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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     300     OF     2009   

Suresh & Ors.                    .... Appellant(s)

Versus

State of Madhya Pradesh                   .... Respondent(s)

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  

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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  

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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  

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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  

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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.

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(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:

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“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  

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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”

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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  

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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:

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“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    

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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  

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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.  

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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.

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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  

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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  

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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.   

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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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