STATE OF PUNJABversusJASBIR SINGH

A                              STATE OF PUNJAB
                                       v.
                                 JASBIR SINGH

                              NOVEMBER 28, 1995
B              [K. RAMASWAMY AND S,B. MAJMUDAR, JJ.]

          Narcotic Drngs and Psychotropic Substances Act, 1985 :

          Section So-Non-compliance witl~Acquittal order--Validity of-
C Evidence--Collected in violation of statutory provisions-Effect of.
          This appeal has been preferred by the State against acquittal of the
    respondents who were tried under the Narcotic Drugs and Psychotropic
    Substances Act, 198S. Having regard to the totality of the circumstances,
    the Additional Sessions Judge did not accept the evidence of the police
D   officers on the ground that it was open to them at the time of the search
    to take in writing from the accused that they had no objection to the search
    being conducted and that they were informed of their right and they waived
    the search in the present of a gazetted officer.

E         Dismissing the State's appeal, this Court

           HELD : 1. The acquittal order is confirmed for the reason that the
    mandatory requirements of Section SO of Narcotic Drugs and Psychotropic
    Substances Act, 198S have not been complied with. Protection given by
    section SO is a valuable right to the offender and compliance thereof
F   intended to be mandatory. In case the Police Officer had prior knowledge
    that illegal transport of the contraband is in movement and persons are
    in unlawful possession and intends to intercept it, conducts search and
    consequentially seizes the contraband, he is required to inform the of·
    fenders that they have the right to be searched in the presence of a gazetted
G   officer or a Magistrate. Thereafter on their agreeing to be searched by the
    Police Officer, the search and seizure of the contraband from their unlaw·
    ful possession would become legal and valid. The evidence collected during
    investigation in breach of mandatory requirement does not become inad·
    missible. Each case is to be considered on its own back drop. [743-E-H]

H         2. In this case the Additional Sessions Judge was not inclined to
                                        742
                       STATEv. JASBIRSINGH                           743

accept the prosecution case in the absence of anything in writing. There-   A
fore, the view expressed by him cannot be said to unwarranted or unjus-
tified. (744-B]

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1594 of 1995.
                                                                            B
     From the Judgment and Order dated 21.5.91 of the Punjab &
Haryana High Court in Crl. M. No. 5091of1991.

     Ms. Arnita Gupta and R.S. Suri for the Appellant.

     Ujjagar Singh, Satish Vig, D. Verma and Gulshan Rai for the            C
Respondents.

     The following order of the Court was delivered :

      Leave granted.
                                                                            D
       Having considered the evidence we find it difficult to set aside the
order of acquittal recorded by the Additional Sessions Judge. Though the
offence involved is of a considerable magnitude of 70 bags containing 34
Kgs. of poppy husk, each without any permit/licence, this Court is con-
strained to confirm the acquittal for the reasons that the mandatory re-
quirements of Section 50 of Narcotic Drugs and Psychotropic Substances E
Act, 1985 has not been complied with. Protection given by s.50 is a valuable
right to the offender and compliance thereof intended to be mandatory. In
case the Police Officer had prior knowledge that illegal transport of the
contraband is in movement and persons are in unlawful possession and
intends to intercept it, conduct search and consequentially to seize the F
contraband, they required to inform the offender that he has the right that
the search will be conducted in the presence of a gazetted officer or a
Magistrate. Thereafter on their agreeing to be searched by the Police
officers, the search and seizure of the contraband from their unlawful
possession would become legal and valid. However, the evidence collected G
in breach of mandatory requirement does not become inadmissible. It is
settled law that evidence collected during investigation in violation of the
statutory provisions does not become inadmissible and the trial on the basis
thereof does not get vitiated. Each case is to be considered on its own back
drop. The learned Additional Sessions Judge did not accept the evidence
of the police officers on the ground that it was open to them, at the time H
    744                  SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A of the search, to take in writing from the accused that they had no objection
    to the search being conducted and that they were informed of their right
    and they waived the search in the presence of a gazetted officer. It is a
    matter of appreciation of evidence and that having considered the totality
    of the facts and circumstances, the learned Additional Sessions Judge was
B   not inclined to accept the prosecution case in the absence of anything in
    writing. The view expressed by the Additional Sessions Judge cannot be
    said to be unwarranted or unjustified. Under the circumstances, we are
    constrained to confirm the order of acquittal though the High Court
    unfortunately did not deal with the case properly.

C         The appeal is accordingly dismissed.

    T.N.A.                                                  Appeal dismissed.