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

- **Citation:** [1994] 2 S.C.R. 208
- **Court:** Supreme Court of India
- **Decided:** 1994
- **Bench:** S. Ratnavel Pandjan, K. Jayachandra Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-v-balbir-singh-and-ors-etc-etc-12182
- **Pages:** 31

## Headnote

c
Narcotic Drugs and l'sychotropic Substances Ac4 1985 : Sections 41,
42 and l'rovistr-Search and Amst-Wa"ant issued by a Magistrate not empowered-Action would be illegal-Section 42(2) held mandatory.
l'roviso to Section 42-Search without warrant between sunrise and
sunset-Officer must record thl! grounds of belief-To this extent provision is
mandatory.
Section SO-Applicability of-When officer pnceeds under Cr.l'.C.
D without prior infonnation under N_Dl's Act Section SO is not attracted-When
there is chance recovery of Narcotic Drugs from that stage provisions of
Section SO are applicable.
It is obligatory on the part of the officer to infonn the accused that he
has a right to be searched before a Gazetted Officer or magistrate-Section
E SO held mandatory.
F
Section SJ-Search and Seizure-Provisions in Cr.P.C. in so far as they
are not inconsistent with NDPS Act are applicable to Search and Seizure
under NDPS Act.
Sections S2 and 57-Provisions dealing with steps to be taken after
search and seizure-Held not mandatory-Violation of these provisions does
not vitiate trial-Court should examine whether non-compliance has caused
prejudice to the accused.
G
Code of Criminal Procedure, 1973 : Section 4-£xpression "otherwise
dea_lt with''-Meaning and Scope of·
•
Sections JOO and 165-Non-compliance with-Effect of
Indian Penal Code, 1860 : Section 26-'Reason to believe'-Meaning
H of.
208
!
STATE OF PUNJAB v. BALBIRSINGH
209
-
Intepretation of statutes-Statutory Provision-Detennination whether A
)
directory or mandatory-Court should keep in mind legislative intent and
Scope of Act-Provisions creating public duties are generally directory.
The present petitions and appeals have been filed by the State or
Punjab questioning the order passed by the Trial Court acquitting the
B
respondents on the ground that the arrest, search al!d seizure were In
violation of some of the relevant and mandatory provisions of the Narcotic
Drugs and Psychotropic Substances Act, 1985. In the other connected cases
~
the accused persons have questioned their conviction on the ground that
their arrest and trial was illegal.
c
The question in all these cases is whether any arrest and search of
a person or search of a place with1>ut conforming to the provisions or the
NDPS Act becomes illegal and consequently vitiates the conviction. On·
behalf of the State of Punjab, it was contended that as the police officers
effected arrest, search and seizure on reasonable suspicion that a cogD
oizable offence bas been committed and not on any prior information that
any offence punishable under NDPS Act bas been committed, the question
.,
of complying with some of the provisions of the NDPS Act in this,regard
at the time of the said arrest, search and seizre would not arise and as
long as such arrest, search and seizure are substantially in accordence
with the provisions or the Code of Criminal Procedure, such arrest, S\!31'Cb E
and seizure cannot he declared as illegal; even if it was not in strict
conformity with the provisions of the Code or Criminal Procedure, at that
stage, the same may at the most be irregnlar and the courts should only
see whether any prejudice is caused to the accused but it cannot throw out
the whole prosecution case as such.
F
•
For the respondents-accused it was contended that since deterrent .
punishments are prescribed under the NDPS Act, the Legislature has
taken care to incorporate several provisions in Chapter V or the Act
governing the arrest, search and seizure to afford safeguards so that
innocent persons are not harassed and these provisions are mandatory in G
nature and non-compliance of the same vitiates the trial.
Disposing the appeals, this Court
' ...
HELD : 1. NDPS Act is not a complete code incorporating all the
provisions relating to search, seizure or arrest etc. The said Act after H
/
210
SUPREME COURT REPORTS
(1994) 2 S.C.R.
A incorporating the broad principles regarding search, seizure or arrest etc.
in Sections 41, 42, 43 and 49

## Text

_Characters 0–39,924 of 76,093. This is a partial read: ask again with offset=39924 for what follows._

A
STATE OF PUNJAB .
v.
BALBIR SINGH AND ORS. ETC. ETC.
MARCH l, 1994
B
[S. RATNAVEL PANDJAN AND K. JAYACHANDRA REDDY, JJ.]
c
Narcotic Drugs and l'sychotropic Substances Ac4 1985 : Sections 41,
42 and l'rovistr-Search and Amst-Wa"ant issued by a Magistrate not empowered-Action would be illegal-Section 42(2) held mandatory.
l'roviso to Section 42-Search without warrant between sunrise and
sunset-Officer must record thl! grounds of belief-To this extent provision is
mandatory.
Section SO-Applicability of-When officer pnceeds under Cr.l'.C.
D without prior infonnation under N_Dl's Act Section SO is not attracted-When
there is chance recovery of Narcotic Drugs from that stage provisions of
Section SO are applicable.
It is obligatory on the part of the officer to infonn the accused that he
has a right to be searched before a Gazetted Officer or magistrate-Section
E SO held mandatory.
F
Section SJ-Search and Seizure-Provisions in Cr.P.C. in so far as they
are not inconsistent with NDPS Act are applicable to Search and Seizure
under NDPS Act.
Sections S2 and 57-Provisions dealing with steps to be taken after
search and seizure-Held not mandatory-Violation of these provisions does
not vitiate trial-Court should examine whether non-compliance has caused
prejudice to the accused.
G
Code of Criminal Procedure, 1973 : Section 4-£xpression "otherwise
dea_lt with''-Meaning and Scope of·
•
Sections JOO and 165-Non-compliance with-Effect of
Indian Penal Code, 1860 : Section 26-'Reason to believe'-Meaning
H of.
208
!
STATE OF PUNJAB v. BALBIRSINGH
209
-
Intepretation of statutes-Statutory Provision-Detennination whether A
)
directory or mandatory-Court should keep in mind legislative intent and
Scope of Act-Provisions creating public duties are generally directory.
The present petitions and appeals have been filed by the State or
Punjab questioning the order passed by the Trial Court acquitting the
B
respondents on the ground that the arrest, search al!d seizure were In
violation of some of the relevant and mandatory provisions of the Narcotic
Drugs and Psychotropic Substances Act, 1985. In the other connected cases
~
the accused persons have questioned their conviction on the ground that
their arrest and trial was illegal.
c
The question in all these cases is whether any arrest and search of
a person or search of a place with1>ut conforming to the provisions or the
NDPS Act becomes illegal and consequently vitiates the conviction. On·
behalf of the State of Punjab, it was contended that as the police officers
effected arrest, search and seizure on reasonable suspicion that a cogD
oizable offence bas been committed and not on any prior information that
any offence punishable under NDPS Act bas been committed, the question
.,
of complying with some of the provisions of the NDPS Act in this,regard
at the time of the said arrest, search and seizre would not arise and as
long as such arrest, search and seizure are substantially in accordence
with the provisions or the Code of Criminal Procedure, such arrest, S\!31'Cb E
and seizure cannot he declared as illegal; even if it was not in strict
conformity with the provisions of the Code or Criminal Procedure, at that
stage, the same may at the most be irregnlar and the courts should only
see whether any prejudice is caused to the accused but it cannot throw out
the whole prosecution case as such.
F
•
For the respondents-accused it was contended that since deterrent .
punishments are prescribed under the NDPS Act, the Legislature has
taken care to incorporate several provisions in Chapter V or the Act
governing the arrest, search and seizure to afford safeguards so that
innocent persons are not harassed and these provisions are mandatory in G
nature and non-compliance of the same vitiates the trial.
Disposing the appeals, this Court
' ...
HELD : 1. NDPS Act is not a complete code incorporating all the
provisions relating to search, seizure or arrest etc. The said Act after H
/
210
SUPREME COURT REPORTS
(1994) 2 S.C.R.
A incorporating the broad principles regarding search, seizure or arrest etc.
in Sections 41, 42, 43 and 49 has laid down in Section 51 that the provisions
of Cr.P.C. shall apply in so far as they are not inconsistent with the
provisions of the NDPS Act to all warrants issued and arrests, searches
and seizures made under that Act. Therefore, the provisions of Sections
B 100 and 165 Cr.P.C. which are not inconsistent with the provisions of the
NDPS Act are applicable for effecting search, seizure or arrest under the
NDPS Act also. The words 'in so far as they are not inconsistent with the
provisions of this Act in Sectlom1 51 of the NDPS Act" are . ~ignilicant.
Consequently the provisions of the Cr.P.C. shall be applicable in so far as
•
tbey are not inconsistent with the NDPS Act to all warrants, searches,
c seizures or arrest made under tht! Act. [219-F-G, 220-D)
2. If a police officer without any prior information as contemplated
under the provisions of the NDPS Act makes a search or arrests a person
in the normal course of investigation into an offence or suspected offence
D as provided under the provisions of Cr.P.C. 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 psychotrophic substance then the police officer, who is
not empowered, should inform the empowered officer who should thereE after proceed in accordance wi~~ the provisions of the NDPS Act. If he
happens to be an empowered oflr.cer also, then from that stage onwards,
he should carry out the investigation in accordance with the other
provisions of the NDPS Act. [235-D-F)
F
3. Under Section 41(1) only an empowered Magistrate can issne
warrant for the arrest or for the search in respect of offences punishable
'
under Chapter IV of the Act etc., when he has reason to believe that such
offence have been committed or snch substances are kept or concealed in
any building, conveyance or place. When such warrant for arrest or for
G
search is issued by a Magistrate who is not empowered, then such search
or arrest if carried ont would be illegal. [235-G)
4. Likewise only empowered officers or duly authorised officers as
enumerated in Sections 41(2) and 42(1) can act under the provisions of
> .
the NDPS Act. If such arrest or search is made under the provisio11s of
H the NDPS Act by any one other than such officers, the same would be
STATE OF PUNJAB v. BALBIR SINGH
211
illegal. [235·H, 236-A)
A
Nand Lal v. The State of Rajasthan, (1987) 3 Crimes 629; Bhajan
Singh v. State of Haryana, (1988) 1 Crimes 444; Umrao v. State of Rajasthan,
(1988) 2 Raj. Law Weekly 25 and Shanti Lal v. State of Rajasthan, (1989) 1
Crimes 276, approved.
B
S. Under Sectionn 41(2) only the empowered officer can give the
....
authorisation to his subordinate officer to carry out the arrest of a person
or search as mentioned therein. If there is a contravention that would
affect the prosecution case and vitiate the conviction. [236-B)
6. Under Section 42(1) the empowered officer if has a prior informa· c
lion given by any person, that should necessarily be taken down in writing.
But if be has reason to believe from personal knowledge that offences
under Chapter IV have been committed or materials which may furnish
evidence of commission of such offences are concealed in any building, etc.,
be may carry out the arrest or search without a warrant between sunrise D
...
and sunset and this provision does not mandate that be should record bis
reasons of belief. But under the proviso to Section 42(1) if such officer bas
to carry out such search between sunset and sunrise, be must record the
grounds of bis belief. To this extent these provisions are mandatory and
contravention of the same would affect the prosecution case and vitiate the E
trial. [236-C-D)
Bai Radha v. State of Gujarat, [1969) 2 SCR 799, followed.
~
Dr. Pratap Singh and Ors. v. Director of Enforcement, Foreign Exchan[;" Regulation and Ors., AIR (1985) SC 989; K.L. Subhayya v. State of F
Kamataka, AIR (1979) SC 711; Shyam Lal Shanna and Anr. v. State of
Madhya Pradesh, AIR (1972) SC 886 and R.S. Seth Gopikisan Agarwal v.
R.N. Sen, Asstt. Collector of Customs and Central Excise and Ors., AIR
(1967) SC U98, referred to.
7. Under Section 42(2) such empowered officer who takes down any G
information in writing or records the grounds under proviso to Section
..
42(1) should forthwith send· a copy thereof to bis immediate official
superior. If there is total non-compliance of this provision the same .affects
the prosecution case. To that extent it is mandatory. But if there is delay
whether it was nndue or whether the same bas been explained or not, will H
212
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A be a question of fact in each case. [236-E·F]
B
8. If a police officer, even if he happens to be an "empowered" officer
while effeeting an arrest or search during normai investigation into olTen·
ces purely under the provisions of Cr.P.C. fails to strictly comply with the
provisions of Seetions 100 and 165 Cr.P.C. including the requirement to
record reasons, such failure would only amount to an Irregularity. The
effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider
whether any prejudice has been caused to the accused and also examine
the evidence in respect of search in the light of the fact that these
C
provi~ions have not been complied with and fcrther consider whelher the
. weight of evidence is in any ma11ner affected because of non-compliance.
[236-G-222·E]
Wasan Singh v. State, [1981] 2 SCC; Sunder Singh v. State of Uttar
Pradesh, AIR (1956) SC 411; The State of Maharashtra v. P.K Pathak, AIR
D (1980) SC U24; Radha Kishan v. State of Utter Pradesh, (1963) SC 822;
Matajog Dubey v. H.C. Behri, AIR (1956) SC 44; State of Maharashtra v.
Natwarlal Demodardas Soni, AIR (1980) SC 593; Deepak Ghanshyam Naik
v. State of Maharashtra, (1989) Crl. LJ. 1181 and Sunil Kumar v. The State
(1990) Crl. W. 414, referred to.
E
9. It Is well-settled that the testimony of a witness is not to be doubted
or discarded merely on the ground that he happens to be an official but
r
...
as a rule of caution and depending upon the circumstances of the case, the
courts look for independent corroboration. This again depends o.n ques·
"
F
tion whether the official has deliberately failed to comply with these
provisions or failure was due l:o lack of time and opportunity to associate
some independent witnesses with the search and strictly comply with these
provisions. [222-FJ
10. If an empowered officer or an authorised officer under Section
G 41(2) of the Act carries out a search, he would be doing so under the
provi•ions of Cr.P.C. namely Sections 100 and 165 Cr.P.C. and if there is
i
no strict compliance with the provisions of Cr.P.C. then such search would
not per se be illegal and would not vitiate the trial. The effect of such failure
has to be borne in mind by the courts while appreciating the evidence in
H the facts and circumstances of each case. [236-H, 237-A)
.
STATEOFPUNJAB v. BALBIRSINGH
213
11. On prior information, the empowered officer or authorised officer A
while acting under Section 41 (2) or 42 should comply with the provisions of
Section SO before the search of the person is made and such person should
be informed that if he so requires, he shall be produced before a gazetted
officer or a rnagistrate as provided tllereunder. It is obligatory on the part
of such officer to inform the person to be searched. Failure to inform the
person to be searched and if such person so requires, failure to take him to
the gazetted officer or the magistrate, would amount to non-compliance of
Section SO which is mandatory and thus it would affect the prosecution case
and vitiate the trial. After being so informed whether such person opted for
such a course or not would be a question offact. [237-B-D)
12. The provisions of Section SO are mandatory. In the context in
which this right bas been conferred, it must naturally be presumed that it
is imperative on the part of the officer to inform the person to be searched
of his right that if he so requires to be searched before a gazetted officer
B
c
or a magistrate. This is a valuable right given to the person to be searched D
in the presence of a gazetted officer or a magistrate if he so requires, since
such a search would impart much more authenticity and credit worthiness
to the proceedings while equally providing an important safeguard to the
accused. To afford such an opportunity to the person to be search•d, he
must be aware of his right and that can be done only by the authorised
officer informing him. The language is clear and the provision implicitly E
makes it obligatory on the authorised officer to inform the person to be
searched of his right. [231-E, 229-E-FJ
Jang Singh v. State of Haryana, (1988) 1 Crimes 446; State of Himachal
Pradesh v. Sudershan Kumar @ Kala & Ors., (1989) 3 Crimes 608 and
Miranda v. Arizona, 1966 (Vol. 384) US 436, referred to.
Lewis mayers; Shell We amend the 5th Amendment p. 228, referred
to.
F
13. Considering whether a provision in a statute Is mandatory and G
the effect of non-compliance of the same, the courts should keep in mind
the real intention of the legislature keeping in view the whole scope of the
Act and the particular provisions to be construed in the context. (229-G)
Re Presidential Election 1974, AIR (1974) SC 1682 and Govind Lal
Chaggan Lal Patel v. The Agricultural Produce Market Committee & Ors., H
214
SUPREME COURT REPORTS
[1994] 2 S.C.R.
A
AIR (1976) SC 263.
14. Sections 52 and 57 come into operation after the arrest and
seizure under the Act. While determining whether the provisions of the Act
lo be followed after the arrest or search are directory or mandatory, it will
have to be kept in mind that the provisions of a statute creating public
B duties are generally speaking dlrccl:ory. The provisions of these two Sec·
lions contain certain procedural instructions for strict compliance by the
officers. But if there is no strict compliance of any of these instructions
that by itself cannot render the acts done by these officers null and void
and at the most it may affect the probative value of the evidence regarding
C arrest or search and in some cases it may invalidate such arrest or search.
But such violation by itself does no't Invalidate the trial or the conviction
if otherwise there is sufficient material. Therefore, it has to be shown that
such non-compliance has caused prejudice and resulted in failure of
justice. The officers, however, cannot totally ignore these provisions and if
there is no proper explanation for non-compliance or where the officers
D totally ignore the provisions then that will definitely have an adverse effect
on the prosecution case and the coairts have to appreciate the evidence and
the merits of the case bearing these aspects In view. However, a mere
non-compliance or failure to strictly comply by itself will not vitiate the
prosecution. [234-G, 235·A·Cl
E
F
G
CRIMINAL APPELLATE JURISDICTION: Special Leave Peti·
lion {Crl.) No. 1698 of 1990 etc. etc.
From the Judgment and Order dated 1.2.89 of the Punjab & Haryana
High Court in Crl. Misc. No. 8782M{A) of 1989.
R.S. Suri, Salish Vig, P.S . .Iha, R.S. Sodhi, G.K. Bansal, Miss. S.
Janan~ Ashok Kumar Sharma, Sanjeev Malhotra, Ms. Naresh Baks~ A.M.
Khanwilkar, A.S. Bhasme, Rarneshwar Gupta, M. Karnaruddin, Harjinder
Singh and M.T. George for the appearing parties.
Tlie Judgment of the Court was delivered by
K. JAYACHANDRA REDDY, J. In almost all the above cases the
State of Punjab is the petitioner. The common question that arises for
consideration is whether any arrest and search of a person or search of a
H place without conforming to the provisions of the Narcotic Drugs and
!
\
STATE OF PUNJAB v. BALBIRSINGH [K.J.REDDY,J.]
215
Psychotropic Substances Act, 1985 ('NDPS Act' for short), become illegal A
and coosequently .vitiate the conviction. The trial court in these cases
acquitted . .le accused on the ground that the arrest, search and seizure
were in violation of some of the relevant and mandatory provisioos of the
NDPS Act. The High Court declined to grant leave to appeal against the
said order of acquittal. Qestioning the saame the State of Punjab has filed B
these special leave petitioos and appeals. In a few cases, the convicted
accused also have questioned their convictioos on the ground that arrest
and trial were illegal. Since a common question arises in all these matters,
they are being disposed of by a common judgment.
The principal contention of Mr. Sur~ learned counsel appearing for C
the State of Punjab is that in all these cases, the police officers effected
arres~ search and seizure on reasonable suspicion that a cognizable offence
has been committed and not on any prior information that any offence
punisbable under NDPS Act has been committed and therefore the question of complying with some of the provisioos of the NDPS Act in this D
regard at the time of the said arres~ search and seizure would not arise
and as long as such arres~ search and seizure are substantially in accordance with the provisioos of Code of Criminal Procedure, such arrest, search
and seizure cannot be declared as illegal. The further submission is that
even if such arrest, search and seizure are not in strict conformity with the
provisioos of Code of Criminal Procedure, at that stage, the same may at E
the most be irregular and the courts have to consider the prosecution case
and appreciate the relevant evidence from that background and should
only see whether any prejudice is caused to the accused but cannot throw
out the whole prosecution case as such. Several learned counsel appearing
for the respondents-accused on the other hand contended that since deterF
rent punishments are prescribed under the NDPS Act, the Legislature has
taken care to incorporate several provisioos in Chapter V of the NDPS Act
governing the arrest, search and saizure to afford safeguards so that
innocent persoos are not harassed and these provisions are mandatory in
nature and non-compliance of the same vitiates the trial.
To appreciate the questioos involved, it may not be necessary to
extract the said provisions in the NDPS Act extensively. Suffice if we give
,
a gist of the said provisions since we are mainly concerned \vith the
compliance of the provisions of Code of Criminal Procedure in respect of
G
arrest, search and seizure subject lo the Iimitatioos under NDPS Act.
H
216
SUPREME COURT REPORTS
[1994) 2 S.C.R
A
The NpPS Act was enacted in the year 1985 with a view to consolidate and amend the Jaw relating to narcotic drugs, to make stringen.t
provisions for the control and regnlation of operations relating to narcotic
drugs and psychotropic substances, lo provide for the forefeiture of
property derived from, or used in, illicit traffic in narcotic drugs and
B
psychotropic substances, to implement the provisions of the International
Conventions on Narcotic Drugs and Psychotropic Substaces and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions
and connected matters. The provisions in Chapter II deal with the powers
of the Central Government to take measures for preventing and combating
abnse of and illicit traffic in narcotic drugs and to appoint authorities and
C officers to exercise the powers under the Act. The provisions in Chapter
III deal with prohibition, control and regulation of cnltivation of coca plant,
opium poppy etc. and to regnlate the possession, transport, purchase and
consumption of poppy straw etc. Chapter IV deals with varions offences
and penalties for contravention in relation to opium poppy, coca plant,
D narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding
the entry, arrest, search and seizure. Chapter VA deals with forefeiture of
property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneons matters. We
.
'
are mainly concerned witb Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57.
E
Under Section 41 certain classes of magistrates are competent to iss\ie
warrants for the arrest of any person whom they have reason to believe to
have committed any offence punishable under Chapter IV or for search of
any building, conveyance or place in which they have reason to believe that
any narcotic drug or psychotropic substance in respect of which an offence
F punishable under Chapter IV has been committed, is kept or concealed.
Section 42 empowers certain officers to enter, search, seize and arrest
without warrant or authorisation. Such officer should be superior in rank
to a peon, sepoy or constable of the departments of central excise, narcotics, cnstoms, revenue, intelligence or any other department of the
Central Government or an officer of similar superior rank of the revenue,
G drugs contro~ excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State
Government. Such officer, if he has reason to believe from personal
knowledge or information taken down in writing, that any offence punishable under Chapter IV has been committed, he may enter into and search
H
r
STATE OF PUNJAB v. BALBIR SINGH IK. J. REDDY, J.]
217
in the manner prescribed thereunder between sunrise and sunset. He can A
detain and search any person if he thinks proper and if he has reason to
believe such person to have committed an offence punishable under Chapter IV. Under the proviso, snch officer may also enter and search a building
or conveyance at any time between sunset and sunrise also provided he has
reason to believe that search warrant or authorisation cannot be obtained B
without affording opportunity for concealment of the evidence or facility
for the escape of an offender. But before doing so, he must record the
grounds of his belief and send the same to his immediate official superior.
Section 43 empowers such officer as mentioned in Section 42 to seize in
any public place or in transit, any narcotic drug or psychotropic substance
in respect of which he has reason to believe that an offence punishable C
under Chapter IV has been committed and shall also confiscate any animal
or conveyance alongwith such substance. Such officer can also detain and
search any person whom he has reason to believe to have committed such
offence and can arrest him and any other person in his company. Section
44 merely lays down that provisions of Sections 41 to 43 shall also apply in D
relation to offences regarding coca plant, opium poppy or cannabis plant.
Under Section 49, any such officer authorised under Section 42, if he has
reason to suspect that any animal or conveyance is, or is about to be, used
for the trans port of any narcotic drug or psychotropic substance, can
rummage and search the conveyance or part thereof, examine and search
any goods in the conveyance or on the animal and he can stop the animal E
or conveyance by using all lawful means and where such means fail, the
animal or the conveyance may be fired upon. Then comes Section 50. Since
sufficient emphasis has been laid on this Section, we shall extract the same
in full. It reads as under :
'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
F
or section 43, he shall, if such person so requires, take such person
without unnecessary dday. to the nearest Gazetted Officer of any
of the departments mentioned in section 42 or to the nearest G
magistrate.
· (2) If such requisition is made, the officer may detain the
person until he C<llt'bting hiin before the Gazetted Officer or the
Magistrate referred to in sub-section (1).
H
A
B
218
SUPREME COURT REPORTS
[1994) 2 S.C.R.
(3) The Gazetted Officer or the Magistrate before whom any
such ·person is brought shall, if he sees no reasonable ground for
search, forthwith discharge the person but otherwise shall direct
that search be made.
(4) No female shall be searched by anyone excepting a female.'
This provision obviously is introduced to avoid any hann to the innocent
persons and to avoid raising of allegation of planting or fabrication by the
prosecuting authorities. It lays down that if the . person to be searched so
requires, the officer who is about to search him under the provisions of
C Sections 41 to 43, shall take such person without any unnecessary delay to
the nearest Gazetted Officer of any of the departments mentioned in
Section 42 or to the nearest magistrate. One of the questions raised is that
what meaning is to be given to the words 'if the person to be searched so
requires'. Do they cast a duty upon the officer about to make the search
to intimate such person that if he so requires he would be taken before the
D nearest Gazetted Officer or the nearest magistrate for the purpose of
making search in their presence or ·it is for such person to make such a
request on his own without being informed by the officer? We shall
consider this question at a later stage. Section 51 is also important for our
purpose. It reads as under :
E
F
"51. Provisions of the Code of Criminal Procedure 1973 to apply
to warrants, arrests, searches and seizures- The provisions of the
Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so
far as they are not inconsistent with the provisions of this Act, to
all warrants issued an.d arrests, searches and seizures made under
this Act.'
This is a general provision under which the provisions of Code of Criminal
Procedure, ("Cr.P.C." for short) are made applicable to warrants, searches,
arrests and seizures under the Act. Section 52 lays down that any officer
G arresting a person under Sections 41 to 44 shall inform the arrested person
all the grounds for such arrest and the person arrested and the articles
seized should be forwarded without unnecessary delay to the Magistrate
by whom the warrant was issued or to the officer-in-charge of the nearest
police station, as the case may be and such Magistrate or the officer to
whom the articles seized or the person arrested are forwarded may take
H such measures neassary for disposal of the person and the articles. This
'
,.
STATE OF PUNJAB v. BALBIRSINGH [K..J.REDDY,J.)
219
Section thus provides some of the safeguards within the parameters of A
Article 22{1) of the Constitution of India. In addition to this, Section 57
further requires that whenever any person makes arrest or seizure under
the Act, he shall within forty-eight hours after such arrest or seizure make
a report of the particulars of arrest or seizure to his immediate official
superior. This Section provides for one of the valuable safegaurds and tries
B
to check any belated fabrication of evidence after arrest or seizure. Section
57 reads as under :
'57. Report of arrest and seizure - Whenever any person makes
any arrest or seizure under this Act, he shall, within forty-eight
hours next after such arrest or seizure, make a full report of all C
the particulars of such arrest or seizure to his immediate official
superior."
These are some of the provisions which are relevant and out of them
sections 41, 42, 50, 51, 52 and 57 are important for appreciating the D
questions raised before us.
In most of the cases before us, the police officers did not proceed to
act under the provisions of the NDPS Act after having necessary information or after having reasons to believe as contemplated under Section 42.
The search, seizure or arrest carried out by them were obviously under the
E
provisions of the Cr.P.C. The provisions of arrest, warrant, search and
seizure are incorporated in Sections 41 to 60, 70 to 81, 93 to 105 and 165
Cr.P.C. It may also be noticed at this stage that NDPS Act is not a
complete code incorporating all the provisions relating to search, seizure
or arrest etc. The said Act after incorporating the broad principles regardF
ing search, seizure or arrest etc. in Sections 41, 42, 43 and 49 has laid down
in Section 51 that the provisions of Cr.P.C. shall apply in so far as they are
not inconsistent with the provisions of the ND PS Act to all warrants issued
and arrests, searches and seizures made under that Act. Therefore the
provisions of Sections 100 an_d 165 Cr.P.C. which are not inconsistent with
the provisions of the NDPS Act are applicable for effecting search, seizure G
or arrest under the NDPS Act also. The words "in so far as they are not
inconsistent with tl1e provisions of this Act in Section 51 of the NDPS Act"
are significant. It n1ay also be noted that Section 4 of the Cr.P.C. 1973
provides that all offences under any other law shall be investigated and
inquired as mentioned therein. Section 4 of the Cr.P.C. 1973 reads thus:
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220
SUPREME COURT REPORTS
(1994] 2 S.C.R ..
A
"4. Trial of offences under the Indian Penal code and other laws.
(1) All offences under the Indian Penal Code (45 of 1860) shall
be investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.
B
(2) All offences under any other law shall be investigated,
c
inquired into, tried, and otherwise dealt with according to the same
provisions, but subject to any enactment for the time being in force
regulating the manner or place of invi;stigating, inquiring into,
trying or otherwise dealing with such offences."
Therefore under this Section the provisions of the Cr.P.C. are applicable
where an offence under the Indian Penal Code or under any other law is
being inquired into, tried and otherwise dealt with. From the words "otherwise dealt with" it does not necessarily mean something which is not
D included in the investigation, inquiry or trial and the words "otherwise"
points to the fact that the expression "dealt with" is all comprehensive and
that investigation, inquiry and trial are some of the aspects dealing with the
offence. Consequently the provisions of the Cr.P.C. shall be applicable in
so far as they are not inconsistent with the NDPS Act to all warrants,
E
F
searches, seizures or arrests made under the Act. But when a Police Officer
carrying on the investigation including search, seizure or arrest empowered
under the provisions of the Cr.P.C. comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will
arise. If he happens to be one of those empowered officers under the
· NDPS Act also then he must follow thereafter the provisions of the NDPS
Act and continue the investigation as provided thereunder. If on the other
hand, he is not impowered then the obvious thing he should do is that he
must inform the empowered officer under the ND PS Act who should
thereafter proceed fro.n that stage in accordance with the pro\isions of the
NDPS Act. But at this stage the question of resorting to Section 50 and
informing the accused person that if be so wants, he would be taken to a
G gazetted officer and taking to gazetted officer thus would not arise because
by1hen search would have been over. As laid down in Section 50 the steps
contemplated thereunder namely informing and taking him to the gazetted
officer should be done before the search. When the sea.rch is already over
in the usual course of investigation under the provisions of Cr.P.C. then
H
the question of complying with Section 50 would not arise.
!
STATEOFPUNJAB v.BALBIRSINGH (K.J.REDDY,J.]
221
At this juncture we may also dispose of one of the contentions that A
failure to comply with the provisions of Cr.P.C. in respect of search and
seizure even upto that stage would also vitiate the trial. This aspect has
been considered in a number of cases and irhas been held that the violation
of the provisions particularly that of Sections 100, 102, 103 or 165 Cr .P. C.
strictly per se does not vitiate the prosecntion case. If there is such violation, B
what the courts have to see is whether any prejudice was caused to the
accused and in appreciating the evidence and other relevant factors, the
courts should bear in mind that there was such a violation and from that
point of view evaluate the evidence on record. Under Section 100 Cr.P.C.
the officer conducting search under a warrant should call upon two or
more independent and respectable inhabitants of the locality in which the C
place to be searched is situate or of any other locality of no such inhabitant
of the said locality is available or is willing to be a witness to the search,
to aitend and witness the search. Section 165 Cr.P.C. lays down that
whenever an officer incharge of a police station or a police officer making
an investigation has reasonable grounds for believing that anything neces- D
sary for the purposes of an investigation into any offence which he is
authorised to investigate may be found in any place within the limits of the
police· station of which he is incbarges, or to which be is attached, and that
such thing cannot in bis opinion be otherwise obtained without undue
delay, such officer after recording in writing the grounds of his belief and
specifying in such writing, may proCJ:ed to search to cause search to be E
made. Section 165( 4) lays down that the provisions of this Code as to
search warrants and the general provisions as to searches contained in
section 100 shall, so far as may be, apply to a search made under Section
165 also. The scope of these two sections have been examined in a number
of cases. In Wasan Singh v. State, (1981] 2 sec this Court has clearly held F
that irregularity in a search cannot vitiate the seizure of the articles. In
Sunder Singh v. State of Uttar Pradesh, AIR (1956) SC 411 it is held that
irregularity cannot vitiate the trial unless the accused has been prejudiced
by the defeet and it is also held that if reliable local witnesses are not
available the search would not be vitiated. In The State of Maharastra v.
P.K. Pathak, AIR (1980) SC 1224 it is held that absence of any independent G
witness from the locality to witness the search does not affect the trial and
the conviction of the accused under the Customs Act. In Radha /(jshan v.
State of Uttar Pradtsh, (1963) SC 822 it is held that irregularity in a search
would, however, cast a duty upon the court to scrutinise the evidence
H
222
SUPREME COURT REPORTS
(1994] 2 S.C.R.
A
regarding the search very carefully. In Matajog Du/Jey v. H.C. Bahri, AIR
(1956) SC 44 it is held that when the salutory provisions have not been
complied with, it may, however, affect.the weight of the evidence in support
of the search or may furnish a reason for disbelieving the evidence
produced by the prosecution unless the prosecution properly explains such
B
c
D
E
F
c.ircumstance which made it impossible for it to comply with these
provisions. In State of Maharashtra v. Natwarlal Damodardas Soni, AIR
{1980) SC 593, after referring to the above mentioned decisions, this Court
observed as under :
"Taking the first contention first, it may be observed that the police
had powers under the Code of Criminal Procedure to search and
seize this gold if they had reason to believe that a cognizable
offence had been committed in respect thereof. Assuming arguendo, that the search was illegal, then also, it will not affect the
validity of the seizure and further investigation by the Customs
Authorities or the validity of the trial which followed on the
complaint of the Assistant Collector of Customs.'
It therefore emerges that non-compliance of these provisions i.e.
Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect
of the same on the main case depends upon the facts and circumstances
of each case. Of course, in such a situation, the court has to consider
whether any prejudice has been caused to the accused and also examine
the evidence in respect of search in the light of the fact that these
provisions have not been complied with and further consider whether the
weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted
or discarded merely on the ground that he happens to be an official but as
a rule of caution and depending upon the circumstances of the case, the
courts look for independent corroboration. This again depends on question
whether the official has deliberately failed to comply with these provisions
or failure was due to lack of time and opportunity to associate some
G
inderendent witnesses with the search and strictly comply with these
provisions. In Deepak Ghanshyam Naik v. State of Maharashtra, {1989)
Crl.L.J. 1181, a case arising under the NDPS Act, a Division Bench of the
Bombay High Court considered the effect of non-compliance of Section
H
100( 4) namely that two or more independent respectable inhabitabts of the
locality were not called to be present during the seach and that on the other
!
\
STATEOFPUNJAB v. BAJ..BJRSINGH [K.J.REDDY,J.)
223
hand two Panchas of different locality were called to be present. The A
Division Bench considered the explanation that Parnaka was at a distance
of half a kilometre from the place of distance and they called the Panch
witnesses from that place and that they could not call some.body present
on the road where the incident took place and held that there was no
material to hold that Panch witnesses from Parnaka were in any way B
motivated to falsely implicate the accused. In Sunil Kumar v. The State,
(1990) Crl.LJ. 414 again a case arising under the NDPS Act, the Delhi
High Court while considering the scope of Section 42 of the NDPS Act
and Section 100(4) of Cr.P.C. observed that failure to associate independent persons in the search in a given situation would not affect the
prosecution case in toto and the same cannot be thrown out or doubted on C
that ground alone. In this case it has also been observed that provisions of
Sections 41 or 42 would not be attracted at this stage when the police had
secret information that some persons would be reaching in a public place
while in transit and the information was not about the specific presence of
a contraband but was only about the likelihood of such articles being D
brought. It thus emerges that when the police, while acting under the
provisions of Cr.P.C. as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or
searches they would be acting under the provisions of Cr.P.C. At this stage
if there is any non-compliance of the provisions of Sections 100 or 165
Cr.P.C. that by itself cannot be a ground to reject the prosecution case E
outright. The effect of such non-compliance will have a hearing on the
appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case. In carrying out such
searches if they come across any substance covered by the NDPS Act
question of complying with the provisions of the said Act including Section
50 at that stage would not arise. When the contraband seized during such
arrests or searches attracts' the provisions of NDPS Act then from that
stage the remaining relevant provisions of NDPS Act would be attracted
and the further steps have to be taken in accordance with the provisions
of the said Act.
F
G
But if on a prior information leading to a reasonable belief that an
offence under. Chapter IV of the Act has been committed, then in such a
case, the Magistrate or the Officer empowertd.-have to proceed and act
under the provisions ·of Sections 41 and 42.