The Supreme Court has observed that merely because there was non-compliance of Section 50 of the Narcotic and Drugs and Psychotropic Substances Act as far as "personal search" of the accused was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle.
The bench comprising Justice Uday Umesh Lalit, Justice Indu Malhotra and Justice Krishna Murari observed that the mandate of Section 50 of the NDPS Act is confined to "personal search" and not to search of a vehicle or a container or premises.
The High Court, in this case, had set aside the conviction of the accused under NDPS Act on the ground that the personal search of the accused was not conducted before the Magistrate or a Gazetted Officer and as such there was complete infraction of Section 50 of the Act.
In appeal [State Of Punjab vs. Baljinder Singh], the state contended that, though there may be infraction of the requirement of Section 50 as regards personal search of the accused, the fact of recovery of material from the vehicle was an independent factor which ought to be taken into account. The issue considered by the bench was: If a person found to be in possession of a vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements under Section 50 of the Act; but the search of the vehicle results in recovery of contraband material, which stands proved independently; would the accused be entitled to benefit of acquittal on the ground of non-compliance of Section 50 of the Act even in respect of material found in the search of the vehicle.
The bench observed that an illicit article seized from the person during personal search conducted in violation of the safe-guards provided in Section 50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contra-band. To observe thus, the bench particularly took note of these observations made in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 by Constitution Bench: 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. It also noted that in Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609, another constitution bench had observed that the 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.
Then the bench considered this question: if there be any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance. The court also observed that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises. In this context, the bench said:
"In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid."
The bench also observed that judgment of division bench of the Apex Court in Dilip vs State of M.P. (2007) 1 SCC 450 is not correct when it conferred advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with.
The bench then, while restoring the Trial Court judgment, observed that, seven bags of poppy husk each weighing 34 kgs. were found from the vehicle which was being driven by accused with the other accused accompanying him, their presence and possession of the contraband material stood completely established.
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