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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