Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.50, 15– Infraction with respect to personal search u/s.50, if affects the qualitative value of the other material/article recovered during the investigation – As per the prosecution, respondents-accused (driver of the vehicle and the person accompanying him) were carrying contraband material in seven bags lying in the vehicle – Their personal search did not lead to any recovery of contraband – Trial Court held them guilty u/s.15 and sentenced to suffer 12 years’ rigorous imprisonment with fine – High Court on the ground that there was infraction of s.50, as the personal search of the accused was not conducted before the Magistrate or a Gazetted Officer, acquitted both the accused – On appeal, held: s.50 affords protection in matters concerning “personal search” and stipulates various safeguards – An illicit article seized from the person during personal search conducted in violation of the safe-guards provided in s.50 cannot by itself be used as admissible evidence of proof of unlawful possession of contra-band – However, the mandate of s.50 is confined to “personal search” and not to search of vehicle or container or premises – In the instant case, the personal search of the accused did not result in recovery of any contraband – But, the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of s.50 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 – Further, conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh’s case states that the conviction may not be based “only” on the basis of possession of an illicit article recovered from personal search in violation of the requirements u/s.50 but, if there be other evidence on record, such material can certainly be looked into – Since in the present case, seven bags of poppy husk each weighing 34 kgs. were found from the vehicle which was being driven by accused with the other accused accompanying him, their presence and possession of the contraband material stood completely established –Acquittal recorded by the High Court set aside– Order of conviction recorded by the Trial Court, restored– Sentence reduced to 10 years while maintaining the payment of fine and the default sentence unaltered.
Allowing the appeals, the Court
HELD: 1.1 Section 50 of the Narcotic and Drugs and Psychotropic Substances Act, 1985 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. An illicit article seized from the person during personal search conducted in violation of the safe-guards provided in Section 50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contraband. [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 container or premises. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based “only” on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into. In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not 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. Any such idea would be directly in the teeth of conclusion (3) as aforesaid. The decision in said judgment in Dilip’s case is not correct and is opposed to the law laid down by Supreme Court in Baldev Singh and other judgments. 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 with the other accused accompanying him, their presence and possession of the contraband material stood completely established. In the circumstances, the acquittal recorded by the High Court was not correct. Therefore, the view taken by the High Court is set aside. The order of conviction recorded by the Trial Court is restored and accused persons are held to be guilty of the offence punishable under Section 50 of the Act. However, their substantive sentence is reduced from 12 years to 10 years while maintaining other incidents of sentence namely, the payment of fine and the default sentence unaltered. Both the accused are given time till 15 th November, 2019 to surrender before the concerned police station to undergo remaining sentence. In case, the accused fail to surrender within said period, they shall immediately be taken into custody by the concerned Police Station. A copy of this judgment shall be communicated to the concerned Chief Judicial Magistrate and Police Station for compliance. The compliance in that behalf shall be reported to this Court on or before 01.12.2019. [Paras 16-21] [532-B-H; 533-A-C]
State 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. State of Haryana (2010) 3 SCC 746 : [2010] 2 SCR 785 – relied on.
Dilip & Anr v. State of M.P. (2007) 1 SCC 450 : [2006]
9 Suppl. SCR 390 – held not correct.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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