TMI Blog2019 (10) TMI 1574X X X X Extracts X X X X X X X X Extracts X X X X ..... be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as personal search was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Since in the present matter, seven bags of poppy husk each weighing 34 kgs. were found from the vehicle which was being driven by Accused-Baljinder Singh with the other Accused accompanying him, their presence and possession of the contraband material stood completely established - the acquittal recorded by the High Court, in our considered view, was not correct. Appeal allowed. - Hon'ble Judges U.U. Lalit, Indu Malhotra and Krishna Murari, JJ. For the Appellant : Jaspreet Gogia and Tanupriya, Advs. For the Respondents : Naresh Dilawari, Mahesh Thakur, Sheffali Chaudhary, Vipasha Singh, Pallavi Singh, Vriti Gujral and G. Balaji, Advs. JUDGMENT U.U. Lalit, J . 1. Leave granted. 2. These appeals arise out of the judgment Judgment and order dt. 22.1.19 in CRA-D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the personal search of both the Accused was undertaken after their arrest, which did not lead to any recovery of contraband. 5. The case of the prosecution was accepted by the Judge, Special Court, Patiala in Sessions Case No. IIT/17.11.2009/11. By its judgment dated 8.9.2011, the Trial Court concluded that the aforesaid two Accused were guilty of the offence punishable Under Section 15 of the Act and sentenced them to suffer 12 years' rigorous imprisonment with fine in the sum of Rs. 2 lakhs each, in default whereof, they were farther directed to undergo farther rigorous imprisonment for two years. 6. In the appeals preferred by the Accused, the High Court observed that the personal search of the Accused was not conducted before the Magistrate or a Gazetted Officer and as such there was complete infraction of Section 50 of the Act. Granting benefit on that count, the High Court set aside the order of conviction and sentence recorded by the Trial Court and acquitted both the Accused of the charge levelled against them. 7. Ms. Jaspreet Gogia, learned advocate appearing for the State submitted that the High Court fell in error in not considering the fact that the sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 12. Section 50 of the Act affords protection to a person in matters concerning personal search and stipulates various safeguards. It is only upon fulfilment of and strict adherence to said requirements that the contraband recovered pursuant to personal search of a person can be relied upon as a circumstance against the person. 13. The law which has developed on the point in some of the judgments of this Court may now be considered. In State of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the contention of the learned Counsel. It requires to be noticed that the question of compliance or non-compliance with Section 50 of the NDPS Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc. does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the Section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res Integra in view of the observations made by this Court in Madan Lal v. State of H.P. (2003) 7 SCC 465. The Court has observed: (SCC p. 471, para 16) 16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257, State of Punjab v. Baldev Singh- (1999) 6 SCC 172 and Gurbax Singh v. State of Haryana (2001) 3 SCC 28). The language of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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