Holding

Section 50 of the NDPS Act is mandatory; failure to inform the accused invalidates the search and no presumption under Section 114(e) may be drawn, leading to acquittal of the appellants.

Summary

Three appellants were arrested in Gujarat and, after a police search, charas was seized from them. They were convicted under Section 20 of the NDPS Act and Sections 65 and 66 of the Bombay Prohibition Act. The appellants argued that the police had not informed them of their right, under Section 50 of the NDPS Act, to be searched in the presence of a Gazetted Officer or Magistrate. The High Court applied a presumption under Section 114(e) of the Evidence Act that the officer had complied, and upheld the convictions. The Supreme Court held that Section 50 is a mandatory safeguard, that no presumption can be drawn when the officer fails to prove compliance, and that the search was invalid, so the possession of illicit drugs was not established. Consequently, the convictions under the NDPS Act were set aside and the Bombay Prohibition conviction could not be sustained, leading to the appellants' acquittal.

Issues considered

Whether Section 50 of the NDPS Act is a mandatory requirement that obliges police to inform the accused of the right to be searched before a Gazetted Officer or Magistrate.
Whether a court may invoke the presumption under Section 114(e) of the Indian Evidence Act when the police officer does not depose compliance with Section 50.
Whether the conviction under the Bombay Prohibition Act can be maintained in the absence of separate punishment and with insufficient supporting evidence.

Legislation cited

Bombay Prohibition Act, 1949s. 65, s. 66
Indian Evidence Act, 1872s. 114
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20, s. 50, s. 54

Subjects

NDPS ActSection 50search rightsmandatory provisionpresumptionIndian Evidence Actdrug possessionBombay Prohibition Actacquittal

Judgment

SAIYAD MOHD. SAIYAD UMAR SAIYED AND ORS. A
v.
THE STATE OF GUJARAT

APRIL 3, 1995

(A.M. AHMADI, CJ., S.P. BHARUCHA AND G.T. NANAVATI, JJ.] B

Narcotic Drugs and Psychotropic Substances Act, 198~Section
5()-{nfonnation to the accused of his right to be searched before a Gazetted
- --\ Offic~ or a Magistrate-Whether mandato~e/d yes-Cogent evidence
must be produced to prove it-Issue of instructions to Investigating officers to c
comply with the statutory requirement-Need for.

Indian Evidence Act 1872-Sec. 114 illustration (e}-Applicability of-
No evidence to show that accused was infonned about his right or protection
under Section 50 of the Narcotic Drugs and Psychotropic Substances Act-It
cannot be presumed that official act of infonning the accused has been D
reFJ.llarly peifonned.

Under Section 50 of the Narcotic Drugs and Psychotropic Substan-
ces (NDPS) Act, 1985 the person who Is to be searched, bas a right to
be searched before a Gazetted Officer or a Magistrate, if be so desires. E
In the present case, during the trial, none of the police personnel who
bad apprehended the appellants deposed that they had informed the
appellants of their right to be searched before a Gazetted Officer or a
Magistrate.

The trial court convicted and sentenced the appellants for offences
F
-----~ under Section 20 of the NDPS Act aud Sections 65 and 66 of the
Bombay Prohibition Act, 1949. On appeal the High Court upheld the
conviction.

Before the High Court, it was contended that the provisions of G
Section SO of NDPS Act are mandatory and as there was no evidence to
show that the police personnel who had searched the appellants had
~· informed the appellants of their right under Section 50 the appellants
were entitled to an· acquittal. The High Court rejected the argument on
the grounds that (a) in cases under the NDPS Act, it is the duty of the H
117
118 SUPREME COURT REPORTS (1995] 3 S.C.R.

A Court to raise a presumption under Section 114, illustration (e) or the
Evidence Act that the officer had followed the procedure mandated by
Section 50 even if he does not depose so; and (b) the argument was a
point of fact and could not be raised for the first time before the
appellate court.
B Hence, the present appeal.

Allowing the appeal and acquitting the appellants, this Court

HELD: 1. Having regard to the grave consequences that may entail
C the possession or illicit articles under the NDPS Act, namely, the shifting or
the onus to the accused and the severe punishment to which he becomes
liable, the legislature bas enacted the safeguard contained in Section 50 or
the NDPS Act. To obviate any doubt as to the possession by the accused or
illicit articles under the NDPS Act, the accused is authorised to require the
search for such possession to be conducted in the presence of a Gazetted
D Officer or a Magistrate. The provisions in this behalf are IJU!ndatory and
the language thereof obliges the officer concerned to inform the person to be
searched or his right to demand that the search be conducted in the
presence of a Gazetted Officer or a Magistrate. [U2·H, 123-A, BJ

State of Punjab v. Ba/bir Singh, (1994] 3 SCC 299, relied on.
E
2. Having regard to the object for which the provisions of Section 50
have been introduced into the NDPS Act and when the language thereof
obliges the officer concerned to inform the person to be searched of his
right to be searched in the presence or a Gazetted Officer or a Magistrate,
F there is no room for drawing a presumption under Section 114, illustra·
lion (e) of the Indian Evidence Act, 1872. [123-C] ·-
3. When the Officer concerned has not deposed that he bad followed
the procedure mandated by Section 50 of the NDPS Act, the court is duty
bound to conclude that the accused had not bad the benefit of the protec·
G lion that Section 50 affords; that, therefore, his possession or articles
which are illicit under the NDPS Act is not established; that the pre-con·
dition for bis having to satisfactorily account for such possession has not
been met; and to acquit the accused. Instructions in this behalf need to be
issued so that investigation officers take care to comply with the statutory
H requirement and drug peddlers do not go scot free due to non-compliance
SAIYAD MOHD. v. STATE (BHARUCHA, J.] 119

thereof. (123-G, H, 124-A, F] A
4. The protection that Section 50 of the NDPS Act gives to those
accused of being in possession of illicit articles under the NDPS Act is
sacrosanct and cannot be disregarded on the technicality that the point
was not taken in the court of first instance. (124-C]
B
5. For the conviction of the appellants under the provisions of the
Bombay Prohibition act no separate punishment was awarded. The
'panchas' did not support the evidence of PSis which further )Veakens the
case that charas was found in possession of the appellants. Therefore, this
conviction under the Bombay Prohibition Act cannofbe sustained.
(124-H, 125-A]
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
485of1995.

From the Judgment and Order dated 23.6.94 of the Gujarat High
Court in Cr!A.No. 526 of 1998. D
Ms. Kamini Jaiswal for the Appellants.

Bhargav Desai for Ms. Hemantika Wahi for the Respondents.

The Judgment of the Court was delivered by E
' I
BHARCCHA, J. Special le<!ve granted.

The appeal is directed agaiost the judgment and order of a Division
Bench of the High Court of Gujarat. The High Court upheld the
-·~
conviction of the appellants for offences punishable under Section 20 of F
The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)
and the punishment imposed on each of them therefor, namely, rigorous
imprisonment for a term of ten years and fine of Rupees one lakh; in
default of payment of the fine, rigorous imprisonment for a further .term
of two years. It upheld also the conviction of the appellants under the G
provisions of Sections 65 and 66 of the Bombay Prohibition Act, 1949, in
respect whereof no separate punishment had been imposed.
J.
It was the case of the prosecution that on 18th October, 1986, Police
Sub-Inspectors Rathod and Rana received information that the first appel-
lant was doing the business of selling 'charas' in Vagharivad, opposite · H
120 SUPREME COURT REPORTS [1995] 3 S.C.R.

A Renbasera, Ahmedabad. Along with other police personnel, PSls Rathod
and Rana raided the area. Upon search 55 grams of 'charas' was found
from the first appellant and 10 grams from the second and third appel-
lants. The appellants were charge-sheet.ed, tried by the Additional City
Sessions Judge, Ahmedabad, and convicted and sentenced as aforesaid.

B It was contended by learned counsel appearing for the appellants
before the High Court that, under the provisions of Section 50 of the
NDPS Act, the appellants were required to be informed of their right to
be searched in the presence of a Gazetted Officer or a Magistrate and .>--- -·
there was no evidence to show that PSI Rathod or PSI Rana had informed
C the appellants accordingly; there being a breach of the provisions of
Section 50, the appellants were entitled to an acquittal. The learned
Additional Public Prosecutor pointed out to the High Court that this
argument had not been made before the trial court and he submitted that
a question of fact could not be permitted to be raised for the first time in
appeal. He also submitted that, by reason of Section 54 of the NDPS Act,
D 0

the burden was on the appellants to prove that they had not committed
offences under the NDPS Act and this they had failed to do. In the
alternative, he submitted that the act of informing the accused of their right
to be searched in the presence of a Gazetted Officer or a Magistrate under
Section 50 of the ND PS Act was an official act to be performed by a police
E officer and the High Court should raise a presumption under the provisions
of Section 114, illustration (e) of the Indian Evidence Act, 1872, to that
effect. The High Court noted the judgment of this court in the case of State
of Punjab v. Ba/bir Singh, (1994] 3 SCC 299, and observed that it was an
imperative requirement that a police officer intending to search a person
F for the possession of articles covered by the NDPS Act should inform him
that he had a right to be searched, if he so chose, in the presence of a
Gazetted Officer or a Magistrate. The High Court then stated :

"In nutshell we may say that both PSI Rathod and PSI Rana have
stated almost each and everything in their evidence regarding the
G information received by them, calling for the Panchas, going to the
place of offence, searching the accused and on search finding of
muddamal 'Charas" of 55 grams from accused Nos. 1 and 10
grams each from accused Nos. 2 and 3. What is not stated by them
before the Court is that they had informed the accused about
H their right under section 50 of the NDPS Act to be searched in
SAIYAD MOHD. v. STATE [BHARUCHA,J.] 121

presence of a gazetted officer or a magistrate. In our opinion, A
Mr. Shelat, learned Addi. P .P. was right in submitting that the
Court has to raise presumption that PSI Rathod and PSI Rana
must have informed the accused about their such a right to be
searched in presence of a gazetted officer or a magistrate before
the search as it was an official act... ......................' B
~
The High Court went on to state:

'To inform the accused about his right to be searched in presence
of a gazetted officer or a magistrate under section 50 of the NDPS
Act is an official act. Therefore, ordinarily it is not deposed by C
police officer before the Court that he had informed the accused
about his right to be searched in presence of a gazetted officer or
a magistrate under section 50 of the DPS Act since is to be
presumed......... We may further say that in the case under the
NDPS Act, it is the duty of thr Court to raise presumption under D
section 114(e) of the Evidence Act, if the police officer has not
deposed in his evidence before the Court and if the Court does.
not raise such a presumption, then it would be falling in its duty."

Section 50(1) of the NDPS Act reads thus:
E
"When any officer duly authorised under Section 42 is about to
search any person under the provisions of Section 41, Section 42
or Section 43, he shall, if such person so requires, ~ake such person
without unnecessary delay to the nearest Gazetted Officer _of any
of the departments mentioned in Section 42 or to the nearest F
- -..'. Magistrate.'

This court in the case of Balbir Singh (ibid) held:

'18 ................ In the context in which this right has been conferred,
it must natliritlly be presumed that it is imperative on the part of G
.the officer to inform the person to be searched of his right that if
he so requires to be searched before_ a gazetted officer or a
magistrate. To us, it appears that this is a valuable right giver. to
the person to be searched in the presence of a gazetted officer or
a magistrate if he so requires, since such a search would impart H
122 SUPREME COURT REPORTS (1995] 3 S.C.R.

A much more authenticity and creditworthiness to the proceedings
while equally providing an important safeguard to the accused.
To afford such an opportunity to the person to be searched, he
must be aware of his right and that can be done only by the
authorised officer informing him. The language is clear and the
B provision implicitly makes it obligatory on the authorised officer
to inform the person to be searched of his right.. ....

19. Under the Act wide powers are conferred on the officers and
deterrent sentences are also provided for the offences under the
Act. It is obvious that the legislature while keeping in view the
c menace of illicit drug trafficking deemed it fit to provide for
corresponding safeguards to check the misuse of power thus con-
ferred so that any harm to the innocent persons is avoided and to
minimise the allegations of planting or fabricating by the prosecu-
tion, Section 50 is enacted.
D
22 .......... 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. Thus the
E provisions of Section 50 are manda.tory."

It is to be noted that under the NDPS Act punishment for contraven-
tion of its provisions can extend to rigorous imprisonment for a term
which shall not be less than 10 years but which may extend to 20 years and
also to fine which shall not be less than Rupees one lakh but which may
F extend to Rupees two lakhs, and the court is empowered to impose a fine
exceeding Rupees two lakhs for reasons to be recorded in its judgment.
Section 54 of the ND PS Act shifts the onus of proving his innocence upon
the accused; it states that in trials under the ND PS Act it may be presumed,
unless and until the contrary is proved, that an accused has committed an
G offence under it in respect of the articles covered by it "for the possession
of which he fails to account satisfactorily". Having regard to the grave
consequences that may entail the possession of illicit articles under the
NDPS Ac~ namely, the shifting of the onus to the accused and the severe
punishment to which he becomes liable, the legislature has enacted the
H safeguard contained in Section 50. To obviate any doubt as to the posses-
"'--·
/

SAIYADMOHD.v. STATE[BHARUCHA,J.] 123
sion by the accused of illicit articles under the NDPS Act, the accused is A
authorised to require the search for such possession to be conducted in
the presence of a Gazetted Officer or a Magistrate. We endorse the finding
in Ba/bir Singh 's case that the provisions in this behalf are mandatory and
the language thereof obliges the officer concerned to inform the person to
be searched of his right to demand that the search be conducted in the B
presence of a Gazetted Officer or a Magistrate.

Having regard to the object for which the provisions of Section 50
have beon introduced into the NDPS Act and when the language thereof
obliges the officer concerne,d to inform the person to be searched of his
right to be searched in the presence of a Gazetted Officer or a Magistrate, c
there is no room for drawing a presumption under_ Section 114, illustra-
tion (e) of the Indian Evidence Act, 18.72. By reason of Section 114 a court
"may presume the existence of any fact which it think likely to have
happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts D
of the particular case." It may presume "(e) that judicial and official acts
have been regularly performed." There is no room for such presumption
. because the possession of illicit articles under the NDPS Act has to be
satisfactorily established before the court. The fact of seizure thereof after
· a search has to be proved. When evidence of the search is given all that E
transpired in its connection must be stated. Very relevant in this behalf is
the testimony of the officer conducting the search that he had informed
the person to be searched that he was entitle to demand that the search
be carried out in the presence of a Gazetted Officer or a Magistrate and
· that the person had not chosen to so demand. If no evidence to this effect
is given the court must assume that the person to be searched was not
F
informed of the protection the law gave him and must find that the
possession of illicit articles under the NDPS Act was not established.

We are unable to share the High Court's view that in cases under
the NDPS Act it is the duty of the court to raise a presumption, when the G
officer concerned has not deposed that he had followed the procedure
mandated by Section 50, that he had in fact done so. When the officer
concerned has not deposed that he had followed the procedure mandated
by Section 50, the court is duty bound to conclude that the accused had
not had the benefit of the protection that Section 50 affords; that, therefore, H
124 SUPREME COURT REPORTS (1995] 3 S.C.R.

A his possession of articles which are illicit under the NDPS Act is not
established that the pre-condition for his having to satisfactorily accounted
for such possession has not been met; and to acquit the accused.

The High Court relied upon the fact that the argument that Section
50 had not been complied with had not been made before the trial court
B and held that a point of fact could not be taken for the first time in appeal.
The protection that Section 50 given to those accused of being in posses-
. sion of illicit article under the ND PS Act is sacrosanct and cannot be
disregarded on the technicality that the point was not taken in the court of
first instance.
c
Finding a person to be in possession of articles which are illicit under
the provisions of NDPS Act has, as we have said, the consequence of
reqniring him to prove that he was not in contravention of its provisions
and it renders him liable to punishment which can extend to 20 years
D rigorous imprisonment and a fine of Rupees two lakhs or i;nore. It is
necessary, therefore, that courts dealing with offences under the NDPS Act
should be very careful to see that it is established to their satisfaction that
the accused has been informed by the concerned officer that he had a right
to choose to be searched before a Gazetted Officer or a Magistrate. It need
E hardly be emphasised that the accused must be made aware of this right
o~ protection granted by the statute and unless cogent evidence is
produced to show that he was made aware of such right or protection,
there would be no question of presuming that the requirements of Section
50 were complied with. Instructions in this behalf need to be issued so that
F investigation officers take care to comply with the statutory requirement
and drug peddlers do not go scot free due to non-compliance thereof. Such
instructions would be of great value in the effort to curb drug trafficking.
At the same time, those accused of possessing drugs should, however
heinous their offence may appear to be, have the safeguard that the law
prescribes.
G
For the reasons aforestated, the conviction of the appellants under
the NDPS Act and the sentence imposed upon them for the same must be
set aside.

H For the conviction of the appellants under the provisions of the
·-.

SAIYADMOHD.v. STATE[BHARUCHA,J.] 125
Bombay Prohibition Act no separate punishment was awarded. The High A
Court has not dealt with the aspect of these offences. We find that the
'panchas' did not support the evidence of PS!s Rathod and Rana, which
further weakens the case that 'charas' was found in the possession of the
appellants. We cannot, therefore, sustain their conviction under the Bom-
bay Prohibition Act.
B
The appeal is allowed. The judgment and order under appeal is set
aside. The accused are acquitted and shall be discharged forthwith.

B.K.M. Appeal allowed.