# THE STATE OF PUNJAB v. BALDEV SINGH

- **Citation:** [1999] 3 S.C.R. 977
- **Court:** Supreme Court of India
- **Decided:** 1999-07-21
- **Case number:** Criminal Appeal No. 396 of 1990
- **Bench:** Dr. A.S. Anand, S.B. Majmudar, Sujata V. Manohar, B K. Venkataswami, V.N. Khare
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-punjab-v-baldev-singh-16924
- **Pages:** 49

## Headnote

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 ofE
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 premisesApplicability 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.
D
Article 141-Preceden.t-A decision is an authority for what it decidesEverything 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.
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.
F
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.
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.
The threL'-Judge Bench, therefore, referred the following questions

## Text

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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 ofE
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 premisesApplicability 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.
D
Article 141-Preceden.t-A decision is an authority for what it decidesEverything 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.
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.
F
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.
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.
The threL'-Judge Bench, therefore, referred the following questions of
law to this Constitution Bench :-
A
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.
E
F
[1013-A-B]
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
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.
c
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. •
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 of Inspection (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 of Himachal Pradesh
v. Pirthi Chand andAnr., (1996] 2 SCC 37, and State of Punjab 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
leave petitions is whether compliance with Section 50 of the Narcotics
Drugs and Psychotropic Substances Act, 1985 is mandatory and, if
c
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 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) 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
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SUPREME COURT REPORTS
[1999] 3 S.C.R.
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
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
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
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
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
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
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 twoJudge 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
(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
F
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
B
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and vitiate the trial."
(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.
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
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
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
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
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
/
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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 threeJudge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat,
[1995) 3 sec 610.
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
B
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).
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.
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
F
G
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.