Paragraph numbers below are the court’s original numbering, recovered from the source text.
13. Similarly, in Manohar Lat's case (supra) the option provided to the accused, not to go to a Magistrate if so desired, was considered to imply requirement of mere substantial compliance; and that strict compliance was not necessary.
14. In the case of Union of India v. Satrohan, [(2008) 8 sec 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 Constitution Bench in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat G [(2011) 1 sec 609] (hereinafter referred to as I 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. 1.
15. 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 B have m13ntioned above, a referenc~ to the larger bench was made, resulting.
16. 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 C 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 D Court, however, refrained from specifically deciding whether 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 E 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 F reiterating the same the Constitution Bench in Vijaysinh Chandubha Jadeja (supra) this case concluded as under: "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 @ RAMA [SWATANTER KUMAR, J.] 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."
17. 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 the cases of Bafdev Singh (supra) and Vijaysinh Chandubha Jadeja (supra).
18. 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 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.
19. 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 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.
20. 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 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 c 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: "Musami Ram Avtar urf Rama S/o late Sh. Mangat Ram Rio 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."
21. 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 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 @ RAMA [SWATANTER KUMAR, J.] 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.
22. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, 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 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 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 G 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 A 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 no hesitation in holding that the judgment of the High Court does B not suffer from any infirmity.
23. 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 C 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 D 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 E 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 F article.
24. 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 G 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 @ RAMA [SWATANTER KUMAR, J.] Officer or Magistrate as referred to in sub-section (1) of Section A 50 of the Act. Obviously, the legislative intent is that compliance with these provisions is imperative and not merely 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 8 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 C 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 sec 345] which had stated that the evidence collected as a result of illegal search or seizure could be used 0 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 s~arch or seizure can be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had E 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 is evidence, but in the absence of proof of possession of the same, an accused cannot be held guilty under the Act.
25. 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 G 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 H (2011] 7 S.C.R. A to be done indirectly. If Ex.PW-6/A is not in 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 B 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.
26. The Constitution Bench, in the case of Vijaysinh C Chandubha Jadeja (supra) had spelt out the effects of failure 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 D recovery of illicit article from the person of the accused during sue~ search.
27. The learned counsel for the appellant relied on the use of the words 'only on the basis of the recovery' used in para E 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 judgment; not only of para 29 but the judgment in its entirety. What the Constitution Bench has stated is that where the F 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.
28. In para 29 of the judgment itself, the Bench has held G 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 requires strict compliance.' In fact the contention raised by the appellant has, in specific terms, been rejected by the H Constitution Bench in clause 7 of para 23 of the judgment. The @ RAMA [SWATANTER KUMAR, J.] 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, 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 c 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.
29. 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. D.G. Appeal dismissed.