CHAPTER-IV

SEARCH

Chapter V of the NDPS Act deals with the procedure to be adopted

by the enforcement authorities for the purpose of this act considering the
seriousness coupled with the gravity of the offence and rigorous
punishment. In order to ensure that drugs are not planted, and in view of
the inherent nature of offences, the act provides certain special procedure in
respect of entry, search, seizure and arrest under the act. The objectives of
these provisions are to ensure that persons are only searched with good
cause and also with a view to maintain veracity and authenticity of
evidence obtained from such search'. The investigating agency must follow
the procedure as envisaged by the Act scrupulously and the failure to do so
must be viewed by the higher authorities seriously inviting action against
official concerned.
Procedure of Search under the NDPS Act
A search by itself is not a restriction on the rights to hold and enjoy

property, though seizure is a temporary restriction to the right to possession

and enjoyment of the property seized. There are three kinds of search

under the Act:

a) The search of building, premises and enclosed place etc.

b) Search of conveyance

c) Search of person in public place or in transit

Section 41,42,43,49 and 50 deals with different types of search

alongwith procedure of Criminal Procedure Code, 1973. The section 41 of
NDPS Act, which provided for empowerment of officers for arrest, search
and seizure read as follows:
1. Power to issue warrant and authorization:
1. A Metropolitan Magistrate or a Magistrate of the first class or any

Magistrate of the second class specially empowered by the State

 95

Government in this behalf, may issue a warrant for the arrest of any

person whom he has reason to believe to have committed any

offence punishable under the Act, or for the search, whether by day

of by night, or any- building, conveyance or place in which he has

reason to believe any narcotic drug or psychotropic substance or

controlled substance in respect of which an offence punishable

under this Act h'as been committed or any document or other article

which may furnish evidence of holding any illegally acquired

property which is liable for seizure or freezing or forfeiture under

chapter VA of this Act is kept or concealed.

2. Any such officer of Gazetted rank of the departments of Central

Excise, Narcotics, Customs, Revenue Ihtelligence or any other

department of the Central Government including the para-military

forces or the Armed Forces as is empowered in this behalf by

general or special order by the Central Government, or ay such

officer of the Revenue, Drugs Control, Excise, Police or any other

department of State Government as is empowered in this behalf by

general or special order of the State Government if he has reason to

believe from personal knowledge or information given by any

person and taken in writing that any person has committed an

offence punishable under this act or that any Narcotic Drug or

Psychotropic Substance or controlled substance in respect or which

any offence under this Act has been committed or any document or

other article which may furnish evidence or the commission of such

offence or any illegally acquired property or any document or other

article which may furnish evidence of holding any illegally acquired

property which ist liable for seizure or freezing or forfeiture under

chapter VA of this Act is kept or concealed in any building,

 96

conveyance or place, may authorize any officer subordinate to him

but superior in rank to a peon, sepoy or a constable to arrest such

person or search a building, conveyance or place whether by day or

by night or himself arrest such a person or search a building,

conveyance or place.
3. The officer to whom a warrant under sub-section (1) is addressed

and the officer who authorized the arrest or search or the officer

who is so authorized under sub-section (2) shall have all the power

of an officer acting under section 42.

This section empowers in addition to the Metropolitan Magistrates,

first class Magistrates, specially empowered second class Magistrates and

certain Gazetted Officers of the Central Excise, Narcotics, Drugs Control,

Customs, Revenue Intelligence, Border Security Force, Revenue, Excise,

Police or other departments of the Central and State Governments to issue

warrants and authorizations for arrest, search and seizure. A Magistrate or

other officer referred to in the section can exercise these powers only if he

has ‘reason to believe’ that a person has committed an offence under

Chapter IV, or that the prohibited drug or substance or any document or

other article which may furnish evidence of the commission of such

offence is kept or concealed. Search and Seizure can be permitted or

authorized by day or night.

A search by itself is not a restriction on the right to hold and enjoy

property. No doubt a search and a seizure carrying away is a restriction of

the possession and enjoyment of the property seized. However, search and

seizure are only temporary and to the limited purpose of investigation. A

search and seizure is, therefore, only a temporary interference with the right

to hold the premises searched and the articles seized.

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i) Power of the Magistrate to issue Search Warrants

The issuance of a search warrant and the making of a search in the

property of a citizen and for a thing in his possession is a grave step which

necessarily involves some encroachment on the privacy of a subject. But it

is essential that in the larger interest of the administration of justice, public

officers connected with the administration of justice and order in society,

should have adequate powers and reasonable facilities for making searches

in the course of an inquiry or an investigation. These considerations viz,

the necessity of securing the private rights of a citizen and the need to see

that commission of offence is prevented and adequately dealt with,

investigated and brought to light, are undoubtedly of paramount importance

and there is need to strike a balance between the two rival but conflicting

considerations. It has been provided while giving powers under the present

section, that they should be used only in the circumstances provided

therein. The issue of search warrant is normally the judicial function of a

Magistrate. Therefore, a search warrant is not to be issued automatically or

for the mere asking. It may be stated that the words “reasons to believe”

coupled with other words in this section contemplate an objective

determination involving judicial review as distinguished from a subjective

consideration. This function being judicial, it necessarily follows that the

Magistrate has to apply his- mind judicially. He must retain ultimate

responsibility for seeing that the search-warrant is not abused. The

expression ‘reasons to believe’ is not synonymous with subjective

satisfaction. The belief must be held in good faith. It can not be merely
pretence.1

The word ‘to believe’ must be distinguished from the words ‘to
suspect’. “To believe” a fact is to regard that fact as true; whereas “to

1 Dr. Partap Singh Vs. Director ofEnforcement, AIR 1985 SC, 989.
 98

suspect” would imply a readiness to believe that without sufficient data or

without having any credible evidence on the subject. It would introduce to

some extent, an element of imagination or conjecture. Therefore, before

issuing a search warrant, the Magistrate should be objectively satisfied that

there is sufficient material before him to justify the drastic action.

There are no express requirements in the section for the Magistrate

to record reasons of his said belief. But this function being a judicial one, it
necessarily follows as a corollary that there must be some material on the
record from which it can be discerned that the Magistrate has applied his
judicial mind before issuing the search-warrants. The Hon’ble Supreme
Court of India in case V. S. Kuttan Pillai Vs Ramakrishnan 2 observed
that:
“Issuance of a search warrant is a serious matter and it would
be advisable not to dispose of an application for search
warrant in a mechanical way by a laconic order. Issue of
search warrant being in the discretion of the Magistrate it
would be reasonable to expect of the Magistrate to give
reasons which swayed his discretion in favour of granting his
. request. A clear application of mind by the learned
Magistrate must be discernible in the order granted the
search warrant.”
ii) Powers of specially empowered Magistrates
Section 41 sub section (1) also enables a Magistrate of a Ilnd Class
specially empowered by the State to issue a warrant of arrest or a search
warrant, as the case may be, if the other necessary conditions are fulfilled.
The Hon’ble Supreme Court of India held in case Sindhi Lohana Choithran
Vs. State of Gujarat3 that where power is conferred on a person by name
or by virtue of his office, the individual designated by name or as the

AIR 1980 SC 185

AIR 1967 SC 1532
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holder of the office for the time being is empowered specially. Judged by
this test, the notification specially empowered the officer as the holder of
the office of Deputy Superintendent of Police to issue the search warrant,
iii) Power to issue authorization:
Section 41 sub section (2) of the Act empowers an officer of the
gazetted rank in the departments as mentioned above or any other
department of the Central Govt, as is empowered in this behalf by general
or special order by the Central Govt, or any such officer in the departments
of Revenue Drugs Control, Excise, Police or any other department of a
State Govt, as is empowered in this behalf by general or special order of the
State Govt, to issue authorization in favour of any officer subordinate to
him but superior in rank to a Peon, Sepoy or a Constable, to arrest a person
or search a building, conveyance or place in the circumstances and for the
purposes mentioned therein. Such gazetted officers may himself arrest
such a person or search such a building, conveyance or place.
To applicability of this section first essential condition is that the
officer must be of a gazetted rank in any of the department stated therein
and he must be so empowered in this behalf by a general or special order of
the Central or State Govt., as the case may be.
Secondly, such officer must have reason to believe either from (a)
personal knowledge or (b) from information given by any person and taken
down in writing
i) That any person has committed an offence punishable under
Chapter IV of the Act, or
ii) That any Narcotic Drug or Psychotropic Substance in respect of
which any offence punishable under Chapter IV has been
committed, has been kept or concealed in any building,
conveyance, or place, or
iii) That any document or article which may furnish evidence of the
commission of such offence has been kept or concealed in any
building, conveyance or place.
 100

It is only on the fulfillment of the above essential conditions that the

said officer draws a statutory power to issue authorization for the arrest of
any person or the search of any building, conveyance or place. Lastly such
officer can issue authorization in favour of an officer subordinate to him
who must be superior in rank to a Peon/Sepoy or a Constable. This sub
section further recognizes that such officer of the gazetted rank in stead of
issuing authorization in favour of his subordinate may himself perform
both these functions. It is based on the principle “he, who does anything by
another does it himself.”
It is arguable point that the sub section (2) confers an unguided and
arbitrary power upon an officer to issue authorization or make a search, the
only condition being that he has reason to believe in the existence of the
facts mentioned therein; the said belief is practically a subjective
satisfaction and can be abused and that this section neither lays down any
policy nor imposes any effective control on his absolute discretion. Such
an arrangement may seems to be attractive, but a deeper scrutiny of the
provisions would indicate nor only a policy but also effective checks on the
exercise of the power by the officer.
It is to mention here that similar powers have been conferred by the
legislature upon the officers of certain departments whose duty is to
enforce the respective legislation. The object of the act is to curb the evil
of abuse and illicit traffic in Narcotic Drugs and Psychotropic Substances.
The legislative policy reflected in this sub section is to empower the
officers of the various law enforcement agency to make coordinated efforts
to achieve that object by detecting the contraventions of the various
prohibitions relating to such drugs and substances. No doubt the power can
be abused. Indeed the 'measures would be objectionable if its
implementation is not accompanied by safeguards against its undue and
improper exercise. It must be noted that the power to authorize search and
seizure is vested in high ranking officers of the specified departments who
have been empowered in this behalf by general or special order of the
 101

Central or State Govt. The exercise of this power can follow a reasonable
belief entertained by such officer that any of the conditions mentioned in
the sub section exists though such officer need not record the reasons, if the
existence of the belief is question in any collateral proceedings, he has to
produce relevant evidence to sustain his belief,
iv) Recording of reason
Section 41 sub section 2 of the Act does not say that such officer
or such empowered officer shall give reasons. The power conferred on him
is not subject to any sucji condition. Though he can not make an arrest or a
search or authorize any officer to do so unless he has reason to believe the
existence of the facts mentioned in the sub section, the sub section does not
compel him to give reasons. As discussed above, it may be advisable and
indeed proper, for him to give reasons. The non mention of reasons in
itself does not vitiate either the authorization or the search and seizure and
the trial. The belief must be held in good faith, it can not be merely a
pretense. To put it differently it is open to the court to examine the
question whether the reasons for the belief have a rational connection or a
relevant bearing to the formation of the belief and are not extraneous or
irrelevant to the purpose of the sub section. Therefore, though under the
sub section the officer concerned need not give reasons. The Hon’ble
Supreme Court of India in Dr. Partap Singh’s4 case observed that:
“The material on which the belief is grounded may

be secret, may be obtained through Intelligence or

occasionally may be conveyed orally by informants.

It is not obligatory upon the officer to disclose this

material before him on the mere allegation that

there was no material before him on which his

reason to believe can be grounded.”

4
Ibid
 102

2. Power of search of premises without warrant:-

Section 42 empowers the officer to search without warrant. Section
42 is reproduced as under:
Power of entry, seizure and arrest without warrant or authorization:
i) Any such officer (being an officer superior in rank to a peon,

sepoy or constable) or the departments of Central Excise,

Narcotics, Customs, Revenue Intelligence or any other

department of the Central Government including para-military

forces or armed forces as is empowered in this behalf by general

or special order by the Central Government, or any such office

(being an officer superior in rank to >a peon, sepoy or constable)

of the revenue, drugs control, excise, police or any other

department of a State Government as is empowered in this

behalf by general or special order of the State Government, if he

has reason to believe from personal knowledge or information

given by any person and taken down in writing that any narcotic

drug, or psychotropic substance, or controlled substance in

respect of which an offence punishable under this act has been

committed or any document or other article which may furnish

evidence of the commission of such offence or any illegally

acquired property or any document or other article which may

furnish evidence of holding any illegally acquired property

which is liable for seizure or freezing or forfeiture under Chapter

VA of this Act is kept or concealed in any building, conveyance

or enclosed place, may between sunrise and sunset:

(a) enter into and search any building, conveyance or place;

(b) in case of resistance, break open any door and remove

any obstacle to such entry;

 103

(c) seize such drug or substance and all materials used in the

manufacture thereof and any other article and any animal

or conveyance which he has reason to believe to be liable

to confiscation under this Act and any document or other

article which he has reason to believe may furnish

evidence of the commission of any offence punishable

under this act or furnish evidence of holding any illegally

acquired property which is liable* for seizure or freezing

or forfeiture under Chapter VA of this Act; and

(d) detain and search, and if he thinks proper, arrest any

person whom he has reason to believe to have committed

any offence punishable under this Act;

Provided that if such officer has reason to believe that a search

warrant or authorization cannot be obtained without affording opportunity

for the concealment of evidence or facility for the escape of an offender, he

may enter and search such building, conveyance or enclosed place at any

time between sunset and sunrise after recording the grounds of his belief,

ii) Where an officer takes down any information in writing under

sub-section (l).or records grounds for his belief under the

proviso thereto, he shall within seventy two hours send a copy

thereof to his immediate officer superior.

I. Relevancy of Special Procedure of Search

In case State of Orissa Vs. Laxman Jena5 the Apex Court

expressed the view that the section 42 has two parts. The first part deals

with the recording of the information and the second with the conduct of

the search. The first part of the section has two limbs, first dealing with the

recording of the information received and the other relating to the belief of

5 2002Drugs Cases (Narcotics)346

 104

the officer based upon his personal knowledge. Any information recorded

in terms of sub section (1) of section 42 of the act is required to be sent to

the superior officer of the officer recording the information as mandated by

sub section (2) of section 42. Second part of the sub section (1) deals with

the power of the officer regarding entry, search, seizure and arrest without

warrant or authorization.
In case Thulaseedharan Vs. State of Kerala6 7the Kerala High Court

observed that sending of the report would ensure that false cases are not

fabricated by empowered officers. Receipts of a report under section 42(2)

of the Act would, to some extent ensure that the empowered officer do not

misuse their power, make search and seizure only in genuine cases because

based on the report that the official superior gets he would always be in a

position to make immediate enquiries to convince himself that there was in

fact a genuine information and a genuine seizure. In case State of Gujarat

Vs. AbdulrasidIbrahim Mansuri7 the Gujarat High Court observed that the

provisions of recording in writing the information received and sending

forthwith the copy of such record to the immediate official superior were

advisedly made to prevent the empowered officer from misusing the power

of entry into the building, conveyance or place, which are considered to be

the protected places for an individual, who has a right to exclude the

outsider and that the privacy of the occupants of such places may not be

disturbed. The court further observed that a house or such protected place is

considered to be a fortress of a person and he has a right to prevent or

exclude other persons and that right is always protected by the State.

This section enables certain officers, duly empowered in this behalf

by the Central or State Govt, to enter into and search any building,

conveyance or enclosed place, for the purposes mentioned therein, without

6 2002 Drugs Cases (Narcotics) 310

7 1991 Drugs Cases 1
 105

any warrant or authorization. This section creates a statutory exception to

the general rule that no search can be made without a warrant from the

appropriate Magistrate. Undue delay in obtaining search warrant may

defeat the very object of the search. To meet such exceptional emergent

cases it was necessary to empower responsible officer to carry out searches

without first applying to the courts for authority. Though, a search without

warrant is a process exceedingly arbitrary in character stringent statutory

conditions are imposed on the exercise of the power.

II. Meaning of Building, Conveyance and Enclose Place

In section 42 the words ‘building, conveyance and enclosed place’
have been used for the specific purpose of protecting the persons who are
living in the building, conveyance enclosed place. The Legislature in its
wisdom considered proper to draw a demarcated line between building,
conveyance and enclosed place on the one hand and public place or place
of transit on the other. For an example if the family is residing in a building
or in a conveyance and search is to be taken by junior most officer, the
possibility of harassment can not be ruled out. So, for the purpose of
Section 42, the Legislature considered it proper that ‘any such officer’ who
has been empowered by the general or special order by the Central or State
Govt, can take the search of the building, conveyance or enclosed place.
The words have been specifically mentioned to show the demarcating lines
between the two otherwise. The Legislature could have used any place
instead of narrating the words, building, conveyance or enclosed place.
Even a private open place does not fall within the purview of Section 42
unless it is enclosed. The words ‘enclosed place’ may be public or private.
So, this demarcating line will have to be kept in mind. In case Hardevo
Gnjjar Vs. State of Rajasthan8, the Rajasthan High Court held that the
possibility of harassment can not be ruled out in the private residential
building or a private conveyance or a private enclosed place.

8 1990 Drugs Cases

1
 106

The scope of the powers of the officers to make search without

warrant is specified in the section. It is not every officer, who is authorized
to carry out search without warrant. Only such officers as mentioned in
Section 41 are authorized to exercise the powers of entry, search, seizure
and arrest without a warrant from a Magistrate. The empowered officer has
formed his belief on the basis of the information given by any person and
he must reduce the same into writing and send a copy thereof to his
immediate superior official. It is only on the satisfaction of all these
requirements that the said officer would be clothed with the necessary
jurisdiction to enter into and search any such premises or conveyance
between sunrise and sunset. He is also empowered to detain, search and
arrest any person, found present in such premises or conveyance, whom he
has reason to believe to have committed an offence punishable under
Chapter IV relating to such narcotic drug or psychotropic substance
recovered there from.
Section 42 sub section (1) lays down the circumstances under
which, such entry, search or arrest can be made during night also. It says

that if such officer has reason to believe that a search warrant or

authorization can not be obtained without affording opportunity for the

concealment of evidence or facility for the escape of offender, he may enter

and search such building, conveyance or enclosed place at any time during

sunset and sunrise after recording the grounds of his belief. Sub section (2)

of the Act provides to send forthwith a copy of the record of the grounds of

his said belief to his immediate superior officer before entering the said

premises or conveyance.

III. Prior information or strong suspicion must be basis of action

If the empowered officer has a reason to believe from his personal
knowledge that the offence under Chapter IV have been committed or
materials which may furnish evidence of commission of such offences are
concealed in any building etc.-, he may carry out search and arrest without a
 107

warrant between sunrise and sunset and this provision does not mandate
that he should record the reasons of belief. But under the proviso to
Section 42 (1) if such officer has to carry out such search between sunset
and sunrise, he must record the ground of his belief. In case Panchu Rout
Vs. State of Orissa9, it has been observed by Orissa High Court that Section
42(1) are mandatory and the contravention of the same would effect the
prosecution case and vitiate the trial.
There must be a reasonable ground of suspicion before a search is
conducted. A common thread which runs through Section 41 to 44 and
even Section 49 is that the designated officer thereunder should have
“reason to believe” about the commission of an offence under the Act
before he conducts search and arrests. If such officer has valid reason to
suspect as distinguished from reason to believe, the requirement of law
could be met. It may also be noticed here that using powers under Sections
42, 43 and 44 without reasonable ground of suspicion or detaining,
searching or arresting any person vexatiously and unnecessarily has been
made a cognizable offence under section58 of the Act. Moreover, the
provisions of Section 50 fit in and fortify the conclusion that a designated
officer must have reason to belief/suspect before carrying out search,
i) In warrant-less search whether recording of reasons is necessary:-
Warrant-less search in the property of a citizen and for a thing in his
possession is a grave step which necessarily involves some encroachment
on the privacy of a subject. It has been pointed out in quite a number of
cases what serious damage is inflicted on the prestige and business of
individuals and business houses by unfounded and arbitrary searches. On
the other had, it is essential that in the larger interest of the administration
of justice, public officers connected with the administration of justice, and
preservation of peace and order in society should have adequate powers
and reasonable facility for making searches for that end. The necessity of

9
83 (1997) CLT 710
 108

securing the private rights of a citizen and the need to see that commission
of offence is prevented and adequately dealt with and brought to light, are
undoubtedly of paramount importance and to strike a balance between two
rival but conflicting considerations, it has been provided that while giving
powers under the present section that they should be used only in the
circumstances provided therein.
Section 42 sub section (1) of the Act provides for two contingencies
i.e. where the search of the premises or conveyances to be made during day
time and where such search is to be conducted during night. In case a
search of the premises is to be made during day time, it does not say that
such officer shall give reasons. The powers conferred on him are not
subject to any such condition. Though, he can not make any search unless
he has reason to believe the existence of the facts mentioned therein, the
sub-section does not compel him to give reasons. While it may be
advisable, indeed proper,, for him to give reasons, the non-mention of
reasons in itself does not vitiate the search or seizure as held in case
R.S.Seth Gopikishan Vs. R.N.Sen'0. In another case S. Narayanappa Vs.
The Commissioner of Income-Tax ", the Hon’ble Apex Court pointed out
that:
“the expression ‘reason to believe’ does not mean a
purely subjective satisfaction on the part of the
concerned officer. The belief must be held in good
faith. It can not be merely pretence. To put it
differently, it is open to the Court to examine the
question whether the reasons for the belief have a
rational connection or a relevant bearing to the
formation of the belief and are not extraneous or
irrelevant to the purpose of the sub section. In other

AIR 1967 S.C.1298

AIR 1967 S.C. 523
 109

words, the existence of the belief can be challenged

but not the sufficiency of the reasons for the belief.”
Therefore, under this sub section, the officer concerned need not
give reasons, if the existence of belief is questioned in any collateral
proceedings he has to produce relevant evidence to sustain his belief.
In case, where a search of the premises or conveyance is to be made
during night, the proviso to sub section (1) says that if such officer has
reason to believe that a search warrant or authorization can not be obtained
without affording opportunity for the concealment of evidence or facility
for the escape of an offender, he may enter and search such building,
conveyance or enclosed place at any time between sunset and sunrise after
recording the grounds of his belief. The expression “after recording the
grounds of his belief’ forms an integral part of the proviso itself, and not of
the main part of the sub section. In other words, the proviso requires the
officer to record the grounds of his belief which lead him to conduct the
search at night i.e. that a search warrant or authorization can not be
obtained without affording opportunity for the concealment of evidence or
facility for the escape of an offender. It has no relation to the formation of
his original belief to the effect that any Narcotic Drug or Psychotropic
Substance in respect of which an offence punishable under Chapter IV has
been committed or any document or other article which may furnish
evidence or enclosed place. Thus even the proviso does not enjoin upon
the officer to record the reasons of his belief for making the search. The
recording of reason does not confer on the officer jurisdiction to make a
search, though it may be a necessary condition for making a search. The
jurisdiction or the power to make a search is conferred by the statute and
not derived from the recording of reasons.
The controversy on this issue stands resolved by an authoritative
pronouncement of the Supreme Court in case State of Punjab Vs. Balbir
 110

Singh}2, wherein, the Hon’ble Apex Court held that “Under Section 42 (1),
the empowered officer if has a prior information given by any person that
should necessarily be taken down in writing. But if he has reason to
believe from personal knowledge that offences under Chapter IV have been
committed or materials which may furnish evidence of commission of such
offences are concealed in any building etc., he may carry out the arrest and
search between sunrise and sunset and this provision does not mandate that
he should record his reasons of belief. But under the proviso to Section
42(1) if such officer has to carry out such search between sunset and
sunrise, he must record the grounds of his belief. But under the Act
sections 41 and 42(2) do not give any such mandate. It is only proviso to .
section 42(1) which makes the recording of grounds obligatory. It was then
held:
“It therefore emerges that the empowered officer while effecting the
search or arrest without warrant as provided under Sections 41 and 42(1)
has to carry out search in accordance with Section 165 Cr.P.C. but if he
fails to record reasons, such a failure will not amount to an illegality
vitiating the trial.”
IV. Recording of general information:
In case Babubhai Odhavji Patel Vs. State of Gujaratlj the Hon’ble
Apex Court was of the view that a general information is not bound to be
recorded as source of information as contemplated under section 42 of the
Act. Further observed that' section 42 of the Act provides specific
information alone need be recorded by the officer empowered to conduct a
search.
V. Recording of secret information and information to superior
officer:

The issue whether a secret information given by (Mukhbir) whose

identity was not revealed and who was not cited as prosecution witness for

12
AIR 1994 SC 1872
13 2005 Drugs Cases (Narcotics) 624
 Ill

proving any fact, should be deemed to be a person within the meaning of

sub section (1) of section 42 was considered by the Rajasthan High Court
in case Jagdish Chandra Vs. State of Rajasthanu that if the object behind

recording of information under sub section (1) of section 42 is to use such

information as a corroborating evidence when the informant is examined in

a court of Law, it will have to be inferred that the expression in section 42

of the Act does not include a mukhbir or a secret agent to whom the

protection under section 125 of the evidence act applies.

On the contrary the Rajasthan High Court in Case Hazari and

another Vs. State of Rajasthan,15 the court was of the view that the police

officer was obliged to take down the secret information in writing as

provided in sub section (1) of section 42 and furthermore in compliance of

sub section (2) of section 42 sent that information to the superior officer.

The same issue was earlier discussed by the Rajasthan High Court in case
Mohammed Ahfaj Vs. State of Rajasthan16 and expressed the view that

since the secret information received from some mukhbir was neither taken

down in writing nor a copy thereof was sent to the immediate official

superior there was non compliance with the mandatory provisions of

section 42 of the Act, therefore the trial vitiated. Similar view was given by
the Delhi High Court in case Rajinder Kumar Vs. State17 that since

information was not sent to the official superior, there was violation of

section 42(2) of the Act causing prejudice to the accused. But the Punjab

and Haryana High Court has expressed his view in case State of Punjab Vs.
Jeet Singh19, that whenever any secret information is received, it has to be

reduced into writing and copy of the same be sent to the higher officials,

14 1997 (2) Drugs Cases 157

15 2001 Drug Cases 40
16 1997 Drug Cases 323
17 2002 Drugs Cases (Narcotics) 177
18 2000 Drug Cases 300
 112

for non-compliance that there was a clear violation of sub section (2) of

section 42 of the Act.

The above view of the various High Court is not preferable for the

reason that Section 68 of the Act said “no officer acting in exercise of

powers vested to him under any provision of this Act or any rule or order

made thereunder shall be compelled to say whence he got any information

as to the commission of any offence.”

In Govind Ramlal Marar Vs. Stale of M.P.19 Madhya Pradesh High

Court was of the view that where the officer wants the Court to believe that

he has received some information, not only he is required to speak in the

court that he has complied with the provisions of sub section (1) of section

42 but is also obliged to produce the records which he has maintained. On

the contrary in Cyan Chand Vs. State20 Allahabad High Court was of the

view that where there was specific evidence of officer that on getting

information about likely recovery of contraband from the premises in

question, he recorded it in writing and sent it to his Dy.Director, it was

sufficient compliance of section 42 (1) and (2) of the Act and that simply

because the written information was not produced before the court, it

would not vitiate the proceedings. Similarly the Kerala High Court gives
the view in case E.Micheal Raj Vs. Intelligence Officerf that when there

was sufficient evidence that accused appellant has possessed narcotic

drugs, merely because information reduced in writing was not produced in

the Court to keep informant’s identity secret or dispatch register did not

disclose information or its dispatch on zonal office, it could not be

concluded that no information was received and that the case was foisted

on the accused.

2000 Drug Cases 324

2005 Crl.L.J.3228
NCB 2005 Crl.LJ. 1817

\
 113

VI. Communication of information to superior officers on telephone:

In case Munna Mohamad Hasan Ansari Vs. State of Maharashtra22
the information taken down in writing was communicated to the official
superior over telephone, the Apex Court was of the view that by
communicating the information to a superior, the provisions of sub section
(2) of section 42of the Act were substantially complied with and in the
absence of any prejudice to the accused the court is not persuaded to hold
that failure to send a copy of the information recorded under sub section (1)
of section 42 has resulted in causing any infirmity in the search or vitiating
the trial.
VII. Information received in the presence of superior officer and
discussed:

In Kalema Tumba Vs.'NCB23 Bombay High Court was of the view

that when the intelligence information was received in the immediate
presence of superior officer and there was a discussion with him about
interception of the accused, on the mere fact that the information had not
been sent to the superior officer, it could not be held that section 42 was
violated. Bombay High Court further observed that there was no definite
mode or manner prescribed for reducing the information under the said
provision.
VIII. Effect of presence of superior officer as Member of Raiding
Party:

In Lamin Bojang Vs. State of Maharashtra24 the Bombay High

Court observed that at the time of raiding presence of immediate official

superior as part of the raiding party is immaterial and rejected the

contention on behalf of prosecution that inasmuch as the immediate

superior official was a part of the raiding party, no prejudice had been

caused to the accused, in not sending written information as required under

22
2003 Drugs Cases (Narcotics) 288
23
1998 Drug Cases (Narcotic) 148
24
1997 Drug Cases 144
 114

sub section (2) of section 42. The court was of the view that when an

obligatory duty is cast by the statute, as sub section (2) of section 42 of the

Act cast on the officer receiving information to inform his immediate

superior officer, the question whether prejudice is caused or not to the

accused on account of the non performance of that duty is immaterial and

what the court has to examine is whether the mandatory obligation has

been strictly carried out by the authority enjoined in law to carry out.

IX. Personal knowledge or information pre-condition for action:

In case Karnail Singh Vs. State of Rajasthan25 the Apex Court was

of the view that for attracting the applicability of section 42, it is necessary

that the officer empowered there under, before exercise of his right, has

reason to believe from personal knowledge or information regarding

movement of narcotic drug or psychotropic substance and if the action is

taken not upon his personal knowledge or information, the requirements of

section 42 will not be applicable and the same issue was decided in

Chhagan Lai Vs. State of Rajasthan26 in which the court was of the view

that since there was no prior information in the case, the question of

following mandatory provisions of section 42 did not arise and in case

Babubhai Odhavji Patel Vs. State of Gujrat27 the Apex was of the view

that if it is a chance recovery, the procedure contemplated under section 42

of the NDPS Act can not be complied with. It is settled proposition of law

that when information or intimation or knowledge comes to the notice of

the investigating officer in' course of the regular patrolling or an

investigation of some other offence, it is not necessary to follow in all cases

the conditions of section 42 of the NDPS Act.

2000 Drug Cases 581

1998 Cr.L.J. 1309
2005 Drug Cases (Narcotic) 624
 115

X. Nature of the provisions of Section 42 of NDPS Act:-

Different High Courts have taken diversion views regarding nature

of the provisions of Section 42. In section 42 there is a big question

whether non compliance of the same vitiate the trial or not, this question
has been discussed in case State of Punjab Vs. Balbir Singh28 by the Apex

Court and was of the view that the very fact that sub section (2) of section

42 requires that where an officer takes down any information under sub

section (1) or records grounds for his belief under the proviso thereto, he

shall forthwith send a copy thereof to the immediate official superior, itself

is a strong indication of the mandate that the officer shall record his reasons

for his belief as required under the proviso and also that the information

received shall be reduced into writing so that it can be verified whether

there are sufficient reasons for belief. The Apex Court referred the object of

the Act which is to make stringent provisions for control and regulation of

operations relating to those drugs and substance, the court observed that at

the same time, to avoid abuse of the provisions by the officers, certain

safeguards are provided which in the context has to be observed strictly.

The court was of the view that the said provisions make it obligatory that

such of those officers mentioned therein, on receiving an information,

reduce the same into writing and also record the reasons for the belief while

carrying out arrest or search as provided under the proviso to sub section

(1) of section 42 and to that extent the provisions are mandatory. Non.

compliance of the requirements thus affects the prosecution case and

therefore vitiates the trial. On the contrary in Jayapalan Vs. State29 the

Court was of the view that non compliance of the provisions of section 42

of the Act was a serious lacuna in the prosecution and does not vitiate trial

AIR 1994 SC 1872

1989 Drug Cases 106
 116

and in Santokh Singh Vs. State30 the court was of the view that in the case

non compliance of provisions of section 42 of the Act did not vitiate the

investigation but does not vitiate the trial. Our Punjab and Haryana High
Court observed in case State of Punjab Vs. Kulwant Singh31 that the

procedural safeguards provided under section 42 were mandatory in nature,

but non compliance, violation or breach thereof were not sufficient to

vitiate the trial unless, on the circumstances of the particular case. It was

found that the non observance of safeguards to such extent has resulted in

prejudice to the accused or in failure of justice. Gauhati High Court in

Union of India Vs. Lathangliani32 held that section 42(2) is directory and

non compliance with it does not vitiate the trial.

XI. Applicability of Section 42 when search made in public place:-

Under Section 42 of the Act any of the officers mentioned therein,

who are empowered by the Central Government or the State Government

may search any building, conveyance or place, seize such article or

material and detain and search or arrest any person whom he has reason to

believe to have committed any offence punishable under section 44. When

search is effected on a road, which is a public place the provisions of

section 43 is applicable. Section 42 of the Act is applicable when the search

is made from any building or conveyance. As the search is affected in a

public place, the provisions of section 43 are applicable as held in case Teju
Singh v. State ofRajasthan,33

XII. Effect of search and seizure conducted by the officer not

empowered under the Act:-
The officers who empowered in this behalf by the general or special
order by the Central or the state Government are authorized to conduct and

1990 Drug Cases 280

1994 Drugs Cases 314
2002 Drugs Cases (Narcotic) 655
33
RLW1996 (1) Raj.46.
 117

search. In case Karam Singh v. State of Punjab34, it was held that search
and arrest by officer not empowered under the Act is illegal. The Court
observed that neither the officer arresting i.e. Head Constable was entitled
to arrest the appellant nor could be conducted the search in violation of the
relevant provisions contained in this chapter nor Has the article i.e. the
opium recovered, been seized or secured in the manner provided for in this
Chapter. In the face of these violations of the mandatory provisions of this
Chapter, the conviction of the petitioner can obviously, not stand. It hardly
need be emphasized that if the power of the specjal or authorized police
officer to deal with the offences under the Act and therefore to investigate
which essentially includes the powers to arrest the, suspected offender into
the offences, be not held exclusive to the officers specified in Section 41 to
43 of the Act. There can be two investigations carried on by two different
agencies, one under the Act and the other by the ordinary police. It is easy
to imagine the difficulties which such duplication of proceeding can lead
to.
The High Court of Rajasthan has held that search and arrest
conducted by the Head Constable was disapproved in case Nand Lai vs.
State of Rajasthan35 and further observed that in criminal cases while

enacting such provision the legislature puts a complete ban on the

authorities beyond one mentioned in the Section to carry out the functions
under the Act. In Section 42 of the Act, the legislature has clearly

empowered the persons mentioned therein or who are authorized to do so

by notification. The legislature intended that a Peon, Sepoy or Constable
%

should be in no case be empowered to enter, search or seize or arrest a

person without warrant. , In case Nityanandan v. State of State36 , it has
been held that while proceeding to public place on receipt of some
information, after recording and sending it to the superior office, would not

1987 Drug Cases 194

1988 Drugs Cases 44
2002 Cr. LJ 2342 (Mad).
 118

deter a Sub-Inspector, not authorized under section 42 from conducting

search at public place.
Xffl. Receipt of prior information and steps of action Where

“prior in-formation” related to the commission of an offence as provided

under Chapter IV of the NDPS Act, there is time for obtaining warrant or

authorization, efforts should be made to obtain such warrant and

authorization from the Magistrate or the Gazetted Officer. Such

information should be recorded in writing and a copy thereof sent to the

superior immediate officer. Search and seizure can be effected between

sunrise and sunset even without obtaining such warrant. Where search has

to be effected after sunset and before sunrise, the officer so competent has

to record his reason of belief and send a copy thereof to his immediate

superior and he can search the building conveyance or place.

Section 42 speaks of “empowered officer” and such officer when

comes in possession of such information relating to commission of offence

under Chapter IV, either on his personal knowledge or information

supplied by any one, he must record ‘information’ in writing and do the

following things:-

(1) enter into and search any such building, conveyance or place;

(2) in case of resistance, break open any door and remove any obstacle

to such entry;

(3) seize drug or substance and all materials; and

(4) detain and search, and, if he thinks proper arrest any person whom

he has reasons to believe to have committed any offence punishable

under Chapter IV relating to such drug or substance.

Where such empowered officer has reason to believe that a search

warrant or authorization cannot be obtained without affording opportunity

for the concealment of evidence or facility for the escape of an offender, he

 119

may enter and search such building conveyance or enclosed space at any

time between sunset and sunrise after recording of his behalf.

No such requirement as contemplated under Sections 41 or 42 is

applicable where such empowered officer is conducting search and seizure

in public places.

The matter has been considered by the Supreme Court of India as

reported in State of Punjab v. Balbir Singh,31 and in para 26 the following

observations were made

“26..... (2A) Under Section 41(1) only an empowered Magistrate

can issue warrant for the arrest or for the search in respect of offences

punishable under Chapter IV of the Act etc. when he has reason to believe

that such offences have been committed or such substances are kept or

concealed in any building, conveyance or place. When such warrant for

arrest or for search is issued by a Magistrate who is not empowered, then

such search or arrestif carried out would be illegal.

Likewise only empowered officers or duly authorized officers as

enumerated in Ss. 41(2) and 42(1) can act under the provisions of the

NDPS Act. If such arrest or search is made under the provisions of the

NDPS Act by any one other than such officers, the same would be illegal.

(2B) Under Section 41(2) only the empowered officer can give the

authorization to his subordinate officer to carry out the arrest of a person or

search as mentioned therein. If there is a contravention that would affect

the prosecution case and vitiate the conviction.

(2C) Under Section 42(1) the empowered officer, if has a prior

information given by any person, that should necessarily be taken down in

writing. But if he has reason to believe from personal knowledge that

offences under Chapter IV have been committed or materials which may

37
1994 Cri LJ 3702 : AIR 1994 SC 1872.
 120

furnish evidence of commission of such offences are concealed in any

building etc. he may carry out the arrest or search without a warrant

between sunrise and sunset and this provision does not mandate that he

should record his reasons of belief. But under the proviso to Section 42(1)

if such officer has to carry out such search between sunset and sunrise he

must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of

the same would affect the prosecution case and vitiate the trial.

XIV. Rule of caution

A three Judge Bench of the supreme Court of India as reported in
Sajan Abraham v. State of Kerala,38 it observed that if keeping in view the

urgency and that grounds of information and reasons therefore cannot be

recorded, the empowered officer can effect search and seizure and such

breach of Sections 41-42 NDPS Act would not affect the case at all. In para

6 the following observations were made which are salutary:-

“In construing any facts to find, whether prosecution has

complied with the mandate of any provisions which is
mandatory, one has to examine it with pragmatic approach.
The law under the aforesaid Act being stringent to the
persons involved in the field of illicit drug traffic and drug
abuse, the Legislature, time and again has made some of its
provisions obligatory for the prosecution to comply, which
the Courts have interpreted it to be mandatory. This is in
order to balance the stringency for an accused by casting an
obligation on the prosecution for its strict compliance. The
stringency is because of the type of crime involved under it,
so that no such person escapes from the clutches of law. The
Court however while construing such provisions strictly

38
2001 Cri LJ 4002: AIR 2001 SC 3190.
 121

should not interpret it so literally so as to render its

compliance, impossible. However, before drawing such an
inference, it should be examined with caution and
circumspection. In other words, if in a case, the following of
mandate strictly, results in delay in trapping an accused,
which may lead the accused to escape, the prosecution case
should not be thrown out.”
XV. Consequences of non-compliance of the provision:-
This issue has been decided by the Apex Court in State of Punjab
Vs. Balbir Singh39, wherein, it was observed that under section 42 (1) the

empowered officer if has a prior information given by any person, that

should necessarily be taken down in writing. But if he has reason to believe

from personal knowledge that offences under chapter IV have been

committed or materials which may furnish evidence of commission of such

offences are concealed in any building etc., he may carry out the arrest or

search without warrant between sunrise and sunset and this provision does

not mandate that he should record his reasons thereof. But under the

proviso to section 42 (1) if- such officer has to carry out such search

between sunset and sunrise, he must have to record the grounds of his

belief. To this extent these provisions are mandatory and contravention of

the same would affect the prosecution case and vitiate the trial. Under

section 42 (2) should forthwith send a copy thereof to his immediate

official superior. If there is total non compliance of this provision the same

affects the prosecution case. To that extent it is mandatory. But if there is

delay whether it was undue or whether the same has been explained or not,

will be a question of fact in each case. Similarly the consequence of non

compliance of the provision contained in section was discussed in case

39
AIR 1994 SC 1872
 122

Abdul Rasid Ibrahim Mansuri Vs. State of Gujarat40 by the Apex Court and

observed that the it would affect the prosecution case and vitiate the trial

and clear the position by observing further that if the officer has reason to

believe form personal knowledge or prior information received form any

person that any narcotic drug or psychotropic substance is kept or

concealed in any building, conveyance or enclosed place, it is imperative

that the officer should take it down in writing and he shall forthwith send a

copy thereof to his immediate official superior. The action of the officer,

who claims to have exercised on the strength of such unrecorded

information, would become suspect, though the trial may not vitiate on that

score alone. Nonetheless the resultant position would be one of causing

prejudice to the accused.. On the other side the contrary view was given by
the two judges bench in case Roy V.D Vs. State of Kerala41 was of the view

that arrest and search in violation of sections 41 and 42 of the Act being

perse illegal would vitiate the trial. Since the judgment of Abdul Rasid

Ibrahim Mansuri Vs. State of Gujarat is a decision of a Bench of three

Judges, thus the principle of law enunciated in the case referred to above

would prevail.
In Pipal Singh Vs. VO/42, Punjab and Haryana High Court was of

the view that the compliance of the provisions of section 42 of the Act

could be seen from another angle in the light of the observations of the

Supreme Court in Sajan Abraham case, the compliance of the provision of

section 42, if any, in the case would have delayed the trapping and, in the

eventuality, the culprits would have escaped in the truck along with the

contraband but on the contrary the Delhi High Court gives its view in case

AIR 2000 SC 821

AIR 2001 SC 137
2005 Drug Cases (Narcotics) 310
 123

Mohd. Rakish Vs. State43 that while on patrol duty the police team received

the secret information about possession of contraband and team

immediately went and arrest the accused, in that situation there was a

violation of the provisions of section 42 (2) of the Act.

3. Power to Search Any Conveyance or Animal:-

Seetion 49 of the Act described the procedure to the empowered

officers to stop and search the conveyance vehicle which is as under:-

Power to stop and search conveyance:

“Any officer authorized under section 42 may, if he has reason to

suspect that any animal or conveyance is, or is about to be, used for the

transport of any narcotic drug or psychotropic substance, in respect of

which he suspects that any provision of this Act has been, or is being, or is

about to be, contravened at any time stop such animal or conveyance, or in

the case of any aircraft, compel it to land and

a) Rummage and search the conveyance or part thereof;

b) examine and search any goods on the animal or in the conveyance;

c) If it becomes necessary to stop the animal or the conveyance, he

may use all lawful means for stopping it, and where such means
fail, the animal or the Conveyance may be fired upon.

This section empowers the law enforcement officers to stop and

search animals and conveyance used or about to be used for illegal
transport of narcotic drugs and psychotropic substances. It gives a long
hand to the officer authorized under section 42 to exercise the power to
stop and search any animal or conveyance merely on the ground that he has
reason to suspect (not reason to believe) that such animal or conveyance is,
or is about to be, used for the transport of the prohibited drugs or
substances. Exigencies attendant to ready mobility justify searches of

2002 Drugs Cases (Narcotics) 512

 124

animals or conveyance under this section. In case California Vs. Charles

R. CarneyM, the Supreme Court of the United Staies observed that
“When a vehicle is being used on the highways or if it is
readily capable of such use and is found stationary in place
not regularly used for residential purposes-temporary or
otherwise, the two justifications for the vehicle exception
come into play. Firstly, the vehicle is obviously readily
mobile by the turn of an ignition key, if not actually
moving. Secondly, there is a reduced- expectation of
privacy stemming from its use as a licensed motor vehicle
subject to a range of police regulation inapplicable to a
fixed dwelling. At least in these circumstances, the
overriding society interests in effective law enforcement
justify an immediate search before the vehicle and its
occupants become unavailable.”
In another case R. Vs. Sunila & Solayman4s, the Hon’ble Court held

that in an unusual case it was held that peace officers were entitled to

pursue the accused’s ship into international waters and search and seize the

ship and arrest the accused for conspiracy to import narcotics. The ship

had briefly entered Canadian waters to off-load a cargo of narcotics to

another vessel which was used to, infact, import the narcotics. The

accused’s ship had been under continuous surveillance until intercepted by

the police. The conduct of the authorities complied with the international

law relating to pursuit of ships onto the high seas.

4. Power to Search A Person :

Section 50 of the Act defines the procedure under which search

person should be conducted.

471 U.S. 386- 85 L. Ed(2d) 406

(1986)26 C.C.C. (3d) 177
 125

Condition under which search of Persons shall be conducted:

1. When any officer duly authorized 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 to 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 except a female.

5. When an officer duly authorized 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.
 126

I. Rationale of provision for search of person:

The provision is intended to act as a safeguard against vexatious

search and unfair dealings, and to protect and safeguard the interest of an

innocent person. It also provides a weapon to the law enforcement agency

against the common allegation that the drugs have been planted by these

officers. The object of making it peremptory on the part of the officer to

take person, if so requires, before a specified Gazetted Officer or a nearest

Magistrate is to ensure that the officers who are charged with the duty of

conducting searches, conduct them properly and do not harm or wrong,

such as planting of offending drugs by any interested parties and prevent

fabrication of any false evidence.

The legislature has provided a specific provision under which search

of person shall be conducted under the Act. It is a valuable safeguard to

protect liberty of person likely to lose in the event of the man found

carrying on his person the contraband substance, possession of which

constitutes an offence. Section 50 of the Act is to be construed from this

perspective. The provision of Section 50 does not apply to search of any

luggage of any person or the vehicle in which he is traveling when it is

made under Seetion43. It is the “person” arrested who is to be taken to the

specified authorities and not anything else, on “requisition” made officer

merely to “detain the person until he can bring him before the Gazetted

Officer or the Magistrate referred to in sub section (1) and such detention

would not tantamount to the person being arrested. Irrespective of the

“requisition” search of a female by “anyone excepting a female” is

prohibited as well. Legislative anxiety is expressed manifestly against

unauthorized, motivated or manipulated search of “person” of a man or

woman exposing him or her to the risk of losing his or her likely as a result
 127

of his or her arrest and being booked and tried consequently for an offence

under the Act.

What can be described as the kernel of the statutory safeguard is sub

section (3) of Section 50 vesting a Constitutional right in such a person to

protect his liberty by avoiding arrest and the investigation being nipped in

the bud. Legislature has vested power in the Magistrate or the Gazetted

Officer before whom any accused is brought on his requisition made under

sub section (2), to “forthwith discharge the person” without formal

proceedings on his sole satisfaction that he sees no reasonable ground for

search, search takes place when he declines to “discharge” such a person.

Evidently, there can be no question of any proceeding for prosecution

continuing against any person, who has got a lawful “discharge” under

section 50(3) which is patently a mandatory provision as manifested by the

use therein of such significant words “shall”, “forthwith” and “discharge”.

It is observed that the word ‘search’ as provided in sub clause (1) of the

said Act is to be construed in such a proper way as was intended to by the

legislature in this regard. If it is so, the word ‘search’ implies an

exploratory examination or probing into or seeking out something which is

hidden, sealed or suspected and not open, exposed or demonstrated.

The compliance with the procedural safeguards contained in section

50 of the Act are intended to serve dual purpose to protect a person against

frivolous accusation and frivolous charges and also to lend credibility to the

search and seizure conducted by the empowered officer. In every case the

end result is important but the means to achieve it must remain above

board. Hon’ble Delhi High Court give its view in case Lacho Devi Vs.
State46 and observed that the purpose of informing a suspect that the search

can be made in the presence of a Gazetted Officer is to ensure that there is

46
1990 Drug Cases 303
 128

a safeguard against planting any incriminating article. In State of Himachal

Pradesh Vs. Shri Sudarshan Kumar47, Hon’ble Himachal Pradesh High

Court was of the view that right under section 50 is an extremely valuable

right, which the legislature has clothed the person concerned with and has

been incorporated in the Act keeping in view the severity of the sentence,

the court was further of the view that search before a Gazetted Officer or

Magistrate would impart much more authenticity and credit worthiness to

the proceeding and that it would, verily, strengthen the prosecution. In

State of Gujarat Vs. Abdulrasid Ibrahim Mansurf% was of the view that

section 50 provides for the additional safeguard for the personal search,

probably with a view that the authorized officer may not misuse the power.

Section 50 of the Act have been made in order to protect the

interests of the citizens from irregular and illegal invasion of their liberty

by the authorities as well as in the interest of the State to secure evidence

bearing upon the commission of the crime and are necessary to enable

justice to be done and that they shall not be withheld from the course of law

on merely formal or technical grounds. This section has been made with the

intention to act as a safeguard against the vexatious and unfair dealings and

to protect and safeguard the interest of an innocent person. It will also

provide a weapon to the law enforcing agency against the. common

allegation that the drug has been planted by the investigating agency. The

embodiment of essential requirements in the temple of section 50 is for

ensuring the right of the accused vis-a-vis the right of the investigating

agency. The substantive right contained in section 50 of the Act has been

conferred upon suspected person in order to rule out the possibility of

planting small quantity of such drugs at the instjhce of unscrupulous

officer of the enforcement agency and to eliminate the chances of

47
1989 Drugs Cases 188
48
1991 Drugs Cases 1
 129

exploitation. Section 50 gives a valuable right to the person to be searched

in the presence of a Gazetted Officer or Magistrate if he so desires, since

such a search could impart much more authenticity and creditworthiness to

the proceedings while equally providing an important safeguard to the

accused person.

Section 50 of the Act has been discussed at large in case State of

Punjab Vs. Baldev Singh49.by the Hon’ble Apex Court and observed that:

“To be searched before a Gazetted Officer or a

Magistrate, if the suspect so requires, is an extremely

I
valuable right which the legislature ha§ given to the

concerned person having regard to the grave

consequences that may entail the possession of illicit

articles under the 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

Officer or a Magistrate would impart much more

authenticity and creditworthiness to the search and

seizure proceeding. It would also verily strengthen the

prosecution case”.

At a later stage the accused does not take a plea that the articles
were planted on him or that those were not recovered from him. The object
of requiring the search to be conducted if so required before the specified
Gazetted Officer or nearest Magistrate is to ensure that the officers who are
charged with a duty of conducting search conduct them properly and do no
harm or wrong such as planting of an offending drug by any interested
party and preventing fabrication of any false evidence. The provision of
section 50 of the Act in essence to intends to act as a safeguard against

49
AIR 1999 SC 2378
 130

vexatious search, unfair dealings and to protect and safeguard the interest
of innocent persons, in order to avoid arrest and nip the investigation in the
bud thereby protecting the liberty of a person, a statutory safeguard is
provided in sub section (3) of section 50. power has given by the
legislature to the Magistrate or a Gazetted officer before whom the
concerned person is brought on his requisition made under sub section (2)
to forthwith discharge the person without formal proceedings on his
satisfaction that there is no reasonable ground for search, as a consequence,
search takes place only when he declines to discharge such a person.
II. Judicial Interpretation of Section 50 of the Act
Section 50 of Narcotic Drugs and Psychotropic Substances Act,
1985 is one of the most important sections of this Act laying down
conditions under which search of a person shall be conducted when any
officer duly authorized under provisions of Section 42 of the Act is about to
search such person under Section 41, 42 or 43 of the Act. A bare reading of
the Section, however, does not reveal its full implications resulting in a lot
of confusion about its correct interpretation. A large number of accused in
NDPS trials have, therefore, been acquitted on account of either lack of
proper compliance by enforcement officers or due to conflicting
interpretation by various Courts. However, Hon’ble Supreme Court and
various High Courts have laid down the law providing for right
interpretation of Section 50 through various judicial pronouncements. An
overview of these judgments will help in understanding the correct
interpretation of this Section as regards some of the disputed issues.
III. Whether Section 50 directory or mandatory in nature
Constitution Bench (5 members Bench) of Hon’ble Supreme Court
in a landmark case of State ofPunjab v. Baldev Singh,50 interpreted Section

50 in the light of legislative intent of introducing NDPS Act, 1985. After

referring to a host of judgments, Hon’ble Constitution Bench held that the

50
1999 rugs Cases 150 : 1999 (6) SCC 172.
 131

harsh provisions of NDPS Act cast a duty upon the prosecution to strictly

follow the procedure and compliance of the safeguards provided by

Sections 42 and 50 of NDPS Act. Although Hon’ble Court did not in

abstract decide whether section 50 was directory or mandatory in nature, it

was held that failure to conduct this search in the manner prescribed by

Section 50 would cause prejudice to the accused and render the recovery of

illicit articles suspect and vitiate the conviction and sentence of the

accused. Where the conviction has been recorded only on the basis of

possession of illicit article recovered during search conducted in violator of

Section 50, it would be illegal. Hon’ble Court also observed that the

information required to be given under Section 50 may not necessarily be

in writing.

If a police officer without any prior information as contemplated

under the provisions of the Act makes a search or arrests a person in the

normal course of investigation into an offence or suspected offence as

provided under the provision of Cr.P.C. and when such search is completed

at that stage Section 50 of the Act would not be attracted and the question

of complying with the requirements thereunder wouljd not arise. If during

such search or arrest there is a chance recovery ofiijiny Narcotic Drug or

Psychotropic substance then the police officer, who is not empowered

should inform the empowered officer who should thereafter proceed in

accordance with the provisions of the NDPS act. If he happens to be an

empowered officer also, then from that stage onwards, he should carry out

the investigation in accordance with the other provisions of the NDPS Act.
In another case, State of Haryana v. Sewa Ram51, the Hon’ble Apex Court

endorsed the finding of the High Court that in absence of the evidence of

witnesses that the accused was given the option of being searched before a

5!
(2000) 10 SCC 395
 132

Gazetted Officer or Magistrate, the conviction and sentence of the accused

can not be sustained.

In case of prior permission, the empowered officer or authorized

officer while acting under Sections 41(2) or 42 should comply with the

provisions of Section 50 before the search of the person is made and such

person should be informed that if he so requires, he shall be produced

before a Gazetted Officer or a Magistrate as provided thereunder. It is

obligatory on the part of such officer to inform the person to be searched.

Failure to inform the person to be searched and if such person so requires,

failure to take him to the Gazetted Officer or the Magistrate, would amount

to non-compliance of Section 50 which is mandatory and thus, it would

affect the prosecution case and vitiate the whole trial as already observed in
case State Vs. Balbir Singh52 by the Apex Court.

Section 50 of the Act would apply only if the contraband is sought

to be recovered from the body of the accused. The same issue has been

discussed by Bombay High Court in case Ramji Duda Makwana v. State of

Maharashtra52,. In another case Ali Mustaffa Abdnl Rahman Moosa v.

State ofKerala54, the Supreme Court has held that the Section 50 of the Act

was applicable in case when the recovery of charas was found in the bag of

the accused and accused was found sitting with the bag in question and as

the said mandatory provision was not complied with the conviction of the

accused was held to be vitiated. In another case Amarjit Singh v. State of

Delhi55, police were found to be in possession of the jeep and from the jeep

the contraband was recovered. The words personal search appearing in

Section 50 of the Act would, in our view, mean that if accused is in

possession of the drug, may- be on his body or may be on a particular

52 Ibid.
53 1994 CriLJ 1987 (Bom)
54 1994 AIR SCW 4393 : (1994) 6 SCC 569 : 1995 SCC (Cri) 32
55 1 995 CriLJ 1623 (Del)
 133

vehicle in which he is found to be in possession or may be having the

contraband in his bags which he may be carrying of which he was in

physical possession at the relevant time, the provision of section 50 of the

Act have to be complied with if there is prior information with the

authorities with regard to possibility of a suspect being in possession of

contraband drugs.

IV. Right of person to be searched:

In another leading case Baldev Singh v. State of Punjab56, this

question was considered by the Apex Court and answered by the

Constitution Bench by holding that it is an obligation of the empowered

officer and his duty before conducting the search of the person of a suspect,

on the basis of prior information, to inform the suspect that he has the right

to require his search being conducted in the presence of a Gazetted Officer

or a Magistrate and the failure to so inform the suspect of his right would

render the search illegal because the suspect would not be able to avail of

the protection which is inbuilt in Section 50. It was further held that if the

person concerned requires, on being so informed by the empowered officer

or otherwise, that his search be conducted in the presence of a Gazetted

Officer or a Magistrate, the empowered officer is obliged to do so and

failure on his part to do so would cause prejudice^© the accused and also

render the search illegal and the conviction and .sentence of the accused

based solely on recovery made during that search bad.

V. Application of Miranda Rule:

In State of Punjab V. Balbir Singh51 the Supreme Court referred to

the decision of the American Supreme Court in Miranda Vs. Arizona58 in

which, it was propounded that the warning of the right to remain silent

56
AIR 1999 SC 2378
57
JT 1994 (2) SC 108: 1994 Cri. L.J.3702
58
1996 (Voi.384) US 436
 134

must be accompanied by the explanation that anything said could and

would be used against the individual in court and held that when such is the

import6ance of a right given to a 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 officer 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 Officer or a Magistrate, and that the

provisions of section 50 are mandatory.

f

VI. Form of Notice:

The issue of form of information/intimation, which should be given

to person to be searched, was not under consideration before Constitution

Bench in Baldev Singh’s case.59 Accordingly, Constitution Bench gave no

specific directions in this regard.

A 3 member bench of Hon’ble Supreme Court in cases of Joseph

Fernandez v. State of Goa,60 contemplated in detail on this issue. In that

case, the searching officer had informed the person to be searched that “if

you wish you may be searched in the presence of a Gazetted Officer or a

Magistrate”. Hon’ble Court observed that the offer given by searching

officer was a communication about information that the appellant has a

right to be searched so and this was substantial compliance with the

requirement of Section 50. There is no need for authorized officer to tell

the person specifically that he had a right to be searched before a

Magistrate or a Gazetted Officer.

However, later on two Member Bench of Supreme Court in K.

Mohanan v. State of Kerala61 overlooked this Larger Bench judgment in

59
Supra.
60
2002 Drugs Cases (Narcotics) 22 : 2000(1) SCC 707.
61 2002 Drugs Cases (Narcotics) 37 : 2000 (10) SCC 222.
 135

case of Joseph Fernandez62 and observed that if the accused who was

subjected to search was merely asked whether he wants the search to be

taken in presence of an Executive Magistrate or Gazetted Officer, it can not

be taken as communicating to him that he has a right under law to such

search. The same position was taken by 2 Memebr Bench of Hon’ble

Supreme Court in cases of Vinodv. State ofMaharashtra.63

It is, however, observed that the binding effect of Larger bench

judgment of Hon’ble Supreme Court in case of Joseph Fernandez64 will not
be affected by these 2 Member Bench judgments in case of K. Mohanan,65

Vinod,66 and Backodan Abdul Rahiman.67

Further, in a later judgment, 2 Member Bench of Hon’ble Supreme

Court in case of Prabha Shankar Dubey v. State of Madhya Pradesh68 on

decision of Supreme Court in case of Joseph Fernandez69 and observed that

no specific words are necessary to be used to convey existence of the right

under Section 50. What the concerned officer is required to do is to convey

about the choice the accused had. The accused (suspect) has to be told in a

way that he becomes aware that the choice is his and not of the concerned

officer, even though there is no specific form. Hon’ble Court accordingly

concluded that asking the person to be searched whether “you would like to

give the search or you would like to be searched by any Gazetted officer or

by a Magistrate” is a valid compliance of Section 50 of the Act. The view

expressed by this later judgment based on Larger Bench judgment of

Supreme Court appears to settle this issue.

62 Supra.
63 2003 Drugs Cases (Narcotics) 310: 2002 (8) SCC 351 and in Backodan Abdul
Rahiman v. State of Kerala referred in 2002 Drugs Cases (Narcotics) 96: 2002(4)
SCC 239.
64 Supra.
65 Supra.
66 Supra.
67 Supra.
68 2003 Drugs Cases (Narcotics) 327 decided on 2-12-2003.
69 Supra.
 136

VII. Language of information :

The Madhya Pradesh High Court discussed this issue in case Raju v.
State of Madhya Pradesh70 that the accused was not informed about the
right to be searched before'the nearest Gazetted Officer of Magistrate in the
language known to him and further of the view that the provision of
Section 50 had not been complied with in its real spirit, therefore, the order
of conviction could not be upheld as correct, proper and legal. In another
case, Ramaswami v. State of M.P.71, the same High Court was of the view
that entire investigation which was conducted in Hindi could not rope the
appellant (as the accused did not know Hindi language). The Hon’ble Delhi
High Court discussed this issue in case ‘Said Aga v. Customs72 that the
notice under Section 50 of the Act was served upon the accused-appellant
with the aid and assistance of an interpreter. It was incumbent on the
prosecution to prove as to what the interpreter had communicated to the
appellant in regard to notice under this section and that after understanding
the contents of the notice, the appellant had exercised his option in the
matter of search before a Magistrate or a Gazetted Officer. The court was
further of the view that though the prosecution was not to be blamed for the
non-production of the interpreter, the absence of an important link (i.e., the
interpreter) in the chain of prosecution evidence could not be overlooked
and the appellant-accused could not be convicted on the basis of a
presumption the interpreter must have properly explained to him the
contents and implications of the notice under this section of the Act. It was
held that in the absence of the opportunity to the appellant-accused and in
the absence of the production of the interpreter, the court was not at all in a
position to hold that the notice under this section of the Act was properly
served upon the accused-appellant. This issue was further discussed by the
Hon’ble Punjab and Haryana High Court in case ‘Mohd. Iqbal v. State of

1996 Drugs cases 205

2005 Drugs Cases(Narcotics) 437
2003 Drugs cases (Narcotics) 613
 137

Punjab73 in which offer of search under this section of the NDPS Act was

made in writing in English. The contents of the offer were explained to the
suspect in Punjabi. The accused signed the offer in Urdu and also affixed
his thumb impression. It was contended on behalf of the accused-appellant
that offer of search in the presence of a gazetted officer or a Magistrate was
not made in Urdu, the language known to the accused. The Hon’ble High
Court rejected the contention observing that no illegality could be found in
giving a notice in writing in English explained to the accused in Punjabi of
his right to get searched by a.gazetted officer or a Magistrate when option
under this section of the Act could be given orally as well.
VIII. Whether partial option under Section 50 is valid option or not:

This issue was decided by 2 Member Bench of Hon’ble Supreme

Court in case of Manohar Lai v. State of Rajasthan74 reported in further
confirmed by a Larger Bench of 3 judges of Hon’ble Suprmee Court in
case of Raghuveer Singh v. State of Haryana.15 It was, held that the option
under Section 50 of the Act is only of being searched in presence of such
senior officer and there was no further option of being searched in presence
of either a Gazetted Officer or of being searched in presence of a
Magistrate. It was held that it was for the empowered officer, who is to
conduct the search, to conduct it in the presence of whoever is the most
conveniently available Gazetted Officer or a Magistrate.
In a subsequent decision in case of Backodan Abdul Rahiman v.
State of Kerala16 two Members Bench of Hon’ble Supreme Court did not

notice this Larger Bench’s decision in Raghuveer Singh’s case and held

that as in that case accused was only given option of being searched in

presence of senior officer or Gazetted officer and not Magistrate,

compliance of Section 50 was not considered to be fulfilled.

2005 Drugs Cases (Narcotics) 613

74
1996 Drug Cases (Narcotics) 228 : AIR 1996 SC 2880.
75
Reported in 1996 Drugs Cases (Narcotics) : 1996 (2) SCC 201.
76
2002 Drugs Cases (Narcotics) 96 ; 2002(4) SCC 239.
 138

However, in a later decision in Munna Mohd. Hasan Ansari v. State

of Maharashtra11 as reported in Hon’ble Supreme Court has held that if the

person to be searched has been apprised of his right to be taken to a

Magistrate and being searched in his presence, merely because he is not

told that he could be taken to or searched in presence of “a Gazetted

Officer or a Magistrate” does not make any difference. It was also held that

it couldn’t be contended that he accused appellant who had failed to avail

the right of being searched in presence of a Magistrate, would have availed

a search being conducted in presence of a Gazetted Officer, if only that

would have been told to him. Accordingly, it was held that the offer given

to the accused that he could be searched in presence of a Magistrate, if he

so wished, satisfies the requirement of compliance of Section 50.

The same view was taken by a 3 Member Larger Bench of Gujarat

High Court in case of Bhupatji Shakarji v. State of Gujarat™ reported. This

view represents the correct interpretation of the law on this issue.

IX. Steps to be followed by empowered officer

When the search is made by an empowered officer, who is also a

Gazetted Officer, on the basis of prior information, it is still obligatory for

the empowered officer to inform the accused of his right of being search in

presence of a Gazetted Officer or before the nearest Magistrate in

compliance of the mandatory requirement of section 50 of the Act. More

so, when the accused himself had demanded being searched in presence of

Gazetted Officer or a Magistrate, the denial of the offer had caused

prejudice to the accused. Search and seizure being vitiated the conviction
of the accused cannot be sustained. Ahmed v. State of Gujarat19

Reported in 2003 Drugs Cases (Narcotics) 288.

2003 Drugs Cases (Narcotics) 397.
2000(27) SCC 477.
 139

The Supreme Court summarized the following steps to be followed

after considering the decisions following State ofPunjab v. Balbir Singh.so

1. That when an empowered officer or a duly authorized officer acting

on prior information is about to search a person. It is imperative for

him to inform the concerned person of his right under sub-section

(1) of sec. 50 of being taken to the nearest Gazetted officer or the

nearest Magistrate for making the search. However, such

information may not necessarily be in writing.

2. That failure to inform the concerned person about the existence of

his right to be searched before a Gazetted Officer or a Magistrate

would cause prejudice to an accused.

3. That a search made, by an empowered officer, prior information,

without informing the person of his right that, if he so requires, he

shall be taken before a Gazetted Officer or a Magistrate for search

and in case he so opts, failure to conduct his search before a

Gazetted Officer or a Magistrate, may not vitiate the trial but would

render the recovery of the illicit article suspect and vitiate the

conviction and sentence of an accused, where the conviction has

been recorded only on the basis of the possession of the illicit

article, recovered from his person, during a search conducted in

violation of the provisions of Sec. 50 of the Act.

4. That there is indeed need to protect society from criminals. The

societal intent in safety will suffer if persons who commit crimes are

let off because the evidence against them is to be treated as if it does

not exist. The answer, therefore, is that the investigating agency

must follow the procedure as envisaged by the statute scrupulously

and the failure to do so must be viewed by the higher authorities

80
1994(1) RCR 736 (SC).
 140

seriously inviting action against the concerned official so that the

laxity on the part of the investigating authority is curbed. In every

case the end result is-important but the means to achieve it must
remain above board. The remedy cannot be worse than the disease

itself. The legitimacy of judicial process may come under cloud if

the Court is seen to condone acts of lawlessness conducted by the

investigating agency during search operations and may also

undermine respect for law and may have the effect of unconscious-

ably compromising the administration of justice. That cannot be

permitted. An accused is entitled to a fair trial. A conviction

resulting from an unfair trial is contrary to our concept of justice.

The use of evidence collected in bunch of the safeguards provided

by Sec. 50 at the trial, Would render the trial unfair.

5. That whether or not the safeguards provided in Sec. 50 have been

duly observed would have to be determined by the Court on the

basis of evidence led at the trial. Finding on that issue, one way or

the other, would be- relevant for recording an order of conviction or

acquittal. Without giving an opportunity to the prosecution to

establish, at the trial, that the provisions of sec. 50 and particularly

the safeguards provided therein were duly complied with, it would

not be permissible to cut short a criminal trial.

6. That in the context in which the protection has been incorporated in

Sec. 50 for the benefit" of the person intended to be searched, we do

not express any opinion whether the provisions of sec. 50 are

mandatory or directory, but, hold that failure to inform the

concerned person of his right as emanating from sub-section (1) of

Sec. 50, may render the recovery of the contraband suspect and the

conviction and sentence of an accused bad and unsustainable in law;

 141

7. That an illicit article seized from the person of an accused during

search conducted in violation of the safeguards provided in Sec. 50

of the Act cannot be used as evidence of proof of unlawful

possession of the contraband on the accused though any other

material recovered during that search may be relied upon the

prosecution, in other proceedings, against an accused,

notwithstanding the recovery of the material during the illegal
search.

8. A presumption under sec. 54 of the Act can only be raised after the

prosecution has established that the accused was found to be in

possession of the contraband in a search conducted in accordance

with the mandate of Sec. 50. An illegal search cannot entitle the

prosecution to raise a presumption under sec. 54 of the Act.

9. That the judgment in Pooran Mals Case cannot be understood to

have laid down that an illicit article seized during a search of a
person on prior information, conducted in violation of the
provisions of the illicit article on the person from whom the
contraband has been seized during the illegal search.
10. That the judgment in Ali Mustafa Abdul Rahman Moosa v. State of
Kerala,81 correctly interprets and distinguishes the judgment in
Porran Mai v. Director of Inspection,82 and .the broad observations
made in State of H.P. v. Pritihi Chand,83 are not in tune with the

correct exposition of law as laid down in Pooran Mals case. State of

Punjab v. Baldev Singh.84

X. Constitutional validity of search and seizure, provisions:-

A power of search and seizure is in any system of jurisprudence an
overriding power of the state for the protection of social security and that

81 AIR 1995 SC. 244 :(1994)6 SCC 569.

82 AIR 1974 SC 348 : (1974)1 SCC 345.
83 1996 Cr LJ 1354 : (1996)2 SCC 37 and Jasbir Singh, JT 1995 SC (9) 308.
84 1999 Cr LJ 3672 (SC): (1999)6 SCC 172.
 142

power is necessarily regulated by law. When the Constitution makers have

thought fit not to subject such regulation to constitutional limitations by

recognition of a fundamental right to privacy, analogous to the American

Fourth Amendment, we have no justification to import it, into a totally

different fundamental right, by some process of strained construction. Nor

is it legitimate to assume that the constitutional protection under Art. 20(3)

would be defeated by the statutory provision's for searches as held by the

Hon’ble M.P. Sharma v. Satish Sharma*5

XI. Effect of Procedural irregularity while conducting the search and

seizure:-
In Saiyad Mohd. Saiyad Umar Saiyed vs. State of Gujarat86, a three

Bench of Supreme Court had reiterated the view and held that having

regard to the grave consequences that might entail the possession of illicit

articles under the Act, viz., the shifting of the onus to the accused and the

severe punishment to which he became liable, the Legislature had enacted

safeguards contained in Section 50. Compliance of the safeguards in

section 50 is mandatory obliging the Officer concerned to inform the

person to be searched of his right to demand that search could be conducted

in the presence of a Gazetted Officer or a Magistrate. The possession of

illicit article has to be satisfactorily established before the Court. The

Officer who conducts search must state in his evidence that he had

informed the accused of his right to demand, while he is searched, in the

presence of a Gazetted Officer or a Magistrate and that the accused had not

chosen to so demand. If no evidence to that effect is given, the Court must

presume that the person searched was not informed of the protection the

law gives him and must find that possession of illicit articles was not

established. The presumption under Article 114, illustration (e) of the

85
AIR 1954 SC 300 : 1954 SCR 1077 : 1954 Cri LJ 865.
86
1995 SCC (Cri) 564
 143

Evidence Act, that the official duty was properly performed, therefore, does

not apply. It is the duty of the Court to carefully scrutinize the evidence

and satisfy that the accused had been informed, by the concerned officer,

that he had a right to be searched before a Gazetted Officer or a Magistrate

and that the person had not chosen to so demand.

Power of search and seizure, is, in any system of jurisprudence, an

overriding power of the State for the protection of social security and that

power is necessarily regulated by law. A search by itself is not a restriction

on the right to hold and enjoy property, though seizure is a temporary

restriction to the right of possession and enjoyment of the property seized.

However, the seizure will be only temporary and limited for the purpose of

investigation.

It is settled law that illegality committed in investigation does not

render the evidence obtained during that investigation inadmissible. In

spite of illegal search property seized, on the basis of said search, still

would form basis for further investigation and prosecution against the

accused. The manner in which the contraband is discovered may alter the

factum of discovery but if the factum of discovery is otherwise proved then

the manner becomes immaterial.

The evidence collected in a search in violation of law does not

become inadmissible in evidence under the Evidence Act. The

consequence would be that evidence discovered would be to prove

unlawful possession of the contraband under the Act. It is founded in

Panchnama to seize the contraband from the possession of the

suspect/accused. Though the search may be ■ illegal but the evidence

collected i.e. Panchnama etc. nonetheless would be admissible at the trial.

At the stage of filing charge-sheet it can not be said that there is no

evidence and the Magistrate or the Sessions Judge would be committing
 144

illegality to discharge the accused on the ground that Section 50 or other

provisions have not been complied with. At the trial an opportunity would
be available to the prosecution to prove that the search was conducted in
accordance with law. Even if search is found to be violation of law, what

weight should be given to the evidence collected is yet another question to

be gone into. Under these circumstances, the learned Sessions Judge was

not justified in discharging the accused, after filing of the charge-sheet

holding that mandatory requirements of Section 50 had not been complied

with.

Even if there is some procedural irregularities in conducting search

and seizure it is not competent for the Session Judge to discharge the
accused as held by the Supreme Court in State of HP. vs. Pirthi ChandF.

XII. Precautions against possibility of planting of drugs

As enumerated by M.P. High Court, following recommended steps

are to be followed in order to ensure due compliance of mandatory

provisions of section 50.

(i) If the person of the accused is to be searched, he should be taken

to Magistrate or a Gazetted Officer.

(ii) Normally, if there is urgency, and the person volunteers for

search being taken by the police officer, his consent in writing
ought to be taken and then the police officer should collect
independent witnesses for watching the proceedings.
(iii) Before taking search of the person of the accused, it is also
necessary that the police officer should give his own search as
well, because packets of smack are so small that it is very easy
to plat it. .
(iv) When property is kept in Malkhana, Malkhana number should
be noted and the person in charge of Malkhana note in the

87
1996 CrLJ 1354 (SC).
 145

register as to the seal and names of witnesses whose signatures

are present in the report. Thereafter record of taking out of the

sample from the Malkhana should also be prepared.

(v) After search having been made, the wrapper used to sealing the

material must contain signatures of all the witnesses.

(vi) If possible, names of witnesses who have signed the wrapper

and witnessed the seizure along with the sample seized be sent

to the Chemical Examiner, who should on opening the sealed

bundle, certify about presence of seal and signatures of

witnesses on the wrapper.

(vii) It is further necessary that the wrapper should be kept intact to

be identified by the witnesses in Court and these formalities are

not observed, objection as to planting of material can always be

raised.
*

There may be cases where these formalities may not be necessary as

where the contraband article seized is bulky. In that'case, it can be assumed
that the police officer must not have been carrying bulky narcotic articles.
Similarly, in such cases it can be assumed that normally the police officer
will not carry bulk of narcotic articles for planting. But in cases where only
a few packets are seized form the person of the accused, it is necessary to
take all precautions so that any doubt of possibility of planting or non-
observance or non-compliance of mandatory provisions of the act are ruled
out. These recommendations were made by the M.P. High Court in case
‘Suresh v. State ofM.P.88
XHI. Whether provisions ofsearch applies to search of body only:-

In case Ramji Duda Makwana Vs. State of Maharastra89 the

Bombay High court observed that a careful consideration of the provisions

1997 Cr. LJ 4210 (MP). ■

89
1994 Cr.L.J.1987
 146

of section 50 of the NDPS Act would indicate that a broad and definite line

would have to be drawn between the cases where the contraband was

recovered from spots other than the person of the accused and cases where
the contraband was alleged to have been concealed on the person. Similarly
in case Sarjudas and other Vs. State of Gujrat 90, Charas was found in a

bag which was hanging on the scooter on which the accused were riding,

So the Supreme Court held that search in the case could not be said to be

illegal on the ground that accused were not informed of their right under

section 50.

Section 50 of the Act deals with the conditions under which the

search of persons shall be conducted and will have no application even in

relation to examination of bags or containers that the person may be

carrying. A body search as one may define it, fastens a very strong nexus

between the contraband if recovered and the accused person because it

would then be difficult to dispute knowledge or for that matter possession.

Section 50 of the Act would not come into play at all because the

requirements of the section .refer to a situation whereby the searching

authority is required to carry out a personal or body search, the contraband

having already recovered, there could be no question of invoking the

provisions. The Madras High Court explain the word Search ‘search’

implies an exploratory examination or probing into or seeking out

something which is hidden, sealed or suspected and not open, exposed or

demonstrated. Patna High Court observed in case Rajendra Kumar @

Tannu Vs. State of Bihar91 that anything contained in the possession of the

person comes within the purview of search of a person concerned. The

court was further of the view that the provisions of section 50 were

applicable to search of the bag carried by the accused. In case Badri Lai

90
1999 (8) SCC 508
9!
1997 Drug Cases 426
 147

Vs. State of Rajasthan92, the Rajasthan High Court was of the view that

the provisions were applicable to search of the bag in the hand of the
accused and in another case Chhagan Lai Vs. State of Rajasthan92 the court

applied the provisions of section 50 to the case in which opium was

recovered from a plastic bag wrapped in a quilt and kept under the knees by

the accused while he was traveling in a bus.

In Mukkan @ Balmukund Vs. State of M..P.94 the M.P High Court

was of the view that anything carried by the person to be searched in his

hands, body or head would also be on his person. In Ebenezer Adebaya @

Monday Obtor Vs. B.S. Rawat and ors95 the Bombay High Court was of

the view that the provisions of section 50 would apply to search of articles

on the person or body of the person which would include search of articles

in immediate possession such as bag and other luggage carried by him or in

physical possession of the person to be searched and that the provisions of

section 50 would not apply to search of bags or luggage which might by

lying in a house or railway compartment or at the airport and to search of a

place, a conveyance or a house even if the accused was physically present

at the time of the search. Many High Court were of the view that “search of

a person” as found in section 50 of the Act would include the search of

articles in immediate possession such as bag and other luggage carried by

him or in physical possession of the person to be searched.

On the Contrary the Madras High Court expressed his view in case
S. Rajan Vs. State96 that the provisions of section 50 were not applicable to

search of the bag that was in the hands of the accused, similarly in case

1997 Drug Cases 515

1998 Cr.L.J. 1309
1997 Cr.L.J. 3885
1997 Drug Cases 71 (Bom)
1995 Cr.L.J. 1594
 148

Smt. Ravanamma Ws. State97 the Calcutta High Court was of the view that

the provisions of section 50 were not required to be complied with in the

case in which search of a steel trunk carried by the accused in her hand was
carried out. A full Bench of Gujarat High Court in Bherulal Viraji
Kumawat Vs. State of Gujarat 2004 was of the view that the search of the

bag carried by the appellant should be regarded as search of the person of

the appellant within the meaning of section 50 of the Act.

When an article was lying elsewhere and was not on the person of

the accused and was brought 'to a place where the accused was found, and

on search, incriminating articles were found there from it cannot attract the

requirements of section 50 of the Act, if that person was carrying a hand

bag or like and the incriminating article was found there from, it would

still be a search of the person of the accused requiring compliance with

section 50 of the Act. The requirement of informing the accused about his

right under section 50 comes into existence only when person of the

accused is to be searched. The Hon’ble Apex Court held in case State of

Punjab Vs. Baldev Singh99 that right of search under section 50 is extension

of right conferred under sub section (3) of section 100 Cr.P.C. and that

section 50 of the Act would be applicable only in those cases where the

search of the person is carried out.

In State of Himachal Pradesh Vs. Pawan Kumar100 the Hon’ble

Apex Court defining the expression “person” as it appeared in section 50 of

the Act as a human being with appropriate coverings and clothings and also

footwear, was of the view that a bag, briefcase or any such article or

container, etc. can, under no circumstances, be treated as body of a human

being and further stated that an incriminating article could be kept

1998 Crl.L.J. 1660

98
Drug Cases (Narcotics) 437
99
AIR 2000 SC 402
100
2005 Drugs Cases (Narcotics) 212
 149

concealed in the body or clothings or coverings in different manner or in

the footwear, that while making a search of such type of articles, which

have been kept so concealed,-it would certainly come within the ambit of
the word “search of person” and that one of the tests, which could be

applied is, where in the process of search the human body comes into

contact or shall have to be touched by the person carrying out the search, it

will be search of a person.

XIV. Application of provisions in case of search of baggage:

Requirement of informing the person of his right under Section 50
to be searched in presence of a Gazetted Officer or a Magistrate, is

applicable only to the search of the person and not to the search of his

baggage. The baggage of a foreigner arriving in India, which was found to

contain heroin. It was held that the search of the baggage of a foreigner

arriving in India, which was found to contain heroin did not attract Section
50. Thus in Kalema Tumba v. State of Maharashtra,101 it was observed that

only when the person of an accused is to be searched then he is required to

be informed about his right to be examined in the presence of a Gazetted

Officer or a Magistrate. The reason given was that search of baggage is not

the same thing as search of the person himself. If a person is carrying a bag

or some other article with him and a narcotic drug or a psychotropic

substance is found from it, it cannot be said that it was found from his

person. The Hon’ble Jammu and Kashmir High^Court observed this issue

and made the following observations in case Mohd. Khan v. State of

J&K.m

(i) If prior information is available then the person to be searched is

to be informed of his right of being searched in the presence of a

Gazetted Officer or a Magistrate.

101
(1999) 8 SCC 257 : 2000 Cri LJ 507.
102
2001 CrLJ 3206 (J&K).
 150

(ii) The information need not be in writing.

(iii) If the search is conducted in the absence of the information then

the search would be valid.

(iv) That an illicit article seized form the person of the accused

during search in breach of the safeguards laid down in Section

50, cannot by itself be used as evidence of unlawful possession

of the contraband. This may be used in other proceedings.

(v) That it is imperative for the Investigating Officer to inform the

concerned person of his right under sub-section (i) of Section 50

of being taken to the nearest Gazetted Officer or the nearest

Magistrate for effective search on him. Failure to give such

information would not vitiate the trial but would render the

recovery of the illicit article suspect and vitiate the conviction

and sentence of an accused.

(vi) Where the conviction has been recorded only on the basis of the

possession of the illicit article recovered from his person during

the search conducted in violation of the provisions of Section 50

of the 1985 Act, this would be bad.

(vii) That the requirement of the right of a person to be informed

would be applicable only if the person is to be subjected to

personal search and if the premises are to be searched, then the

safeguards provided under Section 50 would not be applicable.

(viii) The again search would not be vitiated if something is recovered

from a baggage or from a packet which is being carried by the

accused. This is because a clear distinction has been made

between search of the person and search of premises and again

search of baggage, which includes packets carried by an

accused.
 151

XV. Procedure for search of female

Section 50 sub section (4) of the Act provides that no female shall

be searched by anyone excepting a female. In other words, a female should

be searched only by a female as held in case Smt. Geeta Vs. State (Delhi &
Admn.f03. It is implicit in the sub section that strict regard must be had to

decency while searching a female. Thus, the female should not be searched

in the presence of any male person. However, it has been held that the

mere fact that some male witness had seen from a distance the recovery of

the offending material from a female during the course of her search will

not in itself make the recovery inadmissible at the trial. In case Nathooni
Singh v. State ofU.P.m, bail was granted to the female petitioners only on

the grounds for non compliance with the provisions of section 50(4) of the
Act. In another case Mariappa & others v. State of Mi5.103, it was found

that no lady constable or lady panch was present at the time of the search

and arrest of the female accused. It was also held that it was not merely a

case of violation of the provisions of law either runder the Act or the Code

of Criminal Procedure, but also the very foundation of her constitutional

right of as a woman inviolability of her person, and privacy, as recognized

under the constitution.

In Amina Abdul Shaikh v. States of Maharashtra106 appeal against

the conviction of the appellant, it was contended on behalf of the appellant

that the search was not taken in the presence of the said Special Executive

Magistrate, who was also a member of the raiding party, remained outside

the public bath-room and, as such, there was a violation of Section 50 of

the Act. The Hon’ble High Court while accepting this contention and
setting aside the conviction and sentence of the appellant held that:

103 1989 (1) Delhi Lawyer 206

104 1993(2) Crimes 767
105 1991 Drugs cases 145
106 1994(1) FAC 285 (Bom.)
 152

“The situation that has arisen in this case is not an

unusual one and bec'ause it has been indicated that in a

large number of cases of this type the persons who sell

contraband happen to be women. The contraband is

invariably hawked in public places or in crowded areas

and, therefore, when a raid is conducted, the woman is

invariably apprehended in such a situation. This is not a

case where the seizure was from the hands of the accused

or from a big that was in her hand or that was visible, but
this is one of the cases where virtually a body search had

to be done. The Police were quite right, in so far as it

would not be proper or permissible to carry out such a

body search in public. The question arises as to whether

they were justified in carrying out the search in the

nearest public bathroom in the aforesaid circumstances,

which has inevitably resulted in the criticism that we

have dealt with. We have no hesitation in recording that

we disapprove of the manner in which the search was

conducted in this case and we need to indicate that the

search is one of the most important and crucial and vital

aspects of the case and it should, therefore, be conducted

in circumstances that inspire confidence and that are free

from doubt. We can not overlook the fact that such

places are invariably so shabby, filthy and stinky and the

police can never be condoned if they use such a place for

the so-called search. Secondly, the general get-up is

anything but ‘Private’. Commutatively, therefore, it
would be essential to conclude that even if the lady
 153

constable had gone there that the Panch would have kept

• a safe distance for obvious reasons. The correct

procedure would, therefore, have been for the raiding

party to have taken the accused to some decent and

secluded area where here personal search could have

been conducted by the lady constable in the presence of

the lady panch, in the circumstances that inspire

confidence. It is necessary that the authorities take note

of this aspect of the matter in order to avoid damage

being done to the case and in order to avoid any lacuna

being made available which the defence would inevitably

take advantage of. It is in these circumstances that we

are constrained to hold that the evidence in respect of the

seizure, on the facts of the present case, can not be

accepted and can not form the basis of the present

conviction. If that vital evidence is excluded, the

prosecution must necessarily fail.”

In State of Punjab v. Surinder Rani107, huge quantity of opium was

recovered on the personal search of the respondent by a male police officer.

The Apex Court upheld the .order of the acquittal by the trial court for

violation of the mandatory provision of Section 50 (4) of the Act. A female

can not be searched excepting a female and the mandatory provision can

not be diluted even on the ground of non-availability of a female officer at

the time of search.

In case State of Punjab Vs. Baldev Singh 1999m the Apex Court

was of the view that the empowered officer must act in the manner

provided by sub section (4) of section 50 of the Act read with sub section

107
(2000) 10 SCC 429.
108
Drugs Cases 150
 154

(2) of section 51 of the Cr.P.C., 1973 whenever it is found necessary to

cause a female to be searched and that the document prepared by the

investigating officer at the spot must invariably disclose that the search
was conducted in the said manner and the name of the female official who

carried out the personal search of the women concerned should also be

disclosed. The court was further of the view that the personal search memo

of the woman concerned should indicate compliance with the said

provisions and failure to do so may not only affect the credibility of the

prosecution case buy may also be found as violative of the basic right of a

woman to be treated with decency and proper dignity.

XVI. Application of the provisions of the Criminal Procedure Code in

case search:-
According to Section "50 (5) when authorized officer has reason to

believe that it is not possible to take the person to be searched to the nearest

Gazetted Officer or Magistrate and there is every possibility that the person

to be searched may part with the possession of Narcotic Drugs or

contraband substance, the- authorized person may proceed to search the

person as provided under Section 100 of the Code of the Criminal

Procedure 1973. After a search is conducting, the officer shall record the

reason for such belief which made in necessary to make such search, a

copy of such reason will have to be sent to be immediate superior officer

within 72 hours.

Provision of search as envisaged in section 100 of Cr.P.C. is reproduced as

under: -

S.100 Persons in charge of closed place to allow search

1. Whenever any place liable to search or inspection under this chapter

is closed, any person residing in, or being in charge of, such place,

shall, on demand of the officer or other person executing the

 155

warrant, and on production of the warrant, allow him free ingress

thereto, and afford all reasonable facilities for a search therein.

2. If ingress into such place cannot be so obtained, the officer or other

person executing the warrant may proceed in the manner provided

by sub section (2) of section 47.

3. Where any person in or about such place 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.

4. Before making a search under this chapter, the officer or other

person about to make it shall call upon two or more independent and

respectable inhabitants of the locality in which the place to be

searched is situate or of any other locality if no such inhabitants of

the said locality is available or is willing to be a witness to the

search, to attend and witness the search and may issue an order in

writing to them or any of them so to do.

5. The search shall be made in their presence and a list of all things

seized in the course of such search and of the places in which they

are respectively found shall be prepared by such officer or other

person and signed by_ such witnesses, but no person witnessing a

search under this section shall be required to attend the Court as a

witness of the search unless specially summoned by it.

6. The occupant of the place searched, or some person in his behalf,

shall, in every instance, be permitted to attend during the search,

and a copy of the list prepared under this section, signed by the said
witnesses, shall be delivered to such occupant or person.
 156

7. When any person is searched under sub section (3), list of all things

taken possession of shall be prepared, and a copy thereof shall be

delivered to such person.

8. Any person who, without reasonable cause, refuses or neglects to

attend and witness a search under this section, when called upon to

do so by an order in writing delivered or tendered to him, shall be

deemed to have committed an offence under section 187 of the I PC.

The section has three important aspects:

(a) The occupant of a place liable to search is required to give all

reasonable facilities to the persons authorized to conduct a search.

(b) The police and others authorized to search are armed with necessary

powers for the proper and effective execution of the search.

(c) Procedures have been designed to obtain as reliable evidence as .

possible of the seareh and to exclude the possibility of any

concoction or malpractice of any kind.

The provisions of the section apply to searches under a warrant and

as well as for a search without a warrant under section 165 of this Code as

far as possible.

A search warrant is a written authority given to a police officer or

other person named in it, issued by a competent Magistrate or court

directing the search of any place either generally or for specified things or

documents or for persons wrongfully detained. A search is a coercive

method in which the sanctity and privacy of a citizen’s home or premises is

invaded. A search and seizure is only a temporary interference with a right

to hold the premises searched and the articles seized. As we have already

discussed that the search and seizure of documents from the accused does

not amount to infringement or fundamental rights under Article 20(3) of the

 157

Constitution M.P.Shaima Vs. Satish Chandram. It is, therefore, necessary

that the power to issue search warrant should be exercised with all care and

circumspection. According to the provisions of the Cr.P.C. 1973 search

warrants may be issued under sections 93,94,95,97 and 98. An analysis of

these sections is attempted below:

Search warrant under section 93 of the Cr.P.C.

The power to issue search warrants has been incorporated in sec. 93

which runs as under:

(a) 93(1) where any Court has reason to believe that a person to whom

a summons or order U/s 91 or a requisition under sub section (1) of

section 92 has been, or might be, addressed, will not or would not

produce the document or thing as required by such summons or

requisition or

(b) where such document or thing is not known to the Court to be in the

possession of any person, or

(c) Where the courts considers that the purposes of any inquiry, trial or

other proceeding under this Code will be served by a general search

or inspection, it may issue a search warrant and the person to whom

such warrant is directed, may search or inspect in accordance

therewith and the provisions hereinafter contained.

(2) The Court may, if it thinks fit, specify in the warrant the particular

place or part thereof to which only the search or inspection shall

extend and the person charged with the execution of such warrant

shall then search or inspect only the place or part so specified.

(3) Nothing contained in this section shall authorize any Magistrate

other than a District Magistrate or Chief Judicial Magistrate to grant

109
AIR 1954 SC 300
 158

a warrant to search for a document, parcel or other thing in the

custody of the postal or telegraph authority.

Section 93 of Cr.P.C. provides two kinds of search clauses (a) and

(b) of sub section (1) provide one particular search and clause (c) provide

the other general search, a general search means a search not in respect of

specific documents or things which the officer considers as necessary and

desirable for the purpose of investigation in hand, but a roving inquiry for

the purpose of discovering documents or things which might involve

persons for criminal liability. Section 93 contemplates three alternative

conditions under which a search warrant can be issued :

(1) Where the court has reason to believe that a person, to whom a

summons or order under section 91 or a requisition under section 92

(1) has been or might be addressed, will not or would not produce

the document or thing as required by such summons or requisition

(2) Where such document or thing is not known to the court to be in the

possession of any person

(3) Where the court considers that the purpose of any inquiry, trial or

other proceeding under this Code will be served by a general search

or inspection.

There need not be a proceeding actually pending before the

Magistrate at the time he issues the warrant. In re Mohammad Tabir 110 a
warrant may be issued for the purpose of an inquiry about to be made, all
that is necessary the court issuing the search warrant should consider on
reasonable grounds that the purpose of any inquiry, trial or other
proceeding under the code will be served by a general search.
XVII. When search warrant may not be issued
Search warrant cannot be issued for recovery of wife from the

custody of her father on the allegations that she has been confined there
110
AIR 1934 Bom.104
 159

wrongfully Bishan Vs. Emperor111. A court shall not issue search warrant

to enforce a hire-purchase agreement to recover a bus from the possession

of a hirer Risikesh Vs. Michael112. It shall neither be issued to serve the

purpose of attachment before .judgment of a property in the possession of a

third party. In re Nizam113. The Court shall not issue search warrant against

a bank or for confidential government papers in view of section 91(3)(a) of

the Code. A general search for stolen property is not authorized as the law

requires mention of specific things in the search warrant. A general search

for fishing evidence is not authorized. But during the search if any other

incriminating document or thing is found in possession of the accused, it is

admissible in evidence not withstanding the fact that the search was illegal
M.I. Mamsa Vs. Emperor114.

Summons cannot be issued against the accused for producing a

document or thing so a search warrant cannot be issued under section 93

(l)(a) for the production of documents or thing in the possession of an

accused as held in State of Gujrat Vs. Shyamlal115 but search of the

premises of an accused person under clause (b) and (c) of section 93(1) is

permissible. A Warrant for. search cannot be issued under clause (c) if what

is required are specific documents or articles including books of accounts,

etc., alleged to be in the custody of the accused. If they are known to be in

the possession of the accused and their location and place of storage is also
/

known, the warrant cannot be a general warrant for search and inspection

and cannot be issued under clause (c). Section 93 (1) confers a discretion

on the Magistrate to issue a'search warrant, he is not compelled to take

6 Cr.L.J.38.
67 Cal.L.J.569
ILR 19 Cal.52
AIR 1937 Rangoon 206
AIR 1965 SC 1251
 160

action, he may issue a search warrant Shri Malico Fernandes Vs. Mohan116.

The discretion is however, not fettered, it must be governed by rule, not by

hum our, it must not be arbitrary, vague and fanciful but legal and regular.
The issue of a Search Warrant is a judicial function of the Magistrate. The

Court will issue search warrant after consideration is sufficient indication

of what is required of a Magistrate when he deals with such application.

The Magistrate should ascertain from the officer seeking search warrant the

nature of the information, whether it is credible, reliable and contains an

allegation of an offence and is sufficient for issuance of a search warrant

applied for. The Magistrate must apply his judicial mind to the question

and must satisfy himself that the issue of the warrant is necessary and that

the requirements of the law for the issue of the warrant are present. He

must see whether there are sufficient materials before him to justify the

drastic action which he is being invited to take: When it appears that a

Magistrate has not applied his mind in this way and when it appears that

action has been taken on insufficient material, the search warrant is illegal

and the High Court will interfere. It is not obligatory for the Magistrate to

record reasons, but it is desirable that he should state briefly the reasons in

justification for the issue of the warrant, so that superior courts may be in a

position to judge whether the discretion has been properly exercised. The

issue of a search warrant is not a mere formality, but a drastic act for those

whose premises are searched.

XVIII. Effect of breach of the provision of Cr.P.C.

The searches under the NDPS Act should comply with Section 51 of

the Act and provisions of Sections 100 and 165, Cr. P.C. are applicable.

Where the investigating agency has not joined the independent witnesses

while conducting search and seizure under the NDPS Act, sometimes it is

116
AIR 1966 Goa 23
 161

held that search is illegal and cannot be acted upon. The provisions
contained in Sections 100 or 165, Cr. P.C. are procedural in nature and

such breach does not render the evidence so collected illegal or

inadmissible at the trial but what the Court has to be see is that it should

examine the evidence so collected with caution and care.

The legal position was explained by the Supreme Court of India in

State ofPunjab v. Balbir Singh,117 as under

“26..... (4A) If a police officer, even if he happens to be an “empowered”

officer while effecting an arrest or search during normal investigation into

offences purely under the' provisions of Cr. P.C. fails to strictly comply

with the provisions of Sections 100 and 165, Cr. P.C. including the

requirement to record reasons, such failure would only amount to an

irregularity.

(4B) If an empowered officer or an authorized officer under section 41(2)

of the Act carries out a search, he would be doing so under the provisions

of Cr. P.C. namely Sections 100 and 165, Cr. P.C. and if there is no strict

compliance with the provisions of Cr. P.C. then such search would not

perse be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the Courts

while appreciating the evidence in the facts and circumstances of each

case.”
In Radha Kishan v. State ofU.P.,xn the recovery of certain articles

was challenged on the ground that the search was made in contravention of

Sections 103 and 165, Cr. P.C. The contention was repelled thus

“So far as the alleged illegality of the search is

concerned it is sufficient to say that even assuming that

the search was illegal the seizure of the articles is not

117
1990 Cri LJ 3702 : AIR 1994 SC 1872.
118
1963 (1) Cri LJ 809 : AIR 1963 SC 822.
 162

vitiated. It may be that where the provision of Ss. 103

and 165. Code of Criminal Procedure, are contravened

the search could be resisted by the person whose

premises are sought to be searched; It may also be that

because of the illegality of the search the Court may be

inclined to examine carefully the evidence regarding

the seizure. But beyond these two consequences, no

further consequence ensures.”

There are practical problems being faced by the investigation

agency and the attitude and behaviour of the general public is also

indifferent. They do not want to be associated with the Police and the

reasons are various and obvious. The factual ground realities cannot be lost

sight of even by the Courts. The very position was considered by the
Supreme Court in Appabhai v. State of Gujarat,119 and in para 11 the

following observations were made

“11..... It is no doubt true that the prosecution has not been able to

produce any independent witness to the ioncident that took place at the bus

stand. There must have been several of such witnesses. But the prosecution

case cannot be thrown out or doubted on that ground alone. Experience

reminds us that civilized people are generally insensitive when a crime is

committed even in their presence. They withdraw both from the victim and

the vigilance. They keep themselves away from the Court unless it is

inevitable. They think that crime like civil dispute is between two

individuals or parties and they should not involve themselves. This kind of

apathy of the general public is indeed unfortunate, but it is there

everywhere whether in village life, towns or cities. One cannot ignore this

handicap with which the investigating agency has to discharge its duties.

119
1988 Cri LJ 848.
 163

The Court, therefore, instead of doubting the prosecution case for want of
independent witness must consider the broad spectrum of the prosecution

version and then search for the nugget of truth with due regard to

probability if any, suggested by the accused..... ”

There is no rule or law that evidence given by an official witness is

tainted one and cannot be acted upon. The evidence of such Govt. Police
official is required to be evaluated like any other witness.120

XIX. Recovery by Chance and application of provision of section 50:

The Hon’ble Apex Court determined this aspect in historical case
State of Punjab Vs. Balbir Singh 121 The Supreme Court held that if a

police officer 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 offence or suspected offence as

provided under the provisions of the Code of Criminal Procedure 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 and if during such search or arrest there or arrest

there is a chance recovery of any narcotic drug or psychotropic substance

then the police officer, who is not empowered, should inform the

empowered officer who should thereafter proceed in accordance with the

provision of the NDPS Act, In State of Punjab Vs. Baldev Singh]22 a

constitution Bench of the Supreme Court was of the view that if the

empowered officer without any prior information as contemplated in

section 42 of the Act makes a search or causes arrest of person during in

the normal course of investigation into an offence or suspected offence and

on completion of that search, a contraband under the NDPS Act is also

120
1985 Cri LJ 1357, AIR 1996 SC 3079, AIR 1996 SC-3073.
121
Supra
122
AIR 1999 SC 2378
 164

recovered, the requirements of section 50 of the Act are not attracted. In

Pothireddi Sivaprasda Rao Vs. State ofAndhra Pradesh123 Andhra Pradesh

High Court held that section 50 of the NDPS Act could not be said to apply

to routine searches carried out by officers in a check post during which

contraband drug was recovered. In Mansaran Vs. State of Madhya

Pradesh124 the house of accused appellant was searched during a raid

conducted on the basis of information that he was dealing in illicit liquor

and during the raid contraband drug was recovered. Madhya Pradesh High
Court held that the question of compliance of the provisions of section 50
did not arise in the case. In Sadhu Das Vs. State of Uttar Pradesh125,

Allahabad High Court held similar view under similar circumstances. A

number of High Courts have held that in cases of chance recovery

provisions of section 50 were not applicable. In State Vs. Vidya Devi126, the

Himachal Pradesh High Court observes that

“after giving out careful consideration to the problem

posed before us, we are of the considered opinion that

in a chance recovery compliance of sections 41,42 and

50 of the Act may not be possible, however, in order to

succeed on this plea, the prosecution will have to

satisfy the conscience of the Court that in the facts and

circumstances of the case, it could not comply with the

requirements of these provisions and that by the non-

compliance thereof, no prejudice or miscarriage of

justice was caused to the accused. Then, the burden

would shift over to the accused to prove prejudice

caused to him. Thereafter the investigation should be

123 2001 Cr.L.J. 1979 AP

124 1994 (2) Crimes 346
125 1996 (2) Crimes 449
126 1993 Drugs Cases
 165

immediately handed over to the authorized officer and

if circumstances justify, the accused could be detained

till the arrival of the competent officers. Thereafter, the

investigation has to be carried in accordance with the

provisions of the Act, if found guilty.”

ii) Following the decisions in State ofPunjab v. Baldev Singh,127 it was

held in Vikram v. State of M.P.,m that in case of chance recovery of

opium by the police officer on suspicion, the observance of the requirement

of Section 50 is not mandatory.

• '»

Section 50 is not applicable in case of .chance recovery. It is

applicable when the officer is either action on the basis of prior information

or they had reason to believe that the accused was in possession of

contraband. In case of chance recovery non-compliance of section 50 is not

fatal. Wilbero Peter v. Inspector of Customs.m

Where in course of investigation into an offence the police officer

seized some contraband from the accused without any prior information,

then non compliance of Sec. 50 is not fatal. Where the officer was in

routine patrolling duty and op suspicion he searched the box held by the

appellant, from which the ganja in question was recovered. From this

evidence, it is evident that the search was already over in the ordinary

course of investigation under the Code of Criminal Procedure and there

was no scope for PW-3 to take steps as contemplated under Sec. of the Act,

namely informing and taking the appellant to the Gazetted Officer, before

search as conducted. In any event, PW-3 has clearly and categorically

stated that before the wanted to search the box in presence of PW-1 has
clearly and categorically stated that before the wanted to search the box in

127
AIR 1999 SC 2378.
128
2002(3) MPLJ 383.
129
2002(3) Mh. LJ 123.
 166

presence of PW-1 and PW-2, he asked the appellant whether he wanted to .

be searched in presence of a Gazetted Officer of his department or in

presence of any Magistrate, but the appellant declined to go PW-1 has also
stated that when the Sub-Inspector of Excise (PW-3) wanted the appellant

whether he wished to go to a Gazetted officer or a Magistrate for search, he

refused to go saying that he was to go to Puri. This evidence indicates that

PW-3 has complied with the requirements as contemplated under Sec. 50

of the Act. Learned Counsel submitted that in absence of any mention of

compliance of the provision of sec. 50 of the Act in the seizure list and the
forwarding report, the bare oral evidence PW-3 should not be accepted. On

the facts and circumstances of the case, there is no merit in this submission.

Seizure list is prepared in evidence of this article seized, in course of the

enquiry or investigation. There is no need to mention about compliance of

Sec. 50 of the Act in the seizure list. In the forwarding report submitted to

the Court PW-3 could have mentioned that he had complied with the

provision of Sec. 50 of the Act. Such mention in this forwarding report

could have been taken as a corroborative piece of evidence to the statement

made by PW-3 in Court. Non-compliance of Sec. 50 in such cases does not

affect the prosecution case.130

It was further held by the Bombay High Court in case Jetha Auchat
Patel v. State ofMaharashtra.131 that if the contraband recovered by chance
then compliance of section 50is not necessary.
In Mahmad Istekhar v. State of Gujarat,132 there was no prior
information and the accused was apprehended on suspicion by police
during the night patrolling of Railway Station and the contraband was
recovered from his baggage. It was held that non-compliance of section 50
is not fatal.

130
1994(11) Ori LR241.
131
1998 (2) MH LJ 9.
132
2002(3) GLR2195.
 167

When an empowered officer or a duty authorised officer acting on

prior information is about to search a person, it is imperative for him to

inform the person concerned of his right of being taken to a nearest

Gazetted Officer or the nearest Magistrate for making the search. Such

information may not necessarily be in writing. If there is failure to inform

the person concerned about the existence of his right to search in the

manner indicated above, then this would cause prejudice to the accused. If

search is made not on prior information, without informing the person of

his right then this may not vitiate the trial.

In the case C. Ali v. State of Kerala,133 it has been held that

requirement of informing the accused of his right to be searched in the

presence of a Gazetted Officer or a Magistrate is mandatory. Non-

compliance thereof vitiates the trial.

In Babu v. State of Kerala,134 a packet containing certain quantity of

brown sugar was recovered by Police from the person of the accused

without informing him of his right to be searched in the presence of a

Magistrate or a Gazetted Officer. Such omissions on the part of the police

officer concerned, if was held, would vitiate the consequential conviction

and sentence passed against the accused.

XX. Consequences of non compliance of Section 50 of the Act and

Procedural irregularities
i) Effect of search before informing the rights to accused before the
search of a person is made

This question came-for consideration in case M.C. Ussain Vs. State

of Kerala135 In this case the sub inspector of police search had already
commenced before he asked the accused whether he required to be
searched in the presence of a Gazetted Officer or Magistrate. The Kerala
133
(1999)7 SCC 88 : 1999 SCC (Cri) 1183.
134
(1999) 8 SCC 499 : AIR 1999 SC 3861
135
1999 Cr.L.J.630
 168

High Court observed that there was no provision in section 50 of the Act to
conduct an inspection over the body of the accused person before the
search was made on him. So the court held that provisions of section 50
had been violated and it would vitiate the trial.
ii) Effect of non exercise of option by accused:
In case, P.P.Beeran Vs. State of Keralam, it was held that the

person who was apprised of the right to be searched before the nearest

Gazetted Officer or Magistrate did not opt to be searched before the nearest

Gazetted Officer or Magistrate, the question of non compliance of the

provision of section 50 does not arise.

iii) Search by Gazetted Officer and non-compliance

There are divergent views of High Court in this regard :
In case Babulal Hira Lai Vs. State of Maharashtra137 the Bombay
High Court was of the view that where the search is made by the
empowered Gazetted officer, the compliance of provisions of section 50 of
the Act would be deemed to have been made. The Rajasthan High Court
expressed his view in case Rewant Ram Vs. State of Rajasthanm that
section 50 is applicable only in the cases where the search is not made by a
Gazetted officer and not in a case where the search itself has been made by
a Gazetted officer. The Gujarat High Court was of the view that
information as to right to be searched by Gazetted officer need not be given
if search and seizure is conducted by an authorized Gazetted officer
himself.
On the contrary the Delhi High Court observed in case Shamim
Akhtar Vs. State139 that search made by a Gazetted officer cannot be said to

be in compliance of section 50 of the Act. The Madras High Court

AIR 2001 SC 2420

1995 Crl.L.J. 4105
1995 Crl.L.J. 772
1997 Drug Cases 353
 169

expressed his view in case Selvi Vs. ACPm that although the searching

officer happens to be a Gazetted officer, the search conducted in his

presence could not be construed to be in compliance of section 50,

especially when the right to be searched in the presence of Gazetted officer

or some other Gazetted officer or before the Magistrate had not been

conveyed to the accused appellant. The Karnataka High Court observed

that the purpose for which this condition is laid down in s.50 by the

legislature is that the person should be searched before a Gazetted officer

on his demand or before the nearest Magistrate so that the search should be

made before an independent officer. The person arresting the accused

cannot be said to be independent person so as to come within the

description “nearest Gazetted Officer” envisaged , in section 42, therefore,

there is no compliance of section 50 of the Act.

iv) Legality of search by Gazetted Officer on prior information:

In case Ahmed Ys. State of GujaratI41, the Supreme Court observed

that since the search in the case was about to be effected on the basis of

prior information or personal knowledge, which the person going to search

had reason to believe that an offence under the Act was committed then for

sanctity of the search itself, the person to be searched had been afforded the

minimum right to be searched before another Gazetted Officer or

Magistrate and that right could not be taken away merely because the

officer going to search, happened to be a Gazetted Officer who had been

empowered either by the Central Government of by the State Government

by a general or special order. The court was further of the view that the

legislature had enacted the safeguard contained in section 50 to obviate any

doubt of the illicit articles under the Act and that provision was engrafted

having regard to the grave consequence that might entail the possession of
140
2002 Drugs Cases (Narcotics) 118
141
AIR 2000 SC 2700
 170

illicit articles under the Act, the shifting of the onus to the accused and the

severe punishment to which he became liable. The Hon’ble High Court was

of the view that in the event the officer proposing to effect the search is a
gazetted officer and he gives option to be given under section 50 of the Act

to the person detained to be searched in his presence* the requirement under

section 50 would not be met because the officer proposing to effect the

search cannot act in dual capacity; first as an officer authorized under

section 42 to search a person and second as the gazetted officer in whose

presence the accused may opt to be searched.

v) Legality of search when Gazetted officer or Magistrate take part in

the-raid:

There are different views of High Courts in this regard:

In Babulal Vs. U.O.l.i42, Madhya Pradesh High Court observed as
follow;
“The words take such person used in sub section (1) are
very important. So also the words the Gazetted Officer or
Magistrate before whom any such person brought used
invariably indicate that the person apprehended by
raiding party has to be taken before a Magistrate or
Gazetted Officer and if such person is brought before a
Magistrate or Gazetted Officer and if tlfiere is no ground

for search, such person be discharged forthwith. If there

are reasons for taking search, such Magistrate or
Gazetted Officer should direct such search in his
presence. Therefore, the legislature has taken special care
to see that search of such accused should be taken before
and independent person who either to be a Magistrate or
Gazetted Officer so as to see that the accused should get
all necessary protection offered by the law.”

142
1996 (2) Crimes 264
 171

In Darshan Lai Vs. State ofHaryanam the Punjab and Haryan High

Court was of the view that the presence of the gazetted officer at the time

of search and seizure and search conducted on his directions were not

enough to meet the requirements of sub section (1) of section 50 of the Act.

Further the same high Court expressed his view in case Kulwant Singh Vs.
State of Punjab144 that the accused was not informed of his right to be

searched, either before a Magistrate or before a gazetted officer and at the

time of search the Dy.S.P. of Police (Gazetted officer) disclosed his

identity, the court said that it was not enough to say that the provisions of

section 50 of the Act had been complied with. In Sukh Pal Vs. State of
Rajasthan145 the Rajasthan High Court was of the view that a member of a

raiding party, even if he is a gazetted officer, cannot himself do the dual

task of being a party to the search and arrive at a satisfaction that the search
was warranted or not. In Kuldeep Singh Vs. NCB146, the Delhi High Court

was of the view that search taken by a gazetted officer of the raiding party

was not in compliance with the provisions of section 50 of the Act when

the accused opted for search before a gazetted officer. A member of the

raiding party even he himself might be a gazetted officer or a superior

officer of the Department could not himself perform the dual tasks of being

a party to the search and arriving at a satisfaction that the search was

warranted or not as required by section 50 of the Act.

On the contrary in case Nirmal Kumar Biswas vs. State of West

Bengal147 the Calcutta High Court was of the view that when search was

made before the Gazetted Officer of the same organization present with the

raiding party there was sufficient compliance with the provisions of section

143 1996 (3) Crimes 450

144 • 1998 Crl.L.J. 4117
145 1996 (3) Crimes 194
146 2000 Drugs Cases 646
147 1996 Crl.LJ. 3575
 172

50 of the Act, the court was further of view that the gazetted officer could

not cease to be a responsible person simply because he was present along

with other members of the raiding party. The Madhya Pradesh High Court
expressed its view in case Mahendra Vs. State of M.P.148 that wherein the

city Superintendent of Police (who was a gazetted officer) was present on

the spot and search was made in his presence, the only requirement under

section 50 appeared to be that the accused should be searched either before

a gazetted officer or before a Magistrate and that requirement having been

complied with, there did not appear to be any violation of section 50. In
Ahmed Vs. State of Gujarat149 the Hon’ble Apex Court was of the view that

for the sanctity of the search itself, the person to be searched has been

afforded the minimum right to be searched before another gazetted officer

or a Magistrate and that the right cannot be taken away merely because the

officer going to search happens to be a gazetted officer, who has been

empowered either by the Central Government or by the State Government

by a general or special order. However, the Apex Court in State of

Rajasthan Vs, Ram Chandra150 took the view that the foundation of the

stand taken by the accused-respondent which found favour with the High

Court that if the officer before whom search was to be conducted was a

member of the raiding party the requirement of section 50 were not met

was not legally tenable.

The object of the section 50 of the Act and intention of the

legislature being that the search is conducted in the presence of a superior

officer, in order to lend transparency and authenticity to the search it cannot

be held as a principle of law that if a superior officer happens to be with the

officer authorized the position would be different and that such a

148
1996 (2) EFR 298
149
AIR 2000 SC 2700
150
AIR 2005 SC 2221
 173

presumption was not legally available, the question of prejudice or bias has

to be established and not inferred and that in any event, there could not be

any legal presumption in that regard. The investigating agency cannot be

permitted to foil the intention of legislation guaranteeing such an important

right available to an accused who is accused of an offence punishable under

the provisions of Act by playing tricks. Taking a gazetted officer with the

raiding party is a clever trick which seems to be used by raiding party for

the purpose of showing that raiding party wanted to do necessary

compliance in respect of provisions of the Act; at the same time foiling

such an important right of the accused available to him under the

provisions of section 50 of the Act. In view of the another, the appropriate

Govt, should issue a notification with regard to that if the Gazetted officer

take parts in the raid, then accused persons should be taken into the

Magistrate, so that the chances of planting any incriminating material could

be negated and interest/right of the accused person be also protected.

vi) Legality of search when partial option has been given to the
accused:
The question as to whether the option to be given to the person to be

searched can be partial like, whether it is necessary for the officer to inform

the person that if he so requires, he can be searched before the nearest

Gazetted Officer or Magistrate or would it be sufficient if the person is

informed that if he so requires he can be searched before the nearest

Gazetted Officer, has been an issue before a number of courts in a number

of cases and there have been divergent views of various High Courts in the .
matter.

In case Chameli Devi Vs. State151 , the Delhi High Court was of the

view that the alternative of search by a Magistrate was not given in the case

which was a clear violation of section 50 of the Act. Orissa High Court was

151
1994 Drugs Cases 476
 174

of the view that option to be searched before only one authority amounts to

non-compliance of the provisions contained in section 50 of the Act. The

Bombay High Court of the view that prejudice was caused to the accused
due to such partial offer and that the recovery of the illicit drug was
rendered doubtful. In Bal Vinod Vs. State of Haryana152, the Punjab and

Haryana High Court was of the view that the option given as per the

evidence was that the appellant was simply informed that if he liked his

person could be searched in the presence of a Gazetted Officer which was

partial and consequently it would vitiate the search. In Gurpreet Singh @

Pappi Vs. State of Punjab153 a Division Bench of the Court was of the

view that partial offer made to the accused was not sufficient.

On the contrary, another Division Bench of the same High Court in

Raj Kumar Vs. State of Haryana154 express his view that in terms of the

law laid down by the Apex Court it is now settled that the only option to be

given is whether he will like to be searched in the presence of a senior

officer and it will be for the police .officer who is to Conduct the search, to

conduct it in the presence of whosoever is most conveniently available

whether a Gazetted Officer or a Magistrate. The Gujarat High Court in

Bhupatji Shakaraji Thakore Vs. State of Gujarat155 referring to a full Bench

decision of the Court was of the view that offer made to the accused as to

whether he wanted to be searched in presence of a Magistrate was

sufficient compliance of section 50 of the Act. The Kerala High Court

expressed his view in case Rasheed Vs. State of Kerala156 that it was clear

from a plain reading of the provisions of sub section (1) of section 50 of the

Act that the suspected person was given the right to choose either of the

152 1996 (2) RCR 219

153 1997 (l)-CC Cases 297
154 1997 (2) RCR 798
155 2004 Drugs Cases (Narcotics) 579
156 1999 Drugs Cases 455
 175

alternatives that he was entitled to be searched before a Gazetted Officer or

the nearest Magistrate.

The option under section 50 is only of being searched in the

presence of such senior officer and there is no further option of being

searched in the presence of either a Gazetted Officer or of being searched .

in the presence of a Magistrate. The word ‘nearest’ means the search has to

be conducted at the earliest and, once the person, to be searched opts to be

searched in the presence of such senior officer, it is for the police officer

who is to conduct the search to conduct it in the presence of whoever is the

most conveniently available Gazetted Officer or Magistrate,

vii) Legality of search when raiding party does not offer for search:-

In order to avoid the possible contention of planting of drugs, it is

desirable that searching party gives its own search before they start

searching the person or premises etc. So in case Dr.Caitan Fernandes Vs.

State of Goa.151 The Bombay High Court held that there is no imperative

mandate in any legal provision enjoying the raiding party to offer itself for

inspection of drugs but in view of the another it is strongly desirable when

there is a chance of nominal recovery of contraband or contraband is not in

a huge quantity.
In case Ashok Nathuji Vs. State of MaharastraiSS the accused lady

was searched by a lady police constable by taking her to a cattle shed, a

secluded place and she was not searched in the presence of any of the male

public witness. So the Bombay High Court held that it could not be said

that there was no compliance of provisions of section 50 of the Act.

Similarly in case Nazma Ismail Shaikh Vs. State of Maharashtra159, the

Bombay High Court rejected the plea on behalf of the accused appellant

157 1997 Drugs Cases 565 (DB)

158 2000 All MR (Cr.)445 (DB)
159 2001 Cr.L.J. 1869
 176

that accused being a woman ought to have been searched by a lady

authorities Officer.

viii) Consequences of non-association of Public witness:-

According to section 100 of the Code of Criminal Procedure before

making a search, the officer or other person about to make search shall call

upon two or more independent and respectable inhabitants of the locality in

which the place to be searched is situated or of any other locality if no such

inhabitant of the locality is available or is willing to be a witness to the

search. The supreme Court in State of Punjab Vs. Balbir Singh'60 held that

if an empowered officer or an authorized officer under sub section (2) of

section 41 of the NDPS Act carries out a search, he would be doing so

under the provisions of the Code of Criminal Procedure then such search

would not per se be illegal and would not vitiate the trial. Even though the

statute does not make it obligatory, as a rule of prudence, the empowered

officer should carry out the search in the presence of public witnesses. The

court will be extremely reluctant to uphold the prosecution case, which is

solely based on recovery made as result of search not witnessed by

independent and respectable persons unless it is unreasonable and

improbable to procure the presence of such witnesses. Calling of

independent witnesses is not an idle formality. Though it is not mandatory

that public witnesses should be joined during search, an attempt must be

made to join them during search. If no public witness is joined the reasons

should be forthcoming as to why they were not joined. Here it is pertinent

to mention that of public witness is joined during search by the empowered

officer that eventually recover can not be held illegal of fictitious,

otherwise it can be doubtful.

160
(Supra)
 Ill

ix) Completion of formalities of search after sunset: Consequences of:-

In case G.Jayakumar Vs. Sup.Central Excise, Customs Preventive
and Intelligence Unit161 In this case the search party went to the house of

the first accused at about 5 PM, the contraband article was seized at that

time itself and the entire official formalities for the seizure and detention

were completed only by 8 PM. So the Kerala High Court held that since the

search was conducted before sunset, so it could not be contended that the

search was after sunset in contravention of the provisions of sub section 1

of section 42 of the Act.

x) Effect of illegal search and seizure on the case:-

The failure to comply with the provision regulating searches may

cast doubt upon the bona fides of the officers conducting the searches. But

when once the evidence has been believed, it is obviously no defence to say

that the evidence was obtained- in an irregular manner. There is nothing in

the law which makes such evidence inadmissible. While upholding the

search conducted under section 132 of the Income Tax Act, 1961, a bench

of five judges of the Supreme Court dealt with the question whether

evidence illegally obtained could be admitted. The Court said it could be

admitted and for this reliance was placed on a Privy Council decision in
Kurama Vs. Queen162. The Supreme Court quoted with approval the

following passage from the said Privy Council decision

“The test to be applied, both in civil and criminal cases, in

considering whether evidence is admissible, whether it is relevant to the

matters in issue. If it is, it is admissible and the court is not concerned with
how it was obtained”763. It is not correct to say that where there has been

illegal search, evidence of either the finding of articles or of circumstantial

161
1998 Cr.LJ.4427
162
1955 AC 197
163
Puran Mai Vs. Director ofInspection Income Tax AIR 1974 SC 348 at p.362
 178

facts or of the witnesses making the search is inadmissible. The mere

illegality of the search will not at all shut out in the way of making

inadmissible any evidence otherwise admissible. No doubt it is true that

where there has been illegal search it will be reasonable to view with more

than ordinary caution the evidence of those persons who have made the

illegal search. If the seizure is illegal, the seizure of the articles is not

vitiated. In another case State of Maharashtra Vs. Natwarlal Damodar

Dass Soni164 the Supreme Court has held “Assuming argue that the search

was illegal, then also, it will not affect the validity of the seizure and

further investigation by the customs authorities or the validity of the trial.

NDPS Act, 1985 is a special piece of Legislation. Thus, a special

procedure of search has been made under Chapter V of the Act. The

objectives of the special procedure of search, seizure and arrest are made to

ensure that the persons are only searched with good cause and authenticity

of evidence obtained from search may be maintained. As already indicated

Sections 41,42,43,49 and 50 deals with different types of search and the

procedure prescribed for the same. The procedure given in these sections

has to be followed strictly. There was great controversy'regarding the

nature of provisions of Section 42. This controversy has been settled down
by the Hon’ble Supreme Court in State of Punjab vs. Balbir Singh165. In

this case, it has been held the Supreme Court that the provisions of this

section are mandatory in nature and contravention of same will affect the

prosecution case and vitiate the trial. In this case, the consequences of non-

compliance of the provisions were also decided by the court. It was

observed that under Section 42 (1) the empowered officer if has a prior

information given by any person that should be taken down in writing but if

AIR 1980 SC 593

•Supra
 179

he has “reason to believe” from personal knowledge that offence under

Chapter IV has been committed or material which may furnish evidence of

commission of such offences are concealed in any building etc., he may

carry out the search and arrest without warrant between sunrise and sunset

without recording any reason thereof. But under this provision if search

officer has to carry out such search between sunset and sunrise, he must

have to record the grounds of his belief Under section 42(2), the

empowered officer is supposed to send a copy thereof to his immediate

superior officer. If there is a total non compliance of this provision, the

same also affect the prosecution case. Section 49 describes the procedure

for search of conveyance, vehicle in transit etc. and Section 50 laid down

the detail procedure for search of a person. The procedure given in this

section is required to be followed strictly. The non-compliance may render

the recovery of illicit articles suspicious and benefit of doubt may be given

to the accused. The provision of this section would apply only if the

contraband is sought to be recovered from the body of the accused. The

accused has also been given a right to search in person of a Gazetted

Officer or Magistrate of 1st Class. The empowered officer, who is going to

conduct a search is supposed to give information to the accused in this

regard. The provision of this section do not apply in case of ‘chance

recovery’ where in the course of investigation into an offence, a police

officer seize some contraband article from the accused without any prior

information then non-compliance of section 50 is not set up. Failure to

comply with the statutory provisions of search cast doubt upon the bonafide

of the officer conducting the search. The non-compliance of the statutory

provisions is one of the main reason for acquittal of the accused in number

of cases. Simple non-compliance of the procedure does not vitiate the trail

but creates the doubt in the minds of the courts. Some of the empowered
 180

officers intentionally avoid the compliance of the statutory provision for

some ulterior purposes. This is also the main reason for increase of

corruption in cases of search* and seizure of contraband articles under the

Act. There is an urgent need to give urgent attention in this regards, so that

the search, seizure and arrest may be conducted in a fair and impartial
manner.