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  

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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,  

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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  

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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  

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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  

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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  

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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.

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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,  

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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.

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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

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