TaxTMI 
TaxTMI 
1999 (7) TMI 630
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....own that failure 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 Mustaffas case (supra), the judgment in Pooran Mal v. The Director of Inspection (Investigation), New Delhi & Ors., 1974 (1) SCC 345, was also considered and it was opined that the judgment in Pooran Mals case could not be interpreted to have laid down that a contraband seized as a result of illegal search or seizure could by itself be treated as evidence of possession of the contraband to fasten liability, arising out of unlawful 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 NDPS Act. However, in State of Himachal Pradesh v. Pirthi Chand and Anr., 1996 (2) SCC 37, and State of Punjab v. Labh Singh, 1996 (5) SCC 520, relying upon a judgment of this Court in Pooran Mals case (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-....
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....ed 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 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 and Anr. (1996 (2) SCC 37), another two-Judge Bench of this Court referred to and relied upon the judgment in Pooran Mals case (supra) and held that the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The Court further observed that even if search was found to be in violation of law, what weight should be given to the evidence collected was a question to be gone into during trial. With the above observations, the Bench recorded a finding that the Sessions Judge was not justified in discharging the accused after filing of the charge sheet holding that mandatory requirements of Section 50 had not been complied with. It, however, appears that the Courts attention was not drawn to Ali Mustaffa (supra). The view expressed in Pirthi Chand (supra ) wa....
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....p; (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) 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 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 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. (Emphasis supplied) 3. In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala (1994) 6 SCC 569, a submission was made on behalf of the State of Kerala to ....
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....ch in violation of law did not become inadmissible in evidence under the Evidence Act. The Court further observed that even if the search was found to 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. Labh Singh, (1996) 5 SCC 520, with the observation that any evidence recorded and recovered in violation of the search and the contraband 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 Saiyads case (supra) (which was delivered by 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 Mals case (supra). 7. Let these matters be, therefore, placed before the Honble Chief Justice for necessary orders. That is how this batch of Criminal Appeals/Special Leave Petitions has ....
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....1971. The need for the enactment of some comprehensive legislation on Narcotics Drug and Psychotropic Substances was, therefore, 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. Enhanced penalties are 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 extend upto 20 years and a minimum fine of Rs.1 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 minimum fine is Rs.1.5 lakh which may extend to Rs.3 lakhs. Section 31(a) of the Act, which was inserted by the Amendment Act of 1988, has even provided that for certain offences, after previous convictions, death penalty shall be imposed, without leavi....
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....ction 41 reads as follows:- 41. Power to issue warrant and authorisation.- (1) 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 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 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 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....
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....and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between 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 (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. 43. Power of seizure and arrest in public places. Any officer of any of the departments mentioned in section 42 may (a) ....
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....resting 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. (2) Every person arrested and article seized under warrant issued under sub-section (1) 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 without unnecessary delay to-- (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. (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 according to law of such person or article. Section 54 provides : 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 (a) any narcotic drug or psychotropic substance; (b) any opium poppy, cannabis pla....
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....makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, 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 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 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 legal 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 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 Mag....
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....n received in writing with regard to the commission of an offence before 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. 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 purpose. Under sub-section (2) it is laid down that if such request is 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 g....
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....2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared 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 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, 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....
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....ight of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search if he so requires. Learned counsel for the parties, however, agree that in case the obligation to inform the suspect of his right to be searched before a Gazetted Officer or a 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. 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 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....
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....rovided 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 empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (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 would be illegal. Likewise only empowered officers or duly authorized office....
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....CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in 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 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 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 Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (Emphasis ours) (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....
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....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... 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. 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 the Additional Sessions Judge. Though the offence involved is of a considerable magnitude of 70 bags containing 34 kgs. Of poppy husk, each without any permit/licence, this Court is constrained to confirm 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 and compliance thereof intended to be mandatory. In case the police....
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....sed persons raised a suspicion, he went into the house and effected the 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 provisions of the Act. On facts it was found that the Investigating Officer did not record the grounds of his belief at any stage of the investigation, subsequent 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 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 a....
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....f 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 have to be satisfied at the trial of the case about due compliance with the 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. 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 of Illicit Drugs and Narcotic Substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession ....
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.... the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries 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 representation. (Emphasis ours) This Court cannot over-look the context in 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 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 searched only in that manner. As already observed the compliance with the procedural safeguards con....
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....he 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) In D.K. Basus 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 is the supreme law) and salus 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 (Emphasis supplied) 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, 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....
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....ion to establish at the trial that 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 evidence? This question arises in the context of the judgment of the Constitution Bench in Pooran Mals case (supra). A submission was made in Ali Mustaffa Abdul Rahman Moosas case (supra) before the Bench on behalf of the State of Kerala to reconsider the judgment in Balbir Singhs 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 Mustaffa's case that even if search and seizure of the contraband was held to be illegal having been 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 Evidence Act to establish unlawful possession of the contraband on the concerned person from whom it was recovered during that search. This Cour....
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....aid 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 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 Singhs case also. It appears that the earlier judgment in Ali Mustaffas case was not brought to the notice of their Lordships in both the above cases. Let us, therefore, first examine the fact situation and the law as laid down in Pooran Mals case and the question of its applicability to cases arising out of offences under the NDPS Act, based only on proof of unlawful 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 Mals case, the relief claimed by the main appellant in his case was in respect of....
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....d 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, it can also be immediately returned to the person concerned after he makes appropriate provision for the payment of the estimated tax dues under sub-section (5) and 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 normal decencies of behaviour. The person in 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 restrictive as is possible under the circumstances. The provisions, therefore, relating to search ....
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....estions involved in the case in which it was rendered. In C.I.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 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 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 of the questions under consideration by this Court, to support their reasonings. (Emphasis supplied) The judgment in Pooran Mals case (supra), therefore, cannot be understood to have laid down that an illicit article seized during the search of person, on prior information, conducted in violation of the provisions of ....
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.... 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 material on the record it is found by the court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded. In R. vs. Collins : 1987 (1) 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 render a trial unfair and the evidence inadmissible. In the words of the Supreme Court of Canada: The situation is very 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 viol....
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....a while dealing with a case relating to an offence of possession of forbidden narcotic substance held that the element of knowledge formed a part of the ingredient of possession, where mere possession of the forbidden substance amounts to an offence. A Constitution Bench of this Court in Sanjay Dutt v. The State through C.B.I., Bombay (II), (1994) 5 SCC 410, while dealing with Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), which 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 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. spelt out the ingredients of the offence created by Section 5 of TADA and opined : The position which emerges is this. For constituting the o....
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....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 opinion that the judgment in Ali Mustaffas case correctly interprets and distinguishes the judgment in Pooran Mals case and the broad observations made in Pirthi Chands case and Jasbir Singhs 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 conclusions arise : (1) That when an empowered officer or a duly authorised officer 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; (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 prior information, without informing the person of his....