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
