Supreme Court: Section 50 of the NDPS Act is not required to be complied with if the recovery of contraband was from the bag.

 The aforesaid observations made by the seven-Judge Bench of this Court, more particularly the last three lines referred to above, "These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court." persuade us to say that we must adhere to the principle of law as explained by the Constitution Bench in Baldev Singh (supra) and the larger Bench in Pawan Kumar (supra). {Para 124}

125. For all the foregoing reasons, we are of the view that the High Court was justified in holding the Appellant guilty of the offence under the NDPS Act and at the same time, the High Court was also correct in saying that Section 50 of the NDPS Act was not required to be complied with as the recovery was from the bag.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2239-2240 of 2011

Decided On: 06.10.2023

Ranjan Kumar Chadha Vs. State of Himachal Pradesh

Hon'ble Judges/Coram:

M.M. Sundresh and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/1091/2023,2023/INSC/878

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Whether recovery of Ganja from bag of accused will be vitiated if investigating officer has violated S 50 of NDPS Act?

 Learned counsel submits that the option given to

the appellant to take a third choice other than what

is prescribed as the two choices under sub-Section (1)

of Section 50 of the Act is something which goes

contrary to the mandate of the law and in a way

affects the protection provided by the said Section to

the accused. To support his contention, he has relied

upon the judgment of State of Rajasthan v. Parmanand &

Anr. – (2014) 5 SCC 345, more specifically, para 19.

The judgment in turn, relied upon a Constitution Bench

judgment of this Court in State of Punjab v. Baldev

Singh – 1999 (6) SCC 172 to conclude that if a search

is made by an empowered Officer on prior information

without informing the person of his right that he has

to be taken before a Gazetted Officer or a Magistrate

for search and in case he so opts, failure to take his

search accordingly would render the recovery of the

illicit article suspicious and vitiate the conviction

and sentence of the accused where the conviction has

been recorded only the on basis of possession of

illicit articles recovered from his person. The third

option stated to be given to the accused to get

himself searched from the Officer concerned not being

part of the statute, the same could not have been

offered to the appellant and thus, the recovery from

him is vitiated.

In the conspectus of the facts of the case, we

find the recovery was in a polythene bag which was

being carried on a Kanwad. The recovery was not in

person. Learned counsel seeks to expand the scope of

the observations made by seeking to contend that if the

personal search is vitiated by violation of Section 50

of the NDPS Act, the recovery made otherwise also would

stand vitiated and thus, cannot be relied upon. We

cannot give such an extended view as is sought to be

contended by learned counsel for the appellant.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.130 /2022

DAYALU KASHYAP  Vs THE STATE OF CHHATTISGARH 

Dated: JANUARY 25, 2022.

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Delhi HC: Basic principles for determining when confession of accused in NDPS case is admissible and reliable

1) Mr. Prabhakar and Mr. Kanhaiya Singhal, learned counsel appearing for Okafor, submitted that the confession statement of Laya or Okafor recorded under Section 67 of the NDPS Act could not be relied upon by the prosecution as the same had been retracted at the first available moment. Mr. Prabhakar stated that although, the statement made by Laya had not been retracted when she had been produced before the court, however, he pointed out that at that stage, Laya did not have any counsel. She had retracted her statement on the first available occasion when she had been provided legal counsel.

2) The Trial Court had proceeded on the basis that the statements were not retracted at the first available moment. This Court is unable to appreciate the aforesaid view. Both, Laya and Okafor, had retracted their statements immediately after being provided legal assistance. The importance of providing legal counsel cannot be understated and has been underscored in various decisions.Prior to providing the aid of counsel, both the accused were in custody and therefore, the fact that they had not retracted their statements immediately on being produced before a Magistrate - when they did not have any legal assistance - cannot be held against them. It is not disputed that they had retracted their statement on the first occasion after they were provided legal assistance.

3)  We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements -- one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, we hold that even if these confessions are admissible then also the evidence is not sufficient to convict the accused."{Para 8}


IN THE HIGH COURT OF DELHI

Crl. A. 1186/2015, Crl. M.A. 41216/2019, Crl. M. (Bail) 1943/2018, 2070/2019 and Crl. A. 1041/2016

Decided On: 13.05.2020

Okafor Chukwuka Ugochukwu Vs.  Narcotics Control Bureau

Hon'ble Judges/Coram:

Vibhu Bakhru, J.

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Whether it is mandatory to comply S 50 of NDPS Act if contraband was seized from the vehicle of accused?

The conclusion (3) as recorded by the Constitution Bench in para 57 of its judgment in Baldev Singh [State of Punjab v. Baldev Singh, MANU/SC/0981/1999 : (1999) 6 SCC 172 : 1999 SCC (Cri.) 1080] clearly states that the conviction may not be based "only" on the basis of possession of an illicit Article recovered from personal search in violation of the requirements Under Section 50 of the Act, but if there be other evidence on record, such material can certainly be looked into.

17. In the instant case, the personal search of the Accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2172 of 2011

Decided On: 02.03.2020

Than Kunwar  Vs. State of Haryana

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

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Important provisions of NDPS Act 1985

2. Definitions.—In this Act, unless the context otherwise requires,[(i) “addict” means a person who has dependence on any narcotic drug or psychotropic substance;]
[(vii-a) “commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;
[(xxiii-a) “small quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;]

[27. Punishment for consumption of any narcotic drug or psychotropic substance.—Whoever consumes any narcotic drug or psychotropic substance shall be punishable,—

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Whether it is mandatory to comply S 50 of NDPS Act if contraband is seized from bag of accused?

The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person. 

 On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash in the denomination of 24 notes of Rs. 100/- each was found in the left pocket of the appellant’s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas.

PW-2 conducted a search of the bag of the appellant as well as of the appellant’s trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant’s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 459 OF 2017

SK RAJU @ ABDUL HAQUE @ JAGGA Vs STATE OF WEST BENGAL .

Dr Dhananjaya Y Chandrachud

Dated:September 05, 2018.

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Whether accused can be given third option of being searched before police officer in NDPS case?

Their Lordships of the Hon'ble Supreme Court in
State of Rajasthan v. Parmanand reported in (2014) 5 SCC
345, have held that there is a need for individual
communication to each accused and individual consent by each
accused under Section 50 of the Act. Their lordships have also

held that Section 50 does not provide for third option. Their
lordships have also held that if a bag carried by the accused is
searched and his personal search is also started, Section 50
would be applicable. Their lordships have held as under:
“15. Thus, if merely a bag carried by a person is searched
without there being any search of his person, Section 50 of the
NDPS Act will have no application. But if the bag carried by him
is searched and his person is also searched, Section 50 of the
NDPS Act will have application. In this case, respondent No.1
Parmanand’s bag was searched. From the bag, opium was
recovered. His personal search was also carried out. Personal
search of respondent No.2 Surajmal was also conducted.
Therefore, in light of judgments of this Court mentioned in the
preceding paragraphs, Section 50 of the NDPS Act will have
application.
16. It is now necessary to examine whether in this case,
Section 50 of the NDPS Act is breached or not. The police
witnesses have stated that the respondents were informed that they
have a right to be searched before a nearest gazetted officer or a
nearest Magistrate or before PW-5 J.S. Negi, the Superintendent.
They were given a written notice. As stated by the Constitution
Bench in Baldev Singh, it is not necessary to inform the accused
person, in writing, of his right under Section 50(1) of the NDPS
Act. His right can be orally communicated to him. But, in this
case, there was no individual communication of right. A common
notice was given on which only respondent No.2 – Surajmal is
stated to have signed for himself and for respondent No.1 –
Parmanand. Respondent No.1 Parmanand did not sign.
19. We also notice that PW-10 SI Qureshi informed the
respondents that they could be searched before the nearest

Magistrate or before a nearest gazetted officer or before PW-5 J.S.
Negi, the Superintendent, who was a part of the raiding party. It is
the prosecution case that the respondents informed the officers that
they would like to be searched before PW-5 J.S. Negi by PW-10
SI Qureshi. This, in our opinion, is again a breach of Section 50(1)
of the NDPS Act. The idea behind taking an accused to a nearest
Magistrate or a nearest gazetted officer, if he so requires, is to give
him a chance of being searched in the presence of an independent
officer. Therefore, it was improper for PW-10 SI Qureshi to tell
the respondents that a third alternative was available and that they
could be searched before PW-5 J.S. Negi, the Superintendent, who
was part of the raiding party. PW-5 J.S. Negi cannot be called an
independent officer. We are not expressing any opinion on the
question whether if the respondents had voluntarily expressed that
they wanted to be searched before PW-5 J.S. Negi, the search
would have been vitiated or not. But PW-10 SI Qureshi could not
have given a third option to the respondents when Section 50(1) of
the NDPS Act does not provide for it and when such option would
frustrate the provisions of Section 50(1) of the NDPS Act. On this
ground also, in our opinion, the search conducted by PW-10 SI
Qureshi is vitiated. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No.635/2015

Decided on: 1.1.2016

State of Himachal Pradesh …… Appellant
Versus
Kamal Kishore ……..Respondent

Coram:
Hon’ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Sureshwar Thakur, Judge
Citation;2016 CRLJ 1021

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