Judgment Intelligence
Acquittal Upheld- Court
- Supreme Court of India
- Date of Decision
- 1 March 1994
- Bench
- Justices S. Ratnavel Pandian and K. Jayachandra Reddy
- Relevant Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985 — Sections 41, 42, 43, 50, 51, 52, 57; Code of Criminal Procedure, 1973 — Sections 4, 100, 165
Although Section 50 did not arise in most of the State's cases, the Court declined retrials so long after the offences: the State's petitions and Criminal Appeal No. 212 of 1993 were dismissed, and the accused's three matters were delinked for regular hearing (paras 27-30).
Key holdings
- Section 50 does not arise once a police officer acting without prior information under the Cr.P.C. has completed a search; after a chance recovery, the Act applies (paras 8, 26).
- An arrest or search under the Act by an officer, or on a warrant from a Magistrate, not empowered is illegal and vitiates the trial (paras 14, 26).
- Prior information must be written down and grounds recorded for a night search, with a copy to the superior officer (paras 16, 26).
- Failing to inform the person to be searched of his Section 50 right vitiates the trial (paras 17, 21, 26).
- Breaches of Sections 100 and 165 Cr.P.C. and Sections 52 and 57 of the Act are weighed for prejudice (paras 23-26).
Brief Facts
Court's Findings
Legal Principle
Precedents Relied Upon
- Wasan Singh v. State [1981] 2 SCC [page not printed]
Irregularity in a search cannot vitiate the seizure of the articles.
- Sunder Singh v. State of Uttar Pradesh AIR 1956 SC 411
Irregularity in a search cannot vitiate the trial unless the accused has been prejudiced; the search is not vitiated if reliable local witnesses are not available.
- The State of Maharastra v. P.K. Pathak AIR 1980 SC 1224
Absence of an independent witness from the locality to witness the search does not affect the trial and conviction under the Customs Act.
View all precedents (22)
- Radha Kishan v. State of Uttar Pradesh AIR 1963 SC 822 (printed "(1963) SC 822")
Irregularity in a search casts a duty on the court to scrutinise the evidence regarding the search very carefully.
- Matajog Dubey v. H.C. Bahri AIR 1956 SC 44
Non-compliance with salutary search provisions may affect the weight of the evidence or furnish a reason to disbelieve it unless the prosecution explains it.
- State of Maharashtra v. Natwarlal Damodardas Soni AIR 1980 SC 593
Even assuming a search was illegal, it does not affect the validity of the seizure, the further investigation or the trial.
- Deepak Ghanshyam Naik v. State of Maharashtra 1989 Cri LJ 1181 (Bombay High Court)
In an NDPS case, panch witnesses from a different locality did not vitiate the search where there was no material to show they were motivated.
- Sunil Kumar v. The State 1990 Cri LJ 414 (Delhi High Court)
Failure to associate independent persons in the search does not by itself throw out the prosecution case; Sections 41 and 42 NDPS were not attracted on information about likely transit through a public place.
- Nand Lal v. The State of Rajasthan (1987) 3 Crimes 629 (Rajasthan High Court)
An authority launching NDPS proceedings must have clear and unambiguous power; investigation by officers not empowered was challenged.
- Bhajan Singh v. State of Haryana (1988) 1 Crimes 444
Only officers empowered under the NDPS Act can take steps of entry, search, seizure and arrest, and those provisions are mandatory.
- Umrao v. State of Rajasthan (1988) 2 Rajasthan Law Weekly 25
A search by a police constable without jurisdiction and investigation by an officer not empowered vitiate the trial.
- Shanti Lal v. State of Rajasthan (1989) 1 Crimes 276
Search and arrest by an S.H.O. not authorised under the NDPS Act were illegal.
- Dr. Pratap Singh and others v. Director of Enforcement, Foreign Exchange Regulation and Others AIR 1985 SC 989
'Reason to believe' is not subjective satisfaction; the belief must be held in good faith and may rest on secret material.
- K.L. Subhayya v. State of Karnataka AIR 1979 SC 711
Failure to record grounds of belief required by Section 54 of the Mysore Excise Act vitiated the search and conviction; distinguished for Sections 41 and 42(1) NDPS, which (save the proviso to Section 42(1)) do not mandate recording reasons.
- In Re Presidential Election 1974 AIR 1974 SC 1682
Whether a provision is mandatory or directory depends on its subject matter, importance and relation to the object of the Act.
- Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee and others AIR 1976 SC 263
The use of 'shall' or 'may' is not conclusive; language of compulsive force is of great relevance in deciding whether a provision is mandatory.
- Miranda v. Arizona 384 US 436 (1966)
A person in custody must be clearly told of his right to remain silent before interrogation; relied on to hold that the person to be searched must be told of his Section 50 right.
- Jang Singh v. State of Haryana (1988) 1 Crimes 446
The officer must inform the person to be searched of his right to be searched before a gazetted officer or magistrate; failure warrants acquittal.
- State of Himachal Pradesh v. Sudershan Kumar @ Kala & Ors. (1989) 3 Crimes 608
Section 50(1) NDPS is mandatory and its violation is per se fatal to the prosecution case.
- Bai Radha v. State of Gujarat [1969] 2 SCR 799
Failure to record grounds of belief for a search does not by itself make the trial illegal; the court must weigh the evidence carefully and look for prejudice.
- Shyam Lal Sharma and Anr. v. State of Madhya Pradesh AIR 1972 SC 886
Relied on the principles in Bai Radha on irregular searches.
- R.S. Seth Gopikisan Agarwal v. R.N. Sen, Assistant Collector of Customs and Central Excise and Others AIR 1967 SC 1298
The requirement to record reasons under Section 165(1) Cr.P.C. does not carry over to a search authorised under Section 105 of the Customs Act.
