Buta Khan v. State of Punjab 26.08.2022 High Court of Punjab And Haryana

Buta Khan v. State of Punjab

PUNJAB AND HARYANA HIGH COURT

Before:- Mr. Sureshwar Thakur, J.

CRA-S-262-SB of 2018 (O&M). D/d. 26.08.2022.

 

For the Appellant :- Ms. Manpreet Ghuman, Advocate.

For the Respondent :- Mr. M.S. Nagra, Asst. A.G. Punjab.

 

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 22.

 

JUDGMENT

Mr. Sureshwar Thakur, J. - The learned Special Judge, Patiala through a verdict drawn on 02.12.2017, upon Sessions Case No.10 of 21.02.2017, made a verdict of conviction, upon, the convict qua charges drawn against him, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act"), and, thereafter through a separate sentencing order, drawn on 02.12.2017, proceeded to sentence the convict to rigorous imprisonment extending upto a term of 10 years, and, also imposed, upon him a fine of Rs.1,00,000/-, besides in default of payment of fine, he sentenced the convict to undergo rigorous imprisonment for one year.

2. The convict becomes aggrieved from the verdict of conviction, and, consequent therewith sentence (supra), as became imposed upon him, by the learned Convicting Court, and, is led to institute there against, the instant appeal before this Court.

3. The investigating officer concerned, after apprehending the convict- accused at the crime site, caused recoveries of COREX, besides of LOMOTIL tablets, from the polythene bag lying in a black colour polythene bag, as, held in the right hand of the convict. On counting the recovered bottles make COREX, they were found to be 15, and, each bottle was found to be bearing manufacture date May 2016, and, expiry date October 2017. Moreover on counting the recovered intoxicant strips of LOMOTIL, they were found to be 9 in number, and, each strip was found to be containing, 60 tablets, and, total number thereof was found to be 540 tablets, besides, each strip was found to be bearing the manufacturing date January 2016, and, expiry date June 2018. The above made recoveries were kept in the same polythene bags, wherefroms they were retrieved, and, also at the crime site, the investigating officer concerned, proceeded to prepare cloth parcels of the seizure. The cloth parcel was sealed with seal impression IS.

4. The above recovery was, as unfolded in Ex. PW-2/B hence effected, at the crime site,.

5. The accused was arrested through memo embodied in Ex.PW-2/D. Through a memo drawn in Ex.PW-2/E, the investigating officer concerned, made a personal search of the convict, and, resultantly the recoveries as detailed therein became effected. Subsequently, the investigating officer concerned, caused production of the seizure, as made, at the crime site, before the SHO of the police station concerned, and, through a memo drawn in Ex.PW-2/F, and, in Ex.PW-2/G, at the police station concerned, the SHO after properly checking the case property attested the same with his seal impression bearing superscription GS. The FIR bearing No.62 of 01.09.2016 was registered at the police station concerned, after a ruqa being sent there from the crime site through a police official, by the investigating officer concerned.

6. Ex.PW-2/L signatured by the Judicial Magistrate concerned, and, contents whereof are extracted hereinafter, do on their perusal reveal, that during the course of preparation of the inventory with respect to the seizure rather the apposite seizure(s) becoming sealed with seal impression bearing superscription HS, and, also its perusal reveals that, the remaining case property appertaining to COREX, and, LOMOTIL becoming enclosed in separate case property parcels. Through Ex.PW-2/I, a parcel containing one bottle COREX, and, another parcel containing 20 tablets of LOMOTIL, became sent through Head Constable Ravinder Kumar No.1303/GRP, to the FSL Phase-4, Mohali, for the makings of analyses thereons. The FSL concerned, made thereons its opinion, opinion whereof, is borne in Ex.PW-2/N. A perusal of Ex.PW-2/N, unfolds that on examination of the stuff inside the cloth parcels concerned, an opinion being formed by the examiner concerned, that each of the parcels rather containing the prohibited psychotropic substance(s).

 

 

Details of cases in which the Articles were recovered	Description of Articles	Weight/ Qnty.	Description remarks of seal used on the Articles
F.I.R. No. 62 Dated 01.09.2016 under Section 22-61-85	A parcel containing 1 sample bottle COREX	1 bottle COREX	HS
NDPS Act S/V Butta Khan P.S. GRP, Patiala	A parcel containing sample 20 tablets LOMOTIL	20 tablets LOMOTIL

 

 

The article sent through HC Ravinder Kumar No.1303/GRP certified that one articles are intact and in good condition. Each bottle of other articles being wrapped us separately.

Sd/-

Sub Divisional Judicial

Magistrate, Rajpura

Office of the assistant Inspector General, G.R.P. (Punjab), Patiala.

No.3062526 date 07.09.16

Sd/-

Assistant Inspector General,

G.R.P (Punjab), Patiala.

HC Ravinder Kumar 1303,

Mobile No.9855045410

MHC 8588075631

Dated 07.09.2016

7. The report of the Chemical Examiner Ex.PW-2/N, is ad-verbatim reproduced hereinafter.

"xxx

3. Case reference: FIR No.62 dated 01.09.2016 under Section 22/61/85 ND & PS Act, PS GRP Patiala.

4. Date of Receipt: 07.09.2016

5. Mode of Receipt: Through HC Ravinder Kumar, 1303/GRP

6. Articles Received: Two parcels marked as 1 and 2 in the laboratory, each sealed with one seal of 'HS' alleged to contain intoxicating material. Seals on the parcels were found intact and tallied with the specimen seal impressions.

On opening the parcels were found to contain the following:

Parcel no.1: A small sized plastic bottle labelled as 'COREX' containing 100 ml orange coloured liquid material.

Parcel no.2: Twenty tablets of white colour in a strip labelled as 'Lomotil'.

Average weight = 63 mg/tablet

7. Purpose of reference: Analysis and Report.

8. Identification & Tests:

Ingredients present	Average quantity of ingredients in the parcel no.
Chlorpheniramine Maleate	3.4mg/5ml	-
Codeine Phosphate	9.5mg/5ml	-
Diphenoxylate Hydrochloride	-	2.3mg/tablets
Atropine Sulphate	-	0.022mg/tablet

Report

The contents of the parcels no.1 & 2 under reference have been analyzed separately by chemical analysis. On the basis of analysis, the ingredients alongwith their quantities found present in these have been given at serial No.8 (Identification and Tests) of this report.

Caused it examined	Examined by
Sd/- Asst. Director (Toxi)	Sd/- (Sandeep Kaur)
Assistant Director (Toxicology)	(Scientific Officer (Toxicology)
Forensic Science Laboratory	Scientific Officer (Toxicology)
Punjab Phase-IV, S.A.S. Nagar	Forensic Science Laboratory
	Punjab Phase-IV, S.A.S. Nagar"

8. Since a perusal of Ex.PW-2/B reveals that, the recovery of the seizure was made from the polythene bag held, by the convict, at the relevant time, in his right hand. Resultantly when the recovery was made obviously not from any of the pockets of the trouser(s) or of the shirt or from pockets of the over clothes, if any, worn, at the relevant time, by the convict, and/nor, became effected, upon, the contraband being tethered onto the body of the convict. Therefore, when only in the latter events, there was a dire statutory necessity qua prior to the making of a personal search of the convict rather by the investigating officer concerned, qua the convicts' apposite written consent within the ambit of Section 50 of the Act, hence being obtained by the investigating officer concerned. In sequel when given the effectuation of recovery from the polythene bag held, rather by the convict in his right hand, thereupon, the afore recovery, did save the application thereons, qua the mandate of Section 50 of the Act.

9. Though, at the crime site, and, as unfolded by the recovery memo to which Ex.PW-2/B is assigned, the seizure was enclosed in a cloth parcel, and, thereons seal impression IS was embossed, and, also though subsequently at the police station concerned, the SHO concerned, as unveiled by Ex.PW-2/F, and, by Ex.PW-2/G, hence made on the sample cloth parcels seal impression GS, but since the case property became subsequently produced before the learned Magistrate concerned, for enabling him to prepare an apposite inventory, and, when there, as unfolded by Ex.PW-2/N, the bulk parcels were embossed with seal impression HS, and, the remaining sample parcels became also, after becoming enclosed in cloth parcels, rather embossed with seal impressions HS. Consequently, the seal impressions, as carried on the bulk as well as on the sample cloth parcels concerned, were required to remain in an untampered condition, from the phase commencing from the preparation of Ex.PW-2/B, upto their production in Court. The evidence in respect of the case property, remaining untampered, and, that too uninterruptedly from the drawing of Ex.PW-2/B, upto production thereof in Court, became comprised in qua each of the cloth parcels concerned, in contemporaneity, to their respective production (s) in Court, rather unveiling qua each carrying seal impression HS.

10. However, the sample parcels are revealed in Ex.PW-2/L, to become sent through HC Ravinder Kumar, to the FSL concerned, and, thereins it is also echoed, that each of the sample parcels became embossed with seal impression HS.

11. The report of the FSL concerned, which has been ad-verbatim reproduced hereinabove, though reveals that, at the time of the sample cloth parcels becoming received in the FSL concerned, rather the sample cloth parcels carrying seal impression HS, but subsequently after the retrievals therefrom qua the stuff inside each, and, whereafter the apposite stuff, upon, becoming analysed, and, examined, it become opined, that it contains the prohibited substance, but significantly the Chemical Analyst concerned, did not yet proceed to re-enclose the examined stuff, into the cloth parcels nor did he proceeded to emboss thereons, rather the seal impression of the FSL concerned. The result of the above omission, does cause the inevitable effect, that the prosecution has been unable to link the opinion of the FSL, as carried in PW-2/N, with the bulk parcels, which however never became sent for analysis to the FSL concerned. The further consequence thereof, is obviously that the bulk parcels concerned, cannot be concluded to be also containing the prohibited substance.

12. The above infirmity was curable through the Public Prosecutor concerned, casting an appropriate motion before the learned Special Judge concerned, that yet samples being drawn from the bulk preserved in the police malkhana concerned, and, theirs through a validly drawn certificate, rather being sent, to the FSL concerned. However, the Public Prosecutor concerned, never cast the above motion before the learned Special Judge concerned, and, the above omission, begets a sequel, that the prosecution for proving the charge against the accused depended, only upon Ex.PW-2/N, which however for reasons (supra), does not link the opinion made therein rather with the bulk parcel(s).

13. An additional fortification to the above inference, becomes garnered from the factum that, not only the bulk parcels were required to be produced in Court, but also the sample cloth parcels, as sent to the FSL concerned, under a validly drawn road certificate, were also necessarily required to be produced in Court, to ensure that, not only upto the transmission of the sample cloth parcels to the FSL concerned, the thereons made seals impression, remained untampered with or remained intact, but also necessarily required that, after examination of the stuff inside the cloth parcels, the Chemical Analyst concerned, not only re-enclosing the stuff examined inside the cloth parcels, but also embossing thereons', the seal impressions of the FSL concerned. However, as above stated, the above did not happen, and, nor did the Public Prosecutor concerned, despite the above infirmity, cast any motion for the requisite purpose before the learned Special Judge concerned, with the resultant ill-sequel, that the infirmity (supra), hence percolating the report of the FSL rather remaining alive.

14. The above narrated necessities are not merely perfunctory nor are mechanical, rather work towards unflinchingly proving the charge drawn against the accused. The charge would become efficaciously proven, only when the stuff inside the cloth parcels, is opined to be the apposite prohibited substance, which though however, is revealed in Ex.PW-2/N, but yet the FSL concerned, was to re-enclose the stuff examined inside the cloth parcels concerned, and, was to also emboss thereons, the seals of the FSL, as, then the cloth parcels would become retrieved to the police malkhana concerned, for thereafter theirs becoming produced before the learned Special Judge concerned, which again never happened.

15. The sample cloth parcels whereons an adverse opinion, becomes drawn against the convict, by the FSL concerned, can never become the property of the FSL concerned, "but is case property" and, is obviously required to be returned, by the FSL concerned, to the police malkhana concerned, for thereafter its becoming produced in Court, as, only upon its production in Court the factum of its provenly becoming linked with the road certificate, and, also its apposite link, with the report of the FSL, would become established, and, rather only when after examination of the stuff inside cloth parcels, the same, became re- enclosed in them, and, thereafter the seals' of the FSL become also embossed, hence, on each of the sample cloth parcels. Reiteratedly the above has not happened, and, as above stated despite the sample cloth parcels comprising the case property, they became unlawfully retained, at the FSL concerned. Even otherwise, the incriminatory opinion of the FSL concerned, is required to be corroborated, by the production of the apposite sample cloth parcels, as, sent to it, rather before the learned trial Judge concerned, as the primary evidence for relying, upon the report of the FSL concerned, is the stuff inside the sample cloth parcels concerned. The reason being that alike, the report of a Handwriting Expert concerned, which becomes bedrocked, upon the apposite documents sent to it for comparison, and, as such, the writings concerned, becoming necessarily to become appended with the report, as they are rather the best primary evidence for supporting the report of the FSL concerned, also rather, the stuff inside the sample cloth parcels, is the apposite primary evidence to not only prove the charge, but also for corroborating the incriminatory opinion, as made thereons, by the Chemical Analyst concerned, therefore, the primary evidence (supra), is required to be produced in Court, and, also is required to be proven to be then in an untampered condition.

16. Even otherwise, the above necessity of the above legally enjoined acts, becoming performed by the Chemical Analyst working, at the FSL concerned, does apart from reasons (supra), also facilitate the convict, to ask for apposite re-examinations from the FSL concerned, but that would happen only when the sample cloth parcels are produced in Court. The facilitation to the accused to ask for re-examination of the stuff inside sample cloth parcels, rather by the FSL concerned, whereons an adverse opinion is earlier made by the Chemical Analyst concerned, does necessarily ensue to the accused, as the report of the FSL concerned, has only a presumption of truth, and, obviously its opinion, does not enjoy any conclusivity in law. Therefore, for facilitating the accused, to rebut the opinion of the FSL concerned, rather the production of the sample cloth parcels, in Court after there retrieval from the police malkhana concerned, is, of utmost significance. However, neither the above defence has been purveyed to the accused nor obviously any opportunity has been given to the accused, to rebut the presumption of truth, enjoined by the report of the FSL concerned, to which Ex.PW-2/N is assigned, and, all the above hindrances to the accused hence for his efficaciously propagating his defence, have made their emergence, only because the FSL concerned, has not returned the sample cloth parcels to the FSL concerned, and, nor obviously the sample cloth parcels, as, became sent to it, never became produced in Court. Resultantly, on the above ground also, the adverse opinion, as made on the stuff inside the sample cloth parcels concerned, cannot become the plank for concluding that, the presumption of truth, if any, as attached to it, being linked either to the bulk, and/or, it carrying any legal efficacy, given apparently the stuff inside, the sample cloth parcels concerned, becoming probably destroyed, and/or, not being preserved.

17. Be that as it may, though, during the course of the examination-in- chief of PW-2, the bulk parcels became shown to him, and, though he identified them to be the ones in respect whereof, an inventory became prepared, by the learned Judicial Magistrate concerned, and, though also he did make echoings, in his examination-in-chief, that the bulk parcels remained untampered with, but the above made deposition of PW-2, and, which became corroborated by PW-5, does not yet link the opinion of the FSL concerned, to the bulk parcels, as became produced in Court. The reason being that the bulk parcels remained in the malkhana concerned, and, even despite the above infirmity existing in the report of the FSL concerned, and, even despite the sample cloth parcels becoming never returned to the FSL concerned, conspicuously the Public Prosecutor never asking the leave of the Court qua the bulk cloth parcels, being sent to the FSL concerned, rather for the stuff inside them becoming examined. Therefore, for want of the above, no conclusion can be formed, that the stuff inside the bulk cloth parcels also contained the prohibited substance(s).

18. From the above, the following principles emerge:

a) The bulk as well as the sample cloth parcels concerned, are case property, and, both are amenable for orders with respect to their destruction or confiscation to the State, as the case may be, being rendered only by the jurisdictionally empowered Court, and, that too upon the completest termination of the trial, as becomes entered into by the jurisdictionally empowered Court(s). Dominion over the bulk parcels, and, or over the sample cloth parcels can neither be assumed by the SHO of the police station concerned, and, nor can be assumed by the Chemical Analyst working at the FSL concerned.

b) The production in Court of the bulk as well as of the sample cloth parcels, as, sent to the FSL concerned, is of utmost importance, as the opinion made by the FSL concerned, on the stuff inside the cloth parcels concerned, would link it with the bulk parcels, yet only upon production of the sample cloth parcels, before the learned trial Judge concerned, as the examined stuff inside the sample cloth parcels, is the primary evidence to prove the charge, and, to also corroborate the opinion of the FSL.

c) The report of the FSL concerned, has a rebuttable presumption of truth, and, the accused for availing the right to rebut the presumption of truth attached to the opinion of the FSL concerned, can ask for re-examination by the FSL concerned, of the stuff inside the cloth sample parcels concerned, and, that would occur only when the sample cloth parcels are produced in Court, otherwise not.

d) The stuff inside the cloth sample parcels, is the primary evidence, and, report of the FSL concerned, as made in respect thereof is secondary evidence, and, unless primary evidence is adduced before the Court, the secondary evidence does not acquire any probative vigor or any evidentiary worth.

19. The result of the above discussion is that, the impugned verdict suffers from a gross infirmity, of gross misappraisal of the above, and, requires its being annulled, and, set aside.

20. In consequence, there is merit in the instant appeal, and, the same is allowed. The impugned verdict, as, drawn, upon the convict, by learned Special Judge concerned, is quashed, and, set aside. The personal, and, surety bonds of the convict are directed to be forthwith cancelled, and, discharged. The convict if in custody, and, if not required in any other case, is directed to be forthwith released from prison. Release warrants be accordingly prepared. Fine amount, if any, deposited by the accused be forthwith refunded to him, but in accordance with law. Records of the Court below, be sent down forthwith. Case property, if not required, be dealt with, and, destroyed after the expiry of the period of limitation

21. Pending miscellaneous application(s), if any, stand(s), disposed of.

Latest Judgement: Supreme Court: NDPS ACT: Small quantity and commercial quantity, decision of SC in E. Micheal Raj case (2008) overruled.

The Supreme Court of India in the Judgement of Hira Singh versus Union of India dated 22.04.2020 has overruled decision of the Supreme Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 in which it was held that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration (paragraphs 15 and 19)

DOWNLOAD FULL JUDGEMENT BELOW-

(I). The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law; 

(II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances; 

(III). Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;

(IV). Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed.

Read Full Judgement below:-

SUPREME COURT OF INDIA: Mandate of Section 50 of NDPS Act confined to personal search only - Non-compliance would not invalidate effect of recovery from vehicle.

State of Punjab v. Baljinder Singh (SC)

SUPREME COURT OF INDIA

Before :- Uday Umesh Lalit, Indu Malhotra and Krishna Murari, JJ.

Criminal Appeal Nos. 1565-66 of 2019 (@ Out of SLP (Crl.) Nos. 5659-5660 of 2019). D/d. 15.10.2019.

State of Punjab - Appellants

Versus

Baljinder Singh & Anr. - Respondents

For the Appellants :- Ms. Jaspreet Gogia and Ms. Tanupriya, Advocates.

For the Respondents :- Mr. Naresh Dilawari, Mr.Mahesh Thakur, Ms. Sheffali Chaudhary, Ms. Vipasha Singh, Ms. Pallavi Singh, Ms. Vriti Gujral and Mr. G. Balaji, Advocates.

IMPORTANT

Mandate of Section 50 of NDPS Act confined to personal search only - Non-compliance would not invalidate effect of recovery from vehicle.

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 50 Recovery of contraband - Non-compliance of provisions during search - Mandate of Section 50 of Act confined to personal search and not to search of vehicle or container or premises - Personal search of accused did not result in recovery of any contraband - However, search of vehicle and recovery of contraband pursuant thereto stood proved - Merely because there was non-compliance of Section 50 of Act as far as personal search was concerned, no benefit can be extended so as to invalidate effect of recovery from search of vehicle - Appeal allowed.

[Para 16]

Cases Referred :

Ajmer Singh v. State of Haryana, (2010) 3 SCC 746.

Ali Mustaffa, (1994) 6 SCC 569.

Dilip v. State of M.P., (2007) 1 SCC 450.

Gurbax Singh v. State of Haryana, (2001) 3 SCC 28.

Kalema Tumba v. State of Maharashtra, (1999) 8 SCC 257.

Madan Lal v. State of H.P., (2003) 7 SCC 465.

Pirthi Chand, (1996) 2 SCC 37.

Pooran Mal, (1974) 1 SCC 345.

State of Punjab v. Baldev Singh, (1999) 6 SCC 172.

State of Punjab v. Jasbir Singh, (1996) 1 SCC 288.

Vijaysingh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609.

JUDGMENT

Uday Umesh Lalit, J. - 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 Trial Court against the present respondents, namely, Baljinder Singh and Khushi Khan.

[1* Judgment and order Dated 22.1.19 in CRA-D-917-DB/2011 & CRA-D-923-DB/2011]

[2* The High Court of Punjab and Haryana at Chandigarh]

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

"3. The case of the prosecution in a nutshell is ;that on 19.8.2009 ASI Rakesh Kumar along with other police officials in connection with patrolling duty were present at Sirhind bye-pass, Rajpura. Lachhman Singh son of Sarwan Singh came on the spot. When Rakesh Kumar was talking with Lachhman Singh, a Qualis bearing registration no. PB- 13-D-7000 was seen coming from Ambala side. On seeing the police party, the driver of the vehicle tried to reverse the vehicle. On suspicion, the vehicle was stopped. One lady was sitting with the driver. On enquiry, the driver and passenger disclosed their identities. ASI Rakesh Kumar suspected them to be carrying some contraband in the bags lying in the vehicle. He wanted to search them. He apprised the accused of their right to get the search conducted in the presence of Magistrate or gazetted Police Officer. However, accused reposed confidence in him. Joint consent statement of accused was reduced into writing. On search, 7 bags containing poppy husk were recovered. Two samples of 250 grams each from each bag were separated and the residual poppy husk of each bag weighed 34 kgs. All the sample parcels and bulk parcels were sealed with the seals bearing impression 'RK' Specimen seal was prepared and the seal after use was handed over to HC Malwinder Singh. The case property was taken into possession. Ruqa was sent to the police station, on the basis of which FIR was registered. The case property was deposited in the Malkhana. On receipt of chemical report and after completing all the codal formalities, challan was put up in 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 and Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). As indicated in the above paragraph, the contraband material found in seven bags contained poppy husk. It is also a matter of record that 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 L 2 lakhs each, in default whereof, they were further directed to undergo further 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 search of the vehicle had resulted in recovery of seven bags of poppy husk containing 34 kgs in each bag. In her submission, though there may be infraction of the requirement of Section 50 as regards personal search of the accused, the fact of recovery of material from the vehicle was an independent factor which ought to be taken into account.

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

9. Ms. Pallavi Singh, learned Advocate also relied upon the decision of this Court in Dilip & Anr v. State of M.P., [(2007) 1 SCC 450] to submit that once there was non-compliance of the requirements of Section 50, the benefit ought to 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 containing contraband is subjected to personal search, which may not be in conformity with the requirements under Section 50 of the Act; but

the search of the vehicle results in recovery of contraband material, which stands proved independently;

would the accused be entitled to benefit of acquittal on the ground of non-compliance of Section 50 of the Act even in respect of material found in the search of the vehicle.

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

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

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

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

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

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

(5) When an officer duly authorised under 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 Punjab v. Baldev Singh, [(1999) 6 SCC 172] a Constitution Bench of this Court considered, inter alia, questions as to what would be the resultant effect, 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 following conclusions arise:

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted 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 existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.

(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search 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 his person, during a search conducted 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 commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen 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 any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.

(7) 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 an accused, notwithstanding the recovery of that material during an illegal search.

(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 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 seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search.

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

Subsequently, another Constitution Bench of this Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, [(2011) 1 SCC 609] had an occasion to consider the case from the stand-point whether the person who is about to be searched ought to be informed of his right that he could be searched in the presence of a Gazetted Officer or a Magistrate. While considering said question, this Court also dealt with the judgment rendered in Baldev Singh's case and the discussion in paragraphs 24 and 29 was as 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 that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.

... ... ...

29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to 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 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 contra-band.

But the question is, if there be any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance.

15. At this stage we may also consider following observations from the decision of this Court in Ajmer Singh v. State of Haryana [(2010) 3 SCC 746] :-

"15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, briefcase, etc. carried by the person and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit 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 Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance."

16. As regards applicability of the requirements under Section 50 of the Act are concerned, it is well settled that 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.

17. 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.

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

19. 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.

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

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

The appeals stand allowed in aforesaid terms.

21. Both the accused are given time till 15th 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.