1995 (11) TMI 433 - SC - Customs

Whether the learned Sessions Judge was justified at the stage of taking cognizance of the offence in discharging the accused even before the trial was conducted on merits on the ground that the provisions of Section 50 of the Act had not been complied with? Held that - The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded Panchnama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected i.e. Panchnama etc.. nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Maeistruie or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law what weight should be given to the evidence collected is yet another question to be gone into. Under these circumstances the learned Sessions Judge was not justified in discharging the accused after filing of the charge-sheet holding that mandatory requirements of Section 50 had not been complied with. As more than ten years have passed and the contraband seized is not of a considerable magnitude we think that it is not a lit case to remit at this stage for trial but non-remittance on facts of this case should not be used as precedent in future cases.

Issues Involved:
1. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Admissibility of evidence obtained through illegal search and seizure.
3. Exercise of inherent power by the High Court under Section 482 of the Criminal Procedure Code (CrPC) and Article 226 of the Constitution to quash FIR/charge-sheet/complaint.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The primary issue was whether the learned Sessions Judge was justified in discharging the accused at the stage of taking cognizance of the offence on the ground that the provisions of Section 50 of the NDPS Act had not been complied with. Section 50 mandates that the suspect must be informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate. The Court referenced the case of State of Punjab v. Balbir Singh, which held that compliance with Section 50 is mandatory. The officer conducting the search must inform the suspect of this right, and failure to do so constitutes a violation. This requirement is crucial due to the severe consequences and potential punishments under the Act. The possession of illicit articles must be satisfactorily established, and the officer must testify that the accused was informed of their right. If no such evidence is provided, the Court must presume the suspect was not informed, rendering the possession of illicit articles unestablished.

2. Admissibility of Evidence Obtained Through Illegal Search and Seizure:
The judgment discussed whether evidence obtained from an illegal search and seizure is admissible. It referenced the case of Pooran Mal v. Director of Inspection, where it was held that evidence obtained from an illegal search and seizure is not excluded if it is relevant. The power of search and seizure is an accepted norm in criminal law. Even if the search is illegal, the evidence obtained can still be used for further investigation and prosecution. The Court emphasized that the manner of discovery might affect the factum of discovery, but if the discovery is otherwise proved, the manner becomes immaterial. Cases such as Radha Kishan v. State of U.P. and State of Maharashtra v. Natwarlal reiterated that evidence obtained through illegal search and seizure should be examined carefully but is not automatically inadmissible.

3. Exercise of Inherent Power by the High Court:
The judgment addressed whether the High Court was justified in exercising its inherent power under Section 482 of the CrPC or Article 226 of the Constitution to quash the FIR/charge-sheet/complaint. It referenced the case of State of Haryana v. Bhajan Lai, which laid down broad tests for exercising inherent power. The High Court should exercise this power sparingly and only in exceptional cases, such as when the FIR does not disclose any cognizable offence. The Court must consider whether the allegations constitute an offence and should not weigh the pros and cons of the prosecution case at the stage of filing the charge-sheet. The judgment emphasized that the inherent power should be exercised only in rarest of rare cases to prevent abuse of the process of the court. The evidence collected during the investigation should be allowed to be presented at trial, and the prosecution should have the opportunity to prove that the search was conducted in accordance with the law.

Conclusion:
The judgment concluded that the learned Sessions Judge was not justified in discharging the accused on the ground that the mandatory requirements of Section 50 had not been complied with. However, considering the passage of more than ten years and the relatively small quantity of contraband seized, the Court decided not to remit the matter for trial. This decision was made to avoid setting a precedent for future cases. The appeal was accordingly disposed of.

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