G H STATE OF PUNJAB versus BALJINDER SINGH & ANR. on 15 October 2019

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[2019] 13 S.C.R. 520

SUPREME COURT REPORTS

[2019] 13 S.C.R.

STATE OF PUNJAB

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v.

BALJINDER SINGH & ANR.

(Criminal Appeal Nos. 1565-66 of 2019)

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OCTOBER 15, 2019

[UDAY UMESH LALIT, INDU MALHOTRA AND

KRISHNA MURARI, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –Css.50, 15– Infraction with respect to personal search u/s.50, if affectsthe qualitative value of the other material/article recovered duringthe investigation – As per the prosecution, respondents-accused(driver of the vehicle and the person accompanying him) werecarrying contraband material in seven bags lying in the vehicle –Their personal search did not lead to any recovery of contraband –DTrial Court held them guilty u/s.15 and sentenced to suffer 12 years’rigorous imprisonment with fine – High Court on the ground thatthere was infraction of s.50, as the personal search of the accusedwas not conducted before the Magistrate or a Gazetted Officer,acquitted both the accused – On appeal, held: s.50 affords protectionEin matters concerning “personal search” and stipulates varioussafeguards – An illicit article seized from the person during personalsearch conducted in violation of the safe-guards provided in s.50cannot by itself be used as admissible evidence of proof of unlawfulpossession of contra-band – However, the mandate of s.50 isconfined to “personal search” and not to search of vehicle orFcontainer or premises – In the instant case, the personal search ofthe accused did not result in recovery of any contraband – But, thesearch of the vehicle and recovery of contraband pursuant theretohaving stood proved, merely because there was non-compliance ofs.50 as far as “personal search” was concerned, no benefit can beGextended so as to invalidate the effect of recovery from the searchof the vehicle – Further, conclusion (3) as recorded by theConstitution Bench in Para 57 of its judgment in Baldev Singh’scase states that the conviction may not be based “only” on the basisof possession of an illicit article recovered from personal search in H

violation of the requirements u/s.50 but, if there be other evidenceon record, such material can certainly be looked into – Since in thepresent case, seven bags of poppy husk each weighing 34 kgs.were found from the vehicle which was being driven by accusedwith the other accused accompanying him, their presence andpossession of the contraband material stood completely established–Acquittal recorded by the High Court set aside– Order of convictionrecorded by the Trial Court, restored– Sentence reduced to 10 yearswhile maintaining the payment of fine and the default sentenceunaltered.

Allowing the appeals, the Court

HELD: 1.1 Section 50 of the Narcotic and Drugs andPsychotropic Substances Act, 1985 affords protection to a personin matters concerning “personal search” and stipulates varioussafeguards. It is only upon fulfilment of and strict adherence tosaid requirements that the contraband recovered pursuant to“personal search” of a person can be relied upon as a circumstanceagainst the person. An illicit article seized from the personduring personal search conducted in violation of the safe-guardsprovided in Section 50 of the Act cannot by itself be used asadmissible evidence of proof of unlawful possession of contra-band. [Paras 12, 14] [526-G; 530-H; 531-A]

1.2 The mandate of Section 50 of the Act is confined to“personal search” and not to search of a vehicle or a containeror premises. The conclusion (3) as recorded by the ConstitutionBench in Para 57 of its judgment in Baldev Singh clearly statesthat the conviction may not be based “only” on the basis ofpossession of an illicit article recovered from personal search inviolation of the requirements under Section 50 of the Act but ifthere be other evidence on record, such material can certainlybe looked into. In the instant case, the personal search of theaccused did not result in recovery of any contraband. Even ifthere was any such recovery, the same could not be relied uponfor want of compliance of the requirements of Section 50 of theAct. But the search of the vehicle and recovery of contrabandpursuant thereto having stood proved, merely because there was AB

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Anon-compliance of Section 50 of the Act as far as “personalsearch” was concerned, no benefit can be extended so as toinvalidate the effect of recovery from the search of the vehicle.Any such idea would be directly in the teeth of conclusion (3) asaforesaid. The decision in said judgment in Dilip’s case is notcorrect and is opposed to the law laid down by Supreme Court inBBaldev Singh and other judgments. Since in the present matter,seven bags of poppy husk each weighing 34 kgs. were found fromthe vehicle which was being driven by accused with the otheraccused accompanying him, their presence and possession of thecontraband material stood completely established. In theCcircumstances, the acquittal recorded by the High Court was notcorrect. Therefore, the view taken by the High Court is set aside.The order of conviction recorded by the Trial Court is restoredand accused persons are held to be guilty of the offence punishableunder Section 50 of the Act. However, their substantive sentenceis reduced from 12 years to 10 years while maintaining otherDincidents of sentence namely, the payment of fine and the defaultsentence unaltered. Both the accused are given time till 15[th]November, 2019 to surrender before the concerned police stationto undergo remaining sentence. In case, the accused fail tosurrender within said period, they shall immediately be takenEinto custody by the concerned Police Station. A copy of thisjudgment shall be communicated to the concerned Chief JudicialMagistrate and Police Station for compliance. The compliance inthat behalf shall be reported to this Court on or before 01.12.2019.[Paras 16-21] [532-B-H; 533-A-C]

FState of Punjab v. Baldev Singh (1999) 6 SCC 172 :[1999] 3 SCR 977 – followed.

Vijaysinh Chandubha Jadeja v. State of Gujarat (2011)1 SCC 609 : [2010] 13 SCR 255 ; Ajmer Singh v. Stateof Haryana (2010) 3 SCC 746 : [2010] 2 SCR 785G– relied on.Dilip & Anr v. State of M.P. (2007) 1 SCC 450 : [2006]9 Suppl. SCR 390 – held not correct.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 1565-1566 of 2019.

From the Judgment and Order dated 22.01.2019 of the High Courtof Punjab and Haryana at Chandigarh in CRA-D-917-DB of 2011 andCRA-D-923-DB of 2011.

Ms. Jaspreet Gogia, Ms. Tanupriya, Advs. for the Appellant.

Naresh Dilawari, Mahesh Thakur, Ms. Sheffali Chaudhary,Ms. Vipasha Singh, Ms. Pallavi Singh, Ms. Vriti Gujral, G. Balaji, Advs.for the Respondents.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. Leave granted.

2. These appeals arise out of the judgment[1] of the High Court[2]setting aside the order of conviction and sentence recorded by the TrialCourt against the present respondents, namely, Baljinder Singh and KhushiKhan.

3. The case of the prosecution as set out in the judgment of theHigh Court was as under:

“3. The case of the prosecution in a nutshell is ;that on 19.8.2009ASI Rakesh Kumar along with other police officials in connectionwith patrolling duty were present at Sirhind bye-pass, Rajpura.Lachhman Singh son of Sarwan Singh came on the spot. WhenRakesh Kumar was talking with Lachhman Singh, a Qualis bearingregistration no. PB-13-D-7000 was seen coming from Ambalaside. On seeing the police party, the driver of the vehicle tried to 1 Judgment and order dt.22.1.19 in CRA-D-917-DB/2011 & CRA-D-923-DB/2011

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Areverse the vehicle. On suspicion, the vehicle was stopped. Onelady was sitting with the driver. On enquiry, the driver andpassenger disclosed their identities. ASI Rakesh Kumar suspectedthem to be carrying some contraband in the bags lying in thevehicle. He wanted to search them. He apprised the accused oftheir right to get the search conducted in the presence of MagistrateBor gazetted Police Officer. However, accused reposed confidencein him. Joint consent statement of accused was reduced intowriting. On search, 7 bags containing poppy husk were recovered.Two samples of 250 grams each from each bag were separatedand the residual poppy husk of each bag weighed 34 kgs. All theCsample parcels and bulk parcels were sealed with the seals bearingimpression ‘RK’ Specimen seal was prepared and the seal afteruse was handed over to HC Malwinder Singh. The case propertywas taken into possession. Ruqa was sent to the police station,on the basis of which FIR was registered. The case propertywas deposited in the Malkhana. On receipt of chemical reportDand after completing all the codal formalities, challan was put upin Court against the accused.”

4. Thus, according to the prosecution, accused Baljinder Singh,driver of the vehicle and Khushi Khan who was accompanying the driver,were guilty of offences punishable under Section 15 of the Narcotic andEDrugs and Psychotropic Substances Act, 1985 (hereinafter referred toas “the Act”). As indicated in the above paragraph, the contrabandmaterial found in seven bags contained poppy husk. It is also a matterof record that the personal search of both the accused was undertakenafter their arrest, which did not lead to any recovery of contraband.

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5. The case of the prosecution was accepted by the Judge, SpecialCourt, Patiala in Sessions Case No.IIT/17.11.2009/11. By its judgmentdated 8.9.2011, the Trial Court concluded that the aforesaid two accusedwere guilty of the offence punishable under Section 15 of the Act andsentenced them to suffer 12 years’ rigorous imprisonment with fine inGthe sum of Rs.2 lakhs each, in default whereof, they were further directedto undergo further rigorous imprisonment for two years.

6. In the appeals preferred by the accused, the High Courtobserved that the personal search of the accused was not conducted before the Magistrate or a Gazetted Officer and as such there wascomplete infraction of Section 50 of the Act. Granting benefit on thatcount, the High Court set aside the order of conviction and sentencerecorded by the Trial Court and acquitted both the accused of the chargelevelled against them.

7. Ms. Jaspreet Gogia, learned advocate appearing for the Statesubmitted that the High Court fell in error in not considering the fact thatthe search of the vehicle had resulted in recovery of seven bags ofpoppy husk containing 34 kgs in each bag. In her submission, thoughthere may be infraction of the requirement of Section 50 as regardspersonal search of the accused, the fact of recovery of material fromthe vehicle was an independent factor which ought to be taken intoaccount.

8. Mr. Naresh Dilawari and Ms. Pallavi Singh, learned advocatesappearing for the accused however, submitted that non-compliance ofSection 50 ought to result in acquittal of the accused and as such theview taken by the High Court was correct.

9. Ms. Pallavi Singh, learned Advocate also relied upon the decisionof this Court in Dilip & Anr vs State of M.P.[3] to submit that once therewas non-compliance of the requirements of Section 50, the benefit oughtto be extended in favour of the accused.

10. The question that arises in the matter is:- If a person found to be in possession of a vehicle containingcontraband is subjected to personal search, which may not be inconformity with the requirements under Section 50 of the Act;but the search of the vehicle results in recovery of contrabandmaterial, which stands proved independently; would the accused be entitled to benefit of acquittal on theground of non-compliance of Section 50 of the Act even in respectof material found in the search of the vehicle.

11. Before we deal with the question, we may extract Section 50of the Act:

“50. Conditions under which search of persons shall be conducted.

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(1) When any officer duly authorised under section 42 is about tosearch any person under the provisions of section 41, section 42or section 43, he shall, if such person so requires, take such personwithout unnecessary delay to the nearest Gazetted Officer of anyof the departments mentioned in section 42 or to the nearestMagistrate.

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(2) If such requisition is made, the officer may detain the personuntil he can bring him before the Gazetted Officer or the Magistratereferred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom anysuch person is brought shall, if he sees no reasonable ground forsearch, forthwith discharge the person but otherwise shall directthat search be made.

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(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reasonDto believe that it is not possible to take the person to be searchedto the nearest Gazetted Officer or Magistrate without the possibilityof the person to be searched parting with possession of any narcoticdrug or psychotropic substance, or controlled substance or articleor document, he may, instead of taking such person to the nearestEGazetted Officer or Magistrate, proceed to search the person asprovided under section 100 of the Code of Criminal Procedure,1973 (2 of 1974).

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(6) After a search is conducted under sub-section (5), the officershall record the reasons for such belief which necessitated suchFsearch and within seventy-two hours send a copy thereof to hisimmediate official superior.”

12. Section 50 of the Act affords protection to a person in mattersconcerning “personal search” and stipulates various safeguards. It isonly upon fulfilment of and strict adherence to said requirements thatthe contraband recovered pursuant to “personal search” of a personGcan be relied upon as a circumstance against the person.

13. The law which has developed on the point in some of thejudgments of this Court may now be considered.

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STATE OF PUNJAB v. BALJINDER SINGH & ANR.[UDAY UMESH LALIT, J.]

In State of Punjab vs. Baldev Singh[4] a Constitution Bench of thisCourt considered, inter alia, questions as to what would be the resultanteffect, in case the requirements of Section 50 were not complied with.The conclusions arrived at in para 57 of the decision were as under:

57. On the basis of the reasoning and discussion above, the followingconclusions arise:

(1) That when an empowered officer or a duly authorised officeracting on prior information is about to search a person, it isimperative for him to inform the person concerned of his rightunder sub-section (1) of Section 50 of being taken to the nearestgazetted officer or the nearest Magistrate for making the search.However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existenceof his right to be searched before a gazetted officer or a Magistratewould cause prejudice to an accused.

(3) That a search made by an empowered officer, on priorinformation, without informing the person of his right that if he sorequires, he shall be taken before a gazetted officer or a Magistratefor search and in case he so opts, failure to conduct his searchbefore a gazetted officer or a Magistrate, may not vitiate the trialbut would render the recovery of the illicit article suspect andvitiate the conviction and sentence of an accused, where theconviction has been recorded only on the basis of the possessionof the illicit article, recovered from his person, during a searchconducted in violation of the provisions of Section 50 of the Act.(Underlying by us)

(4) That there is indeed need to protect society from criminals.The societal intent in safety will suffer if persons who commitcrimes are let off because the evidence against them is to betreated as if it does not exist. The answer, therefore, is that theinvestigating agency must follow the procedure as envisaged bythe statute scrupulously and the failure to do so must be viewedby the higher authorities seriously inviting action against the officialconcerned so that the laxity on the part of the investigating authorityis curbed. In every case the end result is important but the means A

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to achieve it must remain above board. The remedy cannot beworse than the disease itself. The legitimacy of the judicial processmay come under a cloud if the court is seen to condone acts oflawlessness conducted by the investigating agency during searchoperations and may also undermine respect for the law and mayhave the effect of unconscionably compromising the administrationof justice. That cannot be permitted. An accused is entitled to afair trial. A conviction resulting from an unfair trial is contrary toour concept of justice. The use of evidence collected in breach ofthe safeguards provided by Section 50 at the trial, would renderthe trial unfair.

(5) That whether or not the safeguards provided in Section 50have been duly observed would have to be determined by thecourt on the basis of the evidence led at the trial. Finding on thatissue, one way or the other, would be relevant for recording anorder of conviction or acquittal. Without giving an opportunity tothe prosecution to establish, at the trial, that the provisions of Section50 and, particularly, the safeguards provided therein were dulycomplied with, it would not be permissible to cut short a criminaltrial.

(6) That in the context in which the protection has beenincorporated in Section 50 for the benefit of the person intendedto be searched, we do not express any opinion whether theprovisions of Section 50 are mandatory or directory, but hold thatfailure to inform the person concerned of his right as emanatingfrom sub-section (1) of Section 50, may render the recovery ofthe contraband suspect and the conviction and sentence of anaccused bad and unsustainable in law.

(7) That an illicit article seized from the person of an accusedduring search conducted in violation of the safeguards provided inSection 50 of the Act cannot be used as evidence of proof ofunlawful possession of the contraband on the accused though anyother material recovered during that search may be relied uponby the prosecution, in other proceedings, against an accused,notwithstanding the recovery of that material during an illegalsearch.

(8) A presumption under Section 54 of the Act can only be raisedafter the prosecution has established that the accused was foundto be in possession of the contraband in a search conducted inaccordance with the mandate of Section 50. An illegal searchcannot entitle the prosecution to raise a presumption under Section54 of the Act.

(9) That the judgment in Pooran Mal case [(1974) 1 SCC 345]cannot be understood to have laid down that an illicit article seizedduring a search of a person, on prior information, conducted inviolation of the provisions of Section 50 of the Act, can by itselfbe used as evidence of unlawful possession of the illicit article onthe person from whom the contraband has been seized during theillegal search.

(10) That the judgment in Ali Mustaffa case [(1994) 6 SCC 569]correctly interprets and distinguishes the judgment in Pooran Malcase [(1974) 1 SCC 345]and the broad observations made in PirthiChand case[(1996) 2 SCC 37] and Jasbir Singh case [(1996)1SCC 288] are not in tune with the correct exposition of law as laiddown in Pooran Mal case[(1974) 1 SCC 345].”

Subsequently, another Constitution Bench of this Court inVijaysinh Chandubha Jadeja vs. State of Gujarat[5] had an occasionto consider the case from the stand-point whether the person who isabout to be searched ought to be informed of his right that he could besearched in the presence of a Gazetted Officer or a Magistrate. Whileconsidering said question, this Court also dealt with the judgment renderedin Baldev Singh’s case and the discussion in paragraphs 24 and 29 wasas under:

24. Although the Constitution Bench in Baldev Singh case [(1999)6 SCC 172] did not decide in absolute terms the question whetheror not Section 50 of the NDPS Act was directory or mandatoryyet it was held that provisions of sub-section (1) of Section 50make it imperative for the empowered officer to “inform” theperson concerned (suspect) about the existence of his right that ifhe so requires, he shall be searched before a gazetted officer or aMagistrate; failure to “inform” the suspect about the existence of 5 [(2011) 1 SCC 609]

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his said right would cause prejudice to him, and in case he so opts,failure to conduct his search before a gazetted officer or aMagistrate, may not vitiate the trial but would render the recoveryof the illicit article suspect and vitiate the conviction and sentenceof an accused, where the conviction has been recorded only onthe basis of the possession of the illicit article, recovered from theperson during a search conducted in violation of the provisions ofSection 50 of the NDPS Act. The Court also noted that it was notnecessary that the information required to be given under Section50 should be in a prescribed form or in writing but it was mandatorythat the suspect was made aware of the existence of his right tobe searched before a gazetted officer or a Magistrate, if sorequired by him. We respectfully concur with these conclusions.Any other interpretation of the provision would make the valuableright conferred on the suspect illusory and a farce.

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29. In view of the foregoing discussion, we are of the firm opinionthat the object with which the right under Section 50(1) of theNDPS Act, by way of a safeguard, has been conferred on thesuspect viz. to check the misuse of power, to avoid harm toinnocent persons and to minimise the allegations of planting orfoisting of false cases by the law enforcement agencies, it wouldbe imperative on the part of the empowered officer to apprise theperson intended to be searched of his right to be searched beforea gazetted officer or a Magistrate. We have no hesitation in holdingthat insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it ismandatory and requires strict compliance. Failure to comply withthe provision would render the recovery of the illicit article suspectand vitiate the conviction if the same is recorded only on the basisof the recovery of the illicit article from the person of the accusedduring such search.Thereafter, the suspect may or may not chooseto exercise the right provided to him under the said provision.”(Underlying by us)

14. The law is thus well settled that an illicit article seized fromthe person during personal search conducted in violation of the safe- guards provided in Section 50 of the Act cannot by itself be used asadmissible evidence of proof of unlawful possession of contra-band.

But the question is, if there be any other material or articlerecovered during the investigation, would the infraction with respect topersonal search also affect the qualitative value of the other materialcircumstance.

15. At this stage we may also consider following observationsfrom the decision of this Court in Ajmer Singh vs. State of Haryana[6]:- “15. The learned counsel for the appellant contended that theprovision of Section 50 of the Act would also apply, while searchingthe bag, briefcase, etc. carried by the person and its non-compliancewould be fatal to the proceedings initiated under the Act. We findno merit in the contention of the learned counsel. It requires to benoticed that the question of compliance or non-compliance withSection 50 of the NDPS Act is relevant only where search of aperson is involved and the said section is not applicable norattracted where no search of a person is involved. Search andrecovery from a bag, briefcase, container, etc. does not comewithin 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 thegazetted officer or a Magistrate for the purpose of search. Thirdly,this issue in our considered opinion is no more res integra in viewof the observations made by this Court in Madan Lal v. State ofH.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 incase of personal search of a person. It does not extend to searchof a vehicle or a container or a bag or premises (see KalemaTumba v. State of Maharashtra[(1999) 8 SCC 257], State ofPunjab v. Baldev Singh[(1999) 6 SCC 172] and Gurbax Singhv. State of Haryana [(2001) 3 SCC 28]). The language of Section50 is implicitly clear that the search has to be in relation to aperson as contrasted to search of premises, vehicles or articles.This position was settled beyond doubt by the Constitution Benchin Baldev Singh case[1]. Above being the position, the contention 6 [(2010) 3 SCC 746]

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Aregarding non-compliance with Section 50 of the Act is also withoutany substance.”

16. As regards applicability of the requirements under Section 50of the Act are concerned, it is well settled that the mandate of Section50 of the Act is confined to “personal search” and not to search of aBvehicle or a container or premises.

17. The conclusion (3) as recorded by the Constitution Bench inPara 57 of its judgment in Baldev Singh clearly states that the convictionmay not be based “only” on the basis of possession of an illicit articlerecovered from personal search in violation of the requirements underSection 50 of the Act but if there be other evidence on record, suchmaterial can certainly be looked into.

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In the instant case, the personal search of the accused did notresult in recovery of any contraband. Even if there was any suchrecovery, the same could not be relied upon for want of compliance ofthe requirements of Section 50 of the Act. But the search of the vehicleand recovery of contraband pursuant thereto having stood proved, merelybecause there was non-compliance of Section 50 of the Act as far as“personal search” was concerned, no benefit can be extended so as toinvalidate the effect of recovery from the search of the vehicle. Anysuch idea would be directly in the teeth of conclusion (3) as aforesaid.

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18. The decision of this Court in Dilip’s case, however, has notadverted to the distinction as discussed hereinabove and proceeded toconfer advantage upon the accused even in respect of recovery fromthe vehicle, on the ground that the requirements of Section 50 relating topersonal search were not complied with. In our view, the decision ofFthis Court in said judgment in Dilip’s case is not correct and is opposedto the law laid down by this Court in Baldev Singh and other judgments.

19. Since in the present matter, seven bags of poppy husk eachweighing 34 kgs. were found from the vehicle which was being drivenby accused- Baljinder Singh with the other accused accompanying him,Gtheir presence and possession of the contraband material stood completelyestablished.

20. In the circumstances, the acquittal recorded by the High Court,in our considered view, was not correct. We, therefore, set aside theview taken by the High Court.

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STATE OF PUNJAB v. BALJINDER SINGH & ANR.[UDAY UMESH LALIT, J.]

While allowing this appeal, we restore the order of convictionrecorded by the Trial Court and hold accused Baljinder Singh and KhushiKhan to be guilty of the offence punishable under Section 50 of the Act.We, however, reduce their substantive sentence from 12 years to 10years while maintaining other incidents of sentence namely, the paymentof fine and the default sentence unaltered.

The appeals stand allowed in aforesaid terms.

21. Both the accused are given time till 15[th] November, 2019 tosurrender before the concerned police station to undergo remainingsentence. In case, the accused fail to surrender within said period, theyshall immediately be taken into custody by the concerned Police Station.A copy of this judgment shall be communicated to the concerned ChiefJudicial Magistrate and Police Station for compliance. The compliancein that behalf shall be reported to this Court on or before 01.12.2019.

Divya Pandey

Appeals allowed.

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