TMI Blog1999 (7) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... to an accused 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 A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair 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 We do not express any opinion whether the provisions of Section 50 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case could not be interpreted to have laid down that a contraband seized as a result of illegal search or seizure could by itself be treated as evidence of possession of the contraband to fasten liability, arising out of unlawful possession of the contraband, on the person from whom the alleged contraband had been seized during an illegal search conducted in violation of the provisions of Section 50 of NDPS Act. However, in State of Himachal Pradesh v. Pirthi Chand and Anr., 1996 (2) SCC 37, and State of Punjab v. Labh Singh, 1996 (5) SCC 520, relying upon a judgment of this Court in Pooran Mals case (supra), a discordant note was stuck and it was held that evidence collected in a search conducted in violation of Section 50 of NDPS Act did not become inadmissible in evidence under the Evidence Act The two-Judge Bench, therefore, on 15.7.1997, by the following order, referred the batch of cases to a larger bench : One of the questions that has been raised in these appeals/special leave petitions is whether compliance with Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 is mandatory and, if so, what is the effect of the breach thereof. This question has had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (1996 (2) SCC 37), another two-Judge Bench of this Court referred to and relied upon the judgment in Pooran Mals case (supra) and held that the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The Court further observed that even if search was found to be in violation of law, what weight should be given to the evidence collected was a question to be gone into during trial. With the above observations, the Bench recorded a finding that the 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. It, however, appears that the Courts attention was not drawn to Ali Mustaffa (supra). The view expressed in Pirthi Chand (supra ) was reiterated in State of Punjab v. Labh Singh (1996 (5) SCC 520) wherein this Court considered the case of Balbir Singh (supra), besides other cases and held as follows :- In State of H.P. v. Pirthi Chand, this Court further elaborately considered the effect of the violation of Section 50 and held that any evidence recorded and recovered in violation of the search and the contraband ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. (Emphasis supplied) 3. In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala (1994) 6 SCC 569, a submission was made on behalf of the State of Kerala to reconsider the judgment in Balbir Singhs case (supra) in view of the judgment of the Constitution Bench of this Court in Pooran Mal v. The Director of Inspection (Investigation), New Delhi others, (1974) 1 SCC 345 wherein it was observed that where the test of admissibility of evidence lay on relevancy (as in India and England), unless there was an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure was not liable to be shut out. Relying upon the above observation it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed opinion the judgment of this Court in Saiyad Mohd. Saiyad Umar Saiyads case (supra) (which was delivered by a three-Judge Bench) requires re-consideration and the questions formulated above answered by a larger Bench, not only in view of the subsequent judgments of this Court (delivered by a two- Judge Bench) referred to above, but also in view of the Constitution Bench judgment in Pooran Mals case (supra). 7. Let these matters be, therefore, placed before the Honble Chief Justice for necessary orders. That is how this batch of Criminal Appeals/Special Leave Petitions has been placed before this Constitution Bench. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1989. Minimum punishment of 10 years imprisonment which may extend upto 20 years and a minimum fine of Rs.1 lakh which may extend upto Rs.2 lakh have been provided for most of the offences under the NDPS Act, 1985. For second and subsequent offences, minimum punishment of imprisonment is 15 years which may extend to 30 years while minimum fine is Rs.1.5 lakh which may extend to Rs.3 lakhs. Section 31(a) of the Act, which was inserted by the Amendment Act of 1988, has even provided that for certain offences, after previous convictions, death penalty shall be imposed, without leaving any discretion in the Court to award imprisonment for life in appropriate cases. Another amendment of considerable importance introduced by the Amendment Act, 1988 was that all the offences under the Act were made triable by a special court. Section 36 of the Act provides for constitution of special courts manned by a person who is a Sessions Judge or an Additional Sessions Judge. Appeal from the orders of the special courts lie to the High Court. Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail. However, despite t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. 43. Power of seizure and arrest in public places. Any officer of any of the departments mentioned in section 42 may (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article. Section 54 provides : 54. Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of (a) any narcotic drug or psychotropic substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured. for the possession of which he fails to account satisfactorily. Section 57 reads as follows:- 57. Report of arrest and seizure.- Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot per se be considered to be unconstitutional. The damage, if any, caused by such temporary interference if found to be in excess of legal authority is a matter for redress in other proceedings. We are unable to see how any question of violation of article 19(1) (f) is involved in this case in respect of the warrants in question which purport to be under the first alternative of Section 96(1) of the Criminal Procedure Code. Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of and for search of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Vide sub-Section (2) the power has also been vested in Gazetted Officers of the Department of Central Excise, Narcotics, Customs, Revenue Intelligence or any other Department of the Central Government or of Border Security Force, empowered in that behalf by general or special order of the State Govt. to arrest any person, who he has reason to believe to have committed an offence punishable under Chapter IV or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought before such a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Vide Section 51, the provisions of the Code of Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singhs case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was answered in State of Punjab v. Balbir Singh (supra). The common question which arose for consideration in a batch of appeals filed by the State of Punjab was whether any arrest or search of a person or search of a place conducted without conforming to the provisions of the NDPS Act would be rendered illegal and consequently vitiate the conviction? The Trial Court in those cases had acquitted the accused on the ground that the arrest, search and seizure were conducted in violation of some of the relevant and mandatory provisions of the NDPS Act. The High Court declined to grant appeal against the order of acquittal. The State of Punjab thereupon filed appeals by special leave in this Court. In some other cases, where the accused had been convicted, they also filed appeals by special leave questioning their conviction and sentence on the ground that their trials were illegal because of non-compliance with the safeguards provided under Section 50 of the NDPS Act. A two-Judge Bench speaking through K. Jayachandra Reddy, J. considered several provisions of the NDPS Act governing arrest, search and seizure and, in particular, the provisions of Sections 41, 42, 43, 44, 49, 50, 51, 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (Emphasis ours) (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. A three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat (supra), upheld the view taken in Balbir Singhs case (supra) on the point of duty of the empowered officer to inform the suspect about his right to be searched before a Gazetted Officer or a Magistrate. It considered the provisions of Section 50 and opined : 8. We are unable to share the High Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions Judge. Though the offence involved is of a considerable magnitude of 70 bags containing 34 kgs. Of poppy husk, each without any permit/licence, this Court is constrained to confirm the acquittal for the reasons that the mandatory requirements of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 has not been complied with. Protection given by Section 50 is a valuable right to the offender and compliance thereof intended to be mandatory. In case the police officers had prior knowledge that illegal transport of the contraband is in movement and persons are in unlawful possession and intends to intercept it, conduct search and consequentially to seize the contraband, they are required to inform the offender that he has the right that the search will be conducted in the presence of a gazetted officer or a Magistrate. Thereafter on their agreeing to be searched by the police officers, the search and seizure of the contraband from their unlawful possession would become legal and valid. However, the evidence collected in breach of mandatory requirement does not become inadmissible. It is settled law that evidence collected during investigation in violation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused persons were in possession of charas and since he had made no record, he did not forward a copy of the grounds to his superior officer nor did he comply with the provisions of Section 50 of the Act, inasmuch as he did not inform the person to be searched that if he required, his search could be conducted before a Gazetted Officer or a Magistrate, the Bench held that for failure to comply with the provisions of Sections 42 and 50, the accused was entitled to an order of acquittal and consequently the appeal was allowed and the order of conviction and sentence against the accused was set aside. It would, thus, be seen that none of the decisions of the Supreme Court after Balbir Singhs case have departed from that opinion. At least none has been brought to our notice. There is, thus, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of a Gazetted Officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of Illicit Drugs and Narcotic Substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in presence of a Gazetted Officer or a Magistrate is a necessary sequence for enabling the concerned person to exercise that right under Section 50 because after Maneka Gandhi v. Union of India, (1978) 1 SCC 248, it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not reasonable, fair and just and when a statute itself provides for a just procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend creditibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunity. The action of the State, however, must be right, just and fair (Emphasis supplied) There is indeed, a 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 concerned official so that the laxity on the part of the investigating authority is curbed. However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Investigation), New Delhi and others. It was urged in Ali Mustaffa's case that even if search and seizure of the contraband was held to be illegal having been conducted in violation of the provisions of Section 50, it could not affect the conviction because the recovered articles could still be used as "admissible evidence" under the Evidence Act to establish unlawful possession of the contraband on the concerned person from whom it was recovered during that search. This Court repelled that contention and held that the judgment in Pooran Mals case (supra) could not be read to have laid down that a contraband seized as a result of an illegal search or seizure could still be used as admissible evidence of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. The Bench in Ali Mustaffas case (supra) observed : The last submission of the learned counsel for the respondents is that even if the search and seizure of the contraband are held to be illegal and contrary to the provisions of Section 50 of the NDPS Act, it would still not affect the conviction because the seized articles could be used as evidence of unlawf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the fact situation and the law as laid down in Pooran Mals case and the question of its applicability to cases arising out of offences under the NDPS Act, based only on proof of unlawful possession of an illicit drug or a psychotropic substance on the person of an accused, where the illicit article only was seized during the search conducted in breach of the provisions of Section 50. In Pooran Mals case, the relief claimed by the main appellant in his case was in respect of action taken under Section 132 of the Income Tax Act, 1961 by way of search and seizure of certain premises on the ground that the authorisation for the search as also the search and seizure of the materials were illegal. In that case articles consisting of account books and documents besides some cash, jewelry and other valuables were seized by the Income Tax Authorities purporting to act under the authorisation of a search and seizure issued under Section 132 of the Income Tax Act. The Constitution Bench dealt both with the challenge on constitutional and non-constitutional grounds to the search and seizure. The Court opined that the power of search and seizure in any system of jurisprudence is an overriding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal decencies of behaviour. The person in charge of the premises searched is immediately given a copy of the list of articles seized. One copy is forwarded to the authorising officer. Provision for the safe custody of the articles after seizure is also made in Rule 112. In our opinion, the safeguards are adequate to render the provisions of search and seizure as less onerous and restrictive as is possible under the circumstances. The provisions, therefore, relating to search and seizure in Section 132 and Rule 112 cannot be regarded as violative of Article 19(f) and (g). (Emphasis supplied) Dealing with the effect of search and seizure conducted in breach of the provisions of Section 132 of the Income Tax Act, the Court opined : In that view, even assuming, as was done by the High Court, that the search and seizure were in contravention of the provisions of Section 132 of the Income-tax Act, still the material seized was liable to be used subject to law before the Income-tax authorities against the person from whose custody it was seized and, therefore, no Writ of Prohibition in restraint of such use could be granted. It must be, therefore, held that the High Court was right in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. (Emphasis supplied) The judgment in Pooran Mals case (supra), therefore, cannot be understood to have laid down that an illicit article seized during the search of person, on prior information, conducted in violation of the provisions of Section 50 of the Act can be used as evidence of unlawful possession of the illicit article on the person from whom that contraband had been seized during an illegal search. Apart from the position that in Pooran Mals case, on facts, it was found that the search and seizure conducted in the cases under consideration in that case were not vitiated by any illegality, the import of that judgment, in the present context, can only be to the effect that material seized during search and seizure, conducted in contravention of the provisions of Section 132 of the Income Tax Act cannot be restrained from being used, subject to law, before the Income Tax Authorities in other legal proceedings against the persons, from whose cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the use of evidence collected in violation of the Charter rights of an accused would render a trial unfair and the evidence inadmissible. In the words of the Supreme Court of Canada: The situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial. (Emphasis ours) The opinion in Collins case has been relied upon by the majority of the Supreme Court of Canada in R. v. Stillman, [1997] 1 R.C.S. 607 also. The question of admissibility of evidence, which may be relevant to the question in issue, has thus to be decided in the context and the manner in which the evidence was collected and is sought to be used. In view of the provisions of Chapter IV of NDPS Act, mere unlawful possession of a contraband amounts to an offence and is punishable with rigorous imprisonment for terms which shall not be less than 10 years but can extend to 20 years or 30 years in addition to a fine which shall not be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dynamite or other explosive substances unauthorisedly in a notified area, he shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. spelt out the ingredients of the offence created by Section 5 of TADA and opined : The position which emerges is this. For constituting the offence made punishable under Section 5 of the TADA Act, the prosecution has to prove the aforesaid three ingredients. Once the prosecution has proved unauthorised conscious possession of any of the specified arms and ammunition etc. in a notified area by the accused, the conviction would follow on the strength of the presumption unless the accused proves the non-existence of a fact essential to constitute any of the ingredients of the offence. Undoubtedly, the accused can set up a defence of non-existence of a fact which is an ingredient of the offence to be proved by the prosecution. (Emphasis ours) The Constitution Bench in Sanjay Dutt's case, thus clearly held that once the prosecution has proved unauthorised consc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case. The above conclusions are not a summary of ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
