REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 943 OF 2005

VIJAYSINH CHANDUBHA JADEJA — APPELLANT (S)

VERSUS

STATE OF GUJARAT — RESPONDENT (S)

WITH  

CRIMINAL APPEAL NO.974 OF 2003 & CRIMINAL APPEAL NO.1809 OF 2009

J U D G M E N T

D.K. JAIN, J.:

1. The short question arising for consideration in this batch of appeals is  

whether Section 50 of the Narcotic Drugs and Psychotropic Substances  

Act, 1985 (for short “the NDPS Act”) casts a duty on the empowered  

officer to ‘inform’ the suspect of his right to be searched in the presence  

of a Gazetted Officer or a Magistrate, if he so desires or whether a mere  

enquiry by the said officer as to whether the suspect would like to be  

searched in the presence of a Magistrate or a Gazetted Officer can be  

said to be due compliance with the mandate of the said Section?

2. When these appeals came up for consideration before a bench of three  

Judges, it was noticed that there was a divergence of opinion between  

the decisions of this Court in the case of  Joseph Fernandez Vs. State  

of Goa1,  Prabha Shankar Dubey  Vs.  State of M.P.2 on the one hand  

and Krishna Kanwar (Smt) alias Thakuraeen Vs. State of Rajasthan3  

on the other, with regard to the dictum laid down by the Constitution  

Bench of this Court in State of Punjab Vs. Baldev Singh4, in particular  

regarding the question whether before conducting search, the concerned  

police officer is merely required to ask the suspect whether he would  

like to be produced before the Magistrate or a Gazetted Officer for the  

purpose of search or is the suspect required to be made aware of the  

existence  of  his  right  in  that  behalf  under  the  law.   It  would  be  

expedient to extract the relevant portion of the order:-

“When  the  matter  came  up  before  this  Court,  it  was  found that in some of the decisions rendered by this Court, a  slightly different view was taken than what was expressed by  the Constitution Bench with regard to interpretation of Section  50 of the NDPS Act.  In the case Joseph Fernandez  Vs. State of  Goa,  2001 (1)  SCC p.707,  a Bench of  three Hon’ble Judges  held that even when the searching officer informed him that “if  you wish you may be searched in the presence of a gazetted  officer or a Magistrate”; it was held that it was in substantial  compliance with the requirement of Section 50 of the NDPS  Act,  and  the  Court  observed  that  it  did  not  agree  with  the  contention  that  there  was  non-compliance  of  the  mandatory  provisions  contained  in  Section  50  of  the  NDPS  Act.   In  

1 (2000) 1 SCC 707 2 (2004) 2 SCC 56 3 (2004) 2 SCC 608 4 (1999) 6 SCC 172

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another  decision of this  Court  in  Prabha Shankar Dubey  Vs.  State of M.P. 2004(2) SCC p.56, the following information was  conveyed  to  the  accused:  “By  way  of  this  notice,  you  are  informed  that  we  have  received  information  that  you  are  illegally carrying opium with you, therefore, we are required to  search your scooter and you for this purpose.  You would like  to  give  me  search  or  you  would  like  to  be  searched  by  a  gazetted  officer  or  by  a  Magistrate”.   This  was  held  to  be  substantial  compliance  of  Section  50  of  the  NDPS Act.   In  Krishan  Kanwar  (Smt.)  Alias  Thakuraeen Vs.  State  of  Rajasthan,  2004(2)  SCC  p.608,  the  same  question  was  considered  and  it  was  held  that  there  is  no  specific  form  prescribed or initiated for conveying the information required to  be given under Section 50 of the NDPS Act and it was held that  “what is necessary is that the accused (suspect) should be made  aware  of  the  existence  of  his  right  to  be  searched  in  the  presence  of  one  of  the  officers  named  in  the  section  itself.  Since no specific mode or manner is prescribed or intended, the  court has to see the substance and not the form of intimation.  Whether  the  requirement  of  Section  50  have  been  met  is  a  question which is to be decided on the facts of each case and  there  cannot  be  any  sweeping  generalization  and/or  a  straitjacket formula. ………………………………………………………………… …………………………………………………………………

Thus, in a way, it all depends on the oral evidence of the  officer who conducts search, in case nothing is mentioned in the  search  mahazar  or  any  other  contemporaneous  document  prepared at the time of search.  In view of the large number of  cases  coming up under  the  provisions  of  the  NDPS Act  the  interpretation  of  Section 50 of  the Act requires  a  little  more  clarification as its applicability is quite frequent in many cases.  In appreciating the law laid down by the Constitution Bench in  Baldev Singh’s case (supra), we have noticed that conflicting  decisions have been rendered by this court.  We feel that the  matter  requires  some  clarification  by  a  larger  Bench.   The  matter be placed before the Hon’ble Chief Justice of India for  taking further action in this regard.”

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That  is  how  these  appeals  came  to  be  placed  before  this  Constitution  

Bench.

3. Since  the  cases  have  come  up  before  us  for  a  limited  purpose  of  

clarification as to the interpretation of Section 50 of the NDPS Act by  

the  Constitution  Bench  in  Baldev  Singh’s  case  (supra),  we deem it  

unnecessary to state the background facts, giving rise to these appeals.

4. We have heard learned counsel for the appellant, State of Gujarat, State  

of West Bengal, Government of National Capital Territory of Delhi and  

learned Additional Solicitor General on behalf of Union of India.

5. Mr.  P.H.  Parekh,  learned  senior  counsel  appearing  on  behalf  of  

appellant (Criminal Appeal No.943 of 2005), strenuously urged that a  

conjoint reading of Section 50(1) and 50(3) of the NDPS Act, in its  

common grammatical connotation, makes it abundantly clear that the  

procedural safeguards envisaged under Section 50 are to be employed  

effectively  and honestly  while  informing,  apprising and advising the  

suspect of his vested right to be searched only by a Gazetted Officer or  

a Magistrate.  It was contended that the ambit of statutory protection  

granted by the Parliament under Section 50(1) of the NDPS Act having  

been explained unambiguously and clearly by the Constitution Bench in  

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the  case  of  Baldev  Singh  (supra),  there  is  no  scope  for  any  other  

interpretation or clarification of Section 50 of the NDPS Act.

6. Learned counsel vehemently contended that in the light of the dictum  

laid  down  in  Baldev  Singh  (supra),  the  decisions  of  this  Court  in  

Joseph  Fernandez  (supra)  and  Prabha  Shankar  Dubey  (supra)  

wherein the concept of ‘substantial compliance’ has been erroneously  

read into Section 50 of the NDPS Act,  do not  lay down the correct  

proposition  of  law.   It  was  argued  that  Section  50  being  the  only  

safeguard provided to the suspect under the NDPS Act, the legislature,  

while  enacting  it,  gave  it  the   character  of  a  “due  process”  clause,  

thereby placing some minimum procedural limitations on the exercise  

of such extensive statutory power, by insisting on the strict observance  

of the procedure established under the said Section.  According to the  

learned counsel, this safeguard is meant to ensure that the powers under  

the NDPS Act are not abused and a person is not falsely implicated and  

subjected to grave consequences which are likely to follow under the  

said Act.  Relying on the decision of this Court in  Beckodan Abdul  

Rahiman Vs. State of Kerala5, learned counsel submitted that the harsh  

provisions of the NDPS Act cast a heavier duty upon the prosecution to  

strictly follow and comply with the safeguards.

5 (2002) 4 SCC 229

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7. Learned counsel thus, argued that the theory of ‘substantial compliance’  

cannot be applied to defeat, negate or neutralise important safeguards  

provided  by  the  legislature.   It  was  asserted  that  merely  asking  the  

suspect whether he would like to be produced before a Magistrate or a  

Gazetted Officer for the purpose of the search can never amount to due  

compliance with Section 50 of the NDPS Act.

8. Mr. Siddharth Luthra,  learned senior counsel  appearing on behalf  of  

State of Gujarat, on the other hand, submitted that the rigours of Section  

50 of the NDPS Act are neither applicable to the officers who have  

been  empowered  by  a  warrant  under  Section  41(1);  nor  to  the  

gazetted/empowered officers who order search or arrest under Section  

41(2).  It was argued that Section 41(1) of the NDPS Act grants the  

Magistrate the power to issue warrants for arrest or search, whether by  

day or night, inter alia, in relation to a person whom the Magistrate has  

reason to believe has committed an offence under the NDPS Act.  It  

was urged that a reading of Sections 41(1), 41(3), 42, 43 and 50 of the  

NDPS Act shows that an officer acting under a warrant by a Magistrate  

under Section 41(1) would not fall within the ambit of Section 50(1) of  

the NDPS Act.   It  was submitted that  from the language of Section  

41(2) of the NDPS Act, it is clear that the Central Government or the  

State Government, as the case may be, can only empower an officer of  

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a gazetted rank who can either himself act or authorise his subordinate  

on the terms stated in the Section.  On the contrary, however, under  

Section 42(1) of the NDPS Act, there is no restriction on the Central  

Government  or  the  State  Government  to  empower  only  a  gazetted  

officer  and,  therefore,  additional  checks  and  balances  over  officers  

acting under Section 42 have been provided in the proviso to Section  

42(1) and in Section 42(2) of the NDPS Act.  It was, thus, contended  

that the language of Section 42 of the NDPS Act makes it clear that the  

provision applies only to an officer empowered under Section 42(1) and  

not an empowered Gazetted Officer under Section 41(2) of the NDPS  

Act.  In support of the submission that a distinction between a Gazetted  

Officer and an officer acting under Section 42 of the NDPS Act has to  

be maintained, learned counsel commended us to the decisions of this  

Court in M. Prabhulal Vs. Assistant Director, Directorate of Revenue  

Intelligence6 and Union of India Vs. Satrohan7.  It was pleaded that the  

divergent view on the point expressed by this Court in Ahmed Vs. State  

of Gujarat8, does not lay down the correct proposition of law.

9. It was then contended by Mr. Luthra that a reading of sub-sections (1)  

and (3) of Section 50 of the NDPS Act makes it clear that the right  

granted to a suspect is not the right to be searched before the nearest  

6 (2003) 8 SCC 449 7 (2008) 8 SCC 313 8 (2000) 7 SCC 477

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Gazetted Officer or nearest Magistrate, but the right to be taken before  

the  nearest  Gazetted  Officer  or  nearest  Magistrate,  whereupon  such  

officer or Magistrate is duly empowered under Section 50(3), to either  

discharge the suspect from detention or direct that a search be made.  In  

support of the proposition, reliance is placed on a decision of this Court  

in State of Rajasthan Vs. Ram Chandra9.

10.Learned  counsel  also  submitted  that  the  decisions  of  this  Court  in  

State  of  Punjab  Vs.  Balbir  Singh10,  Saiyad  Mohd.  Saiyad  Umar  

Saiyad & Ors.  Vs.  State of Gujarat11,  Ali Mustaffa Abdul Rahman  

Moosa Vs. State of Kerala12 and affirmed in Baldev Singh (supra) have  

all  read the phrase ‘for making the search’ into Section 50(1) of the  

NDPS Act, which has led to safeguards and protections to an accused  

person,  as  envisaged under  Section 50 of  the  NDPS Act  to  be  read  

down, making the said provision virtually ineffective and, therefore, the  

decision of this Court in Baldev Singh (supra) needs reconsideration.

11.Adopting the same line of arguments, Mr. P.P. Malhotra, the learned  

Additional Solicitor General, appearing on behalf of the Government of  

NCT of Delhi  maintained  that  it  is  clear  from language of  Sections  

41(2), 42 and 43 of the NDPS Act that the legislature has dealt with  

9 (2005) 5 SCC 151 10 (1994) 3 SCC 299 11 (1995) 3 SCC 610 12 (1994) 6 SCC 569

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gazetted officers  differently,  reposing higher  degree  of  trust  in  them  

and, therefore, if a search of a person is conducted by a gazetted officer,  

he would not be required to comply with the rigours of Section 50(1) of  

the Act.  It was argued that the view expressed by this Court in Ahmed  

(supra), is incorrect and, therefore, deserves to be reversed.

12.The NDPS Act was enacted in the year 1985, with a view to consolidate  

and amend the law relating to narcotic drugs, incorporating stringent  

provisions for control and regulation of operations relating to narcotic  

drugs and psychotropic substances.  The object of the said legislation  

has been explained time and again by this Court in a plethora of cases  

and, therefore, we feel that it is not necessary to delve upon this aspect  

all over again, except to re-emphasise that in order to prevent abuse of  

the  provisions  of  the  NDPS Act,  which  confer  wide  powers  on  the  

empowered officers, the safeguards provided by the Legislature have to  

be observed strictly.  Moreover, having regard to the terms of reference  

to the larger Bench, extracted above, it is equally unnecessary to extract  

extensively all the provisions of the NDPS Act to which reference was  

made by learned counsel appearing for the States, and a brief reference  

to these provisions would suffice.  

13.Under Section 41 of the NDPS Act, certain classes of Magistrates are  

competent to issue warrants  for the arrest  of any person whom such  

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Magistrates  have  reason  to  believe  to  have  committed  any  offence  

punishable  under  the  NDPS Act,  or  for  the  search  of  any  building,  

conveyance or place in which such Magistrate has reason to believe any  

narcotic  drug  or  psychotropic  substance  or  controlled  substance  in  

respect  of which an offence punishable under the said Act has been  

committed  or  any  document  or  other  article  which  may  furnish  

evidence of the commission of such offence or any illegally acquired  

property or any document or other article which may furnish evidence  

of holding any illegally acquired property which is liable for seizure or  

freezing or forfeiture under Chapter VA is kept or concealed.  Under  

Section 42 of the NDPS Act, the empowered officer can enter, search,  

seize and arrest even without warrant or authorisation, if he has reason  

to believe from his personal knowledge or information taken down in  

writing,  that  an offence  under  Chapter  IV of  the  said  Act  has  been  

committed.  Under proviso to sub-section (1), 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 sunset and  

sunrise after recording the grounds of his belief and send the same to  

his  immediate  official  superior  in  terms  of  sub-section  (2)  of  the  

Section.

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14.Section 50 of the NDPS Act prescribes  the conditions under which  

personal  search of  a person is  required to be conducted.   Being the  

pivotal provision, the Section, (as amended by Act 9 of 2001 – inserting  

sub-sections (5) and (6) with effect from 2nd October 2001) is extracted  

in full.  It reads as under:

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

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

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

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

(5) When  an  officer  duly  authorised  under  section  42  has  reason to believe that it is not possible to take the person to be  searched to the nearest Gazetted Officer or Magistrate without  the  possibility  of  the  person  to  be  searched  parting  with  possession of any narcotic drug or psychotropic substance, or  controlled substance or article or document, he may, instead of  taking  such  person  to  the  nearest  Gazetted  Officer  or  Magistrate,  proceed  to  search  the  person  as  provided  under  section  100  of  the  Code  of  Criminal  Procedure,  1973  (2  of  1974).

(6) After  a  search  is  conducted  under  sub-section  (5),  the  officer  shall  record  the  reasons  for  such  belief  which  

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necessitated such search and within seventy-two hours send a  copy thereof to his immediate official superior.”

15.Sub-section (1) of the said Section 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.  It is manifest that if the suspect  

expresses the desire to be taken to the gazetted officer or the Magistrate,  

the  empowered officer  is  restrained from effecting the  search of  the  

person concerned.  He can only detain the suspect for being produced  

before the gazetted officer or the Magistrate, as the case may be.  Sub-

section (3) lays down that when the person to be searched is brought  

before such 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 the search to be made.  The mandate of Section 50 is precise  

and clear, viz. if the person intended to be searched expresses to the  

authorised officer his desire to be taken to the nearest gazetted officer  

or the Magistrate, he cannot be searched till the gazetted officer or the  

Magistrate, as the case may be, directs the authorised officer to do so.

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16.At this juncture, we must state that the issue before us in terms of the  

referral order is not about the applicability of Section 50 of the NDPS  

Act per se but is confined to the scope and width of the expression “if  

the person to be searched so requires” as figuring in sub-section (1) of  

the said Section.  Therefore, we deem it unnecessary to evaluate the  

submissions made by the learned counsel regarding the applicability of  

the rigours of Section 50 of the NDPS Act when a search of the suspect  

is conducted by an officer empowered under Section 41 of the said Act.  

We  may,  however,  add  that  while  considering  the  question  of  

compliance with Section 50 of the NDPS Act, the Constitution Bench  

in  Baldev  Singh  (supra)  considered  the  provisions  of  Section  41  as  

well.  It observed as under :-

“8.  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  Departments  of  Central  Excise,  Narcotics,  Customs, Revenue Intelligence or any other department of the  Central  Government   or  of  the  Border  Security  Force,  empowered in that behalf by a general or special order of the  State Government 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.”

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17.In the above background, we shall now advert to the controversy at  

hand.   For  this  purpose,  it  would  be  necessary  to  recapitulate  the  

conclusions,  arrived at by the Constitution Bench in  Baldev Singh’s  

case (supra).  We are concerned with the following conclusions:-  

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

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

(3) That a search made by an empowered officer, on prior  information, without informing the person of his right that if he  so  requires,  he  shall  be  taken  before  a  gazetted  officer  or  a  Magistrate for search and in case he so opts, failure to conduct  his search before a gazetted officer or a Magistrate,  may not  vitiate  the  trial  but  would  render  the  recovery  of  the  illicit  article  suspect  and  vitiate  the  conviction  and sentence  of  an  accused, where the conviction has been recorded  only  on the  basis of the possession of the illicit article, recovered from his  person, during a search conducted in violation of the provisions  of Section 50 of the Act.

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(5) That whether or not the safeguards provided in Section  50 have been duly observed would have to be determined by  the court on the basis of the evidence led at the trial.  Finding  on  that  issue,  one  way  or  the  other,  would  be  relevant  for  recording an order of conviction or acquittal.  Without giving  an opportunity to the prosecution to establish, at the trial, that  the provisions of Section 50 and,  particularly,  the safeguards  

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provided  therein  were  duly  complied  with,  it  would  not  be  permissible to cut short a criminal trial.

(6) That  in  the  context  in  which  the  protection  has  been  incorporated in Section 50 for the benefit of the person intended  to  be  searched,  we  do  not  express  any  opinion  whether  the  provisions of Section 50 are mandatory or directory, but hold  that  failure  to  inform  the  person  concerned  of  his  right  as  emanating from sub-section (1) of Section 50, may render the  recovery  of  the  contraband  suspect  and  the  conviction  and  sentence of an accused bad and unsustainable in law.

(7) That  an  illicit  article  seized  from  the  person  of  an  accused during search conducted in violation of the safeguards  provided in Section 50 of the Act cannot be used as evidence of  proof of unlawful possession of the contraband on the accused  though any other material recovered during that search may be  relied upon by the prosecution, in other proceedings, against an  accused, notwithstanding the recovery of that material  during  an illegal search.”

18.Although the Constitution Bench did not decide in absolute terms the  

question whether or not Section 50 of the NDPS Act was directory or  

mandatory yet it was held that provisions of sub-section (1) of Section  

50 make it imperative for the empowered officer to “inform” the person  

concerned  (suspect)  about  the  existence  of  his  right  that  if  he  so  

requires, he shall be searched before a gazetted officer or a Magistrate;  

failure  to  “inform” the  suspect  about  the  existence  of  his  said  right  

would cause prejudice to him, and in case he so opts, failure to conduct  

his search before a gazetted officer or a Magistrate, may not vitiate the  

trial  but  would  render  the  recovery  of  the  illicit  article  suspect  and  

vitiate the conviction and sentence  of an accused, where the conviction  

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has  been  recorded  only  on  the  basis  of  the  possession  of  the  illicit  

article,  recovered  from  the  person  during  a  search  conducted  in  

violation of the provisions of Section 50 of the NDPS Act.  The Court  

also noted that it was not necessary that the information required to be  

given under Section 50 should be in a prescribed form or in writing but  

it was mandatory that the suspect was made aware of the existence of  

his right to be searched before a gazetted officer or a Magistrate, if so  

required by him. We respectfully concur with these conclusions.  Any  

other  interpretation  of  the  provision  would  make  the  valuable  right  

conferred on the suspect illusory and a farce.   

19.As noted above, sub-sections (5) and (6) were inserted in Section 50  

by Act 9 of 2001.  It is pertinent to note that although by the insertion of  

the said two sub-sections, the rigour of strict procedural requirement is  

sought  to  be  diluted  under  the  circumstances  mentioned  in  the  sub-

sections, viz. when the authorised officer has reason to believe that any  

delay in search of the person is fraught with the possibility of the person  

to  be  searched  parting  with  possession  of  any  narcotic  drug  or  

psychotropic substance etc., or article or document, he may proceed to  

search the person instead of taking him to the nearest gazetted officer or  

Magistrate.   However,  even  in  such  cases  a  safeguard  against  any  

arbitrary use of power has been provided under sub-section (6).  Under  

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the said sub-section, the empowered officer is obliged to send a copy of  

the  reasons,  so  recorded,  to  his  immediate  official  superior  within  

seventy two hours of the search.  In our opinion, the insertion of these  

two sub-sections does not obliterates the mandate of sub-section (1) of  

Section 50 to inform the person, to be searched, of his right to be taken  

before a gazetted officer or a Magistrate.  The object and the effect of  

insertion of sub-sections (5) and (6) were considered by a Constitution  

Bench of this Court, of which one of us (D.K. Jain, J.) was a member,  

in Karnail Singh Vs. State of Haryana13.  Although in the said decision  

the Court did observe that by virtue of insertion of sub-sections (5) and  

(6), the mandate given in Baldev Singh’s case (supra) is diluted but the  

Court also opined that it cannot be said that by the said insertion, the  

protection  or  safeguards given to  the  suspect  have been taken away  

completely.  The Court observed :-

“Through this amendment the strict procedural requirement as  mandated by Baldev Singh case was avoided as relaxation and  fixing of the reasonable time to send the record to the superior  official as well as exercise of Section 100 CrPC was included  by the legislature.  The effect conferred upon the previously  mandated strict compliance with Section 50 by Baldev Singh  case  was that  the procedural  requirements  which may have  handicapped an emergency requirement of search and seizure  and give the suspect a chance to escape were made directory  based  on  the  reasonableness  of  such  emergency  situation.  Though  it  cannot  be  said  that  the  protection  or  safeguard  given to the suspects have been taken away completely but  certain flexibility in the procedural norms were adopted only  

13 (2009) 8 SCC 539

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to balance an urgent situation.  As a consequence the mandate  given in Baldev Singh case is diluted.”

20.It  can,  thus, be seen that apart  from the fact  that in  Karnail  Singh  

(supra), the issue was regarding the scope and applicability of Section  

42 of the NDPS Act in the matter of conducting search, seizure and  

arrest without warrant or authorisation, the said decision does not depart  

from the dictum laid down in Baldev Singh’s case (supra) in so far as  

the obligation of the empowered officer to inform the suspect of his  

right enshrined in sub-section (1) of Section 50 of the NDPS Act is  

concerned.  It is also plain from the said paragraph that the flexibility in  

procedural requirements in terms of the two newly inserted sub-sections  

can be resorted to only in emergent and urgent situations, contemplated  

in  the  provision,  and not  as  a  matter  of  course.   Additionally,  sub-

section (6) of Section 50 of the NDPS Act makes it  imperative and  

obligatory  on  the  authorised  officer  to  send  a  copy  of  the  reasons  

recorded  by  him  for  his  belief  in  terms  of  sub-section  (5),  to  his  

immediate superior officer, within the stipulated time, which exercise  

would again be subjected to judicial scrutiny during the course of trial.

21.We shall now deal with the two decisions, referred to in the referral  

order, wherein “substantial compliance” with the requirement embodied  

in  Section  50  of  the  NDPS Act  has  been held  to  be  sufficient.   In  

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Prabha Shankar Dubey (supra), a two Judge bench of this Court culled  

out the ratio of Baldev  Singh’s case (supra), on the issue before us, as  

follows:

“What the officer concerned is required to do is to convey about  the choice the accused has.  The accused (suspect) has to be  told in a way that he becomes aware that the choice is his and  not of the officer concerned, even though there is no specific  form.  The use of the word “right”  at  relevant  places in the  decision  of  Baldev  Singh  case seems  to  be  to  lay  effective  emphasis that it is not by the grace of the officer the choice has  to be given but more by way of a right in the “suspect” at that  stage to be given such a choice and the inevitable consequences  that have to follow by transgressing it.”

However, while gauging whether or not the stated requirements of Section  

50 had been met on facts of that case, finding similarity in the nature of  

evidence on this aspect between the case at hand and Joseph Fernandez  

(supra),  the  Court  chose  to  follow the  views  echoed in  the  latter  case,  

wherein it was held that searching officer’s information to the suspect to  

the  effect  that  “if  you wish you may be searched in  the  presence  of  a  

gazetted officer or a Magistrate” was in substantial compliance with the  

requirement  of  Section  50  of  the  NDPS Act.   Nevertheless,  the  Court  

indicated the reason for use of expression “substantial compliance” in the  

following words:

“The use of the expression “substantial compliance” was made  in the background that the searching officer had Section 50 in  mind and it was unaided by the interpretation placed on it by  the Constitution Bench in Baldev Singh case.  A line or a word  

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in a judgment cannot be read in isolation or as if interpreting a  statutory  provision,  to  impute  a  different  meaning  to  the  observations.”

It is manifest from the afore-extracted paragraph that  Joseph Fernandez  

(supra) does not notice the ratio of  Baldev Singh  (supra) and in  Prabha  

Shankar Dubey  (supra),  Joseph Fernandez (supra) is followed ignoring  

the dictum laid down in Baldev Singh’s case (supra).

22.In view of the foregoing discussion, we are of the firm opinion that the  

object with which right under Section 50(1) of the NDPS Act, by way  

of  a safeguard,  has been conferred on the  suspect,  viz.  to check the  

misuse of power, to avoid harm to innocent persons and to minimise the  

allegations of planting or foisting of false cases by the law enforcement  

agencies, it would be imperative on the part of the empowered officer to  

apprise the person intended to be searched of his right to be searched  

before a gazetted officer or  a Magistrate.   We have no hesitation in  

holding that in so far as the obligation of the authorised officer under  

sub-section  (1)  of  Section  50  of  the  NDPS Act  is  concerned,  it  is  

mandatory and requires a strict compliance.  Failure to comply with the  

provision would render the recovery of the illicit  article  suspect  and  

vitiate the conviction if the same is recorded only on the basis of the  

recovery of the illicit article from the person of the accused during such  

search.  Thereafter, the suspect may or may not choose to exercise the  

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right  provided  to  him under  the  said  provision.  As  observed  in  Re  

Presidential Poll14, it is the duty of the courts to get at the real intention  

of  the  Legislature  by  carefully  attending  to  the  whole  scope  of  the  

provision to be construed.  “The key to the opening of every law is the  

reason and spirit of the law, it is the animus imponentis, the intention of  

the law maker expressed in the law itself, taken as a whole.”  We are of  

the  opinion  that  the  concept  of  “substantial  compliance”  with  the  

requirement of Section 50 of the NDPS Act introduced and read into  

the  mandate  of  the  said  Section  in  Joseph  Fernandez  (supra)  and  

Prabha Shankar Dubey (supra) is neither borne out from the language  

of sub-section (1) of Section 50 nor it is in consonance with the dictum  

laid down in  Baldev Singh’s case (supra).  Needless to add that the  

question whether or not the procedure prescribed has been followed and  

the requirement of Section 50 had been met,  is a matter  of trial.   It  

would neither be possible nor feasible to lay down any absolute formula  

in that behalf.  We also feel that though Section 50 gives an option to  

the empowered officer to take such person (suspect) either before the  

nearest  gazetted  officer  or  the  Magistrate  but  in  order  to  impart  

authenticity,  transparency  and  creditworthiness  to  the  entire  

proceedings, in the first instance, an endeavour should be to produce the  

suspect before the nearest Magistrate, who enjoys more confidence of  

14 (1974) 2 SCC 33

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the common man compared to any other officer.  It would not only add  

legitimacy  to  the  search  proceedings,  it  may  verily  strengthen  the  

prosecution as well.

23.Accordingly, we answer the reference in the manner aforesaid.   The  

appeals shall, now, be placed before the appropriate Bench for disposal.

.……………………………..…..…J. (D.K. JAIN)  

.……………………………..…..…J. (B. SUDERSHAN REDDY)

.……………………………..…..…J. (DR. MUKUNDAKAM SHARMA)

.……………………………..…..…J. (R.M. LODHA)

.……………………………..…..…J. (DEEPAK VERMA)

NEW DELHI; OCTOBER 29, 2010.  

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