THE STATE OF PUNJAB v. BALDEV SINGH

inform the suspect of his right as emanating from Section 50 of the NDPS Act. A The Court opined :

" ... Compliance of the safeguards in Section 50 is mandatory obliging the officer concerned to infom1 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 ts 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 ... " D 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. E 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 th~ 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 confinn 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 mandatory. In case the police officers had prior knowledge that illegal transport of the contraband is in movemeni 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 H

. 1008 SUPREME COURT REPORTS (1999] 3 S.C.R.

A 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 B inadmissible and the trial on the basis thereof does not get vitiate'd. Each case is to be considered on its own backdrop." (Emphasis added)

In Ali Mustaffa Abdul Rahman Moosa v. State of Kera/a, (supra), two- C 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 Singh's case (supra). The Court opined that to e?able the concerned person to require that his search be carried out in the presen5=e 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 Kumarv. State, Panaji, Goa, (1998] 8 SCC 655, a tlrr~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

STATE OF PUNJAB v. B."SINGH [DR. A.S. ANAND, CJ.] 1009 not record the grounds of his belief at any stage of the investigation, suhsequent 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 B 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. It would, thus, be seen that none of the decisions of the Supreme Court after Balbir Singh's case have departed from that opinion. At least none has been brought to our notice. C ,.,,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'~mpowered 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 b~ s~chC;d 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 everi otherwise manifest. The Se1;U"Ch 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. lt 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 H

1010 SUPREME COURT REPORTS [I 999] 3 S.C.R.

A 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 B have to be satisfied at the trial of the case about due compliance with th~ 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.

C 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 D 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 concerned person to .· E exercise that right under Section 50 because after Maneka Gandhi v. Union ofIndia, [l 978] I 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, F 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 . G of law, cannot be considered to be 'fair', just or reasonl!,b_le procedure. We ' .¥.e not persuaded to agree that reading into Section 50, the existence of a dut}r! op the part of the empowered officer, to intimate to the suspect, about the ex~s{eJi.c~1.~~l}iF tight ~o be searched in presence .of a G~zetted Officer or a Magistrate, if he so reqmres, would place any premmm on 1gnc.rance 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'. I

STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1011

Requirement to inform has been read in by this Court in other circumstances also, where the statute did not explicitly provi<Je for such a requirement. While considering the scope of Article 22(5) of the Constitufion of India and various other provisions of COFEPOSA Act and the NDPS Act as amended in 1988, a Constitution Bench of this Court in Kamlesh Kumar Jshwardas Patel v. Union of India & Ors., [1995) 4 SCC 51, concluded : B "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 C by revoking the said order as well as to any other authority which is competent

• under law to revoke tlie order for detention and thereby give relief to the person detained. 'The right to make a representation ca1'ries 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 D representation." (Emphasis ours)

This Court cannot over-look the context in which the NDPS ~erates and particularly the factor of widespread illiteracy Ultlong persons subject to investigation for drug offences. It must be borne in mind that severer the E 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 seart:hed only in that manner. As already observed the compliance F .. . 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 seizurf. -~~~ducted by the empowered officer. The argument that keeping in view the growihg·dru_g, menace, an insistence on compliance with all the safeguards contained in G Section 50 may result in more acquittals does not appeal to us. If the empowered .. officer fails to comply .wi.th 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 therend 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 H

1012 SUPREME COURT REPORTS [1999) 3 S.C.R.

A 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 pennitted. In D.K Basu v. State of West Bengal, [1997] 1 sec 416, it was opined :

B "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 l law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and anned gangs and criminals. Many hardcore criminals

- c like extremists, terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society .. It is being said in c~rtain quarters that with more and more liberalisation and enforcement offundamental rights, it would lead to difficulties in the detection of crim~s cotllmitted by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too D much of emphasis on protection of their fundamental rights and. human rights, such criminals may go scot-rjree 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

E concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends ofjustice. Thi_!_ 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) F · In D.K Basu's 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 G is the supreme law) and sl!].us 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' .... " H (Emphasis supplied)

j STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1013

- --\ 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, A

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. B \ However, the question whether\ the provisions of Section 50 are mandatory or directory and if mandatory to what extent aild 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 c 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 iHicit 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 existe.nce of his right, it would render his conviction and sentence unsuste!inable. The protection provided in the section to an accused to be intimated ~hat he has the right to have his personal search conducted before a Gazetted Officer or ~ Magistrate, if he so requires, is sacrosanct and indefeasible-it cannot be disregarded by the· prosecution except at its own peril. G ~ 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 H

1014 SUPREME COURT REPORTS [1999] 3 S.C.R.

A 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 Mal's case (supra).

A submission was made in Ali Mustajfa Abdul Rahman Moosa's case (supra) before the Bench· on behalf of the State of Kerala to reconsider the judgment in Balbir Singh's 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 Mustajfa 's case that even if search and seizure ·of the contraband was held to be illegal having beerl 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 D 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 Mal's case (supra) could not be read to have laid down that a contraband seized as a result of an illegal search or seizure cou'd still be used as admissible evidence E "of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner". The Bench in Ali Mustajfa's 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 ofInspection. We are afraid the submission is misconceived and the reliance placed on the said judgment is misplaced. The judgment in Po(>fan Mal case only lays down that the evidence collected as a resuW 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

STATE OF PUNlAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1015

... the person from horn the contraband had allegedly been seized rn 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 b!Y 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." B I However, a later two-Judge Bench in Pirthi Chand's case (supra) relying upon Pooran !vial's case (supra), observed :

"The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The c 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 Singh's case also. It appears that the ~lier judgmenJin Ali Mustaffa's case was not brought to the notice of their ---"Lordships in both the above cases. F

Let us, therefore, first examine the fact situation and the law as laid down in Pooran A{al's case and the question of its applicability to cases arising out of offences under the NDPS Act, based only on proof of unlawful G 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 Mal's 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,

1016 SUPREME COURT REPORTS (1999] 3 S.C.R..

\ .I A 1961 by way of search and seizure of certain premises on the ground that the authorisation for the search as also the -· search· ancl--sei.zure .of the materi3.l.s 1

were illegal. In that 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 11!1der _the authorisation of a search and seizure issued under Section 132 of the Income Tax Act. The Constitution B 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 c 132 of the Act and obsenred :

"We are, ther,efore, 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(l)(a), (b) and (c) exists. In this connection it may be further pointed out that under sub-rule (2) of Rtlle 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 he 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 F 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 Gov~ent 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

STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 10'J7

- niakes appropriate provision for the payment of the estimated tax dues under sub-section (5) an;.J 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 nonnal 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 restri~tive as is possible under the circumstances. The provisions, therefore, relating to search and seizure in Section 132 and Rule i 12 canpot be regarded as violative of Article 19(f) and (g)." (Emphasis suppl~) Dealing with the effect of search and seizure conducte_d in breach of the provisions of Section 132 of the Income Tax Act, the Court opine~ : D "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 maierial 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 E 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, ifthe Evidence Act, 1872 which is a law consolidating, defining F and amending the law of evidence, no provision of which is challeng~d as violating the· Constitution-pennits relevan~y as the only test of admissibility of evidence (See Section 5 'of th~ Act) and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it \vas obtained under an iUegal search or seizure, it will be wrong .t~ i~voke the supposed spirit of our G a. Constitution for excluding such evidence ..."

" .. ilt, therefore, follows that neither by invoking the spirit of Jur 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." 'r (Emphasis supplied) H

1018 SUPREME COURT REPORTS [1999] 3 S.C.R.

A On facts, the Court in Pooran Mal's case, however, found : --- 1

"On the whole, therefore, we are not inclined to hold that the search and seizure in this writ petition was vitiated by any illegality."

Sil)lilarly, in the other writ petitions dealt with in Pooran Mal's case, the B Court opined :

" ... The search and seizure, therefore, impugned in this writ petition cannot be regarded as illegal." (Emphasis supplied)

C The Judgement in Pooran Mal's 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 D rendered.

In C.J. 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 E 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 F 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 ofthe questions under consideration by this Court, to support their reasonings." G (Emphasis supplied)

The judgment in Pooran Mal's case (supra), therefore, cannot be understood to have laid down that an illicit article seized during the search of person, on prior infonnation, 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

J STATE OF PUNJAB v. B. SINGH[DR.A.S.ANAND, CJ.] 1019

during an illegal search. Apart from the position that in Pooran Mal's 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 seiZl1re, 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 Mal's case, B

which by itself could attract any penal action against the assessee. What is implicit from the judgment in Pooran Mal's case is that the seized material could be used in other legal proceedings against an assessee, before the c Income Tax authorities under the Income Tax Act, dealing with escaped income. It is, therefore, not possible to hold that the judgment in Pooran Mal's 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 Mal's judgment is read in the manner in which it has been construed in The State of Himachal D Pradesh v. Pirthi Chand and Anr. (though that issue did not strictly speaking arise for consideration in that case), then there would rem<iip 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 E 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 _or collect~d in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded. InR. v. Collins, [1987] I 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 H

1020 . SUPREME COURT REPORTS [1999) 3 S.C.R.

A render a trial unfair and the evidence inadmissible. In the words of the Supreme Court of Canada:

"The situation is ve1y 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 violation and it strikes at one of the fundamental tenets of a fair trial."

(Emphasis ours)

C The opinion in Collins' case has been reli~ upon by the majority of the Supreme CoUrtofCanadainR."v."Sti/lman, . • [~--------.:c 1R.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. · D 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 shal~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 E 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, i~ 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. F the NDPS Act. .

E>i."Plaining the concept of possession, in Bocking v. Roberts, (1973) 3 . All E.R. 962, Lord Widgery, C.J. obser'\red : .

"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 ·v- accused had a dangerous drug in his possession- without authority, it is no answer to him to say : 'oh, but the quantity of the dtug whic;h I possessed was so small that the law should take~no accotUit ' ' of it.' The doctrine of de '

minimis as such in my judgment does not apply 'but, 9n the other hand, since the accused is possessin_g a dangerous drug, . it is ·ql#te. clear that the

STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1021 .

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 ifan accused being in possession of the prohibited substance on ~eeing the police party swallows the same to avoid detection, he can be convicted for possession of the B _e.rohibited substance and not for consumption thereof.

Similarly, in Loui; Beaver v. Her Majesty The Queen, [1957] SCR 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 knowl~dge 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 Stat£: through C.B.l., 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." F 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 pros~cution G 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 H

1022 SUPREME COURT REPORTS [1999] 3 S.C.R.

A ingredient of t~e.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, B 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 s~arch, may be admissible as relevant evidence in other proceedings, the illicit drug or psychotropic substance seized in an Hlegal search cannot by itself be used as proof of unlawfal 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 D 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 th.e 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.

E We, therefore, hold that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided i..rr 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 F 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 opmton that the judgment in AH G 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.

On the basis of the reasoning and discussion above, the following conclusions arise :

./ STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.) 1023 (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; B (2) That failure to inform the concerned person 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 prioririformation, 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 persoti, 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 E 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 tt:ie 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 H

1024 SUPREME COURT REPORTS [1999) 3 S.C.R.

k · collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided inSecti~fl 50 have been duly observed would have to be determined by the Court ori. the basis of evidence led at the trial. Finding on that issue, B .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 trlal, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial; c (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 1that fail\lre to inform the concerned person of his right as emanating from D Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the c;onviction and sentence of an accused bad and unsustainable in law;

(l) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in E 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 F. illegal search;

(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in ' accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act; ;,

(9) That the judgment in Pooran Mal'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

STATE OF PUNJAB v. B. SINGH [DR. A.S. ANAND, CJ.] 1025

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 B 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 ~~~~ c 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. D v.s.s. Appeals and petitions disposed of.