Date of the Judgment: 15 October 2019
Citation: 2019 INSC 1057
Judges: Uday Umesh Lalit, J., Indu Malhotra, J., Krishna Murari, J.
Can evidence of contraband recovered from a vehicle be used against an accused if their personal search was conducted illegally? The Supreme Court of India recently addressed this critical question under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court clarified that while an illegal personal search cannot be used as evidence, the recovery of contraband from a vehicle can be considered independently if proven. This judgment, delivered by a three-judge bench comprising Justices Uday Umesh Lalit, Indu Malhotra, and Krishna Murari, has significant implications for drug-related cases.
Case Background
On 19th August 2009, ASI Rakesh Kumar and other police officials were on patrol duty near Sirhind bye-pass, Rajpura, Punjab. Lachhman Singh approached them, and while they were talking, a Qualis vehicle arrived from the Ambala side. The driver attempted to reverse upon seeing the police. The police stopped the vehicle and questioned the occupants, Baljinder Singh (the driver) and Khushi Khan (the passenger). Suspecting contraband, ASI Rakesh Kumar informed them of their right to have the search conducted before a Magistrate or a Gazetted Officer. The accused, however, reposed confidence in him and consented to the search. Seven bags of poppy husk were recovered from the vehicle, each weighing 34 kgs. Samples were taken, and the remaining poppy husk was sealed. A case was registered against Baljinder Singh and Khushi Khan under Section 15 of the NDPS Act.
Timeline
| Date | Event |
|---|---|
| 19 August 2009 | Police on patrol duty near Sirhind bye-pass, Rajpura. |
| 19 August 2009 | A Qualis vehicle arrived from Ambala side. |
| 19 August 2009 | Police stopped the vehicle and questioned the occupants, Baljinder Singh and Khushi Khan. |
| 19 August 2009 | Seven bags of poppy husk were recovered from the vehicle. |
| 8 September 2011 | Trial Court convicted Baljinder Singh and Khushi Khan under Section 15 of the NDPS Act. |
| 22 January 2019 | High Court set aside the conviction, citing non-compliance with Section 50 of the NDPS Act. |
| 15 October 2019 | Supreme Court allowed the appeal, restoring the Trial Court’s conviction with reduced sentence. |
Course of Proceedings
The Trial Court in Patiala convicted Baljinder Singh and Khushi Khan under Section 15 of the NDPS Act, sentencing them to 12 years of rigorous imprisonment and a fine of Rs. 2 lakhs each. On appeal, the High Court of Punjab and Haryana set aside the conviction, stating that the personal search of the accused was not conducted before a Magistrate or a Gazetted Officer, violating Section 50 of the NDPS Act. The State of Punjab then appealed to the Supreme Court.
Legal Framework
The case revolves around Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which outlines the conditions for conducting personal searches. This section mandates that if an authorized officer is about to search a person, they must inform the person of their right to be searched before a Gazetted Officer or a Magistrate, if they so require. The relevant portion of Section 50 of the NDPS Act is as follows:
“50. Conditions under which search of persons shall be conducted.
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(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 necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.”
The Supreme Court has interpreted Section 50 to provide safeguards against misuse of power during personal searches. The Court has clarified that while the information about the right to be searched before a Gazetted Officer or Magistrate need not be in writing, it is mandatory to inform the suspect of this right.
Arguments
State of Punjab’s Arguments:
- The State argued that the High Court erred by not considering the recovery of 34 kgs of poppy husk from the vehicle.
- It was submitted that even if there was an infraction of Section 50 of the NDPS Act concerning the personal search of the accused, the recovery of contraband from the vehicle was an independent factor that should be considered.
Accused’s Arguments:
- The accused contended that non-compliance with Section 50 of the NDPS Act should result in their acquittal.
- They relied on the Supreme Court’s decision in Dilip & Anr vs State of M.P. to support their claim that any violation of Section 50 should lead to acquittal.
| Main Submissions | Sub-Submissions |
|---|---|
| State of Punjab |
|
| Accused |
|
Issues Framed by the Supreme Court
The Supreme Court framed the following issue:
- If a person found in possession of a vehicle containing contraband is subjected to a personal search not in conformity with Section 50 of the NDPS Act, but the search of the vehicle results in recovery of contraband material, which stands proved independently, would the accused be entitled to acquittal due to non-compliance of Section 50, even for the material found in the vehicle?
Treatment of the Issue by the Court
| Issue | Court’s Decision |
|---|---|
| Whether non-compliance of Section 50 during personal search affects the recovery of contraband from the vehicle. | The Court held that while non-compliance of Section 50 during personal search makes the recovery from personal search inadmissible, it does not invalidate the recovery of contraband from the vehicle, provided it is proven independently. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was considered |
|---|---|---|
| State of Punjab vs. Baldev Singh [(1999) 6 SCC 172] | Supreme Court of India | The Court reiterated the principles laid down in this case regarding the mandatory nature of informing the suspect of their right to be searched before a gazetted officer or magistrate during personal search. |
| Vijaysinh Chandubha Jadeja vs. State of Gujarat [(2011) 1 SCC 609] | Supreme Court of India | The Court reaffirmed that it is mandatory to inform the suspect of their right to be searched before a gazetted officer or magistrate. |
| Ajmer Singh vs. State of Haryana [(2010) 3 SCC 746] | Supreme Court of India | The Court relied on this case to clarify that Section 50 of the NDPS Act applies only to personal searches and not to searches of vehicles or containers. |
| Madan Lal v. State of H.P. [(2003) 7 SCC 465] | Supreme Court of India | The Court cited this case to emphasize that Section 50 applies only to personal searches and not to vehicles or bags. |
| Kalema Tumba v. State of Maharashtra [(1999) 8 SCC 257] | Supreme Court of India | The Court referred to this case to reiterate that Section 50 is not applicable to search of vehicles. |
| Gurbax Singh v. State of Haryana [(2001) 3 SCC 28] | Supreme Court of India | The Court cited this case to support that Section 50 is not applicable to search of vehicles or bags. |
| Dilip & Anr vs State of M.P. [(2007) 1 SCC 450] | Supreme Court of India | Overruled. The Court held that this decision was incorrect as it conferred the benefit of non-compliance of Section 50 even in respect of recovery from the vehicle, which is not in line with the law laid down in Baldev Singh and other judgments. |
| Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 | Statute | This section defines the punishment for contravention in relation to poppy straw. |
| Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 | Statute | This section deals with power to issue warrant and authorization. |
| Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 | Statute | This section deals with power of entry, search, seizure and arrest without warrant or authorization. |
| Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 | Statute | This section deals with power of seizure and arrest in public place. |
| Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 | Statute | This section outlines the conditions for conducting personal searches. |
| Section 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 | Statute | This section deals with presumption from possession of illicit articles. |
| Section 100 of the Code of Criminal Procedure, 1973 | Statute | This section deals with persons in charge of closed place to allow search. |
Judgment
| Submission by the Parties | How it was treated by the Court |
|---|---|
| State of Punjab’s argument that recovery from the vehicle should be considered independently. | The Court accepted this argument, stating that the recovery of contraband from the vehicle is an independent factor. |
| Accused’s argument that non-compliance with Section 50 should result in acquittal. | The Court rejected this argument, stating that non-compliance with Section 50 only affects the evidence from personal search, not the vehicle search. |
How each authority was viewed by the Court?
✓ The Court relied on State of Punjab vs. Baldev Singh [(1999) 6 SCC 172]* and Vijaysinh Chandubha Jadeja vs. State of Gujarat [(2011) 1 SCC 609]* to emphasize the mandatory nature of informing the accused of their right to be searched before a Gazetted Officer or Magistrate during a personal search. However, it clarified that this mandate applies only to personal searches.
✓ The Court used Ajmer Singh vs. State of Haryana [(2010) 3 SCC 746]*, Madan Lal v. State of H.P. [(2003) 7 SCC 465]*, Kalema Tumba v. State of Maharashtra [(1999) 8 SCC 257]* and Gurbax Singh v. State of Haryana [(2001) 3 SCC 28]* to establish that Section 50 of the NDPS Act is confined to personal searches and does not extend to searches of vehicles or containers.
✓ The Court overruled the decision in Dilip & Anr vs State of M.P. [(2007) 1 SCC 450]*, stating that it incorrectly extended the benefit of non-compliance of Section 50 to the recovery from the vehicle, which is not in line with the law laid down in Baldev Singh and other judgments.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the distinction between personal search and vehicle search under the NDPS Act. The Court emphasized that the safeguards under Section 50 are specifically for personal searches to prevent abuse of power. The recovery of contraband from a vehicle, if proven independently, is a separate circumstance that can be considered even if the personal search of the accused was not compliant with Section 50. The Court aimed to strike a balance between protecting individual rights and ensuring that those involved in drug trafficking are not let off on technicalities.
| Sentiment | Percentage |
|---|---|
| Importance of following procedure for personal search | 30% |
| Distinction between personal and vehicle search | 40% |
| Need to uphold the law and punish offenders | 30% |
| Ratio | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
The Court reasoned 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 Court also noted that the conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based “only” on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into.
The Court stated, “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.”
The Court further stated, “Any such idea would be directly in the teeth of conclusion (3) as aforesaid.”
The Court also noted, “the decision of this Court in said judgment in Dilip’ s case is not correct and is opposed to the law laid down by this Court in Baldev Singh and other judgments.”
The Court rejected the High Court’s view that non-compliance with Section 50 during personal search should invalidate the recovery of contraband from the vehicle. The Court held that the two are distinct and that evidence from the vehicle search can be used independently if proven.
There was no minority opinion in this case.
Key Takeaways
- ✓ Non-compliance with Section 50 of the NDPS Act during a personal search makes the evidence obtained from that search inadmissible.
- ✓ However, if contraband is recovered from a vehicle, that evidence can be used against the accused, provided it is proven independently, even if the personal search was illegal.
- ✓ The safeguards under Section 50 are specifically for personal searches and do not extend to vehicle searches.
- ✓ The decision in Dilip & Anr vs State of M.P. was overruled, clarifying the law on this issue.
Directions
The Supreme Court directed that both the accused be given time until 15th November 2019 to surrender before the concerned police station to undergo the remaining sentence. In case of failure to surrender, they were to be taken into custody by the concerned police station. The Court also directed that a copy of the judgment be communicated to the concerned Chief Judicial Magistrate and Police Station for compliance, with a report to be submitted to the Supreme Court by 01.12.2019.
Development of Law
The ratio decidendi of this case is that the safeguards provided under Section 50 of the NDPS Act are confined to personal searches and do not extend to vehicle searches. The recovery of contraband from a vehicle can be considered independently, even if the personal search of the accused was conducted illegally. This decision clarifies the law and overrules the previous position taken in Dilip & Anr vs State of M.P.
Conclusion
The Supreme Court’s judgment in this case clarifies that while personal searches under the NDPS Act must strictly adhere to Section 50, the recovery of contraband from a vehicle is a separate matter. If the vehicle search is proven independently, it can be used as evidence against the accused, even if the personal search was illegal. This decision ensures that while individual rights are protected, those involved in drug trafficking are not given undue advantage due to technicalities. The Court set aside the High Court’s decision and restored the conviction by the Trial Court, reducing the sentence from 12 years to 10 years.