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PETITIONER: THE STATE OF  PUNJAB

       Vs.

RESPONDENT: BALDEV SINGH

DATE OF JUDGMENT:       21/07/1999

BENCH: S.B.Majmudar, Sujata V. Manohar, K. Venktaswami, V.N.Khare

JUDGMENT:

DR. A.S.ANAND, CJI :

     On  15.7.1997 when this batch of appeals/special leave petitions  was  placed  before  a two-Judge  Bench,  it  was noticed  that  there  was   divergence  of  opinion  between different Benches of this Court with regard to the ambit and scope  of  Section 50 of Narcotic Drugs and  -  Psychotropic Substances  Act,  1985  (hereinafter   NDPS  Act)  and  in particular  with regard to the admissibility of the evidence collected  by  an  investigating officer during  search  and seizure  conducted in violation of the provisions of Section 50  of NDPS Act.  In the cases of State of Punjab v.  Balbir Singh,  1994 (3) SCC 299, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994 (6) SCC 569, Saiyad Mohd.  Saiyad Umar Saiyad and others v.  State of Gujarat, 1995 (3) SCC 610 and a  number  of other cases, it was laid down that failure  to observe the safeguards, while conducting search and seizure, as  provided  by Section 50 would render the conviction  and sentence  of  an  accused illegal.  In Ali  Mustaffas  case (supra),  the  judgment  in Pooran Mal v.  The  Director  of Inspection  (Investigation), New Delhi & Ors., 1974 (1)  SCC 345, was also considered and it was opined that the judgment in  Pooran Mals case could not be interpreted to have  laid down  that a contraband seized as a result of illegal search or  seizure  could  by  itself be  treated  as  evidence  of possession  of  the contraband to fasten liability,  arising out  of unlawful possession of the contraband, on the person from  whom the alleged contraband had been seized during  an illegal  search conducted in violation of the provisions  of Section  50  of  NDPS Act.  However, in  State  of  Himachal Pradesh  v.   Pirthi  Chand and Anr., 1996 (2) SCC  37,  and State  of  Punjab v.  Labh Singh, 1996 (5) SCC 520,  relying upon  a judgment of this Court in Pooran Mals case (supra), a  discordant  note was stuck and it was held that  evidence collected  in a search conducted in violation of Section  50 of  NDPS  Act did not become inadmissible in evidence  under the   Evidence  Act  The   two-Judge  Bench,  therefore,  on 15.7.1997,  by  the following order, referred the  batch  of cases  to  a larger bench :  One of the questions that  has been  raised  in  these appeals/special leave  petitions  is whether  compliance  with Section 50 of the Narcotics  Drugs and  Psychotropic Substances Act, 1985 is mandatory and,  if so, what is the effect of the breach thereof.  This question has  had  been  engaging  the attention of  this  Court  and

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answered  in  a  number  of cases.  In State  of  Punjab  v. Balbir  Singh (1994 (3) SCC 299), a two-Judge Bench of  this Court  held  that the above section is mandatory and  it  is obligatory  on  the part of the officer concerned to  inform the  person  to be searched of his right to demand that  the search be conducted in the presence of a Gazetted Officer or a  Magistrate.  It was further held that non-compliance with the  above  section  would affect the prosecution  case  and vitiate  the  trial.   This  Judgment   was  affirmed  by  a three-Judge  Bench  in Saiyad Mohd.  Saiyad Umar  Saiyad  v. State  of Gujarat (1995 (3) SCC 610).  In Ali Mustaffa Abdul Rahman  Moosa  v.   State  of Kerala (1994 (6)  SCC  569)  a submission  was  made  on behalf of the State of  Kerala  to reconsider  the  judgment  in Balbir  Singhs  case  (supra) keeping  in view the judgment of this Court in Puran Mal  v. Director of Inspection (1974 (1) SCC 345).  It was contended that  even  if the search and seizure of the contraband  was held to be illegal and contrary to the provisions of Section 50,  it  would not affect the conviction because the  seized articles could be used as evidence of unlawful possession of the  contraband.   In  repelling the contention,  the  Court observed  :  The judgment in Pooran Mal case only lays  down that the evidence collected as a result of illegal search or seizure,  could  be used as evidence in proceedings  against the  party under the Income Tax Act.  The judgment cannot be interpreted to lay down that a contraband seized as a result of  illegal  search  or seizure, can be used to  fasten  the liability  of  unlawful possession of the 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 NDPS Act  and that  factor has to be established by the prosecution beyond a  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 NDPS Act.

     In  view of the law laid down in Balbir Singh case  we hold  that  there  has been violation of the  provisions  of Section  50 of the NDPS Act and consequently the  conviction of the appellant cannot be sustained.  (Emphasis supplied)

     It,  however, appears that while dealing with  Section 50  in  State of Himachal Pradesh v.  Pirthi Chand and  Anr. (1996  (2)  SCC 37), another two-Judge Bench of  this  Court referred  to  and relied upon the judgment in  Pooran  Mals case  (supra)  and  held that the evidence  collected  in  a search  in violation of law does not become inadmissible  in evidence under the Evidence Act.  The Court further observed that  even  if search was found to be in violation  of  law, what  weight should be given to the evidence collected was a question  to  be  gone into during trial.   With  the  above observations, the Bench recorded a finding that the Sessions Judge  was  not justified in discharging the  accused  after filing   of   the  charge   sheet  holding  that   mandatory requirements  of Section 50 had not been complied with.  It, however, appears that the Courts attention was not drawn to Ali  Mustaffa  (supra).  The view expressed in Pirthi  Chand (supra  )  was reiterated in State of Punjab v.  Labh  Singh (1996 (5) SCC 520) wherein this Court considered the case of Balbir  Singh  (supra),  besides  other cases  and  held  as follows  :- In State of H.P.  v.  Pirthi Chand, this  Court further  elaborately considered the effect of the  violation of  Section  50  and  held that any  evidence  recorded  and recovered  in  violation  of the search and  the  contraband seized  in  violation of the mandatory requirement does  not

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ipso facto invalidate the trial.

     From  the  above  resume, it would  thus  appear  that though  a  two-Judge  Bench  of this  Court  considered  the earlier  judgments  of  this Court, it held in the  case  of Pirthi  Chand,  [  and affirmed in the case  of  Labh  Singh (supra)],  that  breach  of Section 50 does not  affect  the trial  while  in the case of Ali Mustaffa  (supra),  another Bench  categorically  laid  down that breach of  Section  50 makes  the  conviction  illegal.  In view of  the  divergent opinions so expressed, we deem it fit to refer these matters to a larger Bench.

     Let the records be placed before the Chief Justice for necessary orders.

     The  batch  of  cases was thereafter listed  before  a three-Judge Bench.  However, when the three-Judge Bench took up  the matter, it was of the opinion that the judgment of a three-Judge  Bench  in Saiyad Mohd.  Saiyad Umar Saiyad  and ors.     v.    State   of    Gujarat,   (supra),    required reconsideration  and, therefore, the cases were required  to be considered still by a larger bench and on 19.11.1997, the three-Judge  Bench made the following order :  1.  In  this bunch  of  appeals/special  leave  petitions  the  following questions  of law (besides other questions of law and facts) fall for determination:

     (i)  Is it the mandatory requirement of Section 50  of the  Narcotic  Drugs and Psychotropic Substances Act,  1985, (Act  for  short)  that when an officer,  duly  authorised under  Section 42 of the Act, is about to search a person he must  inform him of his right under sub- section (1) thereof of  being  taken to the nearest Gazetted Officer or  nearest Magistrate for making the search?

     (ii)  If  any  search is made  without  informing  the person of his such right would the search be illegal even if he  does  not  of his own exercise his right  under  Section 50(1)?  And

     (iii)  Whether a trial held in respect of any recovery of  contraband  articles pursuant to such a search would  be void ab initio?

     2.   The  above  questions came up  for  consideration before a two-Judge Bench of this Court in State of Punjab v. Balbir  Singh  (1994)  3 SCC 299, and it  answered  them  as under:   (SCC  p.322,  para 25) On  prior  information  the empowered  officer or authorised officer while acting  under Sections  41(2)  or 42 should comply with the provisions  of Section  50 before the search of the person is made and such person  should be informed that if he so requires, he  shall be  produced  before a Gazetted Officer or a  Magistrate  as provided  thereunder.  It is obligatory on the part of  such officer  to  inform the person to be searched.   Failure  to inform  the  person  to be searched and if  such  person  so requires, failure to take him to the Gazetted Officer or the Magistrate,  would  amount to non-compliance of  Section  50 which  is mandatory and thus it would affect the prosecution case and vitiate the trial. (Emphasis supplied)

     3.   In  Ali Mustaffa Abdul Rahman Moosa v.  State  of Kerala  (1994) 6 SCC 569, a submission was made on behalf of

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the  State  of Kerala to reconsider the judgment  in  Balbir Singhs  case  (supra)  in  view  of  the  judgment  of  the Constitution  Bench  of  this Court in Pooran  Mal  v.   The Director  of Inspection (Investigation), New Delhi & others, (1974) 1 SCC 345 wherein it was observed that where the test of  admissibility of evidence lay on relevancy (as in  India and  England),  unless there was an express  or  necessarily implied  prohibition  in  the  Constitution  or  other  law, evidence  obtained as a result of illegal search or  seizure was  not  liable  to be shut out.  Relying  upon  the  above observation  it  was contended that even if the  search  and seizure  of  the  contraband  were held to  be  illegal  and contrary to the provisions of Section 50 it would not affect the  conviction because the seized articles could be used as evidence   of  unlawful  possession.    In  repelling   this contention  the  two-Judge Bench of this Court  observed  as under:

     The  judgment in Pooran Mals case (supra) only  lays down  that  the  evidence collected as a result  of  illegal search  or seizure, could be used as evidence in proceedings against  the  party under the Income Tax Act.  The  judgment cannot  be interpreted to lay down that a contraband  seized as  a  result of illegal search or seizure, can be  used  to fasten   that  liability  of   unlawful  possession  of  the 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  NDPS Act and that factor has  to  be established  by  the prosecution beyond a 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 NDPS Act.

     In  view  of the law laid down in Balbir Singhs  case (supra)  we  hold  that  there has  been  violation  of  the provisions  of  Section 50 of NDPS Act and consequently  the conviction of the appellant cannot be sustained.

     4.   The  judgment in Balbir Singhs case (supra)  was affirmed by a three-Judge Bench in Saiyad Mohd.  Saiyad Umar Saiyad v.  State of Gujarat, (1995) 3 SCC 610.

     5.   A  discordant  note  was   however  struck  by  a two-Judge  Bench of this Court in State of H.P.  v.   Pirthi Chand  & another, (1996) 2 SCC 37, relying upon the judgment of  this  Court in Pooran Mals case (supra), when  it  held that  the evidence collected in a search in violation of law did  not become inadmissible in evidence under the  Evidence Act.  The Court further observed that even if the search was found to be in violation of law, what weight should be given to  the  evidence collected was a question to be  gone  into during  trial.  The same view was reiterated by a  two-Judge Bench  in State of Punjab v.  Labh Singh, (1996) 5 SCC  520, with   the  observation  that   any  evidence  recorded  and recovered  in  violation  of the search and  the  contraband seized  in  violation of the mandatory requirement  did  not ipso facto invalidate the trial.  (Emphasis supplied) 6.  In our  considered opinion the judgment of this Court in Saiyad Mohd.    Saiyad  Umar  Saiyads   case  (supra)  (which  was delivered  by a three-Judge Bench) requires re-consideration and  the  questions  formulated above answered by  a  larger Bench,  not only in view of the subsequent judgments of this Court  (delivered by a two- Judge Bench) referred to  above, but  also  in  view of the Constitution  Bench  judgment  in

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Pooran Mals case (supra).

     7.  Let these matters be, therefore, placed before the Honble Chief Justice for necessary orders.

     That  is  how this batch of  Criminal  Appeals/Special Leave  Petitions  has been placed before  this  Constitution Bench.  Drug abuse is a social malady.  While drug addiction eats  into  the vitals of the society, drug trafficking  not only  eats into the vitals of the economy of a country,  but illicit  money  generated by drug trafficking is often  used for illicit activities including encouragement of terrorism. There  is  no doubt that drug trafficking, trading  and  its use,  which  is  a  global phenomena and  has  acquired  the dimensions  of an epidemic, affects the economic policies of the  State,  corrupts the system and is detrimental  to  the future  of a country.  It has the effect of producing a sick society  and  harmful  culture.    Anti-drug  justice  is  a criminal  dimension  of social justice.  The United  Nations Conventions  Against Illicit Trafficking In Narcotic Drugs & Psychotropic Substances which was held in Vienna, Austria in 1988   was  perhaps  one  of   the  first  efforts,  at   an international   level,   to  tackle   the  menace  of   drug trafficking   throughout  the  comity   of   nations.    The Government  of India has ratified this convention.  Prior to the  passing  of  the NDPS Act, 1985 control  over  Narcotic drugs  was being generally exercised through certain Central enactments  though  some  of  the States  also  had  enacted certain statutes with a view to deal with illicit traffic in drugs.   The  Opium Act, 1857 related mainly  to  preventing illicit  cultivation  of  poppy, regulating  cultivation  of poppy   and   manufacture  of   opium.   Opium  Act,   1878, supplemented   Opium   Act,  1875   and   made   possession, transportation, import, export, sale, etc.  of opium also an offence.   The Dangerous Drug Act, 1930, was enacted with  a view  to  suppress  traffic  in   contraband  and  abuse  of dangerous  drugs,  particularly derived from  opium,  Indian hemp  and  coca  leaf  etc.    The  Act  prescribed  maximum punishment  of imprisonment for three years with or  without fine,  insofar  as  first offence is concerned and  for  the second  or  the subsequent offence the punishment  could  go upto  four years RI.  These Acts, however, failed to control illicit  drug  traffic  and  drug abuse on  the  other  hand exhibited  an upward trend.  New drugs of addiction known as Psychotropic  Substances  also appeared on the scene  posing serious  problems.  It was noticed that there was an absence of  comprehensive  law  to  enable  effective  control  over psychotropic  substances  in  the manner  envisaged  by  the International  Convention of Psychotropic Substances,  1971. The need for the enactment of some comprehensive legislation on   Narcotics  Drug  and   Psychotropic   Substances   was, therefore,  felt.   The  Parliament with a view  to  meet  a social  challenge of great dimensions, enacted the NDPS Act, 1985  to consolidate and amend existing provisions  relating to control over drug abuse etc.  and to provide for enhanced penalties  particularly  for trafficking and  various  other offences.   The NDPS Act, 1985 provides stringent  penalties for various offences.  Enhanced penalties are prescribed for second  and  subsequent  offences.  The NDPS, Act  1985  was amended  in 1988 w.e.f.  29th May, 1989.  Minimum punishment of 10 years imprisonment which may extend upto 20 years and a  minimum fine of Rs.1 lakh which may extend upto Rs.2 lakh have  been provided for most of the offences under the  NDPS Act,  1985.   For  second and subsequent  offences,  minimum

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punishment  of imprisonment is 15 years which may extend  to 30  years while minimum fine is Rs.1.5 lakh which may extend to Rs.3 lakhs.  Section 31(a) of the Act, which was inserted by  the  Amendment Act of 1988, has even provided  that  for certain  offences, after previous convictions, death penalty shall  be  imposed,  without leaving any discretion  in  the Court  to award imprisonment for life in appropriate  cases. Another  amendment of considerable importance introduced  by the  Amendment Act, 1988 was that all the offences under the Act were made triable by a special court.  Section 36 of the Act  provides for constitution of special courts manned by a person  who  is a Sessions Judge or an  Additional  Sessions Judge.   Appeal from the orders of the special courts lie to the High Court.  Section 37 makes all the offences under the Act  to  be cognizable and non-bailable and also  lays  down stringent  conditions  for grant of bail.  However,  despite the stringent provisions of the NDPS Act, 1985 as amended in 1988  drug business is booming;  addicts are rapidly rising; crime  with  its  role to narcotics is  galloping  and  drug trafficking  network  is ever growing.   While  interpreting various  provisions  of  the  statute,  the  object  of  the legislation  has to be kept in view but at the same time the interpretation  has to be reasonable and fair.  With a  view to  answer  the questions framed by the referring Bench  and resolve  the  divergence of opinion expressed  by  different benches  particularly  on the applicability of the law  laid down  in  Pooran Mals case (supra) to the admissibility  of evidence  collected  as  a  result of  search  conducted  in violation  of the provisions of Section 50 of the NDPS  Act, to  offences under the NDPS Act, it would be appropriate  to first notice some of the relevant statutory provisions.  For the  purpose  of  this  batch  of  cases  we  are  primarily concerned with Chapter V in general and Sections 35, 41, 42, 43,  50, 51, 54 and 57 of the Act in particular.  Section 35 lays down :

     35.   Presumption of culpable mental state.   (1) In any prosecution for an offence under this Act which requires a  culpable  mental  state of the accused, the  court  shall presume the existence of such mental state but it shall be a defence  for  the accused to prove the fact that he  had  no such  mental  state  with respect to the act charged  as  an offence in that prosecution.

     Explanation   In this section culpable mental state includes  intention, motive, knowledge of a fact and  belief in, or reason to believe, a fact.

     (2) For the purpose of this section, a fact is said to be  proved only when the court believes it to exist beyond a reasonable  doubt  and  not  merely when  its  existence  is established  by a preponderance of probability. Section  41 reads as follows:-

     41.  Power to issue warrant and authorisation.- (1) A Metropolitan  Magistrate or a Magistrate of the first  class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the  arrest  of any person whom he has reason to believe  to have  committed any offence punishable under Chapter IV,  or for the search, whether by day or by night, of any building, conveyance  or  place in which he has reason to believe  any narcotic  drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any  document or other article which may furnish evidence of

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the commission of such offence is kept or concealed.

     (2)  Any  such  officer  of   gazetted  rank  of   the departments  of central excise, narcotics, customs,  revenue intelligence   or  any  other   department  of  the  Central Government  or of the Border Security Force as is  empowered in  this  behalf by general or special order by the  Central Government,  or  any  such  officer of  the  revenue,  drugs control,  excise, police or any other department of a  State Government  as  is  empowered in this behalf by  general  or special  order of the State Government, if he has reason  to believe  from personal knowledge or information given by any person and taken in writing that any person has committed an offence  punishable  under Chapter IV or that  any  narcotic drug,  or  psychotropic  substance in respect of  which  any offence  punishable  under Chapter IV has been committed  or any  document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a  constable, to arrest such a person or search a  building, conveyance  or  place whether by day or by night or  himself arrest a person or search a building, conveyance or place.

     (3)  The  officer to whom a warrant under  sub-section (1)  is addressed and the officer who authorised the  arrest or  search  or the officer who is so authorised  under  sub- section  (2) shall have all the powers of an officer  acting under section 42.

     Section 42 provides:-

     42.   Power  of  entry, search,  seizure  and  arrest without  warrant  or authorisation.   (1) Any such  officer (being  an  officer  superior in rank to a  peon,  sepoy  or constable)  of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central  Government  or of the Border Security Force  as  is empowered  in this behalf by general or special order by the Central  Government,  or any such officer (being an  officer superior  in  rank  to a peon, sepoy or  constable)  of  the revenue,   drugs  control,  excise,   police  or  any  other department  of  a State Government as is empowered  in  this behalf  by general or special order of the State Government, if  he  has  reason to believe from  personal  knowledge  or information  given by any person and taken down in  writing, that  any  narcotic  drug,  or  psychotropic  substance,  in respect  of which an offence punishable under Chapter IV has been  committed  or any document or other article which  may furnish  evidence of the commission of such offence is  kept or  concealed in any building, conveyance or enclosed place, may, between sunrise and sunset

     (a)   enter  into  and   search  any  such   building, conveyance or place;

     (b)  in  case of resistance, break open any  door  and remove any obstacle to such entry;

     (c)  such drug or substance and all materials used  in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation  under  this  Act  and any  document  or  other article  which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV

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relating to such drug or substance;  and

     (d)  detain  and  search, and, if  he  thinks  proper, arrest  any  person  whom he has reason to believe  to  have committed  any offence punishable under Chapter IV  relating to such drug or substance:

     Provided  that  if such officer has reason to  believe that  a  search warrant or authorisation cannot be  obtained without  affording  opportunity  for   the  concealment   of evidence  or facility for the escape of an offender, he  may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief.

     (2)  Where  an officer takes down any  information  in writing  under  sub-section (1) or records grounds  for  his belief  under the proviso thereto he shall forthwith send  a copy thereof to his immediate official superior.

     43.  Power of seizure and arrest in public places. Any  officer of any of the departments mentioned in  section 42 may

     (a)  seize,  in  any public place or in  transit,  any narcotic  drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV  has  been  committed,  and,  along  with  such  drug  or substance,  any  animal or conveyance or article  liable  to confiscation  under  this  Act, and any  document  or  other article  which he has reason to believe may furnish evidence of  the commission of an offence punishable under Chapter IV relating to such drug or substance;

     (b) detain and search any person whom he has reason to believe  to  have  committed  an  offence  punishable  under Chapter  IV,  and, if such person has any narcotic  drug  or psychotropic substance in his possession and such possession appears  to  him  to be unlawful, arrest him and  any  other person in his company.

     Explanation    For the purposes of this section,  the expression  public  place includes any public  conveyance, hotel,  shop,  or  other  place  intended  for  use  by,  or accessible to, the public.

     Section 50 of the N.D.P.S.  Act reads as follows :

     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.

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

     Section 51 provides :

     51.   Provisions  of the Code of Criminal  Procedure, 1973 to apply to warrants, arrests, searches and seizures.-- The provisions of the Code of Criminal Procedure, 1973 shall apply,  in  so  far as they are not  inconsistent  with  the provisions  of this Act, to all warrants issued and arrests, searches and seizures made under this Act.

     Section 52 reads thus :

     Disposal  of  persons arrested and articles  seized. (1) Any officer arresting a person under section 41, section 42,  section  43  or section 44 shall, as soon  as  may  be, inform him of the grounds for such arrest.

     (2)  Every  person arrested and article  seized  under warrant  issued under sub-section (1) of section 41 shall be forwarded  without  unnecessary delay to the  Magistrate  by whom the warrant was issued.

     (3)  Every  person arrested and article  seized  under sub-  section  (2) of section 41, section 42, section 43  or section 44 shall be forwarded without unnecessary delay to--

     (a)  the  officer-in-charge  of   the  nearest  police station, or (b) the officer empowered under section 53.

     (4)  The  authority or officer to whom any  person  or article  is  forwarded under sub-section (2) or  sub-section (3)  shall, with all convenient dispatch, take such measures as  may  be necessary for the disposal according to  law  of such person or article.

     Section 54 provides :

     54.    Presumption   from   possession   of   illicit articles.  In  trials under this Act, it may  be  presumed, unless  and  until the contrary is proved, that the  accused has committed an offence under Chapter IV in respect of

     (a)  any narcotic drug or psychotropic substance;  (b) any opium poppy, cannabis plant or coca plant growing on any land  which he has cultivated;  (c) any apparatus  specially designed  or any group of utensils specially adopted for the manufacture  of any narcotic drug or psychotropic substance; or  (d)  any  materials  which have  undergone  any  process towards  the manufacture of a narcotic drug or  psychotropic substance,  or any residue left of the materials from  which any  narcotic  drug  or   psychotropic  substance  has  been manufactured.

     for  the  possession  of  which he  fails  to  account satisfactorily. Section 57 reads as follows:-

     57.   Report  of  arrest and seizure.-  Whenever  any person makes any arrest or seizure under this Act, he shall, within  forty-eight hours next after such arrest or seizure, make  a full report of all the particulars of such arrest or seizure  to  his immediate superior official.   Section  132

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(13) of the Income Tax Act, 1961 provides :

     132.  Search and seizure.

     xxx xxx xxx

     (13) The provisions of the Code of Criminal Procedure, 1973  (2  of 1974), relating to searches and  seizure  shall apply,  so  far  as may be, to searches  and  seizure  under sub-section (1) or sub-section (1A).

     Search  and seizure are essential steps in the armoury of  an investigator in the investigation of a criminal case. The  Code  of  Criminal   Procedure  itself  recognises  the necessity  and  usefulness of search and seizure during  the investigation  as is evident from the provisions of Sections 96  to  103 and Section 165 of the Criminal Procedure  Code. In  M.P.   Sharma  and others v.  Satish  Chandra,  District Magistrate,  Delhi  and  others, [1954]  S.C.R.   1077,  the challenge  to  the power of issuing a search  warrant  under Section  96(1)  Cr.P.C.   as violative  of  the  fundamental rights  was repelled by the Constitution Bench on the ground that  the  power  of  search and seizure in  any  system  of jurisprudence  is  an overriding power of the State for  the protection  of  social  security.  It was also held  that  a search  by itself is not a restriction on the right to  hold and enjoy property, though a seizure may be a restriction on the  right  of  possession  and   enjoyment  of  the  seized property,  but  it  is only temporary and  for  the  limited purpose  of an investigation.  The Court opined :  A  power of  search and seizure is in any system of jurisprudence  an overriding  power of the State for the protection of  social security  and  that power is necessarily regulated  by  law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth  Amendment,  we have no justification to  import  it, into  a totally different fundamental right, by some process of  strained  construction.  Nor is it legitimate to  assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.

     The  Court  also opined :  A search and  seizure  is, therefore,  only a temporary interference with the right  to hold   the  premises  searched   and  the  articles  seized. Statutory  regulation  in  this   behalf  is  necessary  and reasonable  restriction  cannot per se be considered  to  be unconstitutional.   The  damage,  if  any,  caused  by  such temporary  interference  if found to be in excess  of  legal authority  is a matter for redress in other proceedings.  We are  unable to see how any question of violation of  article 19(1)  (f)  is  involved  in this case  in  respect  of  the warrants  in  question which purport to be under  the  first alternative  of  Section  96(1) of  the  Criminal  Procedure Code.

     Section   41  of  the  NDPS   Act  provides   that   a Metropolitan  Magistrate or a Magistrate of the first  class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the  arrest  of  and for search of any person  whom  he  has reason  to believe to have committed any offence  punishable under  Chapter IV.  Vide sub-Section (2) the power has  also been  vested  in  Gazetted  Officers of  the  Department  of Central  Excise, Narcotics, Customs, Revenue Intelligence or

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any  other Department of the Central Government or of Border Security  Force,  empowered  in that behalf  by  general  or special  order of the State Govt.  to arrest any person, who he  has  reason  to  believe to have  committed  an  offence punishable  under  Chapter  IV or to search  any  person  or conveyance  or vessel or building etc.  with a view to seize any  contraband  or  document  or other  article  which  may furnish  evidence  of  the commission of  such  an  offence, concealed in such building or conveyance or vessel or place. Sub-section  (1) of Section 42 lays down that the  empowered officer,  if has a prior information given by any person, he should  necessarily take it down in writing and where he has reason  to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may  furnish  evidence  of commission of such  offences  are concealed  in any building etc.  he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief.

     The  proviso to sub-section (1) lays down that if  the empowered  officer  has  reason  to believe  that  a  search warrant   or  authorisation  cannot   be  obtained   without affording  opportunity  for the concealment of  evidence  or facility  for  the escape of an offender, he may  enter  and search  such building, conveyance or enclosed place, at  any time between sunset and sunrise, after recording the grounds of  his  belief.   Vide sub-section (2) of Section  42,  the empowered  officer who takes down information in writing  or records  the  grounds  of his belief under  the  proviso  to sub-section  (1), shall forthwith send a copy of the same to his  immediate official superior.  Section 43 deals with the power  of  seizure  and arrest of the suspect  in  a  public place.   The  material difference between the provisions  of Section  43  and  Section  42 is  that  whereas  Section  42 requires recording of reasons for belief and for taking down of  information  received  in  writing with  regard  to  the commission  of  an  offence  before  conducting  search  and seizure,  Section 43 does not contain any such provision and as  such  while  acting  under Section 43 of  the  Act,  the empowered  officer  has the power of seizure of the  article etc.   and  arrest  of  a  person who  is  found  to  be  in possession  of any Narcotic Drug or Psychotropic  Substances in a public place where such possession appears to him to be unlawful.   Section 50 of the Act prescribes the  conditions under   which  search  of  a  person  shall  be   conducted. Sub-section  (1) provides that when the empowered officer is about  to  search  any suspected person, he  shall,  if  the person  to be searched so requires, take him to the  nearest Gazetted  Officer or the Magistrate for the purpose.   Under sub-section (2) it is laid down that if such request is made by  the  suspected  person, the officer who is to  take  the search,  may  detain  the suspect until he  can  be  brought before such Gazetted Officer or the Magistrate.  Sub-section (3) lays down that when the person to be searched is brought before  such  a Gazetted Officer or the Magistrate and  such Gazetted  Officer or the Magistrate finds that there are  no reasonable  grounds for search, he shall forthwith discharge the  person  to be searched, otherwise he shall direct  that the  search be made.  On its plain reading, Section 50 would come  into play only in the case of a search of a person  as distinguished  from search of any premises etc.  However, if the  empowered  officer,  without any prior  information  as contemplated  by  Section  42 of the Act makes a  search  or causes  arrest  of  person  during   the  normal  course  of investigation  into  an offence or suspected offence and  on

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completion  of that search, a contraband under the NDPS  Act is also recovered, the requirements of Section 50 of the Act are  not attracted.  Vide Section 51, the provisions of  the Code  of  Criminal Procedure, 1973, shall apply, insofar  as they  are  not inconsistent with the provisions of the  NDPS Act,  to  all  warrants  issued and  arrests,  searches  and seizures  made under the NDPS Act.  Thus, the NDPS Act, 1985 after  incorporating the broad principles regarding  search, seizure  and arrest etc.  in Sections 41, 42, 43, 49 and  50 has  laid down in Section 51 that the provisions of the Code of  Criminal  Procedure shall apply insofar as they are  not inconsistent  with  the  provisions of the  NDPS  Act.   The expression  insofar  as they are not inconsistent with  the provisions  of this Act occurring in Section 51 of the NDPS Act  is  of significance.  This expression implies that  the provisions  of  the Code of Criminal Procedure  relating  to search,  seizure  or  arrest apply to  search,  seizure  and arrest  under  NDPS Act also except to the extent  they  are inconsistent  with the provisions of the Act.  Thus, while conducting search and seizure, in addition to the safeguards provided   under  the  Code  of  Criminal   Procedure,   the safeguards  provided under the NDPS Act are also required to be  followed.  Section 50(4) of the NDPS Act lays down  that no  female  shall be searched by anyone excepting a  female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the  Code of Criminal Procedure, 1973 relating to search  of females.   Section 51(2) of the Code of Criminal  Procedure, 1973  lays  down  that whenever it is necessary to  cause  a female  to be searched, the search shall be made by  another female with strict regard to decency.  The empowered officer must, therefore, act in the manner provided by Section 50(4) of  the  NDPS  Act read with Section 51(2) of  the  Code  of Criminal  Procedure, 1973 whenever it is found necessary  to cause a female to be searched.  The document prepared by the Investigating  Officer at the spot must invariably  disclose that  the  search was conducted in the aforesaid manner  and the name of the female official who carried out the personal search  of  the concerned female should also  be  disclosed. The  personal  search  memo of the female  concerned  should indicate  compliance with the aforesaid provisions.  Failure to  do  so  may  not  only affect  the  credibility  of  the prosecution  case but may also be found as violative of  the basic  right  of  a female to be treated  with  decency  and proper  dignity.   The  provisions of Sections 100  and  165 Cr.P.C.   are  not inconsistent with the provisions  of  the NDPS Act and are applicable for affecting search, seizure or arrest  under the NDPS Act also.  However, when an empowered officer  carrying  on  the investigation  including  search, seizure  or  arrest  under  the provisions of  the  Code  of Criminal   Procedure,  comes  across  a  person   being   in possession  of  the  narcotic   drugs  or  the  psychotropic substance,  then he must follow from that stage onwards  the provisions of the NDPS Act and continue the investigation as provided thereunder.  If the investigating officer is not an empowered  officer  then it is expected of him that he  must inform  the empowered officer under the NDPS Act, who should thereafter  proceed  from that stage in accordance with  the provisions  of  the NDPS Act.  In Balbir Singhs case  after referring  to  a number of judgments, the Bench opined  that failure to comply with the provisions of Cr.P.C.  in respect of  search  and seizure and particularly those  of  Sections 100,  102,  103  and  165  per   se  does  not  vitiate  the prosecution  case.   If there is such a violation, what  the courts  have  to see is whether any prejudice was caused  to

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the  accused.   While  appreciating the evidence  and  other relevant  factors, the courts should bear in mind that there was  such  a violation and evaluate the evidence  on  record keeping  that in view.  What is the import of the expression if  such  person  so  requires he shall be  taken  to  the nearest  Gazetted Officer or Magistrate and his search shall be  made  before such Officer or Magistrate as occurring  in Section  50.   Does  the expression not  visualise  that  to enable  the  concerned  person to require his search  to  be conducted  before  a Gazetted Officer or a  Magistrate,  the empowered  officer is under an obligation to inform him that he  has  such a right ?  Learned counsel appearing  for  the State  of  Punjab as also the learned counsel appearing  for the  State of Gujarat argued that it would not be proper  to read  into  the  provisions of Section 50,  any  legislative intent  of  prescribing a duty on the part of the  empowered Officer  to  inform the suspect that if he so requires,  the search  would  be conducted before a Gazetted Officer  or  a Magistrate,  as  the case may be.  According to the  learned counsel,  the  view expressed in State of Punjab v.   Balbir Singh (supra), laying down that it is obligatory on the part of such an officer to so inform the person to be searched or if  such  person  requires, failure to take him  for  search before  the Gazetted Officer or the Magistrate, would amount to  non-  compliance with the provisions of Section  50  and would  affect  the  prosecution case and vitiate  the  trial requires reconsideration.  As a matter of fact, the order of the  referring bench itself, centers around whether there is any requirement of Section 50, making, it obligatory for the empowered  officer,  who  is about to search  a  person,  to inform  him  of  his  right of being taken  to  the  nearest Gazetted Officer or nearest Magistrate for making the search if  he  so  requires.   Learned  counsel  for  the  parties, however,  agree  that in case the obligation to  inform  the suspect  of  his  right  to be searched  before  a  Gazetted Officer  or  a  Magistrate  is read as a duty  cast  on  the empowered   officer,  then  failure   to  give   information regarding  that  right  to the suspect would  be  a  serious infirmity  amounting  to  denial of a valuable right  to  an accused and would render his conviction for an offence under the NDPS Act bad and unsustainable.  The question as to what is  the  effect  of non-compliance with  the  provisions  of Section 50 on the recovery of the contraband was answered in State  of  Punjab  v.   Balbir Singh  (supra).   The  common question which arose for consideration in a batch of appeals filed  by  the  State of Punjab was whether any  arrest  or search  of  a person or search of a place conducted  without conforming  to  the  provisions  of the NDPS  Act  would  be rendered  illegal and consequently vitiate the  conviction? The  Trial Court in those cases had acquitted the accused on the  ground  that  the  arrest,   search  and  seizure  were conducted  in  violation  of  some   of  the  relevant  and mandatory  provisions  of  the NDPS Act.   The  High  Court declined  to  grant appeal against the order  of  acquittal. The State of Punjab thereupon filed appeals by special leave in  this Court.  In some other cases, where the accused  had been  convicted,  they also filed appeals by  special  leave questioning their conviction and sentence on the ground that their trials were illegal because of non-compliance with the safeguards  provided  under Section 50 of the NDPS  Act.   A two-Judge  Bench speaking through K.  Jayachandra Reddy,  J. considered  several  provisions  of the NDPS  Act  governing arrest,   search  and  seizure   and,  in  particular,   the provisions of Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57 of  the  NDPS Act as well as the provisions of the  Code  of

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Criminal  Procedure relating to search and seizure  effected during  investigation  of  a criminal  case.   Dealing  with Section  50,  it was held that in the context in  which  the right had been conferred, it must naturally be presumed that it  is  imperative on the part of the officer to inform  the person to be searched of his right that if he so requires he shall  be  searched before a Gazetted Officer or  Magistrate and  on  such request being made by him, to be taken  before the  Gazetted Officer or Magistrate for further proceedings. The  reasoning  given  in Balbir Singhs case  was  that  to afford an opportunity to the person to be searched if he so requires  to  be  searched before a Gazetted  Officer  or  a Magistrate  he  must be made aware of that right  and  that could be done only by the empowered officer by informing him of  the existence of that right.  The Court went on to  hold that  failure  to inform the person to be searched  of  that right  and  if  he so requires, failure to take him  to  the Gazetted   Officer   or    the    Magistrate,   would   mean non-compliance  with  the provisions of Section 50 which  in turn  would  affect  the prosecution case and  vitiate  the Trial.  The  following conclusions were arrived at  by  the two-Judge  Bench in State of Punjab v.  Balbir Singh (supra) :   The questions considered above arise frequently  before the trial courts.  Therefore we find it necessary to set out our conclusions which are as follows :

     (1)  If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search  or  arrests  a  person  in  the  normal  course   of investigation  into  an  offence or  suspected  offences  as provided  under the provisions of CrPC and when such  search is  completed at that stage Section 50 of the NDPS Act would not  be  attracted  and the question of complying  with  the requirements  thereunder  would not arise.  If  during  such search  or arrest there is a chance recovery of any narcotic drug  or psychotropic substance then the police officer, who is  not  empowered, should inform the empowered officer  who should  thereafter proceed in accordance with the provisions of  the NDPS Act.  If he happens to be an empowered  officer also,  then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

     (2-A) Under Section 41(1) only an empowered Magistrate can  issue  warrant  for  the arrest or for  the  search  in respect  of offences punishable under Chapter IV of the  Act etc.   when he has reason to believe that such offences have been  committed or such substances are kept or concealed  in any  building,  conveyance or place.  When such warrant  for arrest  or  for search is issued by a Magistrate who is  not empowered,  then such search or arrest if carried out  would be  illegal.   Likewise  only  empowered  officers  or  duly authorized  officers  as  enumerated in Sections  41(2)  and 42(1) can act under the provisions of the NDPS Act.  If such arrest  or  search is made under the provisions of the  NDPS Act  by  anyone other than such officers, the same would  be illegal.

     (2-B)  Under Section 41(2) only the empowered  officer can  give  the authorisation to his subordinate  officer  to carry  out  the  arrest of a person or search  as  mentioned therein.  If there is a contravention, that would affect the prosecution case and vitiate the conviction.

     (2-C) Under Section 42(1) the empowered officer if has

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a  prior  information  given  by  any  person,  that  should necessarily  be taken down in writing.  But if he has reason to  believe  from  personal knowledge  that  offences  under Chapter  IV  have  been  committed or  materials  which  may furnish   evidence  of  commission  of  such  offences   are concealed  in any building etc.  he may carry out the arrest or  search without a warrant between sunrise and sunset  and this  provision  does not mandate that he should record  his reasons  of belief.  But under the proviso to Section  42(1) if  such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

     To  this  extent  these provisions are  mandatory  and contravention  of the same would affect the prosecution case and vitiate the trial.

     (3)  Under  Section 42(2) such empowered  officer  who takes down any information in writing or records the grounds under  proviso to Section 42(1) should forthwith send a copy thereof  to  his immediate official superior.  If  there  is total  non-compliance of this provision the same affects the prosecution  case.  To that extent it is mandatory.  But  if there  is delay whether it was undue or whether the same has been  explained  or not, will be a question of fact in  each case.

     (4-A) If a police officer, even if he happens to be an empowered  officer  while  effecting an arrest  or  search during  normal investigation into offences purely under  the provisions  of  CrPC  fails  to  strictly  comply  with  the provisions  of  Sections  100  and 165  CrPC  including  the requirement  to  record  reasons, such  failure  would  only amount to an irregularity.

     (4-B) If an empowered officer or an authorised officer under  Section  41(2)  of the Act carries out a  search,  he would  be  doing  so  under the provisions  of  CrPC  namely Sections  100  and  165  CrPC  and if  there  is  no  strict compliance  with  the  provisions of CrPC then  such  search would not per se be illegal and would not vitiate the trial.

     The  effect of such failure has to be borne in mind by the  courts while appreciating the evidence in the facts and circumstances of each case.

     (5)  On  prior  information the empowered  officer  or authorised  officer while acting under Sections 41(2) or  42 should  comply with the provisions of Section 50 before  the search  of  the  person is made and such  person  should  be informed that if he so requires, he shall be produced before a  Gazetted Officer or a Magistrate as provided  thereunder. It  is obligatory on the part of such officer to inform  the person  to be searched.  Failure to inform the person to  be searched and if such person so requires, failure to take him to  the Gazetted Officer or the Magistrate, would amount  to non-compliance  of Section 50 which is mandatory and thus it would  affect  the prosecution case and vitiate  the  trial. After being so informed whether such person opted for such a course or not would be a question of fact.  (Emphasis ours)

     (6)  The  provisions of Sections 52 and 57 which  deal with  the  steps  to be taken by the officers  after  making arrest  or seizure under Sections 41 to 44 are by themselves not  mandatory.  If there is non-compliance or if there  are lapses  like delay etc.  then the same has to be examined to

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see whether any prejudice has been caused to the accused and such  failure  will  have a bearing on the  appreciation  of evidence regarding arrest or seizure as well as on merits of the case.

     A  three-Judge  Bench  in Saiyad  Mohd.   Saiyad  Umar Saiyad  and others v.  State of Gujarat (supra), upheld  the view  taken  in Balbir Singhs case (supra) on the point  of duty  of  the empowered officer to inform the suspect  about his  right  to  be searched before a Gazetted Officer  or  a Magistrate.   It considered the provisions of Section 50 and opined  :  8.  We are unable to share the High Courts view that in cases under the NDPS Act it is the duty of the court to  raise a presumption, when the officer concerned has  not deposed  that  he  had followed the  procedure  mandated  by Section  50, that he had in fact done so.  When the  officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty- bound to conclude that  the accused had not had the benefit of the  protection that Section 50 affords;  that, therefore, his possession of articles  which  are  illicit  under the  NDPS  Act  is  not established;    that  the  precondition   for   his   having satisfactorily  accounted  for such possession has not  been met;  and to acquit the accused." (Emphasis ours)

     In  State of Himachal Pradesh v.  Shri Pirthi Chand  & Anr.,  (supra),  the  Bench agreed with the view  in  Balbir Singhs case regarding the duty to inform the suspect of his right  as  emanating from Section 50 of the NDPS  Act.   The Court opined :  Compliance of the safeguards in Section 50 is  mandatory  obliging the officer concerned to inform  the person  to  be searched of his right to demand  that  search could  be conducted in the presence of a Gazetted Officer or a  Magistrate.  The possession of illicit articles has to be satisfactorily  established  before the court.  The  officer who  conducts search must state in his evidence that he  had informed  the  accused of his right to demand, while  he  is searched,  in  the  presence  of a  Gazetted  Officer  or  a Magistrate and that the accused had not chosen to so demand. If  no  evidence  to that effect is given,  the  court  must presume  that  the person searched was not informed  of  the protection  the law gives him and must find that  possession of  illicit  articles was not established.  The  presumption under Article 114 Illustration (e) of the Evidence Act, that the  official  duty was properly performed, therefore,  does not apply...

     In  State  of Punjab v.  Labh Singh, (supra) again  it was  reiterated  that the accused has been provided  with  a protection  of being informed of his right to be searched in presence  of a Gazetted Officer or a Magistrate and  failure to  give an opportunity to the concerned person to avail  of the   protection   would  render    the   prosecution   case unsustainable.   In  State  of  Punjab v.   Jasbir  Singh  & others,  (1996)  1  SCC  288,  it  was  opined  :    Having considered  the  evidence we find it difficult to set  aside the  order of acquittal recorded by the Additional  Sessions Judge.   Though  the offence involved is of  a  considerable magnitude of 70 bags containing 34 kgs.  Of poppy husk, each without  any  permit/licence, this Court is  constrained  to confirm  the  acquittal for the reasons that  the  mandatory requirements   of   Section  50  of   Narcotic   Drugs   and Psychotropic  Substances  Act,  1985 has not  been  complied with.  Protection given by Section 50 is a valuable right to the   offender  and  compliance   thereof  intended  to   be

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mandatory.   In case the police officers had prior knowledge that  illegal transport of the contraband is in movement and persons  are in unlawful possession and intends to intercept it,   conduct  search  and   consequentially  to  seize  the contraband, they are required to inform the offender that he has  the  right  that the search will be  conducted  in  the presence  of a gazetted officer or a Magistrate.  Thereafter on their agreeing to be searched by the police officers, the search  and  seizure of the contraband from  their  unlawful possession  would  become  legal and  valid.   However,  the evidence  collected in breach of mandatory requirement  does not  become  inadmissible.  It is settled law that  evidence collected during investigation in violation of the statutory provisions does not become inadmissible and the trial on the basis  thereof  does not get vitiated.  Each case is  to  be considered  on  its own backdrop. (Emphasis added)  In  Ali Mustaffa  Abdul  Rahman Moosa v.  State of Kerala,  (supra), two-Judge Bench of this Court, (to which one of us (CJI) was a  party) it had been found that the appellant had not  been given  any choice as to whether he desired to be searched in the  presence  of  a  Gazetted Officer or  a  Magistrate  as envisaged  under  Section 50 of the NDPS Act.  The  argument raised in that case to the effect that Section 50 of the Act could  not  be  said  to  have  been  violated  because  the appellant  did not require to have himself searched before a  Gazetted  Officer or a Magistrate was rejected  following the law laid down in Balbir Singhs case (supra).  The Court opined  that to enable the concerned person to require  that his  search  be  carried out in the presence of  a  Gazetted Officer  or a Magistrate makes, it is obligatory on the part of the empowered officer to inform the concerned person that he  has a right to require his search to be conducted in the presence  of  a Gazetted Officer or a Magistrate.   Mohinder Kumar   v.   State,  Panaji,  Goa,   (1998)  8  SCC  655,  a three-Judge  Bench (to which one of us, Sujata V.   Manohar, J.   was a party) once again considered the requirements  of Sections  42  and  50 of the Act.  In that case  the  police officer  accidentally  reached the house while  on  patrol duty  and  had  it not been for the conduct of  the  accused persons in trying to run into the house on seeing the police party,  he would perhaps not have had any occasion to  enter the  house  and effect search.  But when the conduct of  the accused  persons raised a suspicion, he went into the  house and  effected  the search, seized the illicit  material  and caused  the arrest.  The Court opined that in the facts  and circumstances  of  the case, when the Investigating  Officer accidentally  stumbled  upon  the   offending  articles  and himself  not being the empowered officer, then on coming  to know  that the accused persons were in possession of illicit articles,  then  from  that stage onwards he  was  under  an obligation  to  proceed  further  in   the  matter  only  in accordance  with the provisions of the Act.  On facts it was found  that  the  Investigating Officer did not  record  the grounds  of  his belief at any stage of  the  investigation, subsequent to his realising that the accused persons were in possession of charas and since he had made no record, he did not  forward  a copy of the grounds to his superior  officer nor  did he comply with the provisions of Section 50 of  the Act, inasmuch as he did not inform the person to be searched that  if he required, his search could be conducted before a Gazetted  Officer  or a Magistrate, the Bench held that  for failure to comply with the provisions of Sections 42 and 50, the  accused  was  entitled  to an order  of  acquittal  and consequently  the  appeal  was  allowed  and  the  order  of conviction  and sentence against the accused was set  aside.

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It  would,  thus, be seen that none of the decisions of  the Supreme  Court after Balbir Singhs case have departed  from that opinion.  At least none has been brought to our notice. There  is, thus, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his  duty  before conducting the search of the person  of  a suspect,  on  the basis of prior information, to inform  the suspect  that  he has the right to require his search  being conducted  in  the  presence  of a  Gazetted  Officer  or  a Magistrate  and that the failure to so inform the suspect of his  right,  would  render the search  illegal  because  the suspect  would not be able to avail of the protection  which is  inbuilt  in  Section 50.  Similarly,  if  the  concerned person  requires,  on  being so informed  by  the  empowered officer  or  otherwise, that his search be conducted in  the presence  of  a  Gazetted  Officer   or  a  Magistrate,  the empowered  officer  is obliged to do so and failure  on  his part  to do so would also render the search illegal and  the conviction  and sentence of the accused bad.  To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires,   is  an  extremely   valuable  right  which   the legislature  has given to the concerned person having regard to  the grave consequences that may entail the possession of illicit  articles  under the NDPS Act.  It appears  to  have been incorporated in the Act keeping in view the severity of the  punishment.  The rationale behind the provision is even otherwise manifest.  The search before a Gazetted Officer or a  Magistrate  would  impart   much  more  authenticity  and creditworthiness  to the search and seizure proceeding.   It would  also  verily strengthen the prosecution case.   There is,  thus,  no justification for the empowered officer,  who goes  to search the person, on prior information, to  effect the  search,  of not informing the concerned person  of  the existence of his right to have his search conducted before a Gazetted  Officer  or a Magistrate, so as to enable  him  to avail  of that right.  It is, however, not necessary to give the information to the person to be searched about his right in  writing.   It  is  sufficient  if  such  information  is communicated  to  the concerned person orally and as far  as possible in the presence of some independent and respectable persons  witnessing the arrest and search.  The  prosecution must,  however,  at the trial, establish that the  empowered officer had conveyed the information to the concerned person of  his  right  of  being searched in the  presence  of  the Magistrate  or  a  Gazetted  Officer, at  the  time  of  the intended  search.  Courts have to be satisfied at the  trial of  the  case  about due compliance  with  the  requirements provided  in Section 50.  No presumption under Section 54 of the  Act  can  be  raised against  an  accused,  unless  the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with. The  safeguard or protection to be searched in presence of a Gazetted  Officer  or a Magistrate has been incorporated  in Section  50 to ensure that persons are only searched with  a good  cause  and  also with a view to maintain  veracity  of evidence  derived from such search.  We have already noticed that severe punishments have been provided under the Act for mere  possession  of Illicit Drugs and Narcotic  Substances. Personal  search,  more particularly for offences under  the NDPS  Act,  are  critical  means of  obtaining  evidence  of possession   and  it  is,   therefore,  necessary  that  the safeguards  provided  in Section 50 of the Act are  observed scrupulously.   The duty to inform the suspect of his  right to  be  searched  in  presence of a Gazetted  Officer  or  a Magistrate   is  a  necessary   sequence  for  enabling  the

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concerned  person  to exercise that right under  Section  50 because after Maneka Gandhi v.  Union of India, (1978) 1 SCC 248,  it is no longer permissible to contend that the  right to  personal liberty can be curtailed even temporarily, by a procedure  which is not reasonable, fair and just and when a statute itself provides for a just procedure, it must be honoured.   Conducting  a search under Section  50,  without intimating to the suspect that he has a right to be searched before  a  Gazetted  Officer  or   a  Magistrate,  would  be violative  of the reasonable, fair and just procedure  and the  safeguard  contained  in Section 50 would  be  rendered illusory,  otiose  and  meaningless.    Procedure  based  on systematic  and  unconscionable  violation  of  law  by  the officials  responsible for the enforcement of law, cannot be considered  to be fair, just or reasonable procedure.   We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be  searched  in  presence  of  a  Gazetted  Officer  or   a Magistrate,  if  he so requires, would place any premium  on ignorance  of  law.   The argument loses sight  of  a  clear distinction  between  ignorance of the law and ignorance  of the  right  to  a  reasonable, fair  and  just  procedure. Requirement  to  inform  has been read in by this  Court  in other   circumstances  also,  where   the  statute  did  not explicitly   provide   for  such   a   requirement.    While considering  the scope of Article 22(5) of the  Constitution of  India  and various other provisions of COFEPOSA Act  and the  NDPS  Act as amended in 1988, a Constitution  Bench  of this  Court in Kamelesh Kumar Ishwardas Patel vs.  Union  of India  & Ors., (1995) 4 SCC 51, concluded :  Article  22(5) must,  therefore,  be  construed  to mean  that  the  person detained  has  a right to make a representation against  the order  of  detention  which  can be made  not  only  to  the Advisory  Board  but also to the detaining authority,  i.e., the  authority  that has made the order of detention or  the order  for continuance of such detention, which is competent to  give immediate relief by revoking the said order as well as  to  any other authority which is competent under law  to revoke  the  order for detention and thereby give relief  to the  person  detained.  The right to make  a  representation carries   within  it  a   corresponding  obligation  on  the authority making the order of detention to inform the person detained  of his right to make a representation against  the order  of  detention to the authorities who are required  to consider such a representation. (Emphasis ours)

     This  Court cannot over-look the context in which  the NDPS  Act operates and particularly the factor of widespread illiteracy  among persons subject to investigation for  drug offences.   It  must  be  borne in  mind  that  severer  the punishment, greater has to be the care taken to see that all the  safeguards  provided  in  a  statute  are  scrupulously followed.   We are not able to find any reason as to why the empowered  officer  should  shirk   from  affording  a  real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of  a Gazetted Officer or a Magistrate, he shall be searched only  in  that manner.  As already observed  the  compliance with  the procedural safeguards contained in Section 50  are intended to serve dual purpose  to protect a person against false  accusation  and  frivolous charges as  also  to  lend creditibility  to  the search and seizure conducted  by  the empowered  officer.   The argument that keeping in view  the growing  drug  menace, an insistence on compliance with  all

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the  safeguards  contained in Section 50 may result in  more acquittals  does not appeal to us.  If the empowered officer fails  to comply with the requirements of Section 50 and  an order  or  acquittal  is  recorded   on  that  ground,   the prosecution  must  thank itself for its lapses.   Indeed  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  judicial process may come under 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 law  and may have the effect of unconscionably  compromising the  administration  of justice.  That cannot be  permitted. In D.K.  Basu v.  State of West Bengal, (1997) 1 SCC 416, it was  opined :  We are conscious of the fact that the police in  India  have  to perform a difficult and  delicate  task, particularly  in  view  of the deteriorating law  and  order situation,   communal  riots,   political  turmoil,  student unrest,   terrorist  activities,  and   among   others   the increasing   number  of  underworld   and  armed  gangs  and criminals.    Many  hardcore   criminals  like   extremists, terrorists,  drug  peddlers,  smugglers who  have  organised gangs,  have taken strong roots in the society.  It is being said   in  certain  quarters  that   with  more   and   more liberalisation  and  enforcement of fundamental  rights,  it would  lead  to  difficulties  in the  detection  of  crimes committed  by such categories of hardened criminals by  soft peddling  interrogation.  It is felt in those quarters  that if  we  lay  too  much of emphasis on  protection  of  their fundamental  rights and human rights, such criminals may  go scot-free   without   exposing  any   element  or  iota   of criminality  with the result, the crime would go  unpunished and  in the ultimate analysis the society would suffer.  The concern  is  genuine and the problem is real.  To deal  with such  a situation, a balanced approach is needed to meet the ends  of  justice.  This is all the more so, in view of  the expectation  of  the society that police must deal with  the criminals  in an efficient and effective manner and bring to book  those who are involved in the crime.  The cure cannot, however, be worst than the disease itself.

     (Emphasis ours)

     In  D.K.  Basus case (supra), the Court also  noticed the  response  of the Supreme Court of the United States  of America  to such an argument in Miranda v.  Arizona, 384  US 436  :  16 L Ed 2d 694 (1966), wherein that Court had said : The  Latin  maxim salus populi suprema lex (the safety  of the  people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not  only important and relevant but lie at the heart of the doctrine  that  the welfare of an individual must  yield  to that  of  the community.  The action of the State,  however, must be right, just and fair (Emphasis supplied)

     There  is  indeed,  a  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 concerned  official  so that the laxity on the part  of  the investigating  authority  is curbed.  However, the  question

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whether  the  provisions  of  Section 50  are  mandatory  or directory   and  if  mandatory  to   what  extent  and   the consequences  of  non-compliance with it does  not  strictly speaking  arise  in the context in which the protection  has been  incorporated  in  Section 50 for the  benefit  of  the person   intended  to  be   searched.   Therefore,   without expressing  any  opinion  as to whether  the  provisions  of Section  50  are mandatory or not, but bearing in  mind  the purpose  for which the safeguard has been made, we hold that the  provisions of Section 50 of the Act implicitly make  it imperative   and  obligatory  and  cast   a  duty   on   the Investigating  Officer  (empowered officer) to  ensure  that search of the concerned person (suspect) is conducted in the manner  prescribed  by  Section  50, by  intimating  to  the concerned  person about the existence of his right, that  if he  so  requires,  he shall be searched  before  a  Gazetted Officer  or a Magistrate and in case he so opts, failure  to conduct   his   search  before  a  Gazetted  Officer  or   a Magistrate,  would cause prejudice to an accused and  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  during a search  conducted  in violation  of the provisions of Section 50 of the Act.   The omission  may not vitiate the trial as such, but because  of the  inherent prejudice which would be caused to an  accused by  the  omission  to be informed of the  existence  of  his right,   it  would  render   his  conviction  and   sentence unsustainable.  The protection provided in the section to an accused  to  be intimated that he has the right to have  his personal  search  conducted before a Gazetted Officer  or  a Magistrate,   if   he  so   requires,  is   sacrosanct   and indefeasible   it cannot be disregarded by the  prosecution except  at  its own peril.  The question whether or not  the safeguards  provided in Section 50 were observed would have, however,  to be determined by the court on the basis of  the evidence led at the trial and the 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 in that section were complied with, it would not be advisable  to cut short a criminal trial.  The next question which  arises  for  our consideration  is  whether  evidence collected  in a search conducted in violation of Section 50, is  admissible  in  evidence?  This question arises  in  the context  of the judgment of the Constitution Bench in Pooran Mals  case (supra).  A submission was made in Ali  Mustaffa Abdul Rahman Moosas case (supra) before the Bench on behalf of  the State of Kerala to reconsider the judgment in Balbir Singhs case in view of the judgment of this Court in Pooran Mal  v.   The  Director of Inspection  (Investigation),  New Delhi  and others.  It was urged in Ali Mustaffa’s case that even  if search and seizure of the contraband was held to be illegal having been conducted in violation of the provisions of  Section  50, it could not affect the conviction  because the  recovered  articles could still be used as  "admissible evidence"  under  the  Evidence Act  to  establish  unlawful possession  of  the contraband on the concerned person  from whom  it  was  recovered  during that  search.   This  Court repelled  that  contention  and held that  the  judgment  in Pooran  Mals  case (supra) could not be read to  have  laid down  that  a  contraband seized as a result of  an  illegal search or seizure could still be used as admissible evidence of unlawful possession of the contraband on the person from

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whom  the contraband had allegedly been seized in an illegal manner.   The Bench in Ali Mustaffas case (supra) observed :   The  last  submission of the learned  counsel  for  the respondents  is  that even if the search and seizure of  the contraband  are  held  to  be illegal and  contrary  to  the provisions of Section 50 of the NDPS Act, it would still not affect  the conviction because the seized articles could  be used  as  evidence of unlawful possession of a  contraband. Reliance  for  this submission is placed on the judgment  of this Court in Pooran Mal v.  Director of Inspection.  We are afraid  the  submission  is misconceived  and  the  reliance placed  on the said judgment is misplaced.  The judgment  in Pooran  Mal case only lays down that the evidence  collected as  a result of illegal search or seizure, could be used  as evidence  in proceedings against the party under the  Income Tax  Act.   The judgment cannot be interpreted to  lay  down that  a  contraband seized as a result of illegal search  or seizure,  can  be used to fasten that liability of  unlawful possession  of  the 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 NDPS Act and that factor has to be established  by  the prosecution beyond a 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 NDPS Act.

     However,  a  later two-Judge Bench in  Pirthi  Chands case  (supra)  relying  upon   Pooran  Mals  case  (supra), observed :  The evidence collected in a search in violation of  law  does not become inadmissible in evidence under  the Evidence  Act.   The  consequence  would  be  that  evidence discovered  would  be  to prove unlawful possession  of  the contraband  under  the Act.  It is founded in  Panchnama  to seize   the   contraband   from   the  possession   of   the suspect/accused.   Though the search may be illegal but  the evidence  collected, i.e., Panchnama etc., nonetheless would be  admissible  at  the  trial.   At  the  stage  of  filing charge-sheet it cannot be said that there is no evidence and the  Magistrate  or the Sessions Judge would  be  committing illegality  to  discharge  the accused on  the  ground  that Section  50 or other provisions have not been complied with. At  the  trial  an  opportunity would be  available  to  the prosecution  to  prove  that  the search  was  conducted  in accordance  with  law.   Even if search is found  to  be  in violation  of  law,  what  weight should  be  given  to  the evidence collected is yet another question to be gone into (Emphasis supplied)

     This  view was reiterated in Jasbir Singhs case also. It  appears that the earlier judgment in Ali Mustaffas case was not brought to the notice of their Lordships in both the above  cases.   Let  us, therefore, first examine  the  fact situation  and the law as laid down in Pooran Mals case and the  question  of its applicability to cases arising out  of offences under the NDPS Act, based only on proof of unlawful possession of an illicit drug or a psychotropic substance on the person of an accused, where the illicit article only was seized  during  the  search  conducted   in  breach  of  the provisions  of Section 50.  In Pooran Mals case, the relief claimed  by the main appellant in his case was in respect of action  taken under Section 132 of the Income Tax Act,  1961 by  way  of  search and seizure of certain premises  on  the ground  that  the authorisation for the search as  also  the search  and seizure of the materials were illegal.  In  that

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case  articles  consisting  of account books  and  documents besides  some cash, jewelry and other valuables were  seized by  the  Income Tax Authorities purporting to act under  the authorisation  of a search and seizure issued under  Section 132  of  the Income Tax Act.  The Constitution  Bench  dealt both    with   the    challenge    on   constitutional   and non-constitutional  grounds to the search and seizure.   The Court  opined  that the power of search and seizure  in  any system of jurisprudence is an overriding power of the State for  the  protection  of social security and that  power  is necessarily  regulated by law.  The Court then noticed  the safeguards provided in Section 132 of the Act and observed : We  are, therefore, to see what are the inbuilt  safeguards in  Section 132 of the Income-tax Act.  In the first  place, it  must be noted that the power to order search and seizure is  vested  in  the  highest  officers  of  the  department. Secondly  the  exercise  of  this power can  only  follow  a reasonable  belief  entertained by such officer that any  of the three conditions mentioned in Section 132(1)(a), (b) and (c)  exists.   In this connection it may be further  pointed out  that  under sub-rule (2) of Rule 112, the  Director  of Inspection  or the Commissioner, as the case may be, has  to record his reasons before the authorisation is issued to the officers  mentioned  in  sub-section   (1).   Thirdly,   the authorisation  for  the  search cannot be in favour  of  any officer  below the rank of an Income-tax Officer.  Fourthly, the authorisation is for specific purposes enumerated in (i) to  (v) in sub-section (1) all of which are strictly limited to  the object of the search.  Fifthly when money,  bullion, etc.  is seized the Income- tax Officer is to make a summary enquiry  with a view to determine how much of what is seized will be retained by him to cover the estimated tax liability and how much will have to be returned forthwith.  The object of  the  enquiry  under  sub-section (5) is  to  reduce  the inconvenience  to  the assessee as much as possible so  that within  a  reasonable  time  what is estimated  due  to  the Government  may  be retained and what should be returned  to the  assessee may be immediately returned to him.  Even with regard  to the books of account and documents, seized, their return  is  guaranteed  after  a reasonable  time.   In  the meantime  the  person from whose custody they are seized  is permitted  to make copies and take extracts.  Sixthly, where money,  bullion, etc.  is seized, it can also be immediately returned  to the person concerned after he makes appropriate provision  for  the payment of the estimated tax dues  under sub-section  (5) and lastly, and this is most important, the provisions of the Criminal Procedure Code relating to search and  seizure  apply, as far as they may be, to all  searches and  seizures under Section 132.  Rule 112 provides for  the actual  search and seizure being made after observing normal decencies  of  behaviour.   The  person  in  charge  of  the premises searched is immediately given a copy of the list of articles  seized.  One copy is forwarded to the  authorising officer.   Provision  for the safe custody of  the  articles after seizure is also made in Rule 112.  In our opinion, the safeguards  are adequate to render the provisions of  search and  seizure as less onerous and restrictive as is  possible under   the  circumstances.    The  provisions,   therefore, relating  to search and seizure in Section 132 and Rule  112 cannot be regarded as violative of Article 19(f) and (g).

     (Emphasis  supplied) Dealing with the effect of search and seizure conducted in breach of the provisions of Section 132 of the Income Tax Act,

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     the  Court opined :  In that view, even assuming,  as was done by the High Court, that the search and seizure were in  contravention  of the provisions of Section 132  of  the Income-tax  Act, still the material seized was liable to  be used  subject  to  law  before  the  Income-tax  authorities against  the  person from whose custody it was  seized  and, therefore,  no Writ of Prohibition in restraint of such  use could be granted.  It must be, therefore, held that the High Court  was right in dismissing the two writ petitions.   The appeals must also fail and are dismissed with costs.

     Now,  if  the  Evidence  Act, 1872 which  is  a  law consolidating, defining and amending the law of evidence, no provision   of   which  is   challenged  as  violating   the Constitution    permits  relevancy  as  the  only  test  of admissibility  of  evidence (See Section 5 of the Act)  and, secondly,  that  Act or any other similar law in force  does not  exclude  relevant  evidence on the ground that  it  was obtained  under  an  illegal search or seizure, it  will  be wrong  to invoke the supposed spirit of our Constitution for excluding such evidence

     It,  therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of  evidence  obtained  on  an  illegal  search.  (Emphasis supplied)

     On  facts,  the Court in Pooran Mals  case,  however, found  :   On the whole, therefore, we are not inclined  to hold  that the search and seizure in this writ petition  was vitiated by any illegality.

     Similarly,  in the other writ petitions dealt with  in Pooran  Mals  case, the Court opined :  .The  search  and seizure,  therefore,  impugned  in   this  illega  l.  writ petition  cannot  be regarded as ( Emphasis supplied  )  The Judgement  in Pooran Mals case (supra) has to be considered in the context in which it was rendered.  It is well-settled proposition  of law that a decision is an authority for what it  decides and not that everything said therein constitutes a   precedent.   The  courts  are   obliged  to  employ   an intelligent technique in the use of precedents bearing it in mind  that a decision of the court takes its colour from the questions involved in the case in which it was rendered.  In C.I.T.   v.   Sun Engineering Works (P) Ltd., (1992)  4  SCC 363,  this  Court  rightly pointed out :   It  is  neither desirable  nor permissible to pick out a word or a  sentence from  the judgment of this Court, divorced from the  context of  the question under consideration and treat it to be  the complete law declared by this Court.  The judgment must be read  as a whole and the observations from the judgment have to  be  considered in the light of the questions which  were before  this  Court.   A decision of this  Court  takes  its colour  from the questions involved in the case in which  it is rendered and while applying the decision to a later case, the  courts  must  carefully  try   to  ascertain  the  true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the  context  of the questions under consideration  by  this Court, to support their reasonings.

     (Emphasis supplied)

     The  judgment in Pooran Mals case (supra), therefore,

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cannot  be  understood  to have laid down  that  an  illicit article  seized  during  the  search  of  person,  on  prior information,  conducted  in violation of the  provisions  of Section  50  of the Act can be used as evidence of  unlawful possession  of  the illicit article on the person from  whom that  contraband  had been seized during an illegal  search. Apart from the position that in Pooran Mals case, on facts, it  was  found that the search and seizure conducted in  the cases  under consideration in that case were not vitiated by any  illegality, the import of that judgment, in the present context,  can  only  be to the effect that  material  seized during search and seizure, conducted in contravention of the provisions  of  Section 132 of the Income Tax Act cannot  be restrained  from  being  used, subject to  law,  before  the Income  Tax  Authorities in other legal proceedings  against the  persons, from whose custody that material was seized by issuance  of  a writ of prohibition.  It was not the  seized material,  in  Pooran  Mals  case, which  by  itself  could attract  any  penal  action against the assessee.   What  is implicit  from the judgment in Pooran Mals case is that the seized  material  could be used in other  legal  proceedings against an assessee, before the Income Tax authorities under the  Income  Tax Act, dealing with escaped income.   It  is, therefore,  not possible to hold that the judgment in Pooran Mals case can be said to have laid down that the recovered illicit article can be used as proof of unlawful possession of  the  contraband seized from the suspect as a  result  of illegal  search  and seizure.  If Pooran Mals  judgment  is read  in  the manner in which it has been construed  in  The State of Himachal Pradesh v.  Pirthi Chand and Anr.  (though that issue did not strictly speaking arise for consideration in  that  case),  then  there would  remain  no  distinction between  recovery  of  illicit drugs etc.  seized  during  a search conducted "after" following the provisions of Section 50  of  the  NDPS  Act and a seizure made  during  a  search conducted  "in breach of" the provision of Section 50 of the NDPS Act.  Prosecution cannot be permitted to take advantage of its own wrong.  Conducting a fair trial for those who are accused  of  a  criminal offence is the cornerstone  of  our democratic  society.  A conviction resulting from an  unfair trial  is contrary to our concept of justice.  Conducting  a fair trial is both for the benefit of the society as well as for  an accused and cannot be abandoned.  While  considering the  aspect  of  fair  trial, the  nature  of  the  evidence obtained  and the nature of the safeguard violated are  both relevant factors.  Courts cannot allow admission of evidence against  an  accused, where the court is satisfied that  the evidence had been obtained by a conduct of which prosecution ought  not to take advantage particularly when that  conduct had  caused  prejudice  to the accused.   If  after  careful consideration  of the material on the record it is found  by the court that the admission of evidence collected in search conducted  in violation of Section 50 would render the trial unfair  then  that  evidence must be excluded.  In  R.   vs. Collins  :   1987  (1) SCR 265 the Supreme Court  of  Canada speaking  through Lamer, J.  (as His Lordship, Chief Justice of the Supreme Court of Canada then was) opined that the use of  evidence collected in violation of the Charter rights of an  accused  would  render a trial unfair and  the  evidence inadmissible.   In the words of the Supreme Court of Canada: The  situation  is  very different with  respect  to  cases where,  after  a  violation of the Charter, the  accused  is conscripted  against  himself through a confession or  other evidence emanating from him.  The use of such evidence would render  the trial unfair, for it did not exist prior to  the

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violation and it strikes at one of the fundamental tenets of a fair trial. (Emphasis ours)

     The  opinion in Collins case has been relied upon  by the  majority  of  the  Supreme Court of Canada  in  R.   v. Stillman,  [1997]  1  R.C.S.   607 also.   The  question  of admissibility  of  evidence,  which may be relevant  to  the question in issue, has thus to be decided in the context and the manner in which the evidence was collected and is sought to be used.  In view of the provisions of Chapter IV of NDPS Act,  mere unlawful possession of a contraband amounts to an offence  and  is punishable with rigorous  imprisonment  for terms  which shall not be less than 10 years but can  extend to  20  years or 30 years in addition to a fine which  shall not  be less than one lakh of rupees but which may extend to two  lakhs  or  three  lakhs  of rupees.   On  a  charge  of possession  of a dangerous drug or a psychotropic substance, if  it is established that the accused had the contraband in his  possession  without  authority,  he  is  liable  to  be punished.   "Unlawful  possession" of the contraband is  the sine qua non for recording conviction under the NDPS Act and the  most important ingredient of an offence under the  NDPS Act.   Explaining  the concept of possession, in Bocking  v. Roberts,  (1973)  3  All  E.R.    962,  Lord  Widgery,  C.J. observed  :   In  my judgment it is quite clear  that  when dealing  with  a  charge of possession of a  dangerous  drug without  authority, the ordinary maxim of de minimis is  not to  be applied, in other words if it is clearly  established that  the  accused  had a dangerous drug in  his  possession without authority, it is no answer to him to say :  oh, but the quantity of the drug which I possessed was so small that the  law  should take no account of it. The doctrine of  de minimis  as  such in my judgment does not apply but, on  the other  hand,  since  the accused is possessing  a  dangerous drug,  it is quite clear that the prosecution have to  prove that there was some drug in the possession of the accused to justify the charge ( Emphasis ours )

     In  R.  v.  Young, (1984) 2 All E.R.  164, it was held that  if  an accused being in possession of  the  prohibited substance  on  seeing the police party swallows the same  to avoid  detection, he can be convicted for possession of  the prohibited  substance  and  not   for  consumption  thereof. Similarly, in Louis Beaver v.  Her Majesty The Queen, [1957] S.C.R.   531, the Supreme Court of Canada while dealing with a  case  relating to an offence of possession  of  forbidden narcotic substance held that the element of knowledge formed a  part  of  the  ingredient   of  possession,  where   mere possession of the forbidden substance amounts to an offence. A  Constitution  Bench of this Court in Sanjay Dutt v.   The State  through C.B.I., Bombay (II), (1994) 5 SCC 410,  while dealing  with  Section  5 of the  Terrorist  and  Disruptive Activities  (Prevention)  Act,  1987 (TADA), which  reads  : Section  5  Possession of certain unauthorised arms, etc., in  specified areas.   Where any person is in possession of any  arms  and  ammunition specified in Columns 2 and  3  of Category  I  or Category III (a) of Schedule I to  the  Arms Rules,   1962,  or  bombs,   dynamite  or  other   explosive substances  unauthorisedly  in  a notified area,  he  shall, notwithstanding  anything contained in any other law for the time  being in force, be punishable with imprisonment for  a term  which shall not be less than five years but which  may extend  to imprisonment for life and shall also be liable to fine.

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     spelt  out  the ingredients of the offence created  by Section  5 of TADA and opined :  The position which emerges is this.  For constituting the offence made punishable under Section  5 of the TADA Act, the prosecution has to prove the aforesaid  three  ingredients.   Once  the  prosecution  has proved  unauthorised conscious possession of any of  the specified  arms and ammunition etc.  in a notified area by the  accused, the conviction would follow on the strength of the  presumption unless the accused proves the non-existence of  a fact essential to constitute any of the ingredients of the  offence.  Undoubtedly, the accused can set up a defence of  non-existence  of a fact which is an ingredient  of  the offence to be proved by the prosecution.

     (Emphasis ours)

     The  Constitution  Bench in Sanjay Dutt’s  case,  thus clearly   held   that  once   the  prosecution  has   proved unauthorised  conscious  possession of any of the  specified arms and ammunition etc.  in a notified area by the accused, the  offence  is complete and the conviction must follow  on the  strength  of  the  statutory  presumption,  unless  the accused  proves  the  non-existence of a fact  essential  to constitute  any of the ingredient of that offence.   Indeed, the  presumption, even though statutory in nature, was  held to be rebuttable.  Thus, even if, it be assumed for the sake of  argument that all the material seized during an  illegal search,  may  be  admissible as relevant evidence  in  other proceedings,  the  illicit  drug or  psychotropic  substance seized  in  an  illegal search cannot by itself be  used  as proof  of unlawful conscious possession of the contraband by the  accused.   An  illegal search cannot also  entitle  the prosecution  to raise a presumption under Section 54 of  the Act  because presumption, is an inference of fact drawn from the  facts  which are known as proved.  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.  We,  therefore, hold  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  by itself  be used as admissible evidence of proof of  unlawful possession  of  the  contraband on the accused.   Any  other material/article  recovered during that search may, however, be  relied  upon  by the  prosecution  in  other/independent proceedings  against an accused notwithstanding the recovery of   that  material  during  an   illegal  search  and   its admissibility  would  depend  upon  the  relevancy  of  that material  and  the  facts and circumstances  of  that  case. Thus,  considered we are of the opinion that the judgment in Ali  Mustaffas case correctly interprets and  distinguishes the judgment in Pooran Mals case and the broad observations made  in Pirthi Chands case and Jasbir Singhs case are not in  tune with the correct exposition of law, as laid down in Pooran  Mal’s  case.   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 concerned person 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 concerned  person  about  the existence of his right  to  be

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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;  (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 concerned  official  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 judicial process may come  under 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 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 50  have  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 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- sho rt  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 concerned  person 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

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prosecution  to raise a presumption under Section 54 of  the Act  (9)  That the judgment in Pooran Mal’s case  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’s case correctly  interprets  and distinguishes  the  judgment  in Pooran Mal’s case  and  the broad  observations  made in Pirthi Chand’s case and  Jasbir Singh’s  case are not in tune with the correct exposition of law   as  laid  down  in   Pooran  Mal’s  case.   The  above conclusions are not a summary of our judgment and have to be read  and  considered in the light of the entire  discussion contained in the earlier part.

     We,  accordingly,  answer the reference in the  manner aforesaid.

     Let  the Criminal Appeals and Special Leave  Petitions be now placed for disposal before an appropriate Bench.