1995 JTR(SC) 1230
1996 1 AICLR 158 ; 1996 CriLR 58 ; 1995 4 Crimes(SC) 765 ; 1996 1 EastCrC(SC) 230 ; 1995 9 JT 308 ; 1996 1 RLW(Raj) 1 ; 1995 6 Scale 740 ; 1996 1 SCC 288 ; 1996 SCC(Cri) 1 ; 1995 Supp5 SCR 742 ; 2005 KHC 6126 ; 1996 1 KLT(Online) 918
SUPREME COURT OF INDIA
K. Ramaswamy and S.B. Majmudar, JJ.
State of Punjab - Appellant
versus
Jasbir Singh & Others - Respondents
Criminal Appeal No. 1594 of 1995
Decided on 28-11-1995
IMPORTANT POINT
Protection given by Section 50 NDPS Act, 1985 is a valuable right to the offender and compliance thereof intended to be mandatory.
Act Referred :NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.50
(A) The Narcotic Drugs and Psychotropic Substances Act, 1985, specifically Section 50, establishes a mandatory procedural safeguard requiring law enforcement to inform an accused of the right to have a search conducted in the presence of a gazetted officer or a magistrate prior to conducting a search and seizure. In this case, the prosecution failed to adhere to this procedural mandate during the interception of contraband, rendering the evidence collection process defective under the statute. This strict compliance requirement is integral to protecting the rights of the accused during investigations involving narcotic substances.
(B) Key legal principles include that compliance with Section 50 is mandatory and affords a valuable right to the offender; evidence collected in breach of statutory provisions does not automatically become inadmissible, but its admissibility is subject to judicial discretion based on the totality of circumstances; and appellate courts must defer to the factual appreciation of the trial court unless it is plainly unjust.
Facts of the case:
Authorities intercepted 70 bags containing 34 kilograms of poppy husk without any permit or licence. The accused was allegedly in unlawful possession of the contraband during transport. The prosecution sought to rely on the seizure, but could not produce evidence showing that the accused was informed of the right to a search in the presence of a gazetted officer or magistrate, nor did they obtain written consent prior to the search.
Findings of Court:
The Additional Sessions Judge found that the mandatory requirements of Section 50 were not complied with. The court appreciated the evidence as open to the police officers at the time of the search to record the accused's consent, but chose not to accept the prosecution case in the absence of written documentation. The court held that the failure to follow the statutory procedure undermined the validity of the seizure.
Issues:
Whether the failure to inform the accused of the right to a search in the presence of a gazetted officer or to obtain written waiver renders the seizure illegal; and whether the appellate court should disturb the acquittal based on the non-compliance with a mandatory procedural provision.
Ratio Decidendi:
Section 50 of the Act imposes a mandatory obligation on law enforcement to inform the accused of the right to a search in the presence of a gazetted officer or magistrate. Non-compliance with this requirement vitiates the seizure, and in the absence of compelling justification or written consent, the appellate court is bound to uphold the acquittal.
(A) The Narcotic Drugs and Psychotropic Substances Act, 1985, specifically Section 50, establishes a mandatory procedural safeguard requiring law enforcement to inform an accused of the right to have a search conducted in the presence of a gazetted officer or a magistrate prior to conducting a search and seizure. In this case, the prosecution failed to adhere to this procedural mandate during the interception of contraband, rendering the evidence collection process defective under the statute. This strict compliance requirement is integral to protecting the rights of the accused during investigations involving narcotic substances.
(B) Key legal principles include that compliance with Section 50 is mandatory and affords a valuable right to the offender; evidence collected in breach of statutory provisions does not automatically become inadmissible, but its admissibility is subject to judicial discretion based on the totality of circumstances; and appellate courts must defer to the factual appreciation of the trial court unless it is plainly unjust.
Facts of the case:
Authorities intercepted 70 bags containing 34 kilograms of poppy husk without any permit or licence. The accused was allegedly in unlawful possession of the contraband during transport. The prosecution sought to rely on the seizure, but could not produce evidence showing that the accused was informed of the right to a search in the presence of a gazetted officer or magistrate, nor did they obtain written consent prior to the search.
Findings of Court:
The Additional Sessions Judge found that the mandatory requirements of Section 50 were not complied with. The court appreciated the evidence as open to the police officers at the time of the search to record the accused's consent, but chose not to accept the prosecution case in the absence of written documentation. The court held that the failure to follow the statutory procedure undermined the validity of the seizure.
Issues:
Whether the failure to inform the accused of the right to a search in the presence of a gazetted officer or to obtain written waiver renders the seizure illegal; and whether the appellate court should disturb the acquittal based on the non-compliance with a mandatory procedural provision.
Ratio Decidendi:
Section 50 of the Act imposes a mandatory obligation on law enforcement to inform the accused of the right to a search in the presence of a gazetted officer or magistrate. Non-compliance with this requirement vitiates the seizure, and in the absence of compelling justification or written consent, the appellate court is bound to uphold the acquittal.
AMITA GUPTA, D.VENNA, GULSHAN RAI, R.S.SUN, SATISHVIG, UJAGAR SINGH
ORDER
K Ramaswamy, J. - Leave granted:
2. 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 s. 50 is a valuable-right to the offender and compliance thereof intended to be mandatory. In case the Police Officer 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 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 back drop. The learned Additional Sessions Judge did not accept the evidence of the police officers on the ground that it was open to them, at the time of the search, to take in writing from the accused that they had no objection to the search being conducted and that they were informed of their right and they waived the search in the presence of a gazetted officer. It is a matter of appreciation of evidence and that having considered the totality of the facts and circumstances, the learned Additional Sessions Judge was not inclined to accept the prosecution case in the absence of anything in writing. The view expressed by the Additional Sessions Judge cannot be said to be unwarranted or unjustified. Under the circumstances, we are constrained to confirm the order of acquittal though the High Court unfortunately did not deal with the case properly.
3. The appeal is accordingly dismissed.
Appeal dismissed.
For Citation : (1996) 1 SCC 288 = 1996 SCC (Crl.) 1