NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL     APPEAL     NO.     611        OF     2012   [Arising out of Special Leave Petition (Crl.) No.6774 of 2011]

MYLA VENKATESWARLU …        APPELLANT

Vs.

THE STATE OF ANDHRA PRADESH …        RESPONDENTS

JUDGMENT

(SMT.)     RANJANA     PRAKASH     DESAI,     J.   

1. Leave granted.   

2. The challenge in this appeal, by special leave, is to the  

judgment of a learned Single Judge of the Andhra Pradesh  

High Court dismissing the criminal appeal filed by the  

appellant questioning the correctness of the judgment and  

order passed by the Ist Additional Sessions Judge, Guntur.  

By the said judgment, the appellant (original accused 3) and

two others viz. Myla Rambabu and Myla Muralikrishna  

(original accused 1 and 2 respectively and for convenience,  

referred to as “A1”  and “A2”  respectively) were convicted for  

offences punishable under Section 8(c) read with Section 20(b)

(i) of the Narcotic Drugs and Psychotropic Substances Act,  

1985, (for short, “the NDPS Act”) and sentenced to undergo  

rigorous imprisonment for six months each and to pay a fine  

of Rs.5,000/- each.  In default of payment of fine, they were  

directed to undergo simple imprisonment for six months each.  

3. According to the prosecution, on 5/1/2001, PW-3 CI  

Koteswara Rao on receiving reliable information about illegal  

sale of Ganja at Koneru Bazar, Chenchupeta, Tenali,  

proceeded to Koneru Bazar along with PW-1 PC Shaik Khasim,  

PW-2 SI Nageswara Rao and one other constable.  They  

noticed the appellant, A1 and A2 sitting under a bridge.  On  

seeing them, the appellant, A1 and A2 tried to run away.  PW-

3 CI Koteswara Rao and his team apprehended them.  The  

prosecution story further goes on to say that the appellant, A1  

and A2 revealed their names.  On questioning, they stated that  

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they were carrying Ganja packets in their pockets.  It is  

further the case of the prosecution that PW-3 CI Koteswara  

Rao asked them whether they wanted any other gazetted  

officer for their search and seizure in addition to him to which  

they replied that they did not want any other gazetted officer  

and checking by the Circle Inspector of Police was sufficient.  

In the search, five Ganja packets were recovered from A1, six  

Ganja packets were recovered from A2 and four Ganja packets  

were recovered from the appellant.  A1, A2 and the appellant  

are stated to have confessed to the crime. They were then put  

under arrest.  After completion of the investigation, they were  

charged for the offence under Sections 8(c) read with Section  

20(b)(i) of the NDPS Act.  The appellant pleaded not guilty to  

the charge. The evidence led by the prosecution found favour  

with the trial court and it convicted the appellant, A1 and A2  

as aforesaid.  The appeal carried from the said judgment was  

dismissed by the High Court.  Hence, this appeal. It must be  

noted here that A1 and A2 have not challenged the impugned  

judgment and order and, hence, they are not before us.  

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4. We have heard, at some length, learned counsel  

appearing for the appellant and learned counsel appearing for  

the State of Andhra Pradesh, who has made a valiant effort to  

support the impugned judgment and order.  

5. Though several points were raised by learned counsel for  

the appellant, it is not necessary for us to deal with them  

because his contention that in this case there is a violation of  

procedure contemplated under Section 50 of the NDPS Act  

appeals to us.  Section 50 of the NDPS Act, so far as it is  

relevant, reads as under :

“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  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  

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the person but otherwise shall direct that search be  made.

(4) xxx xxx xxx”

A careful perusal of Section 50 indicates that when any  

authorized officer is about to search any person under the  

provisions of Sections 41, 42 or 43 of the NDPS Act, if such  

person requires, he has to 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.  In short, the suspect can insist that his search be  

conducted before a gazetted officer or a Magistrate.  Needless  

to say that a suspect may insist on the presence of a gazetted  

officer or a Magistrate so as to introduce transparency in the  

search.   

6. In State     of     Punjab     v.      Baldev     Singh  1 the Constitution  

Bench of this court was considering the question whether  

compliance of Section 50 of the NDPS Act was mandatory and  

1 (1999) 6 SCC 172

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if it is so, what is the effect in case of breach thereof.  After  

considering the relevant judgments on the point, the  

Constitution Bench drew the following conclusions.  

“(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 concerned person 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 concerned person  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;

xxx xxx xxx xxx

(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 evidence  

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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 concerned person 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.”

7. On account of divergence of opinion between the two  

decisions of this court with regard to the dictum laid down by  

the Constitution Bench in Baldev     Singh  , another  

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Constitution Bench in Vijaysingh     Chandubha     Jadeja      v.    

State     of     Gujarat  2 considered the question 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 with the  

mandate of the said section.  The Constitution Bench held  

that although Baldev     Singh   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 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  

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,  

2 (2011) 1 SCC 609

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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 Constitution  

Bench noted that in Baldev     Singh,   it was clarified 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. The Constitution Bench  

reiterated the principles laid down by this court in Baldev  

Singh and added that the concept of substantial compliance  

with the requirement of Section 50 of the NDPS Act is neither  

borne out from the language of Section 50(1) nor it is in  

consonance with the dictum laid down in Baldev     Singh  .  

Thus, it is no longer in dispute that strict compliance with the  

provisions of Section 50(1) of the NDPS Act is necessary.  We  

need to see whether evidence adduced in this case establishes  

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that there was strict compliance of Section 50(1) of the NDPS  

Act.  

8. PW-1 PC Shaik Khasim, who was, at the relevant time,  

attached to the Tenali-III Town Police Station had  

apprehended the appellant, A1 and A2 on 5/1/2001.  He  

stated that on 5/1/2001 at 6.15 p.m., Circle Inspector of  

Police took him in a jeep along with other police personnel to  

Chenchupeta Railway Over Bridge.  They saw three persons  

sitting under the bridge.  On seeing them, the said three  

persons started running away. They apprehended them and  

brought them to the Circle Inspector of Police. According to  

him, the appellant, A1 and A2 confessed that they were having  

Ganja packets in their pockets. He has further stated that the  

Circle Inspector of Police asked them whether they wanted any  

other gazetted officer for their search and seizure in addition  

to him to which they replied that they did not want any other  

gazetted officer and the checking by the Circle Inspector of  

Police was sufficient for them.  Thereafter, the Circle Inspector  

of Police checked their pockets and recovered Ganja packets.  

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In the cross-examination also, this witness has maintained the  

same story.  

9. PW-2 SI Nageswara Rao was, at the relevant time,  

working as Sub-Inspector of Police at Tanali-III Town Police  

Station.  He was in the police party which apprehended the  

appellant, A1 and A2.  He has corroborated PW-1 PC Shaik  

Khasim as regards the apprehension of the appellant, A1 and  

A2.  He has stated that before conducting the search, the  

Circle Inspector of Police asked the appellant, A1 and A2  

“about the intention to have another gazetted officer and they  

replied that they do not want any other gazetted officer for  

their search and seizure”.  According to this witness,  

thereafter, the search was conducted and Ganja packets were  

recovered from their possession.  From the evidence of PW-1  

and PW-2, it is clear that the appellant, A1 and A2 were not  

communicated their right to have search conducted in the  

presence of a Magistrate or a gazetted officer.  

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10. At the relevant time, PW-3 CI Koteswara Rao was  

working as Inspector of Police.  It is this witness who had  

received information about the illegal sale of Ganja at Koneru  

Bazar.  On receiving the information, he proceeded to Koneru  

Bazar along with PW-1, PW-2 and another police constable.  

He has corroborated PW-1 and PW-2 as regards the  

apprehension of the appellant, A1 and A2.  He has stated that  

the appellant, A1 and A2 revealed their names and identity.  

According to him, A1 produced packets containing Ganja.  

Then he told him that if he wanted another gazetted officer, he  

will bring him.  So far as A2 and the appellant are concerned,  

he has stated that they produced packets containing Ganja.  

Thereafter, he revealed to them that they have a right to have  

another gazetted officer in addition to him to which they  

replied that his presence was sufficient.  PW-3 has thus come  

out with a new story viz. the appellant, A1 and A2 took out the  

Ganja packets from their pockets and, thereafter, he told the  

appellant, A1 and A2 that they had a right to have another  

gazetted officer in addition to him.  This story that the accused  

themselves took out the Ganja packets from their pockets  

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runs contrary to the version of PW-1 and PW-2 and, therefore,  

it does not inspire confidence.  If the accused voluntarily took  

out Ganja packets, there was no question of conducting  

search in the presence of a gazetted officer or a Magistrate.  

But, assuming that this right can be communicated to a  

suspect after the seizure and assuming the evidence of this  

witness to be true, it still does not indicate that the  

requirement of Section 50(1) of the NDPS Act was fulfilled.  

There is no clear communication to the accused that they had  

a right to be searched in the presence of a gazetted officer or a  

Magistrate.  As we have already noted, the concept of  

substantial compliance cannot be read into the provisions of  

Section 50(1) of the NDPS Act.  We, therefore, have no  

hesitation in concluding that in this case, there is a breach of  

Section 50(1) of the NDPS Act.  Since the conviction of the  

appellant is solely based on possession of Ganja recovered  

from him, it will have to be set aside.  

11. A1 and A2 are not before us.  However, the conclusion  

drawn by us applies to their case as well.  This court in Ashok  

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@     Dangra     Jaiswal      v.      State     of     Madhya     Pradesh  3  , dealt  

with a somewhat similar fact situation.  Out of the three  

accused convicted under Sections 8(c) and 20(b)(i) of the NDPS  

Act, only one accused had appealed to this court. The other  

two were in jail.  This court set aside the conviction and  

sentence of the appellant therein and observed that the lapses  

which had weighed with it for setting aside the conviction of  

the appellant therein apply equally to the case of the accused  

who had not appealed and, therefore, it would be unjust to let  

them rot in jail even while allowing the appeal preferred by the  

appellant therein.  We are respectfully inclined to follow the  

same course.  In the circumstances, the impugned judgment  

and order convicting  and  sentencing  the  appellant,  A1-

Myla  Rambabu and A2-Myla Muralikrishna is quashed and  

set aside.  The appellant, A1-Myla  Rambabu and A2-Myla  

Muralikrishna are acquitted of the charge under Section 8(c)  

read with Section 20(b)(i) of the NDPS Act.  

12. The appeal is disposed of in the aforestated terms.  

3 2011 (4) SCALE 273

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……………………………………………..J. (AFTAB ALAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, APRIL 04, 2012.

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