TMI Blog1995 (11) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - CRL.A. 1752 OF 1995 - - - Dated:- 30-11-1995 - K. RAMASWAMY, S.B.MAJMUDAR, JJ. JUDGMENT 1. Leave granted. 2. We have heard the counsel on both sides. On march 24, 1986, on receipt of a secret information that a contraband, viz., Charas was being dealt with at the bus stand, Head Constable Rattan Singh alongwith other police officials was present at bus stand, Amb. They secured the presence of one Pradhan Subhas Chand and one Gurdas Ram and raided the house of the first respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture had enacted safeguards contained in Section 50. Compliance of the safeguards in Section 50 is mandatory obliging the officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazetted Officer or a Magistrate. The possession of illicit articles has to be satisfactorily established before the Court. The officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazetted Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit articles was not established. The presumption under Article 114 illustration [e] of the Evidence Act, that the official duty was properly performed, therefore, does not apply. It is the duty of the court to carefully scrutinise the evidence and satisfy that the accused had been informed, by the concerned officer, that he had a right to be searched before a Gazetted Officer or a Magistrate and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation inadmissible. Inspite of illegal search property seized, on the basis of said search, still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial. 6. In Radha Kishan v. State of U.P. , this Court held that the evidence obtained by illegal search and seizure would not be rejected but requires to be examined carefully. In State of Maharashtra v. Natwarlal , even if the search was illegal, it will not affect the validity of the seizure and further investigation of the authorities or the validity of the trial which followed on the complaint by the customs officials. In Shyam Lal v. State of M.P. , it was held that even if the search and seizure is illegal being in contravention of Section 165, that provision does not have any effect in its application to the subsequent steps taken in the investigation. In State of Kerala v. Alassery Mohd. , this Court had held that failure to comply strictly with the statutory provisions, by the Food Inspector, would not vitiate the trial and convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to comply with the provisions or failure was due to lack of time and opportunity to associate some independent witness with the search and strictly comply with the provisions. 9. In Rakesh Kumar @ Sachdeva @ Deva v. State [Delhi Administration] (1994) Supp. 3 SCC 729 a two-Judge Bench of this Court held that in spite of non-examination of the investigating officer no inference could be drawn against the prosecution. Non-examination did not in any way affect the prosecution case nor prejudiced the accused in his defence. The Court has to consider the evidence of the witnesses examined. Failure to join independent witness of locality is also not fatal. Conviction based on evidence of police officers alone is not improper. In that case since witnesses were not willing to come and associate with the search under the TADA Act, this Court upheld the evidence given by the police officers and accepted the finding of the High Court which relied on the evidence of police officers and the conviction was upheld. 10. The question then is whether the High Court would be justified in exercising its inherent power under Section 482 of the Code or under Article 226 of the Constitution to quas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made out no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognisable offence - the court may embark upon the consideration thereof and exercise the power. 13. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prima consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When investigating officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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