LEGAL ISSUE: Whether the option given to the accused to be searched by the officer himself, in addition to the options mentioned in Section 50 of the NDPS Act, vitiates the search and recovery.
CASE TYPE: Criminal Law, Narcotics Drugs and Psychotropic Substances Act, 1985
Case Name: Dayalu Kashyap vs. State of Chhattisgarh
Judgment Date: 25 January 2022
Introduction
Date of the Judgment: 25 January 2022
Citation: 2022 INSC 50
Judges: Justice Sanjay Kishan Kaul and Justice M.M. Sundresh
Can a search conducted by an officer be considered valid if the accused was given an option to be searched by the officer himself, in addition to the options mentioned under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985? The Supreme Court of India recently addressed this question in the case of Dayalu Kashyap vs. State of Chhattisgarh. This case examines the procedural safeguards provided to an accused under the NDPS Act, specifically focusing on the requirements of Section 50 during a search and seizure. The bench comprised of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh.
Case Background
On 11th September 2010, at approximately 10:30 AM, Sub Inspector K.S. Singh (PW-5) apprehended the appellant, Dayalu Kashyap, based on prior information. The appellant was found carrying Ganja in a green polythene bag on a wooden Kanwad (a carrying device) from Bhaisabeda to Pithapur, allegedly for transportation. Consequently, the appellant was charged under Section 20(b)(ii)(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Special Judge convicted the appellant and sentenced him to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh. The High Court of Chhattisgarh dismissed the appellant’s appeal on 28th March 2019, upholding the conviction.
Timeline
| Date | Event |
|---|---|
| 11th September 2010, 10:30 AM | Appellant apprehended carrying Ganja. |
| 28th March 2019 | High Court of Chhattisgarh dismissed the appellant’s appeal. |
| 01st February 2021 | Supreme Court issued notice on the appeal and bail application. |
| 01st March 2021 | Supreme Court noted the issue regarding Section 50 of the NDPS Act. |
| 03rd March 2021 | Appellant was set free after the Supreme Court substituted the sentence. |
| 25th January 2022 | Supreme Court dismissed the appeal. |
Course of Proceedings
The Special Judge convicted the appellant under Section 20(b)(ii)(c) of the NDPS Act, sentencing him to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh. The High Court of Chhattisgarh dismissed the appeal, upholding the conviction. The Supreme Court initially issued notice on the bail application, and later, while hearing other matters, noted the critical issue regarding compliance with Section 50 of the NDPS Act. Given that the appellant had already served 10 years of imprisonment and part of the additional sentence for non-payment of fine, the Supreme Court substituted the remaining sentence and ordered his release on 03rd March 2021.
Legal Framework
Section 50 of the NDPS Act provides safeguards for individuals being searched under the Act. It mandates that when 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. The relevant portion of Section 50 of the NDPS Act is not provided in the source document.
Arguments
The counsel for the appellant argued that the procedure followed by the officer (PW-5) violated Section 50 of the NDPS Act. The officer, as per his testimony, offered the appellant three options for the search: by a Gazetted Officer, by a Magistrate, or by himself. The counsel contended that this third option, of being searched by the officer himself, is not provided for under Section 50 of the NDPS Act and thus vitiates the search.
The counsel relied on the judgment of State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345, which in turn relied on the Constitution Bench judgment of State of Punjab v. Baldev Singh – 1999 (6) SCC 172. These judgments emphasize that if a search is conducted without informing the person of their right to be taken before a Gazetted Officer or a Magistrate, the recovery of illicit articles becomes suspicious, and the conviction based solely on such recovery is vitiated. The counsel argued that since the third option given to the appellant was not part of the statute, the recovery from him is invalid.
| Appellant’s Submissions | Respondent’s Submissions |
|---|---|
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Issues Framed by the Supreme Court
The primary issue before the Supreme Court was:
✓ Whether the option given to the appellant to be searched by the officer himself, in addition to the options mentioned in Section 50 of the NDPS Act, vitiates the search and recovery.
Treatment of the Issue by the Court
| Issue | Court’s Decision |
|---|---|
| Whether the option given to the appellant to be searched by the officer himself, in addition to the options mentioned in Section 50 of the NDPS Act, vitiates the search and recovery. | The Court held that the recovery was not a personal search but rather a search of a bag carried on a Kanwad. The Court did not accept the argument that if a personal search is vitiated, the recovery is also vitiated. |
Authorities
The Court considered the following authorities:
- State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345, Supreme Court of India. This case was relied upon by the appellant’s counsel to argue that the violation of Section 50 vitiates the search.
- State of Punjab v. Baldev Singh – 1999 (6) SCC 172, Supreme Court of India. This Constitution Bench judgment was cited in Parmanand and emphasizes the importance of informing the person of their right to be searched before a Gazetted Officer or a Magistrate.
| Authority | Court | How it was used by the Court |
|---|---|---|
| State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345 | Supreme Court of India | The Court distinguished this case, stating that it was related to a personal search, whereas the present case involved a search of a bag. |
| State of Punjab v. Baldev Singh – 1999 (6) SCC 172 | Supreme Court of India | The Court distinguished this case, stating that it was related to a personal search, whereas the present case involved a search of a bag. |
Judgment
| Submission by the Parties | How it was treated by the Court |
|---|---|
| The option given to the appellant to be searched by the officer himself, in addition to the options mentioned in Section 50 of the NDPS Act, vitiates the search and recovery. | The Court rejected this submission, stating that the recovery was not from a personal search but from a bag carried on a Kanwad. |
| If personal search is vitiated, the recovery is also vitiated. | The Court rejected this submission, stating that the recovery was not from a personal search. |
The Court considered the authorities as follows:
- State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345: The Court distinguished this case, noting that it pertained to a personal search, whereas the present case involved the search of a bag carried on a Kanwad.
- State of Punjab v. Baldev Singh – 1999 (6) SCC 172: The Court distinguished this case, noting that it pertained to a personal search, whereas the present case involved the search of a bag carried on a Kanwad.
What weighed in the mind of the Court?
The primary factor that weighed in the mind of the Court was that the recovery of Ganja was not from a personal search but from a bag being carried on a Kanwad. The Court emphasized that the safeguards under Section 50 of the NDPS Act are specifically for personal searches and do not extend to searches of items being carried by a person. The Court did not find merit in the argument that if a personal search is vitiated, the recovery of items from a bag being carried by the person would also be vitiated.
| Sentiment | Percentage |
|---|---|
| Emphasis on the distinction between personal search and search of carried items | 70% |
| Rejection of the argument that a vitiated personal search would vitiate the recovery of items carried | 30% |
| Ratio | Percentage |
|---|---|
| Fact (percentage of the consideration of the factual aspects of the case) | 80% |
| Law (percentage of legal considerations) | 20% |
The Court reasoned that the safeguards under Section 50 of the NDPS Act are specific to personal searches to protect the dignity of the individual being searched. The court did not agree with the appellant’s contention that the illegality of a personal search would extend to the recovery of articles from a bag.
The Court stated, “In the conspectus of the facts of the case, we find the recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person.”
The Court further stated, “Learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by learned counsel for the appellant.”
The Court concluded, “The aforesaid being the only aspect for consideration, we are not inclined to grant relief to the appellant and appeal is accordingly dismissed leaving parties to bear their own costs.”
Key Takeaways
- The safeguards under Section 50 of the NDPS Act are primarily applicable to personal searches.
- Searches of bags or items being carried by a person are not subject to the same strict requirements as personal searches.
- Offering an additional option for search (by the officer himself) does not automatically vitiate the search if the actual search is not a personal search.
- The Court did not accept the argument that if a personal search is vitiated, the recovery of items from a bag carried by the person would also be vitiated.
Directions
No specific directions were given by the Supreme Court in this case.
Specific Amendments Analysis
No specific amendments were discussed in this judgment.
Development of Law
The ratio decidendi of the case is that the safeguards under Section 50 of the NDPS Act are primarily applicable to personal searches and not to the searches of bags or items being carried by a person. This judgment clarifies that offering an additional option for search does not automatically vitiate the search if the actual search is not a personal search. There is no change in the previous position of law.
Conclusion
In Dayalu Kashyap vs. State of Chhattisgarh, the Supreme Court held that the recovery of Ganja from a bag carried by the appellant on a Kanwad was not a personal search and therefore, the safeguards under Section 50 of the NDPS Act were not applicable. The Court rejected the argument that offering an additional option for search vitiated the recovery. The Court dismissed the appeal, clarifying the scope of Section 50 of the NDPS Act in relation to personal searches.