in this behalf by general or special order of the State Government, if
he has reason to believe from personal knowledge or information
E given by any person and taken in writing that any person has
committed an offence punishable under Chapter IV or that any narcotic
~
drug, or psychotropic substance in respect of which any offence
punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such
offence has been kept or concealed in any building, conveyance or
F place, may authorise any officer subordinate to him but superior in
rank to a peon, sepoy, or a constable, to arrest such a person or
search a building, conveyance or place whether by. day or by night
or himself arrest a person or search a building,.conveyance or place.

G
(3) The officer to whom a warrant under sub-section (I) is addressed
and the officer who authorised the arrest or search or the officer who .....
is so authorised under sub-section (2) shall have all the powers of an
officer acting under section 42.

Section 42 provides:- (

H "42. Power of entry, search. seizure and arrest without warrant or
~
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 995
authorisation.-(!) Any such officer (being an officer superior in A
ran1<. to a peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or any other department
of the Central Government or of the Border Security Force as is
bmpowered in this behalf by general or special order by the Central
ovemment, or any such officer (being an officer superior in rank to
a peon, ~epoy or constable) of the revenue, drugs control, excise, B
police or any other department of a State Government as is empowered
in this behlilf by general or special order of the State Government, if
he has reason to believe from personal knowledge or information
given by any person and taken down in writing, that any narcotic
=--·
drug, or psychotropic substance, in respect of which an offence c
punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such
offence is kept or concealed in any building, conveyance or enclosed
place, may, between sunrise and sunset -
(a) enter into and search any such building, conveyance or place; D
(b) in case of resistance, break open any door and remove any
obstacle to such entry;
(c) such drug or substance and all materials used in the manufacture
thereof and any other article and any animal or conveyance
which he has reason to believe to be liable to confiscation under E
this Act and any document or other article which he has reason
' to believe may furnish evidence of the commission of any offence
p~shable und~ Chapter IV relating to such drug or substance;
and
(d) detain and search, and, if he thinks proper, arrest any person F
whom he has reason to believe to have committed any offence
punishable under Chapter IV relating to such drug or substance:
Provided that if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for the escape G
... of an offender, he may enter and search such building, conveyance
or enclosed place at any time between sun set and sun rise after
recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-
section (l) or records grounds for his belief under the proviso thereto H
996 SUPREME COURT REPORTS [1999] 3 S.C.R.
I I
'
A \le shall forthwith send a copy thereof to his imiitedt~~e official superior.
..._
"43. Power of seizure and arrest in public places.- Any-officer of
any of the departments mentioned in section 42 may - -"

(a) seize, in any public place or in transit, any narcotic drug or
psychotropic substance in respect of which he has reason to
B
believe. an offence punishable under Chapter IV has been
committed, and, along with such drug or substance, any animal
or conveyance or article liable to confiscation under this Act,
and any document or other article which he has reason to
·-~--
believe may furnish evidence of the commission of an offence
c punishable under Chapter IV relating to such drug or substance;

(b) detain and search any person whom he has reason to believe to
have committed an offence punishable under Chapter IV, and, if
such person has any narcotic drug or psychotropic substapce
in his possession and such possession appears to him t°'be
D unlawful, arrest him and any other person in his company.

Explanation-For the purposes of this section, the expression "public
place" includes any public conveyance, hotel, shop, or other place
intended for use by, or accessible to, the public."

E Section 50 of the N.D.P.S. Act reads as follows :

"50. Conditions under which search ofpersons 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
F without unnecessary delay to the nearest Gazetted Officer of any of
the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until
he can bring him before the Gazetted Officer or the Magistrate referred
to in sub-section (1).
G
(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.

H (4) No female shall be searched by anyone excepting a female."
STATE OF P.UNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 997
Section 51 provides : A
"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 shall apply, in so far as they are not
inconsistent with the provisions of this Act, to all warrants issued
and arrests, searches and seizures made under this Act." B
Section 52 reads thus :

"Disposal of persons arrested and articles seized.--( I) Any officer
arresting a person under section 41, section 42, section 43 or section
44 shall, as soon as may be, inform him of the grounds for such arrest. C
(2) Every person arrested and article seized under warrant issued
under sub-section ( l) of section 41 shall be forwarded without
unnecessary delay to the Magistrate by whom the warrant was issued.

(3) Every person arrested and article seized under sub- section (2) of
section 41, section 42, section 43 or section 44 shall be forwarded D
without unnecessary delay to--

(a) the officer-in-charge of the nearest police station, or

(b) the officer empowered under section 53.
E
(4) The authority or officer to whom any person or article is forwarded
under sub-section (2) or sub-section (3) shall, with all convenient
dispatch, take such measures as may be necessary for the disposal
accordin& to law of such person or article."

Section 54 provides : F
"54. Presumption from possession of illicit articles.-In trials under
this Act, it may be presumed, unless and until the contrary is proved,
that the accused has committed an offence under Chapter IV in respect
of-
G
(a) any narcotic drug or psychotropic substance;

(b) any opium poppy, cannabis plant or coca plant growing on any
land which he has cultivated;

(c) any apparatus specially designed or any group of utensils H
998 SUPREME COURT REPORTS [1999] 3 S.C.R.

A specially adopted for the manufacture of any narcotic drug or
psychotropic substance; or

(d) any materials -Which have undergone any process towards the
manufacture of a narcotic drug or psychotropic substance, or
any residue left of the materials from which any narcotic drug
B or psychotropic substance has been manufactured.

for the possession of which he fails to account satisfactorily."

Section 57 reads as follows:-

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

Section 132 (13) of the Income Tax Act, 1961 provides:

D "132. Search and seizure.-

xxx xxx xxx

(13) The provisions of the Code of Criminal Procedure, 1973 (2 of
1974), relating to searches and seizure shall apply, so far as may be,
E to searches and seizure under sub-section (I) or sub-section (lA)."
I
Search and seizure are essential steps in the arinoury of an investigator
in the investigation of a criminal case. The Code of Criminal Procedure itself
recognises the necessity and usefulness of search and seizure during the
investigation as is evident from the provisions of Sections 96 to I 03 and
Section 165 of the Criminal Procedure Code. In MP. Sharma and others v.
F
Salish Chandra, District Magistrate, Delhi and others, [1954] S.C.R. 1077,
the challenge to the power of issuing a search warrant under Section 96(1)
Cr.P.C. as violative of the fundamental rights was repelled by the Constitution
Bench on the ground that the power of search and seizure in any system of
jurisprudence is an overriding power of the State for the protection of social
G security. It was also held that a search by itself is not a restriction on the right
to hold and enjoy property, though a seizure may be a restriction on the right
of possession and enjoyment of the seized property, but it is only temporary
and for the limited purpose of an investigation. The Court opined :
"A power of search and seizure is in any system of jurisprudence an
H overriding power of the State for the protection of social security and
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 999
I
that power is ,<e"cessarily regulated by law. When the Constitution! A
makers have thought fit not to subject such regulation to constitutimjal
limitations by recognition of a fundamentat right to privacy, analogous
to the American Fourth Amendµlent, we have no justification to
import it, into a totally different fundamental right, by some process
of strained construction. Nor is it legitimate to assume that the
constitutional protection."under Article 20(3) would be defeated by the B
statutory provisions for searches."

The Court also opined :

'A. search and seizure is, therefore, only a temporary interference with
the right to hold the premises searched and the articles seized. Statutory C
regulation in this behalf is necessary and reasonable restriction cannot
per se be considered to be unconstitutional. The damage, if any,
caused by such temporary interference if found to be in excess of
legru authority is a matter for redress in other proceedings. We are
unable to see how any question of violation of article 19(1) (f) is D
involved in this case in respect of the warrants in question which
purport to be under the first alternative of Section 96(1) of the Criminal
Procedure Code."

Section 41 of the NDPS Act provides that a Metropolitan Magistrate or
a Magistrate of the first class or any Magistrate of the second class specially E
empowered by the State Government in this behalf, may issue a warrant for
the arrest of and for search of any person whom he has reason to believe to
have committed any offence punishable under Chapter IV. Vide sub-Section
(2) the power has also been vested in Gazetted Officers of the Department of
Central Excise, Narcotics, Customs, Revenue Intelligence or any other
Department of the Central Government or of Border Security Force, empowered F
in that behalf by general or special order of the State Govt. to arrest any
person, who he has reason to believe to have committed an offence punishable
under Chapter IV or to search any person or conveyance or vessel or building
etc. with a view to seize any contraband or document or other article which
may furnish evidence of the commission of such an offence, concealed in G
such building or conveyance or vessel or place.

Sub-section (1) of Section 42 lays down that the empowered officer, if
has a prior information given by any person, he should necessarily take it
down in writing and where he has reason to believe from his personal knowledge
that offences under Chapter IV have been committed ?r that materials which H
1000 SUPREME COURT REPORTS \ [1,999] 3 S.C.R.

A 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 he may do so without recording his reasons of belief.

The proviso to sub-section (1) lays down that if the empowered officer
has reason to believe that a search warrant or authorisation cannot be obtained
B without affording opportunity for the concealment of evidence or facility for
the escape of an offender, he may enter and search such building, conveyance
or enclosed place, at any time between sunset and sunrise, after recording the
grounds of his belief. Vide sub-section (2) of Section 42, the empowered
officer who takes down information in writing or records the grounds of his
C belief under the proviso to sub-section (1 ), shall forthwith send a copy of the
same to his immediate official superior. Section 43 deals with the power of
seizure and arrest of the suspect in a public place. T}\e material difference
between the provisions of Section 43 and Section 42 is that whereas Section
42 requires recording of reasons for belief and for taking down of information
received in writing with regard to the commission of an offence before
D conducting search and seizure, Section 43 does not contain any such provision
and as such while acting under Section 43 of the Act, the empowered officer
has the power of seizure of the article etc. and arrest of a person who is found
to be in possession of any Narcotic Drug or Psychotropic Substances in a
public place where such possession appears to him to be unlawful.
E
Section 50 of the Act prescribes the conditions under which search of
a person shall be conducted. Sub-section (1) provides that when the empowered
officer is about to search any suspected person, he shall, if the person to be
searched so requires, take him to the nearest Gazetted Officer or the Magistrate
for the pUlJ>ose. Under sub-section (2) it is laid down that if such request is
F made by the suspected person, the officer who is to take the search, may
detain the suspect until he can be brought before such Gazetted Officer or
the Magistrate. Sub-section (3) lays down that when the person to be searched
is brought before such a Gazetted Officer or the Magistrate and such Gazetted
Officer or the Magistrate finds that there are no reasonable grounds for
G search, he shall forthwith discharge the person to be searched, otherwise he
shall direct that the search be made.
...
On its plain reading, Section 50 would come into play only in the case
of a search of a person as distinguished from search of any premises etc.
However, if the empowered officer, without any prior information as
H contemplated by Section 42 of the Act makes a search or causes arrest of
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.) 1001
person during the normal course of investigation into an offence or suspected A
offence and on completion of that search, a contraband under the NDPS Act
is also recovered, the requirements of Section 50 of the Act are not attracted.

Vide Section 51, the provisions of the Code of Criminal Procedure, 1973,
shall apply, insofar as they are not inconsistent with the provisions of the B
NDPS Act, to all warrants issued and arrests, searches and seizures made
under the NDPS Act. Thus, the NDPS Act, 1985 after incorporating the broad
principles regarding search, seizure and arrest etc. in Sections 41, 42, 43, 49
and 50 has laid down in Section 51 that the provisions of the Code of Criminal
Procedure shall apply insofar as they are not inconsistent with the provisions
of the NDPS Act. The expression "insofar as they are not inconsistent with C
the provisions. of this Act" occurring in Section 51 of the NDPS Act is of
-significance. This expression implies that the provisions of the Code of
Criminal Procedure relating to search, seizure or arrest apply to search, seizure
and arrest under NDPS Act also except to the extent they are "inconsistelnt
with the provisions of the Act". Thus, while conducting search ~nd seizure,
in addition to the safeguards provided under the Code of Criminal Procedure, D
the safeguards provided under the NDPS Act are also required to be followed.
Section 50(4) of the NDPS Act lays down that no female shall be searched
by anyone excepting a female. This provision is similar to the one contained
in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the
Code of Criminal Procedure, 1973 relating to search offemales. Section 51(2) E
of the Code of Criminal Procedm:e~ 1973 lays down that whenever it is
necessary to ·cause a female to l:)e searched, the search shall be made by
another female with strict regard to decency. The empowered officer must,
\
therefore, act in the manner provided by Section 50(4) of the NDPS Act read \
with Section 51 (2) of the Code of Criminal Procedtire, 1973 whenever it is .
found necessary to cause a female to be searched. The document prepared F
by the Investigating Officer at the spot must invariably disclose that the
search was conducted in the aforesaid manner and the name of the female
official who carried out the personal search of the concerned female should
also be disclosed. The personal search memo of the female concerned should
indicate compliance with the aforesaid provisions. Failure to do so may not G
only affect the credibility of the prosecution case but may also be found as
violative of the basic right of a female to be treated with decency and proper
dignity.

The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with
the provisions of the NDPS Act and are applicable for affecting search, H
1002 SUPREME COURT REPORTS [1999) 3 S.C.R.
. I
A seizure or arrest under the NDPS Act also. However, when an empowered
officer carrying on the investigation including search, seizure or arrest under
the provisions of the Code of Criminal Procedure, comes across a person
being in possession of the narcotic drugs or the psychotropic substance,
then he must follow from that stage onwards the provisions of the NDPS Act
and continue the investigation as provided thereunder. If the investigating
B officer is not an empowered officer then it is expected of him that he must
inform the empowered officer under the NDPS Act, who should thereafter
proceed from that stage in accordance with the provisions of the NDPS Act.

c
In Balbir Singh 's case after referring to a number of judgments, the Bench
opined that failure to comply with the provisions of Cr.P.C. in respect of
search and seizure and particularly those of Sections I 00, I 02, I 03 and 165
per se does not vitiate the prosecution case. If there is such a violation, what
-
the courts have to see is whether any prejudice was caused to the accused.
While appreciating the evidence and other relevant factors, the courts should
bear in mind that there Was such a violation and evaluate the evidence on
record keeping that in view.
D
What is the import of the expression "if such person so requires" he
shall be taken to the nearest Gazetted Officer or Magistrate and his search
shall be made before such Officer or Magistrate as occurring in Section 50.
Does the expression not visualise that to enable the concerned person to
E require his search to be conducted before a Gazetted Officer or a Magistrate,
the empowered officer is under an obligation to inform him that he has such
a right? Learned counsel appearing for the State of Punjab as also the learned
counsel appearing for the State of Gujarat argued that it would not be proper
to read into the provisions of Section 50, any legislative intent of prescribing
a duty on the part of the empowered Officer to inform the suspect that if he
F so requires, the search would be conducted before a Gazetted Officer or a
Magistrate, as the case may be. According to the learned counsel, the view
expressed in State of Punjab v. Balbir Singh (supra), laying down that it is
obligatory on the part of such an officer to so inform the person to be
searched or if such person requires, failure to take him for search before the
G Gazetted Officer or the Magistrate, wou.ld amount to non- compliance with the
provisions of Section 50 and would affect the prosecution case and vitiate
the trial requires reconsideration. As a matter of fact, the order of the referring
bench itself, centers around whether there is any requirement of Section 50,
making, it obligatory for the empowered officer, who is about to search a·
person, to inform him of his right of being taken to the nearest Gazetted
H Officer or nearest Magistrate for making the search if he so requires. Learned
I
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1003

counsel for the parties, however, agree that in case the obligation to inform · ·A
the suspect of his right to be searched before a Gazetted Officer or~ Magistrate
is read as a duty cast on the empowered officer, then failure to give information
regarding that right to the suspect would be a serious infirmity amounting to
denial of a valuable right to an accused and would render his conviction for
an offence under the NDPS Act bad and unsustainable. B
The question as to what is the effect of non-compliance with the
provisions of Section 50 on the recovery of the contraband was answered in
State of Punjab v. Balbir Singh (supra). The common question which arose
for consideration in a batch of appeals filed by the State of Punjab was
"whether any arrest or search of a person or search of a place conducted C
without conforming to the provisions of the NDPS Act would be rendered
illegal and consequently vitiate the conviction?"

The Trial Court in those cases had acquitted the accused on the ground
that the arrest, search and seizure were conducted in violation of some of the
"relevant and mandatory" provisions of the NDPS Act. The High Court D
declined to grant appeal against the order of acquittal. The State of Punjab
thereupon filed appeals by special leave in this Court. In some other cases,
where the accused had been convicted, they also filed appeals by special
leave questioning their conviction and sentence on the ground that their trials
were illegal because of non-compliance with the safeguards provided under E
Section 50 of the NDPS Act. A two-Judge Bench speaking through K.
Jayachandra Reddy, J. considered several provisions of the NDPS Act
governing arrest, search and seizure and, in particular, the provisions of
Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57 of the NDPS Act as well as the
provisions of the Code of Criminal Procedure relating to search and seizure
effected during investigation of a criminal case. Dealing with Section 50, it F
was held that in the context.in which the right had 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 he shall be
searched before a Gazetted Officer or Magistrate and on such request being
made by him, to be taken before the Gazetted Officer or Magistrate for further G
proceedings. The reasoning given in Balbir Singh's case was that to afford
an opportunity to the person to be searched "if he so requires to be searched
before a Gazetted Officer or a Magistrate" he must be made aware of that right
and fuat could be done only by the empowered officer by informing him of ·
the existence of that right. The Court went on to hold that failure to inform
the person to be searched of that right and if he so requires, failure to take ij
1004 SUPREME COURT REPORTS [1999] 3 S.C.R.
'
A him to the Gazetted Officer or the Magistrate, would mean non-compliance
with the provisions of Section 50 which in tum would "affect the prosecution
case and vitiate the Tnal." The following conclusions were arrived at by the
two-Judge Bench in State of Punjab v. Balbir Singh (supra) :

"The questions considered above arise frequently before the trial
B 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 in the normal course of investigation into an offence or
c suspected offences as provided under the provisions of CrPC and
when such search is 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 psychotropic
substance then the police officer, who· is not empower~d, should
D
inform the empowered officer who should thereafter proceed in
accordance with the provisions of the NDPS A.ct. 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 NDPS Act.
E (2-A) 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 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 wo.uld be illegal. Likewise only
empowered officers or duly authorized officer~ 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 provisions of the NDPS
Act by anyone other than such officers, the same would be illegal.
G
(2-B) 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 the prosecution case and vitiate the conviction.

H (2-C) Under Section 42(1) the empowered officer if has a prior
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1005

information given by any person, that should necessarily be taken A
down in writing. But if he 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. he may carry out the arrest or
search without a warrant between sunrise and sunset and this provision B
does not mandate that he should record his reasons of belief. But
under the proviso to Section 42( I) if such ()fficer has to carry out such
search between sunset and sunrise, he must record the grounds of his
belief.

To this extent these provisions are mandatory and contravention C
of the same would affect the prosecution case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes down any
· information in writing or records the grounds under proviso to ~ection
42(1) should forthwith send a copy thereof to his immediate 9fficial
superior. If there is total non-compliance of this provision the same D
affects the prosecution case. To that extent it is mandatory. Bilt if
there is delay whether it was undue or whether the same has been
explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an 'empowered'
officer while effecting an arrest or search during normal investigation E
into offences purely under the provisions of CrPC fails to strictly
comply with the provisions of Sections 100 and 165 CrPC including
the requirement to record reasons, such failure woujd only amount to
an irregularity.

(4-B) If an empowered officer or an authorised officer under Section
F
41(2) of the Act carries out a search, he would be doing so under the
provisions ofCrPC namely Sections 100 and 165 CrPC alliilfthere is
no strict compliance with the provisions of CrPC then such search
would not per se be illegal and would not vitiate the trial.
G·
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 officer
while acting under Sections 41(2) or 42 should comply with the H

1
1006 SUPREME COURT REPORTS [1999] 3 s.c.R.

A provisions of Section 50 before the search of the person is made and
1

such person should be informed that if he so requires,j 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, failure to take him to the Gazetted
B Officer or the Magistrate, would amount to non-compliance ofSection
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.
(Emphasis ours)
c (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 is non-compliance
or if there are lapses like delay etc. then the same has to be examined
to see whether any prejudice has been caused to the accused and
D such failure will have a bearing on ~he /appreciation of evidence
regarding arrest or seizure as well as on merits of the case."

A three-Judge,]; Bench in Saiyad Mohd. Saiyad Umar Saiyad and others
'

v. State of Gujarat· (supra), upheld the view taken in Balbir Singh's case
(supra) on the point of duty of the empowered officer to inform the suspect
E about his right to be searched before a Gazetted Officer or a Magistrate. It
considered the provisions of Section 50 and opined :

"8. We \re unable to share the High Court's view that in ·cases under
the NDP~,Act it is the duty of the court to raise a presumption, when
the officer concerned has not deposed that he had followed the
F procedure mandated by Section 50, that he had in fact done so. When
the officer concerned has not deposed that he had followed the
procedure mandated by Section 50, the court is duty- bound to
conclude that the accused had not had the benefit of the protection
that Section 50 affords; that, therefore, his possession of articles
·o whi9h are illicit under the NDPS Act is not established; that the
precondition for his having satisfactorily accounted for such
possession has not' been met; and to acquit the accused."
(Emphasis ours)

In State of Himachal Pradesh v. Shri Pirthi Chand & Anr., (supra), the
H Bench agreed with the view in Ba/bir Singh's case regarding the duty to
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1007
inform the suspect of his right as emanating from Section 50 of the NDPS Act. A
The Court opined :

" ... Compliance of the safeguards in Section 50 is mandatory obliging
the officer concerned to infom1 the person to be searched of his right
to demand that search could be conducted in the presence of a
Gazetted Officer or a Magistrate. The possession of illicit articles has B
to be satisfactorily established before the court. The officer who
conducts search must state in his evidence that he had informed the
accused of his right to demand, while he ts searched, in the presence
of a Gazetted Officer or a Magistrate and that the accused had not
chosen to so demand. If no evidence to that effect is given, the court C
must presume that the person searched was not informed of the
protection the law gives him and must find that possession of illicit
articles was not established. The presumption under Article 114
Illustration (e) of the Evidence Act, that the official duty was properly
performed, therefore, does not apply ... "
D
In State of Punjab v. Labh Singh, (supra) again it was reiterated that
the accused has been provided with a protection of being informed of his
·right to be searched in presence of a Gazetted Officer or a Magistrate and
failure to give an opportunity to the concerned person to avail of the protection
would render the prosecution case unsustainable.
E
In State of Punjab v. Jasbir Singh & others, [1996] 1 SCC 288, it was
opined:

"Having considered the evidence ·we find it difficult to set aside the
order of acquittal recorded by th~ Additional Sessions Judge. Though
the offence involved is of a considerable magnitude of 70 bags F
containing 34 kgs. Of poppy husk, each without any permit/licence,
this Court is constrained to confinn the acquittal for the reasons that
the mandatory requirements of Section 50 of Narcotic Drugs and
Psychotropic Substances Act, 1985 has not been complied with.
Protection given by Section 50 is a valuable right to the offender G
and compliance thereof intended to be mandatory. In case the police
officers had prior knowledge that illegal transport of the contraband
is in movemeni and persons are in unlawful possession and intends
to intercept it, conduct search and consequentially to seize the
contraband, they are required to inform the offender that he has the
right that the search will be conducted in the presence of a gazetted H
. 1008 SUPREME COURT REPORTS (1999] 3 S.C.R.

A officer or a Magistrate. Thereafter on their agreeing to be searched
by the police officers, the search and seizure of the contraband from
their unlawful possession would become legal and valid. However, the
evidence collected in breach of mandatory requirement does not
become inadmissible. It is settled law that evidence collected during
investigation in violation of the statutory provisions does not become
B inadmissible and the trial on the basis thereof does not get vitiate'd.
Each case is to be considered on its own backdrop."
(Emphasis added)

In Ali Mustaffa Abdul Rahman Moosa v. State of Kera/a, (supra), two-
C Judge Bench of this Court, (to which one of us (CJI) was a party) it had been
found that the appellant had not been given any choice as to whether he
desired to be searched in the presence of a Gazetted Officer or a Magistrate
as envisaged under Section 50 of the NDPS Act. The argument raised in that
case to the effect that Section 50 of the Act could not be said to have been
violated because the appellant did not 'require' to have himself searched
D before a Gazetted Officer or a Magistrate was rejected following the law laid
down in Balbir Singh's case (supra). The Court opined that to e?able the
concerned person to require that his search be carried out in the presen5=e
of a Gazetted Officer or a Magistrate makes, it is obligatory on the part of
the empowered officer to inform the concerned person that he has a right to
E require his search to be conducted in the presence of a Gazetted Officer or
a Magistrate.

Mohinder Kumarv. State, Panaji, Goa, (1998] 8 SCC 655, a tlrr~Judge
Bench (to which one of us, Sujata V. Manohar, J. was a party) once again
considered the requirements of Sections 42 and 50 of the Act. In that case
F the police officer 'accidentally' reached the house while on patrol duty and
had it not been for the conduct of the accused persons in trying to run into
the. house on seeing the police party, he would perhaps not have had any
occasion to enter the house and effect search. But when the conduct of the
accused persons raised a suspicion, he went into the house and effected the
G search, seized the illicit material and caused the arrest. The Court opined that
in the facts and circumstances of the case, when the Investigating Officer
accidentally stumbled upon the offending articles and himself not being the
empowered officer, then on coming to know that the accused persons were
in possession of illicit articles, then from that stage onwards he was under
an obligation to proceed further in the matter only in accordance with the
H provisions of the Act. On facts it was found that the Investigating Officer did
STATE OF PUNJAB v. B."SINGH [DR. A.S. ANAND, CJ.] 1009
not record the grounds of his belief at any stage of the investigation, A
suhsequent to his realising that the accused persons were in possession of
charas and since he had made no record, he did not forward a copy of the
grounds to his superior officer nor did he comply with the provisions of
Section 50 of the Act, inasmuch as he did not inform the person to be
searched that if he required, his search could be conducted before a Gazetted B
Officer or a Magistrate, the Bench held that for failure to comply with the
provisions of Sections 42 and 50, the accused was entitled to an order of
acquittal and consequently the appeal was allowed and the order of conviction
-and sentence against the accused was set aside. It would, thus, be seen that
none of the decisions of the Supreme Court after Balbir Singh's case have
departed from that opinion. At least none has been brought to our notice. C
,.,,There is, thus, unanimity of judicial pronouncements to the' effect that it is
_.an obligation of the empowered officer and his duty before conducting the
-search of the person of a suspect, on the basis of prior information, to inform
the suspect that he has the right to require his search being.conducted in the
presence of a Gazetted Officer or a Magistrate and that the failure to -so inform
the suspect of his right, would render the search illegal because the suspect D
would not be able to avail of the protection which is inbuilt in Section 50.
Similarly, if the concerned person requires, on being so informed by the
empowered officer or otherwise, that his search be conducted in the presence
/
of a Gazetted Officer or a Magistrate, the'~mpowered officer is obliged to do /
so and failure on his part to do so would also render the search illegal and E
the conviction and sentence of the accused bad.

To b~ s~chC;d before a Gazetted Officer or a Magistrate, if the 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 F
been incorporated in the Act keeping in view the severity of the punishment.
The rationale behind the provision is everi otherwise manifest. The Se1;U"Ch
before a Gazetted Officer or a Magistrate would impart much more authenticity
and creditworthiness to the search and seizure proceeding. It would also
verily strengthen the prosecution case. There is, thus, no justification for the G
empowered officer, who goes to search the person, on prior information, to
effect the search, of not informing the concerned 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. lt 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 H
1010 SUPREME COURT REPORTS [I 999] 3 S.C.R.

A and as far as possible in the presence of some independent and 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
B have to be satisfied at the trial of the case about due compliance with th~
requirements provided in Section 50. No presumption under Section.54 of the.
Act can be 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.

C The safeguard or protection to be searched in presence of a Gazetted
Officer or a Magistrate has been incorporated in Section 50 to ensure that
persons are only searched with a good cause and also with a view to maintain
veracity of evidence derived from such search. We have already noticed that
severe punishments have been provided under the Act for mere possession
D of Illicit Drugs and Narcotic Substances. Personal search, more particularly for
offences under the NDPS Act, are critical means of obtaining evidence of
possession and it is, therefore, necessary that the safeguards provided in
Section 50 of the Act are observed scrupulously. The duty to inform the
suspect of his right to be searched in presence of a Gazetted Officer or a·
Magistrate is a necessary sequence for enabling the concerned person to .·
E exercise that right under Section 50 because after Maneka Gandhi v. Union
ofIndia, [l 978] I SCC 248, it is no longer permissible to contend that the right
to personal liberty can be curtailed even temporarily, by a procedure which
is not 'reasonable, fair and just' and when a statute itself provides for a 'just'
procedure, it must be honoured. Conducting a search under Section 50,
F without intimating to the suspect that he has a right to be searched before
a Gazetted Officer or a Magistrate, would be violative of the 'reasonable, fair
and just procedure' and the safeguard contained in Section 50 would be
-
rendered illusory, otiose and meaningless. Procedure based on systematic and
unconscionable violation of law by the officials responsible for the enforcement
. G of law, cannot be considered to be 'fair', just or reasonl!,b_le procedure. We
' .¥.e not persuaded to agree that reading into Section 50, the existence of a
dut}r! op the part of the empowered officer, to intimate to the suspect, about
the ex~s{eJi.c~1.~~l}iF tight ~o be searched in presence .of a G~zetted Officer or
a Magistrate, if he so reqmres, would place any premmm on 1gnc.rance of law.
The argument loses sight of a clear distinction between ignorance of the law
H and ignorance of the right to a 'reasonable, fair and just procedure'.
I
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1011
Requirement to inform has been read in by this Court in other A
circumstances also, where the statute did not explicitly provi<Je for such a
requirement. While considering the scope of Article 22(5) of the Constitufion
of India and various other provisions of COFEPOSA Act and the NDPS Act
as amended in 1988, a Constitution Bench of this Court in Kamlesh Kumar
Jshwardas Patel v. Union of India & Ors., [1995) 4 SCC 51, concluded :
B
"Article 22(5) must, therefore, be construed to mean that the person
detained has a right to make a representation against the order of detention
which can be made not only to the Advisory Board but also to the detaining
authority, i.e., the authority that has made the order of detention or the order
for continuance of such detention, which is competent to give immediate relief C
by revoking the said order as well as to any other authority which is competent

• under law to revoke tlie order for detention and thereby give relief to the
person detained. 'The right to make a representation ca1'ries within it a
corresponding obligation on the authority making the order of detention to
inform the person detained of his right to make a representation against the
order of detention to the authorities who are required-to consider such a D
representation."
(Emphasis ours)

This Court cannot over-look the context in which the NDPS ~erates
and particularly the factor of widespread illiteracy Ultlong persons subject to
investigation for drug offences. It must be borne in mind that severer the E
punishment, greater has to be the care taken to see that all the safeguards
provided in a statute are scrupulously followed: We are not able to find any
reason as to why the empowered officer should shirk from affording a real
opportunity to the suspect, by intimating to him that he has a right "that if
he requires" to be searched in the presence of a Gazetted Officer or a Magistrate,
he shall be seart:hed only in that manner. As already observed the compliance F
.. . with the procedural safeguards contained in Section 50 are intended to serve
dual purpose-to protect a person against false accusation and frivolous
charges as also to lend creditibility to the search and seizurf. -~~~ducted by
the empowered officer. The argument that keeping in view the growihg·dru_g,
menace, an insistence on compliance with all the safeguards contained in G
Section 50 may result in more acquittals does not appeal to us. If the empowered
.. officer fails to comply .wi.th the requirements of Section 50 and an order or
acquittal is recorded on that ground, the prosecution must thank itself for its
lapses. Indeed .in every case therend 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 H
\.
1012 SUPREME COURT REPORTS [1999) 3 S.C.R.

A court is seen to. condone acts of lawlessness conducted by the investigating
agency during search operations and may also undermine respect for law and
may have the effect of unconscionably .compromising the administration of
justice. That cannot be pennitted. In D.K Basu v. State of West Bengal, [1997]
1 sec 416, it was opined :

B "We are conscious of the fact that the police in India have to perform
a difficult and delicate task, particularly in view of the deteriorating l
law and order situation, communal riots, political turmoil, student
unrest, terrorist activities, and among others the increasing number of
underworld and anned gangs and criminals. Many hardcore criminals

-
c like extremists, terrorists, drug peddlers, smugglers who have organised
gangs, have taken strong roots in the society .. It is being said in
c~rtain quarters that with more and more liberalisation and enforcement
offundamental rights, it would lead to difficulties in the detection of
crim~s cotllmitted by such categories of hardened criminals by soft
peddling interrogation. It is felt in those quarters that if we lay too
D much of emphasis on protection of their fundamental rights and.
human rights, such criminals may go scot-rjree without exposing any
element or iota of criminality with the result, the crime would go
unpunished· and in the ultimate analysis the society would suffer. The

E
concern is genuine and the problem is real. To deal with such a
situation, a balanced approach is needed to meet the ends ofjustice.
Thi_!_ is all the more so, in view of the expectation of the society that
police must deal with the criminals in an efficient and effective
-
manner and bring to book those who are involved in the crime. The
cure cannot, however, be worst than the disease itself"
(Emphasis ours)
F · In D.K Basu's case (supra), the Court also noticed the response of the
Supreme Court of the United States of America, to such an argument in
Miranda v. Arizona, 384 US 436 : 16 L Ed 2d 694 (1966), wherein that Court
· had said: .

" ... The Latin maxim salus populi suprema lex (the safety of the people
G
is the supreme law) and sl!].us republicae suprema lex (safety of the
State is the supreme law) coexist and are not only important and
relevant but lie at the heart of the doctrine that the welfare of an
individual must yield to that of the community. The action of the
State, however, must be 'right, just and fair' .... "
H (Emphasis supplied)
j STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1013

-
--\
There is indeed, a need to protect society from criminals. The 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,
A

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
official so that the laxity on the part of the investigating authority is curbed. B
\
However, the question whether\ the provisions of Section 50 are
mandatory or directory and if mandatory to what extent aild the consequences
of non-compliance with it does not strictly speaking arise in the context in
which the protection has been incorporated in Section 50 for the benefit of c
the person intended to be searched. Therefore, without expressing any opinion
as to whether the provisions of Section 50 are mandatory or not, but bearing
in mind the purpose for which the safeguard has been made, we hold that the
provisions of Section 50 of the Act implicitly make it imperative and obligatory
and cast a duty on the Investigating Officer (empowered officer) to ensure
that search of the concerned person (suspect) is conducted in the manner D
prescribed by Section 50, by intimating to the concerned person about the
existence of his right, that if he so requires, he shall be searched before a
Gazetted Officer or a Magistrate and in case he so opts, failure to conduct
his search before a Gazetted Officer or a Magistrate, would cause prejudice
to an accused and render the recovery of the illicit article suspect and vitiate E
the conviction and sentence of an accused, where the conviction has been
~- recorded only on the basis of the possession of the iHicit article, recovered
during a search conducted in violation of the provisions of Section 50 of the
Act. The omission may not vitiate the trial as such, but because of the
inherent prejudice which would be caused to an accused by the omission to
be informed of the existe.nce of his right, it would render his conviction and F
sentence unsuste!inable. The protection provided in the section to an accused
to be intimated ~hat he has the right to have his personal search conducted
before a Gazetted Officer or ~ Magistrate, if he so requires, is sacrosanct and
indefeasible-it cannot be disregarded by the· prosecution except at its own
peril.
G
~
The question whether or not the safeguards provided in Section 50 were
observed would have, however, to be determined by the court on the basis
of the evidence led at the trial and the finding on that issue, one way or the
other, would be relevant for recording an order of conviction or acquittal.

" Without giving an opportunity to the prosecution to establish at the trial that H
\
1014 SUPREME COURT REPORTS [1999] 3 S.C.R.
.-

·--=
I

A the provisions of Section 50, and particularly, the safeguards provided in that
section were complied with, it would not be advisable to cut short a criminal
trial.

The next question which arises for our consideration is whether evidence
collected in a search conducted in violation of Section 50, is admissible in
B evidence? This question arises in the context of the judgment of the
Constitution Bench in Pooran Mal's case (supra).

A submission was made in Ali Mustajfa Abdul Rahman Moosa's case
(supra) before the Bench· on behalf of the State of Kerala to reconsider the
C judgment in Balbir Singh's case in view of the judgment of this Court in
Pooran Mal v. The Director of Inspection (Investigation), New Delhi and
others. It was urged in Ali Mustajfa 's case that even if search and seizure ·of
the contraband was held to be illegal having beerl conducted in violation of
the provisions of Section 50, it could not affect the conviction because the
recovered articles could still be used as "admissible evidence" under the
D Evidence Act to establish unlawful possession of the contraband. on the
concerned person from whom it was recovered during that search .. This Court
repelled that contention and held that the judgment in Pooran Mal's case
(supra) could not be read to have laid down that a contraband seized as a
result of an illegal search or seizure cou'd still be used as admissible evidence
E "of unlawful possession of the contraband on the person from whom the
contraband had allegedly been seized in an illegal manner". The Bench in Ali
Mustajfa's case (supra) observed :

"The last submission of the learned counsel for the respondents is
that even if the search and seizure of the contraband are held to be
F illegal and contrary to the provisions of Section 50 of the NDPS Act,
it would still not affect the conviction because the seized articles
could be used as 'evidence of unlawful possession of a contraband.
Reliance for this submission is placed on the judgment of this Court
in Pooran Mal v. Director ofInspection. We are afraid the submission
is misconceived and the reliance placed on the said judgment is
G
misplaced. The judgment in Po(>fan Mal case only lays down that the
evidence collected as a resuW of illegal search or seizure, could be
used as evidence in proceedings against the party under the Income
Tax Act. The judgment cannot be interpreted to lay down that a
·contraband seized as a result of illegal search or seizure, can be used
H to fasten that liability of unlawful possession of the contraband on
I
STATE OF PUNlAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1015
... the person from horn the contraband had allegedly been seized rn A
an illegal manner. 'Unlawful possession' of the contraband is the sine
qua non for conviction under the NDPS Act and that factor has to
be established b!Y the prosecution beyond a reasonable doubt. Indeed
the seized contraband is evidence but in the absence of proof of
possession of the same, an accused cannot be held guilty under the
NDPS Act." B
I
However, a later two-Judge Bench in Pirthi Chand's case (supra) relying
upon Pooran !vial's case (supra), observed :

"The evidence collected in a search in violation of law does not
become inadmissible in evidence under the Evidence Act. The c
consequence would be that evidence discovered would be to prove
unlawful possession of the contraband under the Act. It is founded
in Panchnama to seize the contraband from the possession of the
suspect/accused. Though the search may be illegal but the evidence
.collected, i.e., Panchnama etc., nonetheless would be admissible at D
the trial. At the stage of filing charge-sheet it cannot be said that
there is no evidence and the Magistrate or the Sessions Judge would
be committing illegality to discharge the accused on the ground that
Section 50 or other provisions have not been complied with. At the
trial an opportunity would be available to the prosecution to prove
. .,, that the search was conducted in accordance with law. Even if search E
is found to be in violation of law, what weight should be given to
the evidence collected is yet another question to be gone into ..."
(Emphasis supplied)

.. This view was reiterated in Jasbir Singh's case also. It appears that the
~lier judgmenJin Ali Mustaffa's case was not brought to the notice of their
---"Lordships in both the above cases.
F

Let us, therefore, first examine the fact situation and the law as laid
down in Pooran A{al's case and the question of its applicability to cases
arising out of offences under the NDPS Act, based only on proof of unlawful G
possession of an illicit drug or a psychotropic substance on the person of
an accused, where the illicit article only was seized during the search conducted
:
in breach of the provisions of Section 50.

In Pooran Mal's case, the relief claimed by the main appellant in his
case was in respect of action taken under Section 132 of the Income Tax Act,
\_

1016 SUPREME COURT REPORTS (1999] 3 S.C.R..
\
.I
A 1961 by way of search and seizure of certain premises on the ground that the
authorisation for the search as also the
-· search· ancl--sei.zure .of the materi3.l.s
1

were illegal. In that case articles consisting of account books and documents
besides some cash, jewelry and other 'valuables 'Were seized by the Income
Tax Authorities purporting to act 11!1der _the authorisation of a search and
seizure issued under Section 132 of the Income Tax Act. The Constitution
B Bench dealt both with the challenge on constitutional and non-constitutional
grounds to the search and seizure. The Court opined that the power of search
and seizure in any system of jurisprudence is 'an overriding power of the
State for the protection· of social security and that power is necessarily
regulated by law'. The Court then noticed the safeguards provided in Section
c 132 of the Act and obsenred :

"We are, ther,efore, to see what are the inbuilt safeguards in Section
132 of the Income-tax Act. In the first place, it must be noted that
. the power to order search and seizure is vested in the highest officers .
of the department. ·Secondly the' exercise. of this power can only
D follow a reasonable belief entertained by such officer that any of the
three conditions mentioned in Section 132(l)(a), (b) and (c) exists.
In this connection it may be further pointed out that under sub-rule
(2) of Rtlle 112, the Director of Inspection or the Commissioner, as
the case may be, has to record his reasons before the authorisation
is issued to the officers mentioned in sub-section (1). Thirdly, the
E
authorisation for the search cannot he in favour of any officer below
the rank of an Income-tax Officer. Fourthly, the authorisation is for
specific purposes enumerated in (i) to (v) in sub-section (1) all of
which are strictly limited to the object of the search. Fifthly when
-
money, bullion, etc. .is seized the Income- tax Officer is to make a
F summary enquiry with a view to determine how much of what is
seized will be retained by him to cover the estimated tax liability
and how much will have to be returned forthwith. The object of the
enquiry under sub-section (5) is to reduce the inconvenience to the
assessee as much as possible so that within a reasonable time what
is estimated due to the Gov~ent may be retained and what should
G be returned to the assessee may be immediately returned to him. Even
with regard to the books of account and documents, seized, their
return is guaranteed after a reasonable time. In the meantime the
person from whose custody they are seized is permitted to make
copies and take extracts. Sixthly, where money, bUllion, etc. is seized,
H it can also be immediately returned to the person concerned after he
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 10'J7

- niakes appropriate provision for the payment of the estimated tax dues A
under sub-section (5) an;.J lastly, and .this is most important, the
provisions of the Criminal Procedure Code relating to search and
seizure apply, as far as they may be, to all searches and seizures under
Section 132. Rule 112 provides for the actual search and seizure being
made after observing nonnal decencies of behaviour. The person in B
charge of the premises searched is immediately given a copy of the
list of articles seized. One copy is forwarded to the authorising officer.
· Provision for the safe custody. of the articles after seizure is also made
in ,Rule 112. In our opinion, the safeguards are adequate to render the .
provisions of search and seizure as less onerous and restri~tive as is
possible under the circumstances. The provisions, therefore, relating C
to search and seizure in Section 132 and Rule i 12 canpot be regarded
as violative of Article 19(f) and (g)."
(Emphasis suppl~)
Dealing with the effect of search and seizure conducte_d in breach of the
provisions of Section 132 of the Income Tax Act, the Court opine~ : D
"In that view, even assuming, as was done by the High Court, that
the search and seizure were in contravention of the provisions of
Section 132 of the Income-tax Act, still the maierial seized was liable
to be used subject to law before the Income-tax authorities against
the person from whose custody it was seized and, therefore, no Writ E
of Prohibition in restraint of such use could be granted. It must be,
therefore, held that the High Court was right in dismissing the two
writ petitions. The appeals must also fail and are dismissed with
costs."

" ... Now, ifthe Evidence Act, 1872 which is a law consolidating, defining F
and amending the law of evidence, no provision of which is challeng~d
as violating the· Constitution-pennits relevan~y as the only test of
admissibility of evidence (See Section 5 'of th~ Act) and, secondly,
that Act or any other similar law in force does not exclude relevant
evidence on the ground that it \vas obtained under an iUegal search
or seizure, it will be wrong .t~ i~voke the supposed spirit of our G
a. Constitution for excluding such evidence ..."

" .. ilt, therefore, follows that neither by invoking the spirit of Jur
Constitution nor by a strained construction 'of any of the fundamental
rights can we spell out the exclusion • of evidence obtained on an
illegal search." 'r (Emphasis supplied) H
1018 SUPREME COURT REPORTS [1999] 3 S.C.R.

A On facts, the Court in Pooran Mal's case, however, found :
---
1

"On the whole, therefore, we are not inclined to hold that the search
and seizure in this writ petition was vitiated by any illegality."

Sil)lilarly, in the other writ petitions dealt with in Pooran Mal's case, the
B Court opined :

" ... The search and seizure, therefore, impugned in this writ petition
cannot be regarded as illegal."
(Emphasis supplied)

C The Judgement in Pooran Mal's case (supra) has to be considered in
the context in which it was rendered. It is well-settled proposition of law that
a decision is an authority for what it decides and not that everything said
therein constitutes a precedent. The courts are obliged to employ an intelligent
technique in the use of precedents bearing it in mind that a decision of the
court takes its colour from the questions involved in the case in which it was
D rendered.

In C.J. T. v. Sun Engineering Works (P) Ltd, (1992] 4 SCC 363, this Court
rightly pointed out :

" .. .It is neither desirable nor permissible to pick out a word or a
E sentence from the judgment of this Court, divorced from the context
of the question under consideration and treat it to be the complete
'law' declared by this Court. The judgment must be read as a whole
and the observations from the judgment have to be considered in the
light of the questions which were before this Court. A decision of this
Court takes its colour from the questions involved in the case in
F which it is rendered and while applying the decision to a later case,
the courts must carefully try to ascertain the true principle laid
down by the decision of this Court and not to pick out words or
sentences from the judgment, divorced from the context ofthe questions
under consideration by this Court, to support their reasonings."
G (Emphasis supplied)

The judgment in Pooran Mal's case (supra), therefore, cannot be
understood to have laid down that an illicit article seized during the search
of person, on prior infonnation, conducted in violation of the provisions of
•
Section 50 of the Act can be used as evidence of unlawful possession of the
H illicit article on the person from whom that contraband had been seized
J STATE OF PUNJAB v. B. SINGH[DR.A.S.ANAND, CJ.] 1019
during an illegal search. Apart from the position that in Pooran Mal's case, A
on facts, it was found that the search and seizure conducted in the cases
under consideration in that case were not vitiated by any illegality, the import
of that judgment, in the present context, can only.be to the effect that material
,.
seized during search and seiZl1re, conducted in contravention of the provisions
of Section 132 of the Income Tax Act cannot be restrained from being used,

- subject to law, before the Income Tax Authorities in other legal proceedings B
against the persons, from whose custody that material was seized by issuance
of a writ of prohibition. It was not the seized material, in Pooran Mal's case,
which by itself could attract any penal action against the assessee. What is
implicit from the judgment in Pooran Mal's case is that the seized material
could be used in other legal proceedings against an assessee, before the c
Income Tax authorities under the Income Tax Act, dealing with escaped
income. It is, therefore, not possible to hold that the judgment in Pooran
Mal's case can be said to have laid down that the 'recovered illicit article' can
be used as proof of unlawful possession of the contraband seized from the
suspect as a result of illegal search and seizure. If Pooran Mal's judgment
is read in the manner in which it has been construed in The State of Himachal D
Pradesh v. Pirthi Chand and Anr. (though that issue did not strictly speaking
arise for consideration in that case), then there would rem<iip no distinction
between recovery of illicit drugs etc. seized during a: search conducted "after''
following the provisions of Section 50 of the NDPS Act and a seizure made
during a search conducted "in breach of' the provision of Section 50 of the E
NDPS Act. Prosecution cannot be permitted to take advantage of its own

- wrong. Conducting a fair trial for those who are accused of a criminal offence
is the cornerstone of our democratic society. A conviction resulting from an
unfair trial is contrary to our concept of justice. Conducting a fair trial is both
for the benefit of the society as well as for an accused and cannot be
abandoned. While considering the aspect of fair trial, the nature of the F
evidence obtained and the nature of the safeguard violated are both relevant
factors. Courts cannot allow admission of evidence against an accused, where
the court is satisfied that the evidence had been obtained by a conduct of
which prosecution ought not to take advantage particularly when that conduct
had caused prejudice to the accused. If after careful consideration of the G
material on the record it is found by the court that the admission of evidence
_or collect~d in search conducted in violation of Section 50 would render the trial
unfair then that evidence must be excluded. InR. v. Collins, [1987] I SCR 265
the Supreme Court of Canada speaking through Lamer, J. (as His' Lordship,
Chief Justice of the Supreme Court of Canada then was) opined that the use
of evidence collected in violation of the Charter rights of an accused would H
1020 . SUPREME COURT REPORTS [1999) 3 S.C.R.

A render a trial unfair and the evidence inadmissible. In the words of the
Supreme Court of Canada:

"The situation is ve1y different with respect to cases where, after a
violation of the Charter, the accused is conscripted against himself
through a confession or other evidence emanating from him. The use
of such evidence would render the trial unfair, for it did not exist .._
prior to the violation and it strikes at one of the fundamental tenets
of a fair trial."

(Emphasis ours)

C The opinion in Collins' case has been reli~ upon by the majority of the
Supreme CoUrtofCanadainR."v."Sti/lman,
. •
[~--------.:c
1R.C.S.607 also.

The question of admissibility of evidence, which may be relevant to the
question in issue, has thus to be decided in the context and the manner in .
. /
which the evidence was collected and is sought to be used. ·
D
In view of the provisions of Chapter IV of NDPS Act, mere unlawful
possession of a contraband amounts to an offence and is punishable with
rigorous imprisonment for terms which shal~not be less than 10 years but can
extend to 20 years or 30 years in addition to a fine which shall not be less
E than one lakh of rupees but which may extend to two lakhs or three lakhs of
rupees. On a charge of possession of a dangerous drug or a psychotropic
substance, i~ it is established that the accused had. the .contraband in his
possession without authority, he is liable to be punished. "Unlawful
possession" of the contraband is the sine qua non for recording conviction
under the NDPS Act and the most important ingredient of an offence under.
F the NDPS Act. .

E>i."Plaining the concept of possession, in Bocking v. Roberts, (1973) 3
. All E.R. 962, Lord Widgery, C.J. obser'\red : .

"In my judgment it is quite clear that when dealing with a charge of
G possession of a dangerous drug without authority, the ordinary maxim of de
minimis is.not to be applied, in other words if it is clearly established that the
·v-
accused had a dangerous drug in his possession- without authority, it is no
answer to him to say : 'oh, but the quantity of the dtug whic;h I possessed
was so small that the law should take~no accotUit
' '
of it.' The doctrine of de
'

minimis as such in my judgment does not apply 'but, 9n the other hand, since
H the accused is possessin_g a dangerous drug, . it is ·ql#te. clear that the
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1021 .

prosecution have to prove that there was some drug in the possession of the A
accused to justify the charge ..."
(Emphasis ours )

In R. v. Young, (1984) 2 All E.R. 164, it was held that ifan accused being
in possession of the prohibited substance on ~eeing the police party swallows
the same to avoid detection, he can be convicted for possession of the B
_e.rohibited substance and not for consumption thereof.

Similarly, in Loui; Beaver v. Her Majesty The Queen, [1957] SCR 531,
the Supreme Court of Canada while dealing with a case relating to an offence
of possession of forbidden narcotic substance held that the element of
knowl~dge formed a part of the. ingredient of possession, where mere C
possession of the. forbidden substance amounts to an offence.

A Constitution Bench of this Court in Sanjay Dutt v. The Stat£: through
C.B.l., Bombay (II), [1994] 5 SCC 410, while dealing with Section 5 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), which D
reads : · . .

"Section 5 - Possession of certain unauthorised arms, etc., in specified
areas.-Where any person is in possession of any arms and
ammunition specified in Columns 2 and 3 of Category I or Category
III (a) of Schedule I to the Arms Rules, 1962, or bombs, dynamite or E
other explosive substances unauthorisedly in a notified area, he shall,
notwithstanding anything contained in any other law for the time
being in force, be punishable with imprisonment for a term which shall
not be less than five years but which may extend to imprisonment for
life and shall also be liable to fine."
F
spelt out the ingredients of the offence created by Section 5 of TADA
and opined :
"The position which emerges is this. For constituting the offence
made punishable under Section 5 of the TADA Act, the prosecution
has to prove the aforesaid three ingredients. Once the pros~cution G
has proved 'unauthorised' 'conscious possession' of any of the
specified arms and ammunition etc. in a 'notified area' by the accused,
the conviction would follow on the strength of the presumption
unless the accused proves the non-existence of a fact essential to
constitute any of the ingredients of the offence. Undoubtedly, the
accused can set up a defence of non-existence of a fact which is an H
1022 SUPREME COURT REPORTS [1999] 3 S.C.R.

A ingredient of t~e.offence to be proved by the prosecution."
(Emphasis ours)

The Constitution Bench in Sanjay Dutt 's case, thus clearly held that
once the prosecution has proved unauthorised conscious possession of any
of the specified arms and ammunition etc. in a notified area by the accused,
B the.offence is complete and the conviction must follow on the strength of the
statutory presumption, unless the accused proves the non-existence of a fact
essential to constitute any of the ingredient of that offence. Indeed, the
presumption, even· though statutory in nature, was held to be rebuttable.

Thus, even if, it be assumed for the sake of argument that all the
material seized during an illegal s~arch, may be admissible as relevant evidence
in other proceedings, the illicit drug or psychotropic substance seized in an
Hlegal search cannot by itself be used as proof of unlawfal conscious possession
of the contraband by the accused. An illegal search cannot also entitle the
prosecution to raise a presumption under Section 54 of the Act because
D presumption, is an inference of fact drawn from the facts which are known
as proved. A presumption under Section 54 of the Act can only be raised after
th.e 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.

E We, therefore, hold that an illicit article seized from the person of an
accused, during search conducted in violation of the safeguards provided i..rr
Section 50 of the Act, cannot by itself be used as admissible evidence of
proof of unlawful possession of the contraband on the accused. Any other
material/article recovered during that search may, however, be relied upon by
the prosecution· in other/independent proceedings against an accused
F
notwithstanding the recovery of that material during an illegal search and its
admissibility would depend upon the relevancy of that material and the facts
and circumstances of that case.

Thus, considered we are of the opmton that the judgment in AH
G Mustaffa's case correctly interprets and distinguishes the judgment in Pooran
Mal's case and the broad observations made in Pirthi Chand's case and
Jasbir Singh 's case are not in tune with the correct exposition of law, as laid
down in Pooran Mal's case.

On the basis of the reasoning and discussion above, the following
H conclusions arise :
./
STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.) 1023
(1) That when an empowered officer or a duly authorised officer A
acting on prior information is about to search a person, it is
imperative for him to inform the concerned person of his right
under Sub-section (1) of Section 50 of being taken to the nearest
Gazetted Officer or the nearest Magistrate for making the search.
However, such information may not necessarily be in writing;
B
(2) That failure to inform the concerned person about the existence
of his right to be searched before a Gazetted Officer or a
Magistrate would cause prejudice to an accused;

(3) That a search made, by an empowered officer, on prioririformation,
without informing the person of his right that, if he so requires, C
he shall be taken before a Gazetted Officer or a Magistrate for
search and in case he so opts, failure to conduct his search
before a Gazetted Officer or a Magistrate, may not vitiate the trial
but would render the recovery of the illicit article suspect and
vitiate the conviction and sentence of an accused, where the
conviction has been recorded only on the basis of the possession
D
of the illicit article, recovered from his persoti, 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 E
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 F
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 G
lawlessness conducted by the investigating agency during search
operations and may also undermine respect for law and may
have tt:ie 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 to our concept of justice. The use of evidence H
).\.._,.
.

\_
1024 SUPREME COURT REPORTS [1999) 3 S.C.R.

k · 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 inSecti~fl 50 have
been duly observed would have to be determined by the Court
ori. the basis of evidence led at the trial. Finding on that issue,
B .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 trlal, 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;
c
(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 1that fail\lre
to inform the concerned person of his right as emanating from
D Sub-section (1) of Section 50, may render the recovery of the
contraband suspect and the c;onviction and sentence of an
accused bad and unsustainable in law;

(l) That an illicit article seized from the person of an accused during
search conducted in violation of the safeguards provided in
E 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 during an
F. illegal search;

(8) A presumption under Section 54 of the Act can only be raised
after the prosecution has established that the accused was found
to be in possession of the contraband in a search conducted in '
accordance with the mandate of Section 50. An illegal search
G cannot entitle the prosecution to raise a presumption under
Section 54 of the Act; ;,

(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
H provisions of Section 50 of the Act, can by itself be used as
)

STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1025
evidence of unlawful possession of the illicit article on the A
person from whom the contraband has been seized during the
illegal search;
(10) That the judgment in Ali Mustaffa's case correctly interprets and
distinguishes the judgment in Pooran Mal's case and the broad
observations made in Pirthi Chand's case and Jasbir Singh's B
case are not in tune with the correct exposition of law as laid
down in Pooran Mal's case.

The above conclusions are not a summary of our judgment and have
to be read and considered in the light of the entire discussion contained in
~~~~ c
We, accordingly, answer the reference in the manner aforesaid.

Let the Criminal Appeals and Special Leave Petitions be now placed
for disposal before an appropriate Bench.
D
v.s.s. Appeals and petitions disposed of.