RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH

Citation: 2023 INSC 878, [2023] 13 S.C.R. 290, [2023] 13 S.C.R. 289

Court: Supreme Court of India

Bench: M.M. SUNDRESH AND J.B. PARDIWALA, JJ.

Judgment text

SUPREME COURT OF INDIA RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH Criminal Appeal Nos. 2239-2240 of 2011 [2023] 13 S. C. R. 289 : 2023 INSC 878 CASE DETAILS RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH (Criminal Appeal Nos. 2239-2240 of 2011) OCTOBER 06, 2023 [M. M. SUNDRESH AND J. B. PARDIWALA, JJ. ] HEADNOTES Issues for consideration : The contention raised was that the High Court erred in holding the appellant guilty of off ence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) as Section 50 of the NDPS Act was not complied with. It was contended that the High Court committed error in recording the fi nding that Section 50 of the NDPS Act was not applicable in the present case as the recovery of the contraband substance was not made as a result of the personal search of the accused but on account of the search of his bag. The issue was whether Section 50 of the NDPS Act was at all applicable to the present case.

The question, therefore, that required consideration was what meaning should be assigned to the phrase "to search any person" occurring in Section 50 of the NDPS Act. Whether the phrase "to search any person" means (a) search of articles on the person or body of the person; (b) would include search of articles in immediate possession as such bag or other luggage carried by him or in physical possession of the person to be searched; (c) would include search of bag or luggage which is presumed to be in possession of the person even though it may be lying in a house or railway compartment or at the airport; or (d) whether application of Section 50 could be extended to a case of search of a place, a conveyance or a house if the accused is physically present at the time of the search. Narcotic Drugs and Psychotropic Substances Act, 1985 - Search in bag of accused - Applicability of s. 50 - What would be included within "search of a person" as stipulated u/s.

50 - Term "person" - How to be construed - Whether a bag carried by the accused can be considered 289 290 SUPREME COURT REPORTS [2023] 13 S. C. R. to be inextricably linked to the accused, and therefore, any recovery of a contraband from such a bag without complying with s. 50 would be inadmissible - Interpretation of Statutes. Held: According to Constitution Bench in Baldev Singh case, the provisions of s. 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying - In the three Judge bench decision in Pawan Kumar case, it was held that the term "person" under s. 50 would mean a natural person or a living unit and not an artifi cial person i. e. , a bag or a briefcase - The three Judge Bench in Pawan Kumar case concluded that an external article which does not form part of body is outside the ambit of the word "person" occurring in s.

50 of the NDPS Act - In view of plain and unambiguous statutory provision, there is no scope of interpreting section 50 in any other manner than the interpretation explained in Baldev Singh and Pawan Kumar - One must adhere to the principle of law as explained by the Constitution Bench in Baldev Singh and the three Judge Bench in Pawan Kumar - In the facts and circumstances of the case, the High Court was justifi ed in holding the appellant guilty of the off ence under the NDPS Act and at the same time, the High Court was also correct in saying that s. 50 of the NDPS Act was not required to be complied with as the recovery was from the bag. [Paras 49, 83, 114, 124 and 125] Narcotic Drugs and Psychotropic Substances Act, 1985 - s. 50 - Object of: Held: The main object of Section 50 of the NDPS Act is to avoid the allegation of planting something or fabricating evidence by the prosecution or the authorized offi cer. [Para 33] Narcotic Drugs and Psychotropic Substances Act, 1985 - s.

50 - Phrase "to search any person" occurring in s. 50 - Meaning of - Code of Criminal Procedure, 1973 s. 100(3). Held : The phrase "to search any person" would mean only search of the body or wearing apparels of such person and in that case the procedure which is required to be followed would be the one prescribed under Section 50 of the NDPS Act - In contrast, if search of any building, conveyance or RANJAN KUMAR CHADHA v.

291 STATE OF HIMACHAL PRADESH place, including a public place, is to be carried out, then there is no question of following the procedure prescribed under Section 50 - However, when a suspected or arrested person is to be searched, then the procedure prescribed under Section 50 comes into operation and the procedure thereunder is required to be followed - This can be seen by referring to Section 100(3) of the CrPC 1973 which provides that where any person is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency- The concealment which is suspected is on the person or about his person. [Para 36] Narcotic Drugs and Psychotropic Substances Act, 1985 - s.

50 - When applicable and when not: Held : Where a police offi cer is in the normal course of investigation of an off ence or suspected off ences as provided under the provisions of CrPC 1973 and in the course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, the question of invoking Section 50 would not arise - One can easily understand that without any prior information as to possession of any narcotic drug and psychotropic substance, a police offi cer might have held a search in the course of discharge of his duties as contemplated under the provisions of CrPC 1973 and, therefore, it would be well-neigh impossible to state that even under such a situation, the application of Section 50 would get attracted - s.

50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any off ence. [Paras 42 and 64] Narcotic Drugs and Psychotropic Substances Act, 1985 - s. 50 - Rights of the accused - Right to be informed about the search to be conducted in presence of Gazetted Offi cer or Magistrate. Held : The person intended to be searched under Section 50 must be told in clear and unambiguous words that he has a right to have the search conducted in presence of either a Gazetted Offi cer or Magistrate - The person concerned must be made aware of his right and must be given only two options that have been provided under the section. [Para 56] 292 SUPREME COURT REPORTS [2023] 13 S. C. R. Narcotic Drugs and Psychotropic Substances Act, 1985 - s.

50 - Accused waiving right to be searched in presence of Gazetted Offi cer or Magistrate - Eff ect of - Whether it is still mandatory that his search be conducted only before a Gazetted Offi cer or Magistrate: Held : There is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Offi cer or Magistrate, if the person proposed to be searched, after being apprised by the empowered offi cer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Offi cer or Magistate categorically waives such right by electing to be searched by the empowered offi cer - The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Offi cer or Magistrate, despite having expressly waived "such requisition", as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Act - In other words, the person to be searched is mandatorily required to be taken by the empowered offi cer, for the conduct of the proposed search before a Gazetted Offi cer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Offi cer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act - However, even when the suspect being apprised by the empowered offi cer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Offi cer or Magistrate waives such right by electing to be searched by the empowered offi cer, such waiver on the part of the suspect should be reduced into writing by the empowered offi cer - To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Offi cer or Magistrate and he would be fi ne if his search is undertaken by the empowered offi cer, the matter should not rest with just an oral statement of the suspect - The suspect should be asked to give it in writing duly signed by him in presence of the empowered offi cer as well as the other offi cials of the squad - This would lend more credence to the compliance of Section 50 of the NDPS Act - In other words, it would impart authenticity, transparency and credit worthiness to the entire proceedings.

It is clarifi ed that this compliance shall henceforth apply prospectively. [Paras 62, 63] RANJAN KUMAR CHADHA v. 293 STATE OF HIMACHAL PRADESH Narcotic Drugs and Psychotropic Substances Act, 1985 - s. 50 - Rights of the accused - Right to be informed about the search to be conducted in presence of Gazetted Offi cer or Magistrate - Manner of communication of such right when multiple persons are to be searched. Held: In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity - Any joint or common communication of this right would be in violation of Section 50. [Para 64] Narcotic Drugs and Psychotropic Substances Act, 1985 - s. 50 - Recovery of contraband under NDPS Act during search under statute other than NDPS Act - Whether provisions relating to NDPS Act would apply.

Held: Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted. [Para 64] Narcotic Drugs and Psychotropic Substances Act, 1985 - s. 50 - Burden of proof - Defi ned. Held: The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted. [Para 64] Narcotic Drugs and Psychotropic Substances Act, 1985 - Recovery in violation of s. 50 - Consequences of - Whether non-compliance of s. 50 would vitiate the trial.

Held: Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same - Any other article that has been recovered may be relied upon in any other independent proceedings. [Para 64] Interpretation of Statutes - Literal rule of interpretation - Explained. 294 SUPREME COURT REPORTS [2023] 13 S. C. R.

Held: It is a well-settled principle in law that the Court should not read anything into a statutory provision which is plain and unambiguous - A statute is an edict of the legislature - The language employed in a statute is the determinative factor of the legislative intent - The fi rst and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself - The question is not of what may be supposed and has been intended but what has been said. [Para 115] Interpretation of Statutes - Principle of Construction - Casus omissus.

Held: A casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute - This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. [Para 118] LIST OF CITATIONS AND OTHER REFERENCES State of Punjab v. Baldev Singh (1999) 6 SCC 172 : [1999] 3 SCR 977 and Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay North, Ahmedabad [1965] 2 SCR 908 - followed. State of H. P. v.

Pawan Kumar (2005) 4 SCC 350 : [2005] 3 SCR 417 - relied on. SK. Raju alias Abdul Haque alias Jagga v. State of West Bengal (2018) 9 SCC 708 : [2018] 10 SCR 731 and State of Rajasthan v. Parmanand and Another (2014) 5 SCC 345 : [2014] 3 SCR 522 - held not applicable. Yasihey Yobin. v. Department of Customs, Shillong (2014) 13 SCC 344 - held not good law. Arif Khan alias Agha Khan v. State of Uttarakhand (2018) 18 SCC 380 : [2018] 6 SCR 787; State of Punjab v. Baljinder Singh (2019) 10 SCC 473 : RANJAN KUMAR CHADHA v. 295 STATE OF HIMACHAL PRADESH [2019] 13 SCR 520; State of Punjab v. Balbir Singh (1994) 3 SCC 299 : [1994] 2 SCR 208; Gurjant Singh v. State of Punjab (2014) 13 SCC 603 : [2013] 12 SCR180; Ali Mustaff a Abdul Rahman Moosa v. State of Kerala (1994) 6 SCC 569 : [1994] 4 Suppl. SCR 52; Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat (1995) 3 SCC 610 : [1995] 3 SCR 117; Manohar Lal v. State of Rajasthan (1996) 11 SCC 391 : [1996] 1 SCR 837; Joseph Fernandez v.

State of Goa (2001) 1 SCC 707; Prabha Shankar Dubey v. State of M. P. (2004) 2 SCC 56 : [2003] 6 Suppl. SCR 444; Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609 : [2010] 13 SCR 255; Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257 : [1999] 2 Suppl. SCR 670; Sarjudas v. State of Gujarat (1999) 8 SCC 508; Birakishore Kar v. State of Orissa (2000) 9 SCC 541; Kanhaiya Lal v. State of M. P. (2000) 10 SCC 380: Gurbax Singh v. State of Haryana (2001) 3 SCC 28 : [2001] 1 SCR 882; Beckodan Abdul Rahiman v. State of Kerala (2002) 4 SCC 229 : [2002] 3 SCR 53; Madan Lal v. State of Himachal Pradesh (2003) 7 SCC 465 : [2003] 2 Suppl. SCR 716; State of Punjab v. Makhan Chand (2004) 3 SCC 453; Saikou Jabbi v. State of Maharashtra (2004) 2 SCC 186 : [2003] 6 Suppl. SCR 456; Namdi Francis Nwazor v. Union of India (1998) 8 SCC 534; Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 : [2000] 1 SCR 542; State of Rajasthan v. Daulat Ram (2005) 7 SCC 36 : [2005] 2 Suppl.

SCR 880; State of Haryana v. Mai Ram (2008) 8 SCC 292 : [2008] 11 SCR 586; Balbir Kaur v. State of Punjab (2009) 15 SCC 795 : [2009] 10 SCR 29; Ajmer Singh v. State of Haryana (2010) 3 SCC 746 : [2010] 2 SCR 785; Jarnail Singh v. State of Punjab (2011) 3 SCC 521 : [2011] 2 SCR 888; Suresh v. State of Madhya Pradesh (2013) 1 SCC 550 : [2012] 10 SCR 1157; Union of India v. Shah Alam (2009) 16 SCC 644 : [2009] 9 SCR 1118; Dayalu Kashyap v. State of Chhattisgarh (2022) 12 SCC 398; Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama (1990) 1 SCC 277 : [1989] 2 Suppl. SCR 336; D. R. Venkatchalam v. Dy. Transport Commissioner (1977) 2 SCC 273 : [1977] 2 SCR 392; Rishabh Agro Industries Ltd. v. P. N. B. Capital Services Ltd. (2000) 5 SCC 515 : [2000] 1 Suppl. SCR 38; Padma Sundara Rao (Dead) & Ors. v. State T. N. & Ors. (2002) 3 SCC 533 : [2002] 2 SCR 383 and State of H. P. v. Pawan Kumar (2004) 7 SCC 735 - referred to. Lehigh Valley Coal Co. v. Yensavage, 218 FR 547; Artemiou v.

Procopiou (1966) 1 QB 878; Luke v. IRC [1963] AC 557 : (1963) 1 All ER 655 - referred to. John C. Derrnbachet. al. , A Practical Guide to Legal Writing and Legal Method (1994) - referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2239-2240 Of 2011. From the Judgment and Order dated 20. 08. 2010 and 16. 09. 2010 of the High Court of Himachal Pradesh at Shimla in CRLA No. 356 of 1999. Appearances: Mrs. Pragya Baghel, Adv. for the Appellant. Anil Nag, Adv. for the Respondent. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT J. B. PARDIWALA, J. 1. The captioned appeals are at the instance of a convict accused of the off ence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act") and are directed against the judgment and order of conviction dated 20. 08. 2010 and the order of sentence dated 16. 09.

2010 resply passed by the High Court of Himachal Pradesh in the Criminal Appeal No. 356 of 1999 by which the High Court allowed the appeal fi led by the State of Himachal Pradesh and thereby set aside the judgment and order of acquittal passed by the Sessions Judge, Kullu dated 31. 03. 1999 in the Sessions Trial No. 44 of 1998. With the High Court allowing the State's acquittal appeal, the appellant herein stood convicted of the off ence punishable under Section 20 of the NDPS Act. 2. The appellant was heard on the point of sentence and ultimately, the High Court vide order dated 16. 09. 2010 sentenced the appellant herein to undergo rigorous imprisonment for a period of two years and to pay fi ne of Rs. 50,000/- (Rupees Fifty Thousand Only), and in default of payment of fi ne to undergo further rigorous imprisonment for six months. RANJAN KUMAR CHADHA v. 297 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] CASE OF THE PROSECUTION 3. On 23. 08.

1998 ASI Lal Singh (PW 14) was on patrolling duty along with Head Constable Mohan Lal (PW 12), Constable Sant Ram (PW 13) and Constable Baldev Dass (PW 6). At about 6. 30 pm while they all were at Dhalpur, the ASI Lal Singh (PW 14) received a secret information that one well built person wearing a white T-shirt and green trouser was standing at the Sarwari bus stand and was ready to board a bus bound for Delhi. The information was that the said person at the bus stand had in his possession contraband in the form of charas. The secret information was recorded by the PW 14 and forwarded to the Superintendent of Police, Kullu through the Constable Baldev Dass (PW 6). The ASI Lal Singh (PW 14), HC Mohan Lal (PW 12) and Constable Sant Ram (PW 13) accordingly left for Sarwari bus stand and reached there at about 6. 45 pm. The offi cers were able to locate and identify the said person at the bus stand carrying a bag on his shoulder.

In the presence of two independent witnesses, the said person was asked to disclose his identity. The person standing at the bus stand disclosed his identity as Ranjan Kumar Chadha son of Shri Ved Parkash Chadha resident of New Delhi. As the police offi cials suspected that he may be carrying charas, they gave him the option of being searched before the police or before a Gazetted Offi cer or Magistrate. The person concerned consented to be searched before the police. Before the search of the person of the accused was undertaken, the police offi cials got themselves searched before the witnesses. The bag which the accused was carrying along with him was also searched. The search of the bag resulted in recovery of three polythene bags containing charas. Many other articles like the driving licence, etc. were also recovered from his bag. On being weighed, the charas was found to be 1 kg. 250 gms. 4.

Two samples of 25 grams each were drawn from the polythene bags containing charas and the remaining charas was sealed with seal "H". Seal impression was also taken on the NCB form and seal was handed over to the PW 9 Surinder Kumar. The charas was taken into possession vide recovery memo Ext. PK which was signed by the witnesses PW 9 Surinder Kumar, PW 10 Karam Singh and PW 12 Mohan Lal resply. The accused was informed of the grounds of his arrest, etc. vide memo Ext. PL. Ruqua Ext. PG was prepared and sent to the police station through the Constable Sant 298 SUPREME COURT REPORTS [2023] 13 S. C. R. Ram. The site plan Ext. PP was prepared on the spot. The statements of the witnesses were recorded. Thereafter, PW 14 came to the Police Station along with the accused and deposited the case property including the samples and the NCB form before the SHO who resealed the case property and samples with seal-X.

One of the samples was sent for chemical examination to the CIL, Kandaghat and vide report Ext. PO the samples were found to be of charas having resin content of 33. 58%. On this basis the accused was charge sheeted with having committed an off ence as aforesaid. 5. The accused pleaded not guilty before the Trial Court and claimed to be tried. The defence of the accused was that when the bus was about to leave for Delhi and while the accused was sitting in the bus with some other passengers, one unclaimed bag was found and the accused was wrongly stated to be the owner of the said bag. In short, the case of the accused before the Trial Court was that he was falsely implicated in the case. 6. The Trial Court upon appreciation of the oral as well as documentary evidence came to the conclusion that the prosecution had failed to prove its case against the accused beyond a reasonable doubt and accordingly, acquitted the accused. 7.

The State of Himachal Pradesh, being dissatisfi ed with the judgment and order of acquittal passed by the Trial Court, went in appeal before the High Court. The appeal came to be allowed by the High Court and the appellant herein stood convicted for the off ence under Section 20 of the NDPS Act. 8. In such circumstances referred to above, the appellant is here before this Court with the present appeals. SUBMISSIONS ON BEHALF OF THE APPELLANT 9. Mrs. Pragya Baghel, the learned counsel appearing for the appellant, vehemently submitted that the High Court committed a serious error in holding the appellant guilty of the off ence under the NDPS Act. She would submit that the High Court should not have disturbed a well reasoned judgment of acquittal passed by the Trial Court. The learned counsel submitted that the High Court committed a serious error in recording the RANJAN KUMAR CHADHA v. 299 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.

] fi nding that Section 50 of the NDPS Act is not applicable in the present case as the recovery of the contraband substance was not made as a result of the personal search of the accused but on account of the search of his bag. 10. It was argued that the expression "to search any person" occurring in Section 50 of the NDPS Act means search of articles on the person or body of the person to be searched as well as the search of articles in immediate possession like bag and other luggage carried by him or in physical possession of the person to be searched. 11. The learned counsel argued that Section 50 of the NDPS Act was not complied with in its letter and spirit as although the case of the prosecution is that the appellant was given the option to be searched before the police or a Gazetted Offi cer or Magistrate, yet the appellant accused was not told that it is his right to be searched in the presence of a Magistrate or Gazetted Offi cer.

The learned counsel argued that the fact that the accused was also given a third option of being searched before the police offi cer itself violated Section 50 of the NDPS Act. She would argue that Section 50 of the NDPS Act is mandatory and the Trial Court rightly held that Section 50 of the NDPS Act was not complied with. 12. In the last, the learned counsel argued that in case of search of person of the accused as well as the luggage which is in his immediate possession, then even in such circumstances Section 50 of the NDPS Act will apply and would have to be complied with. She would argue that in the case on hand not only the search of the person of the accused was undertaken but the search of the bag was also undertaken. To fortify this submission, the learned counsel relied on the decision of this Court in the case of SK. Raju alias Abdul Haque alias Jagga v. State of West Bengal reported in (2018) 9 SCC 708.

According to the learned counsel, the ratio of the decision of this Court in SK. Raju (supra) is that if the search is of both the bag as well as the person of the accused, Section 50 of the NDPS Act would be attracted. 13. In such circumstances referred to above, the learned counsel prayed that there being merit in her appeals, the same be allowed and the judgment and order of conviction and sentence passed by the High Court may be set aside. 300 SUPREME COURT REPORTS [2023] 13 S. C. R. SUBMISSIONS ON BEHALF OF THE STATE 14. Mr. Anil Nag, the learned counsel appearing for the State, on the other hand, vehemently opposed these appeals submitting that no error, not to speak of any error of law, could be said to have been committed by the High Court in passing the impugned judgment and order of conviction and sentence. He would argue that the High Court was justifi ed in holding the appellant herein guilty of the off ence punishable under Section 20 of the NDPS Act.

It was vehemently argued that Section 50 of the NDPS Act is not applicable at all in the present case as the search was made only of the bag which the appellant was carrying on his shoulder and the person of the appellant was not searched. It was argued that the decision of this Court in SK. Raju (supra) is of no avail to the appellant herein as in the said case not only the person of the accused was searched but even the bag was searched and as the recovery of the contraband was from the bag, this Court took the view that Section 50 of the NDPS Act would be attracted. 15. The learned counsel appearing for the State in support of his aforesaid submission placed strong reliance on the decision of this Court in the case of State of Punjab v. Baljinder Singh reported in (2019) 10 SCC 473. 16. In such circumstances referred to above, the learned counsel appearing for the State prayed that there being no merit in the appeals, those may be dismissed. ANALYSIS 17.

Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the High Court committed any error in holding the appellant herein guilty of the off ence punishable under Section 20 of the NDPS Act? 18. Before we advert to the rival submissions canvassed on either side, we must look into the relevant fi ndings recorded by the High Court as well as by the Trial Court. 19. The Trial Court in its judgment of acquittal, while discussing Section 50 of the NDPS Act and its compliance, held as under:- RANJAN KUMAR CHADHA v. 301 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] "11. Regarding compliance of provisions of section 5O of the Act, which is also a mandatory provisions under the Act, none of the witnesses of this consent memo EX. PG have supported the version of the prosecution.

PW-9 Surinder Kumar and PW-10 Karam Singh independent witnesses joined in the raiding party have categorically stated that no such notice was given in their presence to the accused nor accused gave in writing the endorsement EX. PG/1 in their presence. There is only bare statement of PW-14 ASI Lal Singh that this notice was given to the accused but when there were admittedly independent witnesses present on the spot as per case of the prosecution, who have been declared hostile in court, it was for the prosecution to prove that these witnesses have suppressed truth from the court, but nothing has been proved against them as to why they should have deposed falsely against the prosecution or in favour of the accused and therefore, it is held that the prosecution has failed to prove beyond reasonable doubt the compliance of Section 50 of the Act, which is mandatory provision and on this score the accused Ranjan Chadha is entitled to acquittal.

Moreover the recovery of charas from the bag of the accused is alleged to have taken place in presence of PW-9 Surinder Kumar and PW-10 Karam Singh in addition to PW-12 HC Mohan Lal, PW-13 Sant Ram and PW-14 ASI Lal Singh. However both the independent witnesses PW-9 Surinder Kumar and PW-10 Karam Singh have been declared hostile when they deposed that no bag was found in possession of the accused in their presence nor search of the accused was conducted in their presence and nothing has been proved against them, in their cross examination as to why they should have deposed falsely. From the statements of these witnesses, who have been declared hostile, I am of the opinion that reasonable doubt has been created in the case of the prosecution by the accused regarding alleged recovery of charas from the conscious and exclusive possession of the accused and accordingly by giving the benefi t of doubt to the accused, it is held that the prosecution has failed to prove that on 23. 8.

1998 at 6. 30 pm 1. 250 grams of charas was recovered from the conscious and exclusive possession of the accused point No. I is accordingly answered. " 302 SUPREME COURT REPORTS [2023] 13 S. C. R. 20. The High Court, while reversing the judgment and order of acquittal passed by the Trial Court and more particularly on the issue of applicability of Section 50 of the NDPS Act, held as under:- "As far as Section 50 of the Act is concerned the same is not at all applicable to the facts of the present case. The recovery of the contraband substance was not made as a result of the personal search of the accused but on account of the search from his bag. In such eventuality the police is not required to comply with Section 50 of the Act. In this behalf reference may be made to the decision of the Apex Court in State of Himachal Pradesh Versus Pawan Kumar Latest HLJ 2004 [SC] 1247. " ORAL EVIDENCE ON RECORD:- 21. We shall now look into the deposition of PW 12 Mohan Lal. Head Constable No.

175, Kullu Police Station. PW 12 in his examination in chief has deposed as under:- "Stated that I am posted in P. S. Kullu since 1997. On 23. 8. 1998 I with ASI Lal Singh, Constable Sant Ram and Baldev Dass proceeded from P. S. Kullu at 5. 30 p. m. for patrolling. At about 6. 30 p. m. ASI received secret information at Dhalpur. Whereupon ASI Lal Singh prepared Information Report and sent to S. P. through Const. Baldev Dass and I and ASI Lal Singh and Const. Sant Ram went to Bus Stand. Kullu (Sarbari). We reached Sarbari Bus Stand at 6. 45 p. m. Surender, Bus Stand lncharge and Karam Singh were made to join the investigation. Accused Ranjan Chadha present in the court was standing in the verandah of Bus Stand and he had a black blue colour bag on his shoulder.

Before witnesses Surender and Karam Singh, notice was issued by ASI Lal Singh to the accused to the eff ect that ASI has apprehension that you may be having charas in your possession and whether he wants to give his search to ASI or before G. O. or Magistrate. Accused gave in writing that he wants his search to be conducted by the police. Memo of this was also prepared. Accused told his name as Ranjan Kumar Chadha. After that accused along with witnesses was taken to a room which is adjacent to the room of Incharge of Bus Stand. ASI searched the bag and besides personal luggage of Ranjan Chadha, Charas in three polythene packets were RANJAN KUMAR CHADHA v. 303 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] recovered from the bag and it was weighed and the charas was found to be 1 kg. 250 gms. Out of which two samples of 25 gm. each were taken and sample and recovered charas were separately sealed in two packets with seal H.

After affi xing seal on samples, the seal was handed over to Surender Kumar witness. After that ASI prepared Rukka and gave it to constable who took the Rukka to police station. Accused was arrested and accused was told of the ground of arrest and sentence. Accused and witnesses Surender Singh, Karam Singh and I affi xed our respective signature on the Consent Memo Exh. PJ, Recovery Memo Exh. PK, Grounds of Arrest Exh. PN. Exh. P. 1 packet and Exh. P. 2 sample are same. Personal search of accused was conducted. Exh. PE the memo of personal search bears my signature as witness. " 22. We also looked into the cross examination of the PW 12 by the defence counsel. We take notice of the fact that nothing substantial could be elicited from the PW 12 in his cross examination. We also take notice of the fact that except suggestions put to the witness, there is no other form of cross examination. 23. We shall now look into the evidence of PW 14 ASI Lal Singh of Kullu Police Station.

The PW 14 in his examination in chief has deposed as under:- "Stated that I am posted in P. S. Kullu since 1997. On 23. 8. 98, I along with HC Mohan Lal, Constables Sant Ram and Baldev Dass moved out of police station Kullu at 5. 30 p. m. for patrolling. The departure report was entered in the GD. When we were present at Dhalpur at 6. 30 p. m. , I got information from informer that one person wearing white T Shirt and green pajama and having French cut beard and is healthy is having one big bag with him and he with charas is ready to go to Delhi by bus from Sarbari Bus Stand. Thereupon I prepared information report and sent it to SP, Kullu through Constable Baldev Dass. Exh. PB is copy of it. After that I, with HC Mohan Lal, Constable Sant Ram went to Sarbari Bus Stand on foot and we reached Sarbari bus stand at 6. 45 p. m. Surender Kumar, Bus Stand Incharge and Karam Singh were asked to join the investigation who joined the investigation.

The person with same features as told by informer was found standing at that bus stand who had a bag on his shoulder. Before witnesses I 304 SUPREME COURT REPORTS [2023] 13 S. C. R. asked name of that person whereupon that person told his name as Ranjan Kumar Chadha S/o Ved Prakash Chadha, Sarva Priya Vihar, New Delhi. Before the witnesses, I asked that person that police has apprehension that he is in possession of charas and whether he wants that his personal search is to be conducted by police or by any G. 0. or Magistrate. The accused present in the court is the same person who had given his consent in writing and verbally that he is ready to give his search to me. Consent Memo Exh. PJ was prepared in this regard and accused has given his consent thereon by writing the same in his handwriting. After that I gave my personal search through Exh. PM in the presence of witnesses. Then the bag which accused was holding was searched before the witnesses.

Bag was black blue colour on which MITRE was found written. On search of bag, besides other belongings of accused such as D. L. , Diary, etc. , three polythene packets were recovered in which Charas in the form of Battis and tablets were recovered. On weighing, charas 1 kg. 250 gms. was found out of recovered charas, 2 samples of 25 grns. each were taken out and charas and samples were sealed with seal H. After fi lling up NCB Form and sample seal, seal was handed over to witness Surender Kumar. Charas was seized through seizure memo Exh. PJ on which accused affi xed his signature and witnesses affi xed their signatures. Accused was informed through Exh. PN regarding grounds of arrest, etc. Rukka Exh. PH was prepared and sent to Police Station through Constable Sant Ram and after registration of FIR he brought the fi le from police station. Site plan Exh. PP was prepared correctly. Statements of witnesses were recorded. Statement of Surender Kumar Marked X, now Exhibited as Exh.

PQ and statement of Karam Singh marked Y now exhibited as Exh. PR have been correctly recorded by me as given by them. Nothing was left out and nor anything was added of my own in their statements. Memo of personal search Exh. PE was prepared and tickets Exh. PF for Delhi Bus was recovered from accused. Thereafter I with accused and case property came to police station. Case property, sample and NCB Form were submitted by me to SHO who sealed case property and sample with seal X. Parcels are Exh. P1 and Sample is Exh. P2. Accused was produced in the court on 24. 8. 98 and remand of accused obtained. During investigation, accused informed that charas has been RANJAN KUMAR CHADHA v. 305 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] given to him by Nathan Ashley for taking the same to Delhi and that person is staying at Nest Guest House located near bus stand. We went to that Guest House but no person of this name was found there. On 25. 8.

98 I prepared special report and sent to SP through. constable Lakshman Dass and Exh. PC is copy of the same. After completing the investigation, documents and papers were given to SHO who (SHO) has prepared the challan. " 24. We also looked into the cross examination of the PW 14 by the defence counsel. We take notice of the fact that nothing substantial could be elicited from the PW 14 in his cross examination. We also take notice of the fact that except suggestions put to the witness, there is no other form of cross examination. 25. What is pertinent to note in the oral evidence of PW 12 and PW 14 respectively referred to above, is that the appellant herein was told or rather informed that if he so desired, he may get himself searched before the ASI or before the Gazetted Offi cer or Magistrate. Thus, it is evident from the oral evidence of both PW 12 and PW 14 resply that three options were given to the appellant herein - fi rst to be searched before the ASI i. e.

Assistant Sub-Inspector, second, before the Gazetted Offi cer and third, before any Magistrate. It is also pertinent to note that the appellant was not informed in so many words that it is his right under Section 50 of the NDPS Act to seek search before a Gazetted Offi cer or Magistrate. 26. So far as the issue of applicability of Section 50 of the NDPS Act is concerned, there are two aspects of the same. Even if we hold that Section 50 of the NDPS Act was not complied with, then the second question would be, whether Section 50 could at all be made applicable to the case on hand. 27. We have no hesitation in recording a fi nding that Section 50 of the NDPS Act was not complied with as the appellant could not have been off ered the third option of search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted Offi cer or Magistrate.

What is the legal eff ect if an accused of the off ence under the NDPS Act is being told, whether he would like to be searched before a police offi cer or a Gazetted Offi cer or Magistrate? 306 SUPREME COURT REPORTS [2023] 13 S. C. R. 28. This Court in State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345, held that it is improper for a police offi cer to tell the accused that a third alternative is also available i. e. the search before any independent police offi cer. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of Section 50. We quote the relevant observations made by this Court as under:- "15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application.

But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before the nearest gazetted offi cer or the nearest Magistrate or before PW 5 J. S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in State of Punjab v.

Baldev Singh (1999) 6 SCC 172, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent 2 Surajmal is stated to have signed for himself and for respondent 1 Parmanand. Respondent 1 Parmanand did not sign. 17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the off ences under the NDPS Act carry stringent punishment RANJAN KUMAR CHADHA v. 307 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] and, therefore, the prescribed procedure has to be meticulously followed.

These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little signifi cance if the benefi ciary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before the nearest gazetted offi cer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh v. State of Punjab, (1977) 1 Crimes 242 (P&H) and the Bombay High Court in Dharamveer Lekhram Sharma v. State of Maharashtra (2001) 1 Crimes 586 (Bo0m) meets with our approval. 18.

It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent Surajmal has signed for himself and for respondent 1 Parmanand. Respondent 1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent 2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent 1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated. 19. We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted offi cer or before PW 5 J. S. Negi, the Superintendent, who was a part of the raiding party.

It is the prosecution case that the respondents informed the offi cers that they would like to be searched before PW 5 J. S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted offi cer, if he so requires, is to give him a chance of being searched in 308 SUPREME COURT REPORTS [2023] 13 S. C. R. the presence of an independent offi cer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J. S. Negi, the Superintendent, who was part of the raiding party. PW 5 J. S. Negi cannot be called an independent offi cer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J. S. Negi, the search would have been vitiated or not.

But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated. " (Emphasis supplied) 29. Thus, from the oral evidence on record as discussed above it is evident that Section 50 of the NDPS Act stood violated for giving a third option of being searched before a police offi cer. 30. However, the important question that falls for our consideration is whether Section 50 of the NDPS Act is at all applicable to the present case? We have noticed few discrepancies in the oral evidence of PW 12 and PW 14 respectively and the fi nding recorded by the High Court.

The High Court in its impugned judgment has said in so many words that the appellant was searched in presence of the independent witnesses and the bag, which was on the shoulder of the appellant was also searched. But for the discrepancies, we could have considered applying the ratio as enunciated by this Court in the case of SK. Raju (supra) as well as Parmanand (supra). However, there is nothing in the oral evidence of the police offi cers on record to indicate that the search of the person of the appellant was also undertaken along with the bag. Therefore, we proceed on the assumption that it is only the bag which was searched which led to the recovery of the contraband. 31. The question, therefore, that requires consideration is what meaning should be assigned to the phrase "to search any person" occurring in Section 50 of the NDPS Act.

Whether the phrase "to search any person" means (a) search of articles on the person or body of the person; (b) would include search of articles in immediate possession as such bag or other luggage RANJAN KUMAR CHADHA v. 309 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] carried by him or in physical possession of the person to be searched; (c) would include search of bag or luggage which is presumed to be in possession of the person even though it may be lying in a house or railway compartment or at the airport; or (d) whether application of Section 50 could be extended to a case of search of a place, a conveyance or a house if the accused is physically present at the time of the search. 32. Section 50 of the NDPS Act is reproduced hereinbelow:- "Section 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 nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the offi cer may detain the person until he can bring him before the Gazetted Offi cer or the Magistrate referred to in sub-section (1). (3) The Gazetted Offi cer 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 offi cer 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 Offi cer 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 Offi cer 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 offi cer shall record the reasons for such belief which necessitated such search and 310 SUPREME COURT REPORTS [2023] 13 S. C. R. within seventy-two hours send a copy thereof to his immediate offi cial superior. " 33.

Ordinarily, it could be said or argued that "to search any person" would mean, to search the articles on the person or body of the person to be searched and would normally not include the articles which are not on the body of the person to be searched. When we are deliberating on the scope and true purport of Section 50 of the NDPS Act, we should bear in mind that the main object of Section 50 of the NDPS Act is to avoid the allegation of planting something or fabricating evidence by the prosecution or the authorized offi cer. 34. The aforesaid interpretation is made clear to a certain extent by Section 50(4) of the NDPS Act which provides for search of a female. Section 50(4) of the NDPS Act provides that "no female shall be searched by anyone excepting a female". If the articles to be searched are not on the person or body, then there is no question of a search being carried out by a female.

But when articles which are on the body of the person to be searched, then such search could be only done by another female. This is necessary as the law enjoins strict regard to decency. This provision also gives some clue as to how to interpret the phrase "to search any person" occurring in Section 50 of the NDPS Act. 35. There is a similar provision in the Code of Criminal Procedure, 1898 (for short, "CrPC 1898") and also in the Code of Criminal Procedure, 1973 (for short, "CrPC 1973"). Section 51, Part III, of the CrPC 1898, provides that the offi cer making the arrest or, when the arrest is made by a private person, the police offi cer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing apparel, found upon him.

With regard to search of a female, Section 51(2) of the CrPC 1973, provides that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. Same safeguards are provided under Section 102(3) of the CrPC 1898 and Section 100 of the CrPC 1973. 36. Considering the aforesaid provisions, the inference which can be drawn is that "to search any person" would mean only search of the body or wearing apparels of such person and in that case the procedure which is required to be followed would be the one prescribed under Section 50 of RANJAN KUMAR CHADHA v. 311 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] the NDPS Act. In contrast, if search of any building, conveyance or place, including a public place, is to be carried out, then there is no question of following the procedure prescribed under Section 50.

However, when a suspected or arrested person is to be searched, then the procedure prescribed under Section 50 comes into operation and the procedure thereunder is required to be followed. This can be seen by referring to Section 100(3) of the CrPC 1973 which provides that where any person is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. The concealment which is suspected is on the person or about his person. 37. The provisions of Section 50 were exhaustively construed by this Court in the case of State of Punjab v. Balbir Singh, (1994) 3 SCC 299. We may refer to the relevant observations made in paragraph 21 of the aforesaid judgment which deals with this aspect. It is as under:- "21.

Both under Sections 41 and 42, the offi cers empowered can enter and search the place and also arrest the person suspected to have committed the off ence either on the basis of his own knowledge or on the basis of information reduced to writing. If an arrest is made and a person is to be searched, then as noted above Section 50 comes into operation and the search of the person has to be carried out in the manner provided thereunder. ... " (Emphasis supplied) 38. The aforesaid observations make it clear that when search of an arrested person is to be carried out, then the procedure prescribed under Section 50 is to be followed and not in those cases where search is to be carried out of any building, a conveyance or any premises which may be public or private where bags and baggage containing narcotic drugs are lying. The object and purpose of such search is also discussed in the said judgment and the relevant observations are as under:- "4. ...

This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the offi cer who is about to search 312 SUPREME COURT REPORTS [2023] 13 S. C. R. him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Offi cer of any of the departments mentioned in Section 42 or to the nearest magistrate. One of the questions raised is that what meaning is to be given to the words "if the person to be searched so requires". Do they cast a duty upon the offi cer about to make the search to intimate such person that if he so requires he would be taken before the nearest Gazetted Offi cer or the nearest magistrate for the purpose of making search in their presence or it is for such person to make such a request on his own without being informed by the offi cer? ...

" In paragraph 5, the Court observed:- "5. ... But when a police offi cer carrying on the investigation including search, seizure or arrest empowered under the provisions of the CrPC comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered offi cers under the NDPS Act also then he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered offi cer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a Gazetted Offi cer and taking to Gazetted Offi cer thus would not arise because by then search would have been over.

As laid down in Section 50 the steps contemplated thereunder namely informing and taking him to the Gazetted Offi cer should be done before the search. When the search is already over in the usual course of investigation under the provisions of CrPC then the question of complying with section 50 would not arise. " 39. Thereafter the Court considered the provisions of Sections 100 and 165 resply of the CrPC 1973 which deal with the search of the premises and the person. Section 100(1) deals with the search of a closed place and Section 100(3) deals with search of a person, whereas Section 165 deals with search by a police offi cer from any place. The Court observed that if there RANJAN KUMAR CHADHA v. 313 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] is non-compliance of Section 100 or 165 that itself cannot be a ground for rejecting the prosecution case outright.

The eff ect of such non-compliance will have a bearing on appreciation of evidence of offi cial witnesses and other material depending upon the facts and circumstances of each case. In carrying out such searches if they come across any substance covered by the NDPS Act, the question of complying with the provisions of the said Act including Section 50 at that stage would not arise. When the contraband seized during such arrest or search attracts the provisions of the NDPS Act, then from that stage the other relevant provisions of the NDPS Act would be attracted and further steps have to be taken in accordance with the provisions of the said Act. 40. Thereafter, the Court considered whether the failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised offi cer while conducting the search aff ects the prosecution case, and held as under:- "18. ...

It is obvious that the legislature while keeping in view the menace of illicit drug traffi cking deemed it fi t to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted. " The Court thereafter held as under:- "20. ... When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the offi cer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Offi cer or a Magistrate. Thus the provisions of Section 50 are mandatory. " 41.

When we refer to the decision of this Court in Balbir Singh (supra), what has been held therein as a broad principle in para 25(1), is as under:- "25. The questions considered above arise frequently before the trial courts. Therefore we fi nd it necessary to set out our conclusions which are as follows: 314 SUPREME COURT REPORTS [2023] 13 S. C. R. (1) If a police offi cer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an off ence or suspected off ences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise.

If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police offi cer, who is not empowered, should inform the empowered offi cer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered offi cer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. " 42. The said principle clearly postulates a situation where a police offi cer in the normal course of investigation of an off ence or suspected off ences as provided under the provisions of CrPC 1973 and in the course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, the question of invoking Section 50 would not arise.

When that principle is examined carefully one can easily understand that without any prior information as to possession of any narcotic drug and psychotropic substance, a police offi cer might have held a search in the course of discharge of his duties as contemplated under the provisions of CrPC 1973 and, therefore, it would be well-neigh impossible to state that even under such a situation, the application of Section 50 would get attracted. The facts involved in Balbir Singh (supra) would indicate that the police offi cer eff ected the arrest, search and seizure on reasonable suspicion that a cognizable off ence was committed and not based on any prior information that any off ence punishable under the NDPS Act was committed and, therefore, it was argued that complying with the provisions of the NDPS Act at the time of the said arrest, search and seizure did not arise inasmuch as such arrest, search and seizure was substantially in accordance with the provisions of CrPC 1973.

It was, therefore, contended that such arrest, search and seizure cannot be declared as illegal. While examining the contention in the said background, Principle 1 in para 25 RANJAN KUMAR CHADHA v. 315 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] referred to above came to be rendered. (See : Gurjant Singh v. State of Punjab (2014) 13 SCC 603). 43. It all started with the Constitution Bench decision of this Court in the case of State of Punjab v. Baldev Singh, (1999) 6 SCC 172. The Constitution Bench had to be constituted in view of the cleavage of opinion expressed by this Court in the State of Punjab v. Balbir Singh reported in (1994) 3 SCC 299, Ali Mustaff a Abdul Rahman Moosa v. State of Kerala reported in (1994) 6 SCC 569, and Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat reported in (1995) 3 SCC 610. 44.

This Court in Baldev Singh (supra) held that Section 50 would come into play only in cases where search of a person is conducted under the NDPS Act as contemplated under Section 42. Where there is no search of a person under the NDPS Act, Section 50 would have no application. However, where in the course of a general search being conducted under the CrPC, 1973 in connection with any off ence or suspected off ence except one under the NDPS Act, there is recovery of any contraband, the provisions of the NDPS Act shall forthwith apply in such cases also. The relevant observations made are reproduced below:- "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc.

However, if the empowered offi cer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an off ence or suspected off ence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. 13. Vide Section 51, the provisions of the Code of Criminal Procedure, 1973 shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Thus, the NDPS Act, 1985 after incorporating the broad principles regarding search, seizure and arrest etc. in Sections 41, 42, 43, 49 and 50 has laid down in Section 51 that the provisions of the Code of Criminal Procedure shall apply insofar as they are not inconsistent with the provisions of the NDPS Act.

The expression "insofar as they are not inconsistent with the provisions of 316 SUPREME COURT REPORTS [2023] 13 S. C. R. this Act" occurring in Section 51 of the NDPS Act is of signifi cance. This expression implies that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the NDPS Act also except to the extent they are "inconsistent with the provisions of the Act". Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females.

Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered offi cer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the investigating offi cer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female offi cial who carried out the personal search of the female concerned should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only aff ect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. 14.

The provisions of Sections 100 and 165 CrPC are not inconsistent with the provisions of the NDPS Act and are applicable for aff ecting search, seizure or arrest under the NDPS Act also. However, when an empowered offi cer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating offi cer is not an empowered RANJAN KUMAR CHADHA v. 317 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] offi cer then it is expected of him that he must inform the empowered offi cer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act.

In Balbir Singh case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of CrPC in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. " 45. This Court in Baldev Singh (supra) further observed that the conditions prescribed in Section 50 are an obligation imposed upon the empowered offi cer and the same must be duly complied with before conducting any search of a person. The relevant observations are reproduced hereunder:- "24. ...

There is, thus, unanimity of judicial pronouncements to the eff ect that it is an obligation of the empowered offi cer 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 a right to require his search being conducted in the presence of a gazetted offi cer or a Magistrate and that the failure to 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 person concerned requires, on being so informed by the empowered offi cer or otherwise, that his search be conducted in the presence of a gazetted offi cer or a Magistrate, the empowered offi cer 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. " (Emphasis supplied) 46.

This Court in Baldev Singh (supra) also explained the purpose behind the safeguards engraved under Section 50 and the reason as to why the right of the suspect to have his search conducted before a Gazetted Offi cer or Magistrate ought to be zealously guarded by the courts. "25. To be searched before a gazetted offi cer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned 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 even otherwise manifest. The search before a gazetted offi cer 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 justifi cation for the empowered offi cer, who goes to search the person, on prior information, to eff ect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted offi cer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is suffi cient if such information is communicated to the person concerned orally 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 offi cer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted offi cer, at the time of the intended search.

Courts have to be satisfi ed at the trial of the case about due compliance with the 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. 26. The safeguard or protection to be searched in the presence of a gazetted offi cer 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 the veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of illicit drugs and narcotic substances. Personal search, more particularly for off ences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 RANJAN KUMAR CHADHA v.

319 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in the presence of a gazetted offi cer or a Magistrate is a necessary sequence for enabling the person concerned to exercise that right under Section 50 because after Maneka Gandhi v. Union of India 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, without intimating to the suspect that he has a right to be searched before a gazetted offi cer 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 offi cials responsible for the enforcement of law, cannot be considered to be a "fair", just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered offi cer, to intimate to the suspect, about the existence of his right to be searched in the presence of a gazetted offi cer or a Magistrate, if he so requires, would place any premium on ignorance of the 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". x x x x 28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug off ences.

It must be borne in mind that severer the 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 fi nd any reason as to why the empowered offi cer should shirk from aff ording 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 offi cer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose -- to protect a person against false accusation 320 SUPREME COURT REPORTS [2023] 13 S. C. R. and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered offi cer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us.

If the empowered offi cer fails to comply with 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 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 the judicial process may come under a 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 the law and may have the eff ect of unconscionably compromising the administration of justice. That cannot be permitted. " (Emphasis supplied) 47.

As to what would be the consequences of a recovery made in violation of Section 50, it was observed in Baldev Singh (supra) that it would have the eff ect of rendering such incriminating material inadmissible in evidence and hence, cannot be relied upon to hold the accused guilty for being found to be in unlawful possession of any contraband. The Court further held that it would not impede the prosecution from relying upon recovery of any other incriminating article in any other independent proceedings. It was further held that the burden of proving that the conditions of Section 50 were complied with, would lie upon the prosecution to establish. The relevant observations are being reproduced hereunder:- "32.

However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and 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 benefi t of 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 of the investigating offi cer (empowered offi cer) to ensure that RANJAN KUMAR CHADHA v. 321 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.

] search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted offi cer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted offi cer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit 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 existence of his right, it would render his conviction and sentence unsustainable.

The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted offi cer or a Magistrate, if he so requires, is sacrosanct and indefeasible -- it cannot be disregarded by the prosecution except at its own peril. 33. 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 fi nding 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 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. x x x x 45. ... Prosecution cannot be permitted to take advantage of its own wrong.

Conducting a fair trial for those who are accused of a criminal off ence 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 benefi t 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 322 SUPREME COURT REPORTS [2023] 13 S. C. R. allow admission of evidence against an accused, where the court is satisfi ed that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused.

If after careful consideration of the material on record it is found by the court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded. In R. v. Collins, (1987) 1 SCR 265 (Canada), 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 render a trial unfair and the evidence inadmissible. ... x x x x 55. We, therefore, hold that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in 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 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. " (Emphasis supplied) 48. This Court ultimately summed up its fi ndings with the following ten conclusions reproduced below:- "57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered offi cer or a duly authorised offi cer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted offi cer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; RANJAN KUMAR CHADHA v.

323 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J. ] (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted offi cer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered offi cer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a gazetted offi cer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted offi cer 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 onl