State Of Delhi vs Ram Avtar @ Rama

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

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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