Supreme Court of India
NIRMAL SINGH PEHLWAN @ NIMMAversusINSPECTOR, CUSTOMS, CUSTOMS HOUSE, PUNJAB
- Citation
- 2011 INSC 513
- Decided
- 21 July 2011
Holding
Failure to inform the accused of his right under Section 50 renders the search invalid and the confession inadmissible, thereby vitiating the conviction.
Summary
During a joint operation in January 1999, Nirmal Singh was apprehended and offered a choice to be searched before a magistrate or a gazetted officer under Section 50 of the ND PS Act. He chose a gazetted officer, and a search uncovered two kilograms of heroin; he also made a confession to a customs officer under Section 108 of the Customs Act. The trial court and the High Court convicted him, relying on the confession and the consent memo as compliance with Section 50. On appeal, the Supreme Court held that the consent memo did not constitute the mandatory informing of the accused of his right under Section 50, and that the customs officer’s confession was inadmissible under Section 25 of the Evidence Act as per Noor Aga. Consequently, the conviction was set aside and the appellant was acquitted.
Issues considered
- Whether a consent memo alone satisfies the mandatory requirement of Section 50(1) of the NDPS Act to inform the accused of his right to be searched before a gazetted officer or a magistrate.
- Whether a confession made to a customs officer under Section 108 of the Customs Act is admissible in view of Section 25 of the Evidence Act and the precedent set in Noor Aga.
Legislation cited
Subjects
NDPS ActSection 50search rightsconsent memocustoms confessionEvidence Act Section 25acquittalillegal search
Judgment
[2011] 9 S.C.R. 446
A NIRMAL SINGH PEHLWAN @ NIMMA
.
v.
INSPECTOR, CUSTOMS, CUSTOMS HOUSE,
PUNJAB
(Criminal Appeal No. 1857 of 2010)
B ••
JULY 21, 2011.
[HARJIT SINGH BEDI AND GYAN SUDHA MISRA, JJ.]
NARCOTIC DRUGS AND PSYCHOTROPIC
C SUBSTANCES ACT, 1985:
s. 22 read with s. 50 - Right of accused to be informed
that he has an option of being searched in the presence of a
Gazetted Officer or a Magistrate - Accused found in T
0 possession of 2 packets containing 1kg heroin each -
Consent memo signed by him to be searched in presence
of a Gazetted Officer - Held: The consent memo cannot be
said as informing the accused of his right to be searched in
the presence of a Gazetted Officer or a Magistrate, as he was
E only given the option to be searched before one of the other
- The Officer concerned did not utter a single word as to
whether he had informed the accused of his right and he
merely took his option as to whether he would like to be
searched before a Gazetted Officer or a Magistrate - Thus,
there has been complete non-compliance with the provisions
F of s. 50 - Conviction of the accused set aside - Customs Act,
1962 - 108.
CUSTOMS ACT, 1962:
G s. 108 - Accused found in possession of contraband - •
Confession made to Customs Officer - Held: In view of
decision in Noor Aga's case, the confession was hit by. the
embargo placed bys. 25 of Evidence Act- Judgment in Noor
Aga's case being the. latest in point of time, it would be prop1er
H 446
NIRMAL SINGH PEHLWAN @ NIMMA v. INSPECTOR, 447
CUSTOMS, CUSTOMS HOUSE.PUNJAB
to follow the 'ratio of the said judgment, particularly, as the A·
provisions of s. 50 of the NDPS Act, which are mandatory
have also not been complied with - Narcotic Drugs and
Psychotropic Substances Act, 1985 - ss. 22 and 50 -
Evidence Act, 1872 ~ s. 25.
, I
Vijaisingh Chandu Bha Jadeja vs. State of Gujarat 2011 8
(1) SCC 609: 2010 (13) SCR 255 - followed
Noor Aga vs. State of Punjab & Anr. 2008 (16) SCC 417:
2008 (10) SCR 379 - relied on.
c
Kanahiya Lal vs. Union of India 2008 (4) SCC 668:
2008 (1) SCR 350 and Raj Kumar vs. Union of India
1990(2) sec 409: 1990 (2) SCR 63 - cited.
• Case Law Reference:
D
2010 (13) SCR 255 followed. Para 6
2008 (10) SCR 379 relied on. Para 6
2008 (1) SCR 350 cited. Para 7
1990 (2) SCR 63 cited. Para 7 E
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1857 of 2010.
! " From the Judgment & Order dated 14.08.2008 of the High F
~ Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 219-SB of 2003.
Sanjay Jain, Priyanka Singh, Sidharth Tanwar for the
Appellant.
;
G
RP. Bhatt, Ajay Sharma, M. Khairaity, B. Krishna Prasad
for the Respondent.
The following order of the Court was delivered
H
448 SUPREME COURT REPORTS [2011] 9 S.C.R.
A ORDER
..
This appeal is directed against the concurrent judgments
of the courts below whereby the appellant has been sentenced
to undergo 10 years R.I. and to pay a fine of rupees one lakh
and in default to undergo RI for two years for having violated J.
B the provisions of Section 22 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as
the 'Act').
The facts of the case are as under:
c During the course of a joint Naka held on the 4th January,
1999 by a party comprising officials from the Customs
Preventive Staff, the Punjab Police and the CIA Staff, Majitha,
set up at the T-crossing near Saki Bridge, Ajnala, a Maruti car
bearing registration No. PB-02-P-5595 was seen coming from
D the opposite side at about 9.40 a.m. There were three
occupants in the car and two of them taking advantage of the
thick fog at that time ran away whereas the third one, the
appellant Nirmal Singh, was apprehended by PW.4 Prem
Singh-Superintendent Customs. PW.4 disclosed his identity to
E the appellant and told him that as he was suspected to be in
possession of some narcotic, he should give his option as to
whether he wished to be searched before a Magistrate or a
Gazetted Officer. The appellant stated that he would be satisfied
if he was searched in the presence of a Gazetted officer.
F Khazan Singh and Sarup Singh were also called as public ••
witnesses. On a search of the appellant's person two packets
of brown powder each weighing 1 kilogram were found lying
in his lap. The powder was tested with the aid of a drug testing
kit and was found to be heroin. Samples of 5 grams were
drawn from each packet and after the samples had been
G '
homogenized, they were sent to the laboratory for analysis. The
Chemical Examiner in his report opined that the seized articles
were indeed heroin.
During the course of the investigation the appellant also
H made a confession under Section 108 of the Customs Act
NIRMAL SINGH PEHLWAN @ NIMMA v. INSPECTOR, 449
.. CUSTOMS, CUSTOMS HOUSE.PUNJAB
A
admitting his guilt. The matter was ultimately sent up for trial
after the completion of the investigation. Sarup Singh and
Khazan Singh, the independent witnesses, were given up as
having been won over by the appellant. The prosecution
accordingly placed primary reliance on the statement of PW.1
' I Jagtar Singh, Inspector of Customs and PW.4 Prem Singh and 8
the confession of the appellant made to him as also the
circumstantial evidence in the case. The accused was also
examined under Section 313 of the Cr. P.C. and he stated that
he had been roped in on account of his animosity with Swaran
Singh-DSP and his brother Kartar Singh-SP as he had been c
involved in the murder case of their brother, Ranjit Singh. He
also produced several witnesses in defence.
The Trial Court, on a consideration of the evidence, held
~ that the case against the appellant had been proved beyond
doubt more particularly as he had made a confession to PW.4 D
which was admissible in evidence as PW.4 was not a police
officer. It was also found that the provisions of Section 50 of
the Act had been complied with as Ex. P.A., a consent memo,
had been drawn up prior to the search. The Trial Court
accordingly convicted and sentenced the appellant, as already E
mentioned above. The conviction and sentence has been
confirmed by the High Court.
Before us, Mr. Sanjay Jain, the learned counsel for the
'!' ~ appellant,' has raised primarily two arguments based on the
judgments of this Court. The first is Vijaisingh Chandu Bha F
Jadeja vs. State of Gujarat (2011 (1) SCC 609). In this case it
has been observed by the Constitution Bench that the
provisions of· Section 50 of the Act postulated that before a
search was made of a person suspected of carrying a narcotic
f G
1 he should be informed of his right that he had an option of
being searched in the presence of a Gazetted Officer or a
Magistrate and that merely because a consent memo had been
drawn up whereby he had chosen to be searched before the
Magistrate or a Gazetted Officer (on the option given to him
by an authorized officer) would not amount to full compliance H
450 SUPREME COURT REPORTS [2011) 9 S.C.R.
A with the aforesaid provision. The second argument is based
on the judgment of this Court in Noor Aga vs. State of Punjab
& Anr. (2008 (16) SCC 417) in which this Court had deviated
from the earlier position in law that a Customs Officer was not
a police officer and a confession made to him under Section
B 108 of the Customs Act, was admissible in evidence. In this
case it has been held that as a Custom Officer exercised police
) .
powers and a confession made by an accused could result in
a conviction and sentence, such a confession was hit by the
embargo placed by Section 25 of the Evidence Act, 1872, and
c was, therefore, not admissible in evidence.
On the other hand, Mr. R.P. Bhatt, the leaned senior
counsel for the respondent - Department, has pointed out that
Ext. P.A. the consent memo in fact conveyed information to the
appellant that he had a right to be searched in the presence of ~
D a Magistrate or a Gazetted Officer and that this amounted to
full compliance with Section 50 of the Act. He has also pointed
out that although Noor Aga's case did say that a confession
made to a Custom Officer was hit by Section 25 of the Evidence
Act and was therefore not admissible in the evidence, yet a
E judgment of a coordinate Bench of this Court in Kanahiya Lal
vs. Union of India case (2008 (4) SCC 668) had reiterated the
earlier position in the law as given in Raj Kumar vs. Union of
India - 1990(2) SCC 409 that Officers of the Revenue
Intelligence and ipso facto of the Customs Department could
F not be said to be police officers and a confession before them ••
would not be hit by Section 25 of the Evidence Act.
We have examined the facts of the case in the light of the
arguments raised by the learned counsel for the parties and the
case law cited. Ext. P.A. is the consent memo under which the
G appellant had opted to be searched in the presence of a
Gazetted officer. This memo is in the Gurmukhi script and has
' .•
been read to us and we see that it cannot by any stretch of
imagination be said to be informing the appellant of his right
to be searched in the presence of a Gazetted Officer or a
H Magistrate as he was only given the option to be searched
' NIRMAL SINGH PEHLWAN @ NIMMA v. INSPECTOR, 451
CUSTOMS, CUSTOMS HOUSE.PUNJAB
.
'"\
before one of the other. In Vijaisingh's case (supra) the A
Constitution Bench crystalised the issue before it in para 1 as
under:
"The short question arising for consideration in this
batch of appeals is whether Section 50 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short B
"the NDPS Act") casts a duty on the empowered officer
to "inform" the suspect of his right to be searched in the
presence of a gazetted officer or a Magistrate, if he so
desires or whether a mere enquiry by the said officer as
to whether the suspect would like to be searched in the c
presence of a Magistrate or a gazetted officer can be said
to be due compliance with the mandate of the said
section?"
~
This was answered in paragraph 29 in the following terms:
D
"In view of the foregoing discussion, we are of the
firm opinion that the object with which the right under
Section 50(1) of the NDPS Act, by way of a safeguard,
has been conferred on the suspect viz. to 'check the misuse
of power, to avoid harm to innocent persons and to E
minimise the allegations of planting or foisting of false
cases by the law enforcement agencies, it would be
imperative on the part of the empowered officer to apprise
y ~
the person intended to be searched of his right to be
searched before a gazetted officer of a Magistrate. We ·
F
have no hesitation in holding that insofar as the obligation
of the authorised officer under sub-section (1) of Section
50 of the NDPS Act is concerned, it is mandatory and
requires strict compliance. Failure to comply with the
! provision would render the recovery of the illicit artiCle
G
suspect and vitiate the conviction if the same is recorded
only on the basis of the recovery of the illicit article from
the person of the accused during such search. Thereafter,
the suspect may or may not choose to exercise the right
provided to him under the said provision."
H
452 SUPREME COURT REPORTS [2011] 9 S.C.R. ·
It is therefore apparent that the precise question that was
..
A
before the Constitution Bench was as to whether a consent
memo could be said to be information conveyed to an accused
as to his right under Section 50 of the Act. The Constitution
Bench clearly stated that a consent memo could not be said to
B be such information as the provisions of Section 50 of the Act
were mandatory and strict compliance was called for and any
deviation therefrom would vitiate the prosecution. It was further
held that it was not necessary that this information should be
in a written form but the information had to be conveyed in
some form or manner which would depend on the facts of the
c case. We have accordingly gone through the evidence of PW.4
Prem Singh. He did not utter a single word as to whether he
had informed the appellant of his right and he merely took his
option as to whether he would like to be searched before a
Gazetted Officer or a Magistrate as noted in Ex.P.A. In the light
D of the judgment in Vijaisingh's case (supra) we find that there
has been complete non-compliance with the provisions of
Section 50 of the Act.
We also see that the Division Bench in Kanahiya Lal's
E case had not examined the principles and the concepts
underlying Section 25 of the Evidence Act vis.-a-vis.
Section 108 of the Customs Act the powers of Custom
Officer who could investigate and bring for trial an accused in
a narcotic matter. The said case relied exclusively on the .. ~
F judgment in Raj Kumar's case (Supra). The latest judgment in
point of time is Noor Aga's case which has dealt very
elaborately with this matter. We thus feel it would be proper for
us to follow the ratio of the judgment in Noor Aga's case
particularly as the provisions of Section 50 of the Act which are
G mandatory have also not been complied with. '
In view of what has been held above we find that the
conviction of the appellant must be set aside. Accordingly we
allow this appeal and order his acquittal.
H R.P. Appeal allowed.
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