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2019 (10) TMI 1574
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.... bye-pass, Rajpura. Lachhman Singh son of Sarwan Singh came on the spot. When Rakesh Kumar was talking with Lachhman Singh, a Qualis bearing registration No. PB-13-D-7000 was seen coming from Ambala side. On seeing the police party, the driver of the vehicle tried to reverse the vehicle. On suspicion, the vehicle was stopped. One lady was sitting with the driver. On enquiry, the driver and passenger disclosed their identities. ASI Rakesh Kumar suspected them to be carrying some contraband in the bags lying in the vehicle. He wanted to search them. He apprised the Accused of their right to get the search conducted in the presence of Magistrate or gazetted Police Officer. However, Accused reposed confidence in him. Joint consent statement of Accused was reduced into writing. On search, 7 bags containing poppy husk were recovered. Two samples of 250 grams each from each bag were separated and the residual poppy husk of each bag weighed 34 kgs. All the sample parcels and bulk parcels were sealed with the seals bearing impression 'RK' Specimen seal was prepared and the seal after use was handed over to HC Malwinder Singh. The case property was taken into possession. Ruqa was sen....
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.... such the view taken by the High Court was correct. 9. Ms, Pallavi Singh, learned Advocate also relied upon the decision of this Court in Dilip and Anr. v. State of M.P. (2007) 1 SCC 450] to submit that once there was non-compliance of the requirements of Section 50, the benefit ought to be extended in favour of the Accused. 10. The question that arises in the matter is: If a person found to be in possession of a vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements Under Section 50 of the Act; but the search of the vehicle results in recovery of contraband material, which stands proved independently; would the Accused be entitled to benefit of acquittal on the ground of non-compliance of Section 50 of the Act even in respect of material found in the search of the vehicle. 11. Before we deal with the question, we may extract Section 50 of the Act: 50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised Under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person....
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....on (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 person concerned 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 right that if he so requires, 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 of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. (Underlying by us) (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the ev....
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....vered during that search may be relied upon by the prosecution, in other proceedings, against an Accused, notwithstanding the recovery of that material during an 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 cannot entitle the prosecution to raise a presumption Under Section 54 of the Act. (9) That the judgment in Pooran Mal case (1974) 1 SCC 345 cannot be understood to have laid down that an illicit Article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit Article on the person from whom the contraband has been seized during the illegal search. (10) That the judgment in Ali Mustaffa case (1994) 6 SCC 569 correctly interprets and distinguishes the judgment in Pooran Mal case (1974) 1 SCC 345 and the broad observations made in Pirthi Chand case (1996) 2 SCC 37 and Jasbir Singh case (1996)1 SCC 288 are not in tune....
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....allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer Under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit Article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit Article from the person of the Accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. (Underlying by us) 14. The law is thus well settled that an illicit Article seized from the person during personal search conducted in violation of the safe-guards provided in Section 50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contra-band. But the question is, if there be any other material or Article recovere....
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....usion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based "only" on the basis of possession of an illicit Article recovered from personal search in violation of the requirements Under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into. In the instant case, the personal search of the Accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid. 18. The decision of this Court in Dilip's case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the Accused even in respect of recov....