Then I have been pointed out some points of contradictions in the statements of the witnesses. The first point of contradiction is as to who was driving the car. In the F.I.R. which was recorded on the basis of statement of Partap, it is stated that Poley was driving the car. Otherwise both the father and the daughter are consistent in stating that it was the third accused (Lilu) who was driving the said car. The police had not 11

                                                REPORTABLE


           IN THE SUPREME COURT OF INDIA


         CRIMINAL APPELLATE JURISDICTION


           CRIMINAL APPEAL NO. 91 OF 2007




PREM PRAKASH @ LILLU & ANR.      ... Appellants





                           Versus


STATE OF HARYANA                                ... Respondent





                       J U D G M E N T




Swatanter Kumar, J.


                            1


      Three   accused,   namely   Dharambir   @   Pappu,   Prem



Prakash @ Lillu and Herchand @ Poley, were charged for an



offence   punishable   under   Sections   366   and   376(2)(g)   of   the



Indian Penal Code, 1860 (in short the `IPC').   Upon trial, the



learned Additional Sessions Judge, Rohtak, by judgment and



order  dated  31st  July, 1992 held all the three accused  guilty





of   the   offences   of   kidnapping   and   gang   rape   of   Kumari



Sudesh   and,   thus,   they   were   sentenced   to   undergo   rigorous



imprisonment   of   10   years   with   a   fine   of   Rs.500/-   each.     In



case   of   default   of   payment   of   fine,   they   were   ordered   to



undergo   rigorous   imprisonment   for   a   further   period   of   one



month.     The   accused   were   also   awarded   two   years'   rigorous


                                      2


imprisonment   each   for   the   offence   committed   under   Section



366 of the IPC. Both the substantial sentences were ordered



to   run   concurrently.     Dissatisfied   with   the   judgment   of   the



trial   court,   the   accused   preferred   an   appeal   before   the   High



Court.     The   High   Court   found   no   merit   in   the   appeal   and



consequently,   dismissed   the   same   vide   its   judgment   dated





27th  July,   2005,   giving   rise   to   the   present   appeal   by   all   the



accused.  




      The  learned  counsel for the appellants  pointed  out  that



during   the   pendency   of   the   appeal   before   this   Court,   one   of



the   accused,   i.e.,   Prem   Prakash   @   Lillu   had   expired   and




                                       3


therefore,   the   present   appeal   survives   only   qua   the   third



accused, i.e. Herchand @ Poley.  In so far as the appeal by the



accused   Dharambir   @   Pappu   is   concerned,   the   same   was



dismissed  in  limine.     The   brief   facts   in   the   present   case   are



that   the   aforesaid   three   accused   were   asked   to   face   trial   on



the aforestated charges based on the case of the prosecution.





According   to   the   prosecution,   Kumari   Sudesh,   daughter   of



Pratap Singh, resident of Village Chhuchhak accompanied by



her   brother   Satish,  aged  about  5  years,   had  gone   out   of  her



house at about 8-9 p.m. on 25th  July, 1990 to ease herself at



a distance of about two or three  killas  away from their house



and by the side of a nearby  pucca  road.   After she answered


                                      4


the   call   of   nature   and   washed   herself   a   car   approached   her



from behind and stopped beside her.  The accused Dharambir



got   down   and   took   her   in   his   arms.     The   accused   Poley



followed him and gagged her mouth with his hand.   She was



lifted and dragged into the car.   The car was being driven by



the   accused   Lillu.     The   car   was   taken   beyond   the   village





abadi, across a petrol pump and into the fields by the side of



the road.  All the three accused raped Kumari Sudesh one by



one in that field.   Accused Dharambir was left there and the



other   two   took   the   prosecutrix   in   the   car   to   an   unknown



jungle   and   kept   her   there   for   that   night   and   the   following



afternoon.  She was again raped by these two accused in that


                                     5


jungle.     At   about   4.00   p.m.   on   26th  July,   1990,   she   was



dropped on the bridge of a canal, at a distance of about one



kilometer   from   her   house   and   was   threatened   of   being



kidnapped, raped and killed if she narrated the occurrence to



anybody.     She   reached   home   and   recounted   the   incident   to



her   father   Pratap.     A  panchayat  of   the   brotherhood   was





convened   but   no   decision   was   arrived   at.     On   the   next   day,



the   father   of   the   prosecutrix   went   to   the   Police   Station   Beri



with   her,   to   lodge   a   complaint.     However,   their   request   for



registration   of   a   case   was   not   entertained.     On   27th  July,



1990,   they   went   to   Jhajjar   Sub   Divisional   Headquarter   and



approached   the   Deputy   Superintendent   of   Police   but   to   no


                                       6


avail.     Thereafter,   they   approached   the   Sub   Divisional



Magistrate   (in   short   the   `SDM')   with   a   written   application



dated   28th  July,   1990,   Ex.PE/1,   to   get   the   prosecutrix



medically examined and for taking action against the culprits.



The SDM referred the matter to the incharge of the hospital at



Jhajjar   and   a   lady   doctor,   Dr.   A.K.   Bhutani,   examined   the





prosecutrix   and   prepared   her   report,   Ex.PE.     The   clothes   of



the   prosecutrix   were   also   taken   by   the   doctor,   who   later   on



handed   over   the  same  to  the   police,  who  in  turn  transferred



them   for   examination   by   the   PSL.     It   is   stated   that   while



Pratap   Singh   was   again   going   towards   the   police   station,   on



the way at the bus stand of Village Jahagarh, he met a police


                                      7


party   and   Assistant   Sub   Inspector   Hawa   Singh   recorded   his



statement,   Ex.PO/1   and   an   F.I.R.,   Ex.PO/2   dated   28th  July,



1990, was registered.




      In   brief,   the   prosecution   had   examined   a   number   of



witnesses   including   PW1,   Dr.     R.B.S.   Jakhar,   who   had





medically   examined   the   accused   Dharambir   and   had   opined



that   he   was   fit   to   commit   sexual   intercourse.     PW2   was   the



police officer incharge of the Police Station and he presented



the   original   challan   before   the   Court.     The   prosecutrix   was



examined as PW4 and her father Pratap Singh was examined



as PW7.   Besides this, the lady doctor who had examined the


                                      8


prosecutrix,   was   PW5,   Dr.   A.P.   Sharma,   who   had   medically



examined the other two appellants was PW6, SI Hawa Singh,



who was the Investigating Officer was examined as PW8.   The



prosecution,   on   the   basis   of   these   witnesses   attempted   to



bring home the guilt of the accused.





      In the statements made under  Section 313 of the Code



of Criminal Procedure, (for short `Cr.P.C.'), the accused Prem



Prakash   and   Herchand   stated   that   all   witnesses   were   false.



They   denied   the   incident   in   its   entirety   and   took   a   specific



stand   that   Pratap   Singh,   father   of   Kumari   Sudesh   was




                                       9


carrying on cultivation on the land belonging to the family of



the accused and since he had stopped them from carrying on



the   agricultural   activity,   Pratap   Singh   had   developed



animosity towards them.




      However,   in   his   statement   under   Section   313   of   the





Cr.P.C.,   the   accused   Dharambir   offered   no   explanation   and



also   chose   not  to   lead   any   defence.     The   trial   court  vide   its



detailed judgment found that the accused were guilty of the



offence   with   which   they   were   charged.     The   accused   had



further raised a defence on behalf of Prem Prakash, that he



was not named in the FIR and has been falsely implicated.  It


                                       10


was   also   contended   that   the   prosecutrix   was   more   than   19



years   of   age   and   in   fact   there   was   no   reliable   evidence   to



convict   the   accused   and   there   were   contradictions   in   the



case of the prosecution.   The trial court dealt with these two



issues as follows: -





           "23. Then   I   have   been   pointed   out   some

           points of contradictions in the statements

           of   the   witnesses.     The   first   point   of

           contradiction is as to who was driving the

           car.     In   the   F.I.R.   which   was  recorded   on

           the   basis   of   statement   of   Partap,   it   is

           stated   that   Poley   was   driving   the   car.

           Otherwise   both   the   father   and   the

           daughter   are   consistent   in   stating   that   it

           was   the   third   accused   (Lilu)   who   was

           driving   the   said   car.     The   police   had   not


                                      11


been co-operating with the prosecutrix.   It

has been discussed above.   Hence may be

that   the   police   deliberately   recorded

wrongly   that   Poley,   in   place   of   Lilu,   was

driving the car.  Otherwise too, the version

given   by   Partap,   was   given   to   him   by   the

prosecutrix, and may be that on this point

Partap   made   wrong   statement.     This

contradiction   cannot   affect   the   merits   of

the   case.          The   second   point   of

contradiction   is   with   regard   to   the   timing





of the kidnapping.   P.W.4 Smt. Sudesh in

the   court   stated   that   she   had   been

kidnapped   at   about   8.00/9.00   A.M.   and

otherwise   the   case   of   the   prosecution

throughout   is   that   she   was   kidnapped   at

8.00 or 9.00 P.M. If the prosecution  story

is read as a whole and if the statement of

this witness is also read keeping in view to

the sequence of the happenings, it shall be

clear   that   she   was   kidnapped   at   8.00   or

9.00 P.M. and not at 8.00/9.00 A.M.  It is


                          12


only a clerical or typical  (sic)  mistake that

the time has been written as A.M., in place

of P.M.  So, it is not a contradiction.


       XXX              XXX                XXX


31.    On the basis of this medical evidence

it   has   been   argued   that   this   lady   was

habitual   to   sexual   intercourse   and   since

there   was   no   injury   found   on   her   private

part, so it may be held that it is a case of





consent   and   she   being   of   more   than   18

years   of   age   was   an   equal   party   to   the

sexual   intercourse   and,   therefore,   even   if

it   assumed   that   the   accused   have

committed   sexual   intercourse   with   this

lady,   they   cannot   be   said   to   have

committed   any   offence.     The   learned

counsel   for   the   accused   has   placed

reliance on Sukhjit Singh  vs.  The State of

Haryana, 1987 (i) R.C.R. 352.   That was a

case where two real brothers were alleged


                         13


to   have   committed   rape   on   a   lady.     No

injury   was   found   on   the   person   of   that

lady.  It was reported that she was used to

sexual   intercourse.     It   was   held   that

probably it was a case of consent.


       XXX               XXX                  XXX


39.    Lastly   argument   has   been   advanced

on   behalf   of   accused   Lilu.     He   was   not

named   in   the   F.I.R.     How   and   when   he





came   into   picture   7   (sic).     The   F.I.R.   was

recorded   on   28.7.90.     The   police   resorted

to   the   supplementary   statement   of   the

prosecutrix of her father just the next day,

i.e.   29.7.1990   and   these   statements   were

to the effect  that two accused, other  than

Dharmabir, were innocent.   This way Lilu

was   not   arrested   by   the   police.     Two

months after, as stated by the prosecutrix,

she had identified him  in  the  street when

she   was   coming   along   with   her   father.


                           14


           Then her father had told that the name of

           this accused was Lilu.  This way Lilu came

           into picture in the case of the prosecution.

           Since the police has submitted the challan

           only against one person, so: Lilu could be

           named   only   be(sic)   the   prosecutrix   in   the

           court   itself.     It   cannot   be   said   that   Lilu

           had not been identified so his name being

           named in the court for the first time by the

           prosecutrix would create any doubt in the

           truthfulness   of   the   case   of   the





           complainant that Lilu was also one of the

           persons who kidnapped and raped her."





      The   main   argument   on   behalf   of   the   appellant,   while



challenging   the   above   findings,   is   that   there   is   hardly   any



evidence directly involving the accused Prem Prakash @ Lillu





                                      15


in   the   commission   of   the   crime.     This   argument   does   not



impress us.   Firstly, the prosecutrix when examined as PW4



stated   in   Court   that   the   appellant   was   driving   the   car   in



which   she   was   kidnapped   and   subsequently   taken   to   the



jungle.     Her   version   is   also   supported   by   her   father   Pratap



Singh, PW7, though, of course, Pratap Singh was not an eye-





witness to the occurrence.   There is no reason for this Court



to   disbelieve   the   version   given   by   the   prosecutrix.     Some



contradictions have been pointed out between the statements



of   the   prosecution   witnesses.     The   trial   court   has   rightly



observed   that   these   are   some   discrepancies   which,   viewed



from any angle, are not significant.   It is also on record that


                                     16


PW4   did   deny   some   portion   of   her   statement   Ex.DA,



particularly, that she was raped in the car one after the other



by   all   the   three   accused.     This   statement   does   not   find



support   from   any   of   the   prosecution   witnesses   or   from   the



investigation   of   the   Investigating   Officer.             Thus,   this



contradiction   does   not   render   the   statement   of   the





prosecutrix unreliable or untrustworthy.




      Another important aspect of the case is that the accused



Dharambir, in his statement under Section 313 of the Cr.P.C.



has   not   chosen   to   say   that   none   of   the   other   two   accused,



namely, the appellant herein and the deceased Prem Prakash,




                                     17


were present at the time of the occurrence or that they have



been   falsely   implicated   on   account   of   some   land   dispute,   as



referred   to   by   the   other   two   accused   in   their   statements



under Section 313 of the Cr.P.C.




      As   per   the   medical   evidence   of   PW5,   Dr.   A.K.   Bhutani,





"abrasions which were brownish in colour with clothes, blood



on   right   shin   anteriorly,   clotted   dry   blood   sticking   from   the



abrasions described above (sic) 3 cm. below right knee joint"



were found on the person of the prosecutrix.   There was also



abrasion on right side of cheek, 5 cm brownish in colour and



the   prosecutrix   complained   of   pain   on   the   right   side   of   her


                                      18


neck.    In  her   cross-examination,  the   duration of  injury   no.1



was stated to be more than 24 hours and it was also stated



that the injury no.1 could be result of a fall while the injury



no.  2  cannot  be   self   inflicted.     This  medical   evidence   clearly



shows   that   she   had   suffered   injuries   during   the   alleged



incident   and   she   was   taken   for   medical   examination   by   the





Investigating Officer after expiry of 24 hours.  Dr.A.P. Sharma



had   examined   the   appellant-accused   Herchand   and   found



him fit to perform sexual intercourse.




          The   doctor   also   stated   that   she   had   conducted   X-ray



examination   of   Kumari   Sudesh   and   according   to   report,




                                     19


Ex.P8, Sudesh was aged more than 18 years.  After examining



the   forensic   reports,   Exs.PH   and   PJ,   from   the   Forensic



Science   Laboratory,   the   doctor   also   stated   that   there   was   a



possibility   of intercourse  having  taken  place  with  Sudesh  on



25th July, 1990.





      There are certain significant averments which show the



manner in which the offence was committed.  Firstly, she has



stated   that   the   car   was   being   driven   by   Prem   Prakash   @



Lillu.     Secondly,   that   she   was   wearing   same   clothes   at   the



time   of   her   medical   examination   which   she   was   wearing   at




                                     20


the   time   of   rape.     Her   salwar   was   blood-stained.     These



clothes   were   taken   into   custody   by   the   doctor   herself,   who



subsequently   handed   over   the   same   to   the   investigating



agency.     Similarly,   the   father   of   the   prosecutrix,   PW7,   has



specifically   stated   that   his   daughter   had   told   him   that



Dharambir   had   caught   hold   of   her   and   dragged   her   to   the





car,   her   mouth   was   gagged   by   Poley   and   still   there   was



another   person   with   small   pox   marks   on   his   face   who   was



driving the car.   About the identity of Lillu @ Prem Prakash,



it is clear that PW7 had known him for the last 10 years as



he   had   settled   in   the   Village.     In   other   words,   there   could



hardly   be   any   dispute   with   regard   to   the   identity   of   the


                                      21


person   accused.     But   for   the   contribution   made   by   the



present   accused,   who   was   driving   the   car   and   had   taken



away   the   prosecutrix   to   the   jungle/fields,   probably   the



incident   could   have   been   avoided.     Thus,   it   is   clear   that



involvement   of   the   present   accused   in   the   entire   chain   of



events  was  material  and  as  per  the  prosecutrix  he  had also





raped   her.     According   to   the   doctor,   he   was   capable   of



performing sexual intercourse.   This entire evidence and the



attendant   circumstances   point   towards   the   guilt   of   the



accused.





                                    22


      The   learned   counsel   appearing   for   the   appellant   had



placed emphasis on the fact that the doctor had opined that



the   prosecutrix   was   accustomed   to   sexual   intercourse   and



that  there  was no sign of  fresh intercourse.   This  argument



has rightly been rejected by the High Court by noticing that



there was no fresh intercourse but she had been subjected to





intercourse   more   than   24   hours   ago.     The   doctor   had



examined   her   on   27th  July,   1990   while   the   incident   took



place on 25th  July, 1990.   Thus, the statement of the doctor



has  to be read  and understood  in that background  and the



doctor   also   specifically   stated,   that   there   was   a   possibility



that she was subjected to intercourse on 25th July, 1990.


                                     23


      The   evidence,   essentially,   must   be   viewed   collectively.



The   statement   of   a   witness   must   be   read   as   a   whole.



Reliance on a mere line in the statement of the witness, out



of   context,   would   not   serve   the   ends   of   justice   and   the



conclusion   of   the   Court   based   on   such   appreciation   of



evidence could be faulted.  Another aspect of this case which





has   specifically   not   been   noticed   by   the   High   Court,   is   that



the prosecutrix and her father were made to run from pillar



to   post   by   the   police   authorities,   before   their   case   could   be



registered.  The prosecutrix, PW4, has specifically stated that



report made by her father was not recorded by the police and



the next day they went to Jhajjar along with her mother and


                                       24


appeared  before the police  officers but again, no action was



taken.  According to her, the application which she had given



in the Tehsil office was thumb marked by her.  Pratap Singh,



father of the prosecutrix, stated that he had even convened a



panchayat   of   the   brotherhood   but   the   panchayat   having



failed to arrive at a decision, he had proceeded to the police





station   along   with   his   daughter   and   his   report   was   not



recorded at the police station by the police.   He returned to



the   village   and   again   went   to   the   Jhajjar   Sub   Divisions



Headquarter   and   met   the   DSP   and   narrated   the   entire



occurrence   to   him.     But   still   no  action   was   taken   and   then



they   claim   to   have   gone   to   the   SDM,   Jhajjar   and   made   a


                                     25


complaint in writing.  Thereafter, his daughter was medically



examined   and   subsequently,   the   case   was   registered.     This



event   certainly   describes   and   points   towards   the   apathy   in



the   functioning   of   investigating   agencies   in   heinous   crimes,



to   which   the   complainant   was   subjected.     In   terms   of   the



provisions   of   Section   154,   Cr.P.C.,   it   is   obligatory   for   the





police   to   register   a   case   when   the   facts   constituting   a



cognizable offence are brought to its notice.  The father of the



girl,   surely   must   have   felt   trauma   and   frustration   when   he



was subjected to the above treatment, besides the knowledge



of   his   daughter's   raped   by   the   accused.     We   do   express   a





                                     26


pious   hope,   that   such   occurrences   will   not   be   repeated   in



any police station in the country.




      The counsel for the appellant had also tried to rely upon



some contradictions and embellishments in the statements of



the   prosecutrix   and   her   father.     Reference   was   made   to





exhibits D1 and PO in this regard.   The Court cannot ignore



the   fact   that   the   prosecutrix   cannot   be   expected   to   make   a



perfect statement after a lapse of time without even a normal



variance.     Furthermore,   she  had  specifically   stated   that,   the



statements  recorded  by the appellants  were not  read over to



her nor were any thumb impressions taken for the same.   In


                                     27


fact,   she   had   given   an   application   to   the   tehsil   office   which



was   thumb   marked   and   even   that   complaint   had   not   been



produced   in   evidence   before   the   Court   by   the   prosecution.



These   are   the   lacunae   and   impropriety   committed   by   the



investigating agency itself.  Thus, no burden or fault could be



shifted to the prosecutrix.   Her statement before the Court is





fully supported by other prosecution witnesses and even the



-medical evidence produced on record.  There is a concurrent



finding   of   conviction   against   the   accused,   which   is   based



upon   proper   appreciation   of   evidence.     We   see   no   reason   to



interfere.





                                      28


      Consequently, the appeal is dismissed.





                                         ....................................J.

                                           [Dr. B.S. Chauhan]





                                         ....................................J.





                                          [Swatanter Kumar]

New Delhi;

July 7, 2011





                              29


30

Ingenuity of counsel sometimes results in formulation propositions, which appear at the first flush to be legally sound and relatable to recognized cannons of criminal jurisprudence. When examined in greater depth, their rationale is nothing but illusory; and the argument is without substance. One such argument has been advanced in the present case by the learned counsel appearing for the appellant who contends that `even where the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') have not been complied with the recovery can otherwise be proved without 2 solely relying upon the personal search of the accused'. According to the learned counsel, the courts are required to take into consideration evidence of recovery of illicit material independently of the factum of personal search of the accused as stated by other witnesses as such evidence would be admissible and can form the basis for conviction of an accused in accordance with law.

                                         REPORTABLE


            IN THE SUPREME COURT OF INDIA


          CRIMINAL APPELLATE JURISDICTION


           CRIMINAL APPEAL NO.1101 OF 2004




State of Delhi                           ... Appellant





                          Versus


Ram Avtar @ Rama                         ... Respondent





                      J U D G M E N T




Swatanter Kumar J.




                             1


      Ingenuity   of   counsel   sometimes   results   in   formulation



propositions,   which   appear   at   the   first   flush   to   be   legally



sound   and   relatable   to   recognized   cannons   of   criminal



jurisprudence.   When   examined   in   greater   depth,   their



rationale is nothing but illusory; and the argument is without





substance.     One   such   argument   has   been   advanced   in   the



present   case   by   the   learned   counsel   appearing   for   the



appellant   who   contends   that   `even   where   the   provisions   of



Section 50 of the Narcotic Drugs and Psychotropic Substances



Act,   1985   (hereinafter   referred   to   as   `the   Act')   have   not   been



complied   with   the   recovery   can   otherwise   be   proved   without


                                        2


solely   relying   upon   the   personal   search   of   the   accused'.



According   to   the   learned   counsel,   the   courts   are   required   to



take   into   consideration   evidence   of   recovery   of   illicit   material



independently of the factum of personal search of the accused



as   stated   by   other   witnesses   as   such   evidence   would   be



admissible and can form the basis for conviction of an accused





in accordance with law.




      Before we notice the judgments which have been referred



to on behalf of the State, it will be necessary for us to refer to



the  facts   giving   rise  to   the   present  appeal.     On  18th  January,



1998 at about 8.15 a.m., a secret informer met Assistant Sub




                                       3


Inspector   (ASI)   -   Dasrath   Singh   (who   was   examined   as   PW8)



and informed him that a person by the name of Ram Avtar @



Rama resident of House No. 71/144, Prem Nagar, Choti Subzi



Mandi,   Janakpuri   would   be   going   to   his   house   on   a   two



wheeler   scooter   No.   DL  4SL  2996   and  if   the   said   person  was



searched   and   raid   was   conducted,   smack   could   be   recovered





from   him.     This   information   was   passed   on   by   ASI-Dasrath



Singh,   to   the   Station  House   Officer   (SHO)   M.C.   Sharma   (who



was   examined   as   PW4),   on   telephone,   who   in   turn   directed



R.P.   Mehta,   Assistant   Commissioner   of   Police   (Narcotics



Bureau) ACP(NB) to conduct the raid immediately.  The secret



information was recorded in the DD at Sl. No.3. In furtherance


                                     4


to this at around 8.30 A.M., ASI Dasrath Singh along with Sub



Inspector   (SI)   Sahab   Singh,   Head   Constable   Narsingh,



Constable   Manoj   Kumar,   Lady   Constable   Nirmla   and   the



informer left for the spot in a Government vehicle.  The vehicle



was   parked   in   a   hideout   at   some   distance.     At   around   9.30



a.m.   Ram   Avtar   was   apprehended   based   on   pointing   out   by





the   informer   while   he   was   coming   on   a   two   wheeler   scooter



from the side of the main road, Tilak Nagar near his house.  It



is   the   case   of   the   prosecution   that   a   police   officer   in   the



raiding party had  requested some persons, who were passing



by, to join the raid but they declined to do so on some ground



or the other.  The police officer then served a notice Ex. PW6/A


                                        5


in writing, under Section 50 of the Act upon the appellant but



he   declined   to   be   searched   either   in   presence   of   a   Gazetted



Officer   or   a   Magistrate.     On   search,   three   polythene   packets



were recovered from left side pocket of his shirt.   On opening



the   packets,   it   was   found   to   contain   powder   of   light   brown



colour,   suspected   to   be   smack.     This   recovered   powder   was





mixed together.   The total weight of the recovered powder was



16   grams,   out   of   which   5   grams   were   separated   as   sample.



Both   the   sample   and   the   remaining   powder   were   converted



into two parcels and sealed with the seal of DS which were the



initials   of   PW8.     CFSL   Form   was   filled   and   seal   of   DS   also



affixed   thereon.     Parcels   were   seized   vide   memo   Ex.   PW-2/8.


                                        6


PW8 sent the parcels, CFSL Form and copy of rukka, Ex.PW-



5/8 through Constable Manoj Kumar to Station House Officer



(PW4)  for  recording an  FIR  under  Section  21  of the  Act.   The



samples,   rukka   etc.   are   now   produced   in   carbon   copy   as



Ex.PW-5/A.     Sample   parcels   were   sent   to   CFSL,   Chandigarh



and   as   per   their   report,   the   sample   gave   positive   test   for





diacetylmorphine (heroin).   Resultantly, Ram Avtar was taken



into   custody,   and   charge-sheet   for   committing   an   offence



under Section 21 of the Act was filed against him.




      As   many   as   eight   witnesses   were   examined   by   the



prosecution   to   bring   home   the   guilt   against   the   accused.     In




                                       7


his statement under Section 313 of the Cr.P.C., the plea taken



by   the   accused   was   that   on   the   day   of   occurrence   his   house



was   searched   without   a   valid   warrant   and   as   nothing   was



recovered therefrom, he demanded a "no   recovery certificate".



He claims that the police misbehaved and that he was taken to



the   Police   Station,   Narcotic   Branch   on   the   pretext   of   issuing





such "no recovery certificate".   He claims to have been falsely



implicated   in   this   case.     The   accused   had   taken   a   specific



objection,   with   regard   to   non-compliance   with   the   provisions



of Section 50 of the Act, and had laid down this defense before



the   Trial   Court.     The   Trial   Court   was   of   the   opinion   that   the



prosecution   has   been   able   to   prove   the   case   beyond   any


                                         8


reasonable   doubt   and   therefore,   convicted   the   accused   and



sentenced him to undergo rigorous imprisonment of ten years



and   pay   a   fine   of   Rs.1,00,000/-;   in   default   thereof,   further



undergo one year of rigorous imprisonment.




      An  appeal was  preferred  by   the  accused  challenging   the





conviction   and   order   of   sentence   dated   19th  July,   1999.     The



High Court after taking note of the notice that was alleged to



have been issued to the accused under Section 50 of the Act,



Ex.PW-6/A,   returned   a   finding   in   accordance   with   settled



principles of law, that the notice provided to the accused was



not in conformity with the provisions of Section 50 of the Act.


                                      9


Resultantly,   there   was   no   compliance   with   the   provisions   of



Section   50   of   the   Act   in   the   eyes   of   law   and   therefore,   the



accused   was   acquitted   of   the   charge.     The   State   of   Delhi



feeling   aggrieved   by   the   order   of   the   High   Court   filed   the



present appeal.





       We   have   already   noticed   that   the   High   Court   primarily



discussed   only   one   issue,   i.e.   whether   there   was   compliance



with   the   provisions   of   Section   50   of   the   Act   or   not;   and   had



answered this in the negative, against the State.   The primary



submission   raised   in   the   present   appeal   also   relates   to   the




                                        10


interpretation   of   the   provisions   of   Section   50   of   the   Act.     In



order to examine the merit of the contention raised on behalf



of the appellant, at the outset, it will be appropriate for us to



refer to the precedents on the issue of the principles applicable



to Section 50 of the Act.





      One   of   the   earliest   and   significant   judgments   of   this



Court, on the issue before us is the case of  State  of  Punjab v.



Balbir   Singh,   [(1994)   3   SCC   299]   where   the   Court   considered



an important question  i.e., whether failure by the empowered



or  authorized   officer   to  comply   with  the   conditions  laid  down




                                        11


in   Section   50   of   the   Act   while   conducting   the   search,   affects



the  prosecution   case.     In  para   16   of  the   said  judgment,   after



referring to the words "if the person to be searched so desires",



the   Court   came   to   the   conclusion   that   a   valuable   right   has



been given to the person, to be searched in the presence of the



Gazetted Officer or Magistrate if he so desires. Such a search





would impart much more authenticity and creditworthiness to



the   proceedings,   while   equally   providing   an   important



safeguard to the accused.   It was also held that to afford this



opportunity   to   the   person   to   be   searched,   such   person   must



be fully aware of his right under Section 50 of the Act and that



can   be   achieved   only   by   the   authorized   officer   explicitly


                                       12


informing   him   of   the   same.     The   statutory   language   is   clear,



and   the   provisions   implicitly   make   it   obligatory   on   the



authorized  officer  to inform  the  person  to be searched  of this



right.     Recording   its   conclusion   in   para   25   of   the   judgment,



the Court clearly held that non-compliance with Section 50 of



the Act, which is mandatory, would affect the prosecution case





and   vitiate   the   trial.     It   also   noticed   that   after   being   so



informed,   whether   such   person   opted   for   exercising   his   right



or   not   would   be   a   question   of   fact,   which   obviously   is   to   be



determined on the facts of each case.





                                        13


      This view was followed by another Bench of this Court in



the   case   of  Ali   Mustaffa   Abdul   Rahman   Moosa   v.   State   of



Kerala, [(1994) 6 SCC 569], wherein the Court stated that the



searching   officer   was   obliged   to   inform   the   person   to   be



searched   of  his   rights.     Further,   the   contraband   seized   in  an



illegal   manner   could   hardly   be   relied   on,   to   the   advantage   of





the prosecution. Unlawful possession of the contraband is the



sine   qua   non  for   conviction   under   the   NDPS   Act,   and   that



factor has to be established beyond any reasonable doubt. The



Court further indicated that articles recovered may be used for



other   purposes,   but   cannot   be   made   a   ground   for   a   valid



conviction under this Act.


                                       14


       In the case of Saiyad Mohd. Saiyad Umar Saiyad v. State



of   Gujarat,   [(1995)   3   SCC   510],   the   Court   followed   the



principles   stated   in  Balbir   Singh's  case   (supra)   and   also



clarified that the prosecution must prove that the accused was



not only made aware of his right but also that the accused did



not   choose   to   be   searched   before   a   Gazetted   Officer   or   a





Magistrate.




       Then the matter was examined by a Constitution Bench



of   this   Court,   in   the   case   of  State   of   Punjab   v.   Baldev   Singh



[(1999) 6 SCC 172], where the Court, after detailed discussion



on   various   cases,   including   the   cases   referred   by   us   above,




                                        15


recorded   its   conclusion   in   para   57   of   the   judgment   .   The



relevant portions of this conclusion are 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.

                XXX                 XXX                       XXX

            (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



                                      16


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



                          17


             breach   of   the   safeguards   provided   by
             Section   50   at  the   trial,   would   render   the
             trial unfair.

                 XXX                  XXX                  XXX

               (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."




      Still   in   the   case   of  Ahmed   v.   State   of   Gujarat,   [(2000)   7



SCC   477),   a   Bench   of   this   Court   followed   the   above   cases



including  Baldev   Singh's  case   (supra)   and   held   that   even


                                        18


where   search   is   made   by   empowered   officer   who   may   be   a



Gazetted   Officer,   it   remains   obligatory   for   the   prosecution   to



inform the person to be searched about his right to be taken to



the   nearest   Gazetted   Officer   or   Magistrate   before   search.     In



this case, the Court also noticed at sub-para (e) at page 482 of



the   judgment   that   the   provisions   of   Section   50   of   the   Act,





which afford minimum safeguard to the accused, provide that



when a search is about to be made of a person under Section



41 or Section 42 or Section 43 of the Act, and if the person so



requires, then the said person has to be taken to the nearest



Gazetted Officer of any department mentioned in Section 42 of



the Act or to the nearest Magistrate.


                                      19


      In  the  case   of  K.  Mohanan  v.  State  of  Kerala,   [(2010)   10



SCC 222] another Bench of this Court while following  Baldev



Singh's case (supra) stated in unambiguous terms that merely



asking the accused whether he wished to be searched before a



Gazetted   Officer   or   a   Magistrate,   without   informing   him   that



he enjoyed a right under law in this behalf, would not satisfy





the requirements of Section 50 of the Act.




      We may also notice here that some precedents hold that



though   a   right   of   the   person   to   be   searched   existed   under



Section   50   of   the   Act,   these   provisions   are   capable   of



substantial   compliance   and   compliance   in   absolute   terms   is




                                     20


not a requirement under law.  Reference in this regard can be



made to Joseph Fernandez v. State of Goa, [(2000) 1 SCC 707],



Prabha Shankar  Dubey v. State  of  Madhya Pradesh, [(2004) 2



SCC 56], Krishna Kanwar v. State of Rajasthan, [(2004) 2 SCC



608,  Manohar  Lal v. State  of Rajasthan, [(1996) 11 SCC 391],



Karnail Singh v. State  of Haryana, [(2009) 8 SCC 539].   In the





case   of  Prabha   Shankar   Dubey  (supra),   this   Court   while



referring   to  Baldev   Singh's  case   (supra)   took   the   view   that



Section 50 of the Act in reality provides additional safeguards



which are not elsewhere provided by the statute.  As the stress



is   on   the   adoption   of   reasonable,   fair   and   just   procedure,   no



specific words are necessary to be used to convey the existence


                                       21


of this right. The notice served, in that case, upon the person



to  be  searched  was  as  follows:  `By  way  of  this  notice   you  are



informed   that   we   have   received   information   that   you   are



illegally carrying opium with you, therefore, we are required to



search your scooter and you for this purpose.   You would like



to   give   me   search   or   you   would   like   to   be   searched   by   any





gazetted officer or by a Magistrate?'  Keeping the afore-referred



language   in   mind,   the   Court   applied   the   principle   of



substantial   compliance,   and   held   that   the   plea   of   non-



compliance with the requirements of Section 50 of the Act was



without   merit   on   the   facts   of   that   case.     The   Court   held   as



under:


                                       22


          "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   case.   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.



          13.  Above being the position, we find  no

          substance in the plea that there was non-

          compliance   with   the   requirements   of

          Section 50 of the Act."




     Similarly,   in  Manohar   Lal's  case   (supra)   the   option



provided to the accused, not to go to a Magistrate if so desired,


                                  23


was   considered   to   imply   requirement   of   mere   substantial



compliance; and that strict compliance was not necessary.




      In  the  case   of  Union  of  India  v. Satrohan,   [(2008)   8 SCC



313]   though   the   Court   was   not   directly   concerned   with   the



interpretation   of   the   provisions   of   Section   50   of   the   Act,   the





Court   held   that   Section   42(2)   of   the   Act   was   mandatory.     It



also held that search under Section 41(1) of the Act would not



attract   compliance   to   the  provisions   of  Section   50   of  the   Act.



To that extent this judgment was taking a view different from



that   taken   by   the   equi-Bench   in  Ahmed's  case   (supra).     This



question   to   some   extent   has   been   dealt   with   by   the


                                       24


Constitution Bench in the case of Vijaysinh Chandubha Jadeja



v. State  of  Gujarat  [(2011) 1 SCC 609] (hereinafter  referred to



as   `Vijaysinh   Chandubha   Jadeja').     As   this   question   does   not



arise for consideration before us in the present case, we do not



consider   it   necessary   to   deliberate   on   this   aspect   in   any



further detail.





      In   the   case   of  Vijaysinh   Chandubha   Jadeja  v.   State   of



Gujarat, [(2007) 1 SCC 433], a three Judge Bench of this Court



had taken the view that the accused must be informed of his



right   to   be   searched   in   presence   of   a   Magistrate   and/or   a



Gazetted Officer, but in light of some of the judgments we have




                                     25


mentioned   above,   a   reference   to   the   larger   bench   was   made,



resulting.                          




       Accordingly, a Constitution Bench was constituted and in



the case of  Vijaysinh Chandubha Jadeja  (supra) of this Court,



referring   to   the   language   of   Section   50   of   the   Act,   and   after





discussing the above-mentioned judgments of this Court, took



the   view   that   there   was   a   right   given   to   the   person   to   be



searched,   which   he   may   exercise   at   his   option.     The   Bench



further   held   that   substantial   compliance   is   not   applicable   to



Section 50 of the Act as its requirements were imperative.  The



Court,   however,   refrained   from   specifically   deciding   whether


                                         26


the provisions were directory or mandatory.  It will be useful to



refer the relevant parts of the Constitution Bench in Vijaysinh



Chandubha Jadeja  (supra). In para 23, the Court said `In the



above  background,   we  shall   now advert   to  the   controversy  at



hand. For this purpose, it would be necessary to recapitulate



the   conclusions,   arrived   at   by   the   Constitution   Bench   in





Baldev Singh case'.   After further referring to the conclusions



arrived   at   by   the   Constitution   Bench   in  Baldev   Singh's  case



(supra)   (which   have   been   referred   by   us   in   para   9   of   this



judgment) and reiterating the same the Constitution Bench in



Vijaysinh   Chandubha   Jadeja  (supra)   this   case   concluded   as



under:


                                      27


              "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."



       Analysis   of   the   above   judgments   clearly   show   that   the



scope   of   the   provisions   of   Section   50   of   the   Act   are   no   more



res   integra  and   stand   concluded   by   the   above   judgments



particularly the Constitution Bench judgments of this Court in



                                         28


the   cases   of  Baldev   Singh  (supra)   and  Vijaysinh   Chandubha



Jadeja (supra).




      In the present case, we are concerned with the provisions



of Section 50 of the Act as it was, prior to amendments made



by Amending Act 9 of 2001 w.e.f. 2.10.2001.   In terms of the





provisions,   in   force   at   the   relevant   time,   the   petitioner   had   a



right to be informed of the choice available to him; making him



aware of the existence of such a right was an obligation on the



part of the searching officer.  This duty cast upon the officer is



imperative   and   failure   to   provide   such   an   option,   in



accordance   with   the   provisions   of   the   Act,   would   render   the


                                        29


recovery   of   the   contraband   or   illicit   substance   illegal.



Satisfaction of the requirements in terms of Section 50 of the



Act   is  sine   qua   non  prior   to  prosecution   for   possession   of   an



unlawful narcotic substance.




      In   fact,   the   Constitution   Bench  in   the   case   of  Vijaysinh





Chandubha Jadeja  (supra), in para 25, has even taken a view



that   after   the   amendment   to   Section   50   of   the   Act   and   the



insertion of sub-section 5, the mandate of Section 50(2) of the



Act   has   not   been   nullified,   and   the   obligation   upon   the



searching   officer   to   inform   the   person   searched   of   his   rights



still   remains.    In   other   words,   offering   the   option   to   take   the


                                        30


person to be searched before a Gazetted Officer or a Magistrate



as   contemplated   under   the   provisions   of   this   Act,   should   be



unambiguous   and   definite   and   should   inform   the   suspect   of



his statutory safeguards.                              




      Having   stated   the   principles   of   law   applicable   to   such





cases,   now   we   revert   back   to   the   facts   of   the   case   at   hand.



There   is   no   dispute   that   the   concerned   officer   had   prior



intimation,   that   the   accused   was   carrying   smack,   and   the



same   could   be   recovered   if   a   raid   was   conducted.     It   is   also



undisputed   that   the   police   party   consisting   of   ASI   -   Dasrath



Singh,   Head   Constable-   Narsingh,   Constable   -   Manoj   Kumar


                                        31


and  lady  constable-Nirmla   had  gone  in  a  Government   vehicle



to conduct the raid.  The vehicle was parked and the accused,



who   was   coming   on   a   scooter,   had   been   stopped.         He   was



informed   of   and   a   notice   in   writing   was   given   to   him   of,   the



suspicions   of   the   police,   that   he   was   carrying   smack.   They



wanted   to   search   him   and,   therefore,   informed   him   of   the





option available to him in terms of Section 50 of the Act.   The



option   was  given   to   the  accused   and  has   been  proved   as  Ex.



PW-6/A,   which   is   in   vernacular.     The   High   Court   in   the



judgment under appeal has referred to it and we would prefer



to reproduce the same, which reads as under :





                                        32


             "Musami   Ram   Avtar   urf   Rama   S/o   late

             Sh.   Mangat   Ram   R/o   71/144,   Prem

             Nagar,   Choti   Subzi   Mandi,   Janakpuri,

             Delhi, apko is notice ke tehat suchit kiya

             jata   hai   ki   hamare   pas   itla   hai   ki   apko

             kabje   me   smack   hai   aur   apki   talashi

             amal mein laye jati hai.   Agar ap chahen

             to apki talashi ke liye kisi Gazetted officer

             ya   Magistrate   ka   probandh   kiya   ja  sakta

             hai."





      The  High   Court   while   relying   upon  the   judgment   of  this



Court   in   the   case   of  Baldev   Singh  (supra)   and   rejecting   the



theory of substantial compliance, which had been suggested in



the   case   of  Joseph   Fernandez  (supra),   found   that   the



intimation   did   not   satisfy   the   provisions   of   Section   50   of   the




                                       33


Act.     The   Court   reasoned   that   the   expression   `duly'   used   in



Section 50 of the Act connotes not `substantial' but `exact and



definite   compliance'.     Vide   Ex.PW-6/A,   the   appellant   was



informed   that   a   Gazetted   Officer   or   a   Magistrate   could   be



arranged   for   taking   his   search,   if   he   so   required.   This



intimation   could   not   be   treated   as   communicating   to   the





appellant that he had a right under law, to be searched before



the   said   authorities.     As   the   recovery   itself   was   illegal,   the



conviction and sentence has to be set aside.




      It is a settled canon of criminal jurisprudence that when



a   safeguard   or   a   right   is   provided,   favouring   the   accused,




                                       34


compliance   thereto   should   be   strictly   construed.   As   already



held   by   the   Constitution   Bench   in   the   case   of  Vijaysinh



Chandubha   Jadeja          (supra),   the   theory   of   `substantial



compliance'   would   not   be   applicable   to   such   situations,



particularly where the punishment provided is very harsh and



is likely to cause serious prejudices against the suspect.   The





safeguard   cannot   be   treated   as   a   formality,   but   it   must   be



construed   in   its   proper   perspective,   compliance   thereof   must



be ensured.  The law has provided a right to the accused, and



makes   it   obligatory   upon   the   officer   concerned   to   make   the



suspect aware of such right.  The officer had prior information



of the raid; thus, he was expected to be prepared for carrying


                                      35


out   his   duties   of   investigation   in   accordance   with   the



provisions   of   Section   50   of   the   Act.     While   discharging   the



onus of Section 50 of the Act, the prosecution has to establish



that   information   regarding   the   existence   of   such   a   right   had



been  given   to   the   suspect.    If  such   information   is   incomplete



and   ambiguous,   then   it   cannot   be   construed   to   satisfy   the





requirements  of Section 50 of the Act.  Non-compliance of the



provisions   of   Section   50   of   the   Act   would   cause   prejudice   to



the   accused,   and,   therefore,   amount   to   the   denial   of   a   fair



trial.   To secure a conviction under Section 21 of the Act, the



possession   of   the   illicit   article   is   a  sine   qua   non.     Such



contraband article should be recovered in accordance with the


                                      36


provisions   of   Section   50   of   the   Act,   otherwise,   the   recovery



itself   shall   stand   vitiated   in   law.     Whether   the   provisions   of



Section   50   of   the   Act   were   complied   with   or   not,   would



normally   be   a   matter   to   be   determined   on   the   basis   of   the



evidence   produced   by   the   prosecution.     An   illegal   search



cannot   entitle   the   prosecution   to   raise   a   presumption   of





validity of evidence under Section 50 of the Act.  As is obvious



from   the   bare   language   of   Ex.PW-6/A,   the   accused   was   not



made   aware   of   his   right,   that   he   could   be   searched   in   the



presence of Gazetted Officer or a Magistrate, and that he could



exercise   such   choice.     The   writing   does   not   reflect   this   most



essential requirement of Section 50 of the Act.  Thus, we have


                                       37


no hesitation  in holding  that the  judgment  of the  High Court



does not suffer from any infirmity.




      Now, we come to discuss the argument raised  on behalf



of   the   State,   that   in   the   present   case,   generally   and   as   a



proposition   of   law,   even   if   there   is   apparent   default   in





compliance   with   the   provisions   of   Section   50   of   the   Act,   a



person may still be convicted if the recovery of the contraband



can   be   proved   by   statements   of   independent   witnesses   or



other   responsible   officers,   in   whose   presence   the   recovery   is



effected.   To us, this argument appears to be based upon not



only   a   misconstruction   of   the   provisions   of   Section   50   of   the


                                       38


Act but also on the mis-conception of the principles applicable



to criminal jurisprudence.  Once the recovery itself is found to



be illegal, being in violation to the provisions of Section 50 of



the Act, it cannot, on the basis of the statement of the police



officers,   or   even   independent   witnesses,   form   the   foundation



for   conviction   of   the   accused   under   Section   21   of   the   Act.





Once the recovery is held to be illegal, that means the accused



did   not   actually   possess   the   illicit   article   or   contraband   and



that no such illicit article was recovered from the possession of



the accused such as to enable such conviction of a contraband



article.





                                      39


      We   are   also   unable   to   appreciate   how   the   provisions   of



Section   50   of   the   Act   can   be   read   to   support   such   a



contention.   The language of the provision is plain and simple



and has to be applied on its plain reading as it relates to penal



consequences.     Section   50   of   the   Act   states   the   conditions



under which the search of a person shall be conducted.   The





significance of this right is clear from the language of Section



50(2) of the Act, where the officers have been given the power



to   detain   the   person   until   he   is   brought   before   a   Gazetted



Officer or Magistrate as referred to in sub-section (1) of Section



50   of   the   Act.     Obviously,   the   legislative   intent   is   that



compliance with these provisions is imperative and not merely


                                      40


substantial   compliance.     Even   in   the   case   of  Ali   Mustaffa



Abdul   Rahman   Moosa  (supra),   this   Court   clearly   stated   that



contraband seized as a result of search made in contravention



to Section 50 of the Act, cannot be used to fasten the liability



of   unlawful   possession   of   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   Act.    In   the   case   of  Ali



Mustaffa   Abdul   Rahman   Moosa  (supra),   this   Court   had


considered the observation made by a Bench of this Court,


in   an   earlier   judgment,   in   the   case   of  Pooran   Mal   v.


Director of Inspection [(1974) 1 SCC 345] which had stated that


                                     41


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   Court,   while   examining   this



principle,   clearly   held   that   even   this   judgment   cannot   be



interpreted   to  lay   down   that contraband   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,   under   the



Act,  is  a  factor  that  has to  be  established   by  the   prosecution



beyond any reasonable doubt.   Indeed, the seized contraband





                                         42


is   evidence,   but   in   the   absence   of   proof   of   possession   of   the



same, an accused cannot be held guilty under the Act.




      What the learned counsel for the appellant has argued is



exactly to the contrary.  According to him, even if the recovery



was  in  violation   of  Section  50   of  the   Act,  the   accused  should





be   held   guilty   of   unlawful   possession   of   contraband,   on   the



basis   of   the   statement   of   the   witnesses.     Once   the   recovery



itself   is   made   in   an   illegal   manner,   its   character   cannot   be



changed, so as to be admissible, on the strength of statement



of   witnesses.     What   cannot   be   done   directly   cannot   be



permitted   to   be   done   indirectly.     If   Ex.PW-6/A   is   not   in


                                        43


conformity   with   the   provisions   of   Section   50   of   the   Act,   then



there   is   patent   violation   of   the   provisions.     Firstly,   in   the



present case, there is no public witness to Ex.PW-6/A; and the



recovery   thereof;   secondly,   even   the   evidence   of   all   the



witnesses, who are police officers, does not improve the case of



the   prosecution.     The   defect   in   Ex.PW-6/A   is   incurable   and





incapable   of   being   construed   as   compliance   with   the



requirements of Section 50 of the Act on the strength of ocular



statement.




      The   Constitution   Bench,   in   the   case   of  Vijaysinh



Chandubha  Jadeja  (supra)  had spelt  out  the  effects  of  failure





                                       44


to comply with the mandatory provisions of Section  50 of the



Act,   being   (A)   cause   of   prejudice   to   the   suspect   accused;   (B)



rendering   recovery   of   illicit   article   suspect   and   thereby,



vitiating   the   conviction,   if   the   same   is   recorded   only   on   the



basis   of   recovery   of   illicit   article   from   the   person   of   the



accused during such search.





      The learned counsel for the appellant relied on the use of



the words `only on the basis of the recovery' used in para 29 of



that   judgment,   to   contend   that   if   there   is   other   supporting



evidence of recovery, the conviction cannot be set aside.   This



submission   is   nothing   but   based   upon   a   misreading   of   the




                                       45


judgment; not only of para 29 but the judgment in its entirety.



What   the   Constitution   Bench   has   stated   is   that   where   the



recovery is from the person of the suspect, and that recovery is



found   to   be   illegal,   the   conviction   must   be   set   aside   as   the



principles   applicable   to   personal   recovery   are   somewhat



different   from   recovery   of   contraband   from   a   vehicle   or   a





house.




      In para 29 of the judgment itself, the Bench has held that



`we   have   no   hesitation   in   holding   that   in   so   far   as   the



obligation   of   the   authorized   officer   under   sub-section(1)   of



Section 50 of the NDPS Act is concerned, it is mandatory and




                                       46


requires   strict   compliance.'     In   fact   the   contention   raised   by



the   appellant   has,   in   specific   terms,   been   rejected   by   the



Constitution   Bench   in   clause   7   of   para   23   of   the   judgment.



The   Court   clearly   held   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   the   accused,



notwithstanding the recovery of that material during an illegal



search.   The proposition of law having been so clearly stated,


                                       47


we   are   afraid   that   no   argument   to   the   contrary   may   be



entertained.     What   needs   to   be   understood   is   that   an   illegal



recovery cannot take the colour of a lawful possession even on



the basis of oral evidence.   But if any other material which is



recovered   is   a   subject   matter   in   some   co-lateral   or



independent   proceeding,   the   same   could   be   proved   in





accordance with law even with the aid of such recovery.   But



in   no   event   the   illegal   recovery   can   be   the   foundation   of   a



successful conviction under the provisions of Section 21 of the



Act.





                                       48


      For the reasons afore recorded, we do not find any merit



in   the   present   appeal.     The   same   stands   dismissed   without



any order as to costs.





                                          .....................................J.

                                            [Dr. B.S. Chauhan]





                                          .....................................J.

                                         [Swatanter Kumar]

New Delhi;

July 7, 2011





                                    49