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Saturday, November 24, 2012

Narcotic Drugs & Psychotropic Substances Act,-convicted under Section 8 read with Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.1,00,000/- with default stipulation. We reiterate that sub-section (1) of Section 50 makes it imperative for the empowered officer to “inform” the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. We also reiterate that the said provision is mandatory and requires strict compliance. Though a portion of the contraband (opium) was recovered from the vehicle for which Section 50 is not applicable, if we exclude the quantity recovered from the vehicle, the remaining would not come within the mischief of ‘commercial quantity’ for imposition of such conviction and sentence. Taking note of length of period in prison and continuing as on date and in view of non-compliance of sub-section (1) of Section 50 in respect of recovery of contraband from the appellants, we set aside the conviction and sentence imposed on them by the trial Court and confirmed by the High Court. 14) As a result, the appeal is allowed and the appellants are ordered to be released forthwith, if they are not required in any other case.


                                     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                      1 CRIMINAL APPEAL NO. 300 OF 2009




Suresh & Ors.                                           .... Appellant(s)

            Versus

State of Madhya Pradesh                                 .... Respondent(s)



                                      2



                               J U D G M E N T


P. Sathasivam,J.

1)    This appeal is directed against the final  judgment  and  order  dated
23.08.2007 passed by the High Court of Madhya Pradesh, Bench at  Gwalior  in
Criminal Appeal Nos. 738  and 772 of 2000 whereby the High  Court  dismissed
the appeals filed by the appellants  herein  and  confirmed  the  order   of
conviction and sentence  dated  04.10.2000  passed  by  the  Special  Judge,
Narcotic Drugs & Psychotropic Substances Act, Guna (M.P.)  in  Special  Case
No. 7 of 1998 by which  they  were  convicted  under  Section  8  read  with
Section 18 of  the  Narcotic  Drugs  &  Psychotropic  Substances  Act,  1985
(hereinafter referred to  as  “the  NDPS  Act”)  and  sentenced  to  undergo
rigorous imprisonment for ten  years  with  a  fine  of  Rs.1,00,000/-  with
default stipulation.
2)    Brief facts:
(a)   On 30.07.1998, at about 1.30 p.m., Som Singh Raghuvanshi, SHO,  Police
Station Kumbhraj, along with the police party went from the  police  station
to search for  the  accused  in  connection  with  Crime  No.  151  of  1998
registered under Sections 302 and 201 of IPC.  In the process of  searching,
when they came to Khatkya Tiraha, they saw that one Maruti  Car  was  coming
from the side of Beenaganj.  When they tried to stop that  car,  the  driver
tried to run away but they stopped the car and found three  persons  sitting
in it.  On being asked about their  names,  they  informed  their  names  as
Pramod, Suresh and Dinesh @ Pappu.
(b)   Under suspicious circumstances, Panchas Shri Lal and  Rup  Singh  were
called from the ‘Tiraha’ and consent of all those  persons  was  sought  for
their personal search and they gave  their  consent.  After  conducting  the
search, Panchnama was prepared.  During search, they found that each of  the
appellants was having polythene bag  in  their  possession  which  contained
white colour substance and on its physical test, it was found “opium”.   The
SDO (P), Radhogarh was informed about the incident.  On  weighing,  all  the
three bags were contained 825 gms, 820 gms and 800 gms of “Opium”.   Samples
of 25 gms were taken separately from each of the packets  and  the  contents
were sealed.  Thereafter, the vehicle  was  also  searched  and  inside  the
front mudguard, six packets of polythene bag containing  ‘opium’  were  also
recovered weighing 810 gms, 820 gms, 690 gms, 820 gms, 800 gms and  615  gms
respectively.  Sample of 25 gms. from each  of  them  were  also  taken  and
sealed.  Thus, a total of 7 kg. Opium valued  at  Rs.1,03,575/-  was  seized
from the appellants and they were arrested.
(c)   Thereafter, along with the appellants and seized articles, the  police
party came to Kumbhraj Police Station and FIR being Crime Case No.  165/1998
was registered against them under Section 8 read  with  Section  18  of  the
NDPS Act.   After investigation, the police filed charge sheet  against  the
accused persons and the Special Judge, NDPS Act, Guna framed  charges  under
Section 8 read with Section 18 of the Act.  After trial, the Special  Judge,
by order dated 04.10.2000, convicted  all  the  three  accused  persons  and
sentenced them to undergo RI for ten years along with fine of  Rs.1,00,000/-
 each, in  default  of  payment  of  fine,  each  would  suffer  two  years’
additional RI.
(d)   Against the said order of conviction and sentence, Suresh  and  Pramod
preferred appeal being Criminal Appeal No. 738 of 2000 and Dinesh  preferred
Criminal Appeal No. 772 of 2000 before the High Court.  By  common  impugned
judgment dated 23.08.2007, the High Court dismissed both the appeals.
(e)   Aggrieved by the said judgment, the appellants have filed this  appeal
by way of special leave.
3)    Heard Dr. J.N. Dubey, learned senior counsel for  the  appellants  and
Mr. C.D. Singh, learned counsel for the respondent-State.
4)    The only point urged before us is about the non-compliance of  Section
50 of the NDPS Act.  According to Dr. J.N.  Dubey,  learned  senior  counsel
for the appellant, considering the mandates provided  under  Section  50  of
the NDPS Act as interpreted by  two  Constitution  Benches  of  this  Court,
viz., State of Punjab vs. Baldev Singh,  (1999)  6  SCC  172  and  Vijaysinh
Chandubha Jadeja vs. State of Gujarat (2011)  1  SCC  609,  the  prosecuting
authorities failed to apprise  the  right  of  the  suspect  provided  under
Section 50 of the NDPS Act, hence on this ground the  conviction  is  to  be
set aside.  On the other hand, Mr.  C.D.  Singh,  learned  counsel  for  the
State by pointing out the Panchnama regarding consent  for  personal  search
submitted that the conditions prescribed  in  Section  50  as  explained  in
Baldev Singh’s case (supra) have been fully complied  with  and  prayed  for
dismissal of the appeal.
5)    Since the only question pertains to compliance of Section  50  of  the
NDPS Act, it is useful to refer the same:
         “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
      without unnecessary delay to the nearest gazetted officer  of  any  of
      the departments mentioned in Section 42 or to the nearest Magistrate.


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


        (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.


        (5) When an officer duly authorised under Section 42 has reason  to
      believe that it is not possible to take the person to be  searched  to
      the nearest gazetted officer or Magistrate without the possibility  of
      the person to be searched parting with possession of any narcotic drug
      or psychotropic substance,  or  controlled  substance  or  article  or
      document, he may,  instead  of  taking  such  person  to  the  nearest
      gazetted officer or  Magistrate,  proceed  to  search  the  person  as
      provided under Section 100 of the Code of Criminal Procedure, 1973  (2
      of 1974).


        (6) After a search is conducted under sub-section (5), the  officer
      shall record the reasons  for  such  belief  which  necessitated  such
      search and within  seventy-two  hours  send  a  copy  thereof  to  his
      immediate official superior.”

After noticing divergence of  opinion  between  different  Benches  of  this
Court with regard to the ambit and scope of Section 50 of the NDPS Act  and,
in particular with regard to the admissibility of the evidence collected  by
an investigating officer during search and seizure  conducted  in  violation
of the provisions of Section 50, the issue was referred to the  Constitution
Bench.  These provisions have been interpreted by the Constitution Bench  in
Baldev Singh’s case (supra).  After considering the mandate of  the  law  as
provided under Section 50 of the NDPS Act  and  various  earlier  decisions,
the Constitution Bench has concluded as under:

        “57. On the basis  of  the  reasoning  and  discussion  above,  the
      following conclusions arise:


        (1) That when an empowered officer or  a  duly  authorised  officer
      acting on prior information  is  about  to  search  a  person,  it  is
      imperative for him to inform the person concerned of his  right  under
      sub-section (1) of Section 50 of being taken to the  nearest  gazetted
      officer or the nearest Magistrate for making the search. However, such
      information may not necessarily be in writing.


        (2) That failure to inform the 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.


        (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 evidence against them is to be treated  as  if
      it does not exist. The answer, therefore, is  that  the  investigating
      agency  must  follow  the  procedure  as  envisaged  by  the   statute
      scrupulously and the failure to do so must be  viewed  by  the  higher
      authorities seriously inviting action against the  official  concerned
      so that the laxity on the  part  of  the  investigating  authority  is
      curbed. In every case the end result is important  but  the  means  to
      achieve it must remain above board. The remedy cannot  be  worse  than
      the disease itself. The legitimacy of the judicial  process  may  come
      under a cloud if the court is seen  to  condone  acts  of  lawlessness
      conducted by the investigating agency during search operations and may
      also undermine respect  for  the  law  and  may  have  the  effect  of
      unconscionably compromising the administration of justice. That cannot
      be permitted. An accused is entitled to a  fair  trial.  A  conviction
      resulting from an unfair trial is contrary to our concept of  justice.
      The use of evidence collected in breach of the safeguards provided  by
      Section 50 at the trial, would render the trial unfair.


        (5) That whether or not the safeguards provided in Section 50  have
      been duly observed would have to be determined by  the  court  on  the
      basis of the evidence led at the trial. 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 therein were duly complied with,
      it would not be permissible to cut short a criminal trial.


        (6)  That  in  the  context  in  which  the  protection  has   been
      incorporated in Section 50 for the benefit of the person  intended  to
      be searched, we do not express any opinion whether the  provisions  of
      Section 50 are mandatory or directory, but hold that failure to inform
      the person concerned of his right as emanating from sub-section (1) of
      Section 50, may render the recovery of the contraband suspect and  the
      conviction and sentence of an accused bad and unsustainable in law.


        (7) That 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 be used as evidence of proof of  unlawful
      possession of the contraband on the accused though any other  material
      recovered during that search may be relied upon by the prosecution, in
      other proceedings, against an accused, notwithstanding the recovery of
      that material during an 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) xxx xxxx


        (10) xxx xxxx”


6)    After the decision in Baldev Singh’s case (supra), a  Bench  of  three
Judges of this Court in Joseph Fernandez vs. State  of  Goa,  (2000)  1  SCC
707, has also considered the requirement of Section 50 of the NDPS  Act  and
in para 2, observed as under:
      “Even then the searching officer informed him that “if  you  wish  you
      may  be  searched  in  the  presence  of  a  gazetted  officer  or   a
      Magistrate”.  This according to us is in ‘substantial compliance’ with
      the requirement of Section 50.  We do not agree  with  the  contention
      that there was non-compliance with the mandatory  provision  contained
      in Section 50 of the Act.”

By saying so, after finding no reason to interfere with the  conviction  and
sentence passed on the appellant therein, dismissed his appeal.
7)    In Prabha Shankar Dubey  vs. State of M.P., (2004) 2  SCC  56,  a  two
Judge Bench of this Court again considered the object of Section 50  of  the
NDPS Act.  The Bench also extracted the  conclusion  arrived  at  in  Baldev
Singh’s case (supra).  After adverting to those conclusions and  relying  on
the expression “substantial compliance”  as  stated  in  Joseph  Fernandez’s
case (supra) rejected the  plea  that  there  was  non-compliance  with  the
requirement of Section 50 of the NDPS Act  and  consequently  dismissed  the
appeal.
8)    After the decision in  Joseph  Fernandez’s  case  and  Prabha  Shankar
Dubey’s case, on the one hand and Krishna Kanwar  (Smt.)  @  Thakuraeen  vs.
State of Rajasthan, (2004) 2 SCC 608 on the other, again the  interpretation
relating  to  Section  50  was  considered  by  the  Constitution  Bench  in
Vijaysinh Chandubha Jadeja’s  case(supra).   The  question  that  was  posed
before this Constitution Bench was whether Section 50 of the NDPS Act  casts
a duty on the empowered officer to “inform” the suspect of his right  to  be
searched in the presence of a gazetted officer or a  Magistrate,  if  he  so
desires or whether a mere enquiry by the said  officer  as  to  whether  the
suspect would like to be searched in the  presence  of  a  Magistrate  or  a
gazetted officer can be said to be due compliance within the mandate of  the
Section 50?  Before going into the ultimate conclusion  arrived  at  by  the
Constitution Bench, the following details mentioned in paragraph 2 are  also
relevant which are as under:

        “2. When these appeals came up for consideration before a Bench  of
      three Judges, it was noticed that there was a  divergence  of  opinion
      between the decisions of this Court in Joseph Fernandez  v.  State  of
      Goa, Prabha Shankar Dubey v. State of M.P. on the one hand and Krishna
      Kanwar v. State of Rajasthan on the other, with regard to  the  dictum
      laid down by the Constitution Bench of this Court in State  of  Punjab
      v. Baldev Singh, in particular regarding the question  whether  before
      conducting search, the police officer concerned is merely required  to
      ask the suspect whether he  would  like  to  be  produced  before  the
      Magistrate or a gazetted officer for the purpose of search or  is  the
      suspect required to be made aware of the existence  of  his  right  in
      that behalf under the law.”


In order to set the controversy  raised,  the  Constitution  Bench,  at  the
foremost, recapitulated the decision arrived at by  the  Constitution  Bench
in  Baldev  Singh’s  case  (supra).   After  considering  all  the   earlier
decisions,  the  latter  Constitution  Bench  arrived   at   the   following
conclusions:
        “24. Although the Constitution Bench in Baldev Singh case  did  not
      decide in absolute terms the question whether or not Section 50 of the
      NDPS Act was directory or mandatory yet it was held that provisions of
      sub-section (1) of Section 50 make it  imperative  for  the  empowered
      officer to “inform” the person concerned (suspect) about the existence
      of his right that if he so requires, he shall  be  searched  before  a
      gazetted officer or a Magistrate;  failure  to  “inform”  the  suspect
      about the existence of his said right would cause  prejudice  to  him,
      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 the person during a search conducted  in  violation  of
      the provisions of Section 50 of the NDPS Act.  The  Court  also  noted
      that it was not necessary that the information required  to  be  given
      under Section 50 should be in a prescribed form or in writing  but  it
      was mandatory that the suspect was made aware of the existence of  his
      right to be searched before a gazetted officer or a Magistrate, if  so
      required by him. We respectfully concur with  these  conclusions.  Any
      other interpretation of the provision would make  the  valuable  right
      conferred on the suspect illusory and a farce.


                                              [Emphasis supplied]


        28. We shall now deal with the two decisions, referred  to  in  the
      referral order, wherein “substantial compliance” with the  requirement
      embodied in Section 50 of the NDPS Act has been held to be sufficient.
      In Prabha Shankar Dubey a two Judge Bench of this Court culled out the
      ratio of Baldev Singh case on the issue before us, as follows: (Prabha
      Shankar Dubey case, SCC p. 64, para 11)


        “11. … What the officer concerned is required to do  is  to  convey
      about the choice the accused has. The accused (suspect) has to be told
      in a way that he becomes aware that the choice is his and not  of  the
      officer concerned, even though there is no specific form. The  use  of
      the word ‘right’ at relevant places in the decision  of  Baldev  Singh
      case seems to be to lay effective emphasis that it is not by the grace
      of the officer the choice has to be given but more by way of  a  right
      in the ‘suspect’ at that stage to be  given  such  a  choice  and  the
      inevitable consequences that have to follow by transgressing it.”
      However, while gauging whether  or  not  the  stated  requirements  of
      Section 50 had been met on facts of that case, finding  similarity  in
      the nature of evidence on this aspect between the  case  at  hand  and
      Joseph Fernandez the Court chose to follow the  views  echoed  in  the
      latter  case,  wherein  it  was  held  that  the  searching  officer's
      information to the suspect to the effect that “if you wish you may  be
      searched in the presence of a gazetted officer or a Magistrate” was in
      substantial compliance with the requirement of Section 50 of the  NDPS
      Act.  Nevertheless,  the  Court  indicated  the  reason  for  use   of
      expression “substantial compliance” in the  following  words:  (Prabha
      Shankar Dubey case, SCC p. 64, para 12)


        “12. The use of the expression ‘substantial compliance’ was made in
      the background that the searching officer had Section 50 in  mind  and
      it was unaided by the interpretation placed on it by the  Constitution
      Bench in Baldev Singh case4. A line or a word in a judgment cannot  be
      read in isolation or as if  interpreting  a  statutory  provision,  to
      impute a different meaning to the observations.”
      It  is  manifest  from  the  afore-extracted  paragraph  that   Joseph
      Fernandez does not notice the ratio of  Baldev  Singh  and  in  Prabha
      Shankar Dubey, Joseph Fernandez is followed ignoring the  dictum  laid
      down in Baldev Singh case.


        29. In view of the foregoing discussion, we are of the firm opinion
      that the object with which the right under Section 50(1) of  the  NDPS
      Act, by way of a safeguard, has been conferred on the suspect viz.  to
      check the misuse of power, to avoid harm to innocent  persons  and  to
      minimise the 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.


        30. As observed in Presidential Poll, In re: (SCC p. 49, para 13)


        “13. … It is the duty of the courts to get at the real intention of
      the legislature by carefully attending [to] the  whole  scope  of  the
      provision to be construed. ‘The key to the opening of every law is the
      reason and spirit of  the  law,  it  is  the  animus  imponentis,  the
      intention of the law maker expressed in the law  itself,  taken  as  a
      whole.’ ”


        31. We  are  of  the  opinion  that  the  concept  of  “substantial
      compliance” with the  requirement  of  Section  50  of  the  NDPS  Act
      introduced and read into the mandate of the  said  section  in  Joseph
      Fernandez and Prabha Shankar Dubey  is  neither  borne  out  from  the
      language of sub-section (1) of Section 50 nor it is in consonance with
      the dictum laid down in Baldev Singh case. Needless to  add  that  the
      question whether or not the procedure prescribed has been followed and
      the requirement of Section 50 had been met, is a matter of  trial.  It
      would neither be possible  nor  feasible  to  lay  down  any  absolute
      formula in that behalf.”

9)    From the above, it is  clear  that  the  Constitution  Bench  has  not
approved the concept of “substantial compliance”  as  propounded  in  Joseph
Fernandez (supra) and Prabha  Shankar  Dubey  (supra).   Keeping  the  above
principles, as laid down in Vijaysinh Chandubha Jadeja’s case (supra)  which
considered all the  earlier  decisions  including  the  decision  in  Baldev
Singh, in mind,  let us consider whether  the  mandates  of  Section  50  as
interpreted have been fully complied with or not?
10)   Since the main question roving only to “right  to  inform”  about  his
choice, it  is  relevant  to  refer  the  Panchnama  regarding  consent  for
personal search which is as under:
“Panchnama regarding consent for personal search
P.S. Kumbhraj, District Guna
Crime Case No. 0/98
                         Section 8/18 of N.D.P.S. Act
Place : A.B. Road, Khatakya Tiraha
Dated: 30.7.98 at 09.30 O’ Clock
Names of witnesses:
    1. Sri Lal s/o Sri Narain by  caste  Dhobi  aged  26  years  2/o  Tapra
       Colony, Kumbhraj.
    2. Bhup  Singh  s/o  Ramnarain  by  caste  Meena  aged  25  years,  r/o
       Kanakherhi P.S. Kumbhraj.
      In the presence of  aforementioned ‘panchas’, I, the  P.S.  In-charge,
      asked the driver of Maruti Car No. D.N.C./7211  namely,  Pramod  Kumar
      s/o Raghuvir Singh by caste Gadariya, aged 20 years,  r/o  Chitbhawan,
      P.S. Ekdil, District Etawah,  Suresh,  s/o  Rambabu  Khatik,  aged  18
      years, r/o Village Chitbhawan, sitting with him in the case and Dinesh
      @ Pappu s/o  Jagannath  by  caste  Dube,  aged  25  years,  r/o  Tikri
      presently at village Ballapur, P.S. Ajitmal, District Etawah,  sitting
      on the rear seat, regarding their personal search asking  them  as  to
      whether they would offer their personal search to me  or  to  Gazetted
      Officer – S.D.O.P. Sahib.  At this, all the three suspects gave  their
      consent for their personal search by me, the P.S. In-charge, and  they
      also agreed for search of the car by me.  Panchnama regarding  consent
      for search has been prepared in the presence of the ‘Panchas’.
                                                    [Emphasis supplied]


      Sd/-                              Signature of suspects
      Sri Lal                           Sd/- Suresh
                                        Sd/- Pramod Kumar
      T.I. of Bhup Singh                Sd/- Dinesh Kumar @
                                        Pappu
                  Seen Sd/- (Illegible)  30.7.98”




11)   The above Panchnama indicates that the appellants  were  merely  asked
to give their consent for search by the police party  and  not  apprised  of
their legal right provided under Section 50 of the  NDPS  Act  to  refuse/to
allow the police party to take their  search  and  opt  for  being  searched
before the Gazetted officer  or  by  the  Magistrate.
 In  other  words,  a
reading of the Panchnama  makes  it  clear  that  the  appellants  were  not
apprised about their right to be searched before a  gazetted  officer  or  a
Magistrate but consent was sought for their personal search.
Merely  asking
them as to whether they would offer their personal search to him, i.e.,  the
police officer or  to  gazetted  officer  may  not  satisfy  the  protection
afforded under Section 50 of the NDPS Act as interpreted in  Baldev  singh’s
case. 
 Further a reading of the judgments of the trial Court  and  the  High
Court also show that in the presence of Panchas, the SHO  merely  asked  all
the three appellants for their search by him and they simply  agreed.   
This
is reflected in the Panchnama.  
Though in Baldev Singh’s  case,  this  Court
has not expressed any opinion as to
 whether the  provisions  of  Section  50
are mandatory or directory but “failure to inform” the person  concerned  of
his right as emanating from sub-section (1) of Section  50  may  render  the
recovery of the contraband suspect and the conviction  and  sentence  of  an
accused bad and unsustainable in law.
In Vijaysinh Chandubha Jadeja’s  case
(supra), recently the Constitution Bench has explained the mandate  provided
under sub-section (1) of Section 50 and concluded that it is  mandatory  and
requires strict compliance.  
The Bench also  held  that  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.  
The concept of substantial compliance as noted in  Joseph  Fernadez
(supra) and  Prabha  Shankar  Dubey  (supra)  were  not  acceptable  by  the
Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly,  in  view  of
the language as evident from the panchnama which we have quoted earlier,  we
hold that, in the case on hand, the search and seizure of the  suspect  from
the person of the appellants is bad and conviction is unsustainable in  law.

12)   We reiterate that sub-section (1) of Section 50  makes  it  imperative
for the empowered  officer  to  “inform”  the  person  concerned  about  the
existence of his right that if he so requires, he shall be  searched  before
a gazetted officer or a Magistrate, failure to do so vitiate the  conviction
and sentence of an accused where the conviction has been  recorded  only  on
the basis of possession of the contraband.  We also reiterate that the  said
provision is mandatory and requires strict compliance.

13)   Though a portion of the contraband  (opium)  was  recovered  from  the
vehicle for which Section 50 is not applicable, if we exclude  the  quantity
recovered from  the  vehicle,  the  remaining  would  not  come  within  the
mischief of ‘commercial quantity’ for  imposition  of  such  conviction  and
sentence.  Taking note of length of period in prison and  continuing  as  on
date and in view of non-compliance of  sub-section  (1)  of  Section  50  in
respect of recovery of contraband from the  appellants,  we  set  aside  the
conviction and sentence imposed on them by the trial Court and confirmed  by
the High Court.
14)   As a result, the appeal is allowed and the appellants are  ordered  to
be released forthwith, if they are not required in any other case.
                                  ………….…………………………J.


                                       (P. SATHASIVAM)












                                    ………….…………………………J.


                                      (RANJAN GOGOI)
NEW DELHI;
NOVEMBER  22, 2012.




































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