SURESH & ORS.versusSTATE OF MADHYA PRADESH

                    [2012] 10 S.C.R. 1157


                      SURESH & ORS.                                 A
                               v.
              STATE OF MADHYA PRADESH
             (Criminal Appeal No. 300 of 2009)
                    NOVEMBER 22, 2012.
                                                                    B
       [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

    Narcotic Drugs and Psychotropic Substances Act, 1985

      s. 50, read with ss. 8 and 18 - Search of person of           c
suspect- Procedure to be followed - Held: Sub-s. (1) of s.50
makes it imperative for the empowered officer to "inform" the
suspect of his right that if he so requires, he shall be searched
before a gazetted officer or a Magistrate - Failure to do so
would vitiate conviction and sentence where the conviction has      D
been recorded only on the basis of recovery of contraband
from the person of the accused - The provision is mandatory
and requires strict compliance - In the instant case, merely
consent of appellants was sought for search of their person
by police party - Therefore, recovery of opium from them is
unsustainable for non-compliance of provisions of s.50(1) -         E
If, the quantity recovered from the vehicle is excluded, the
remaining would not come within the mischief of 'commercial
quantity' for imposing of such conviction and sentence -
Taking note of the continuous period the appellants are in
prison and non-compliance of the provisions of s. 50 (1), the       F
sentence imposed on them by courts below, set aside.

    Three appellants, traveling in a car, were stopped by
the police party. On their consenting to personal search,
they were searched in the presence of Panchas. They                 G
were found in possession of one packet each containing
825, 820 gms and 800 gms of "opium", respectively. On
search of the vehicle, six more packets of "opium" were
recovered. The trial court convicted each of the three
                             1157                                   H
     1158    SUPREME COURT REPORTS           [2012] 10 S.C.R.


A accused u/s 8 read with s.18 of the Narcotic Drugs and
  Psychotropic Substances Act, 1985 and sentenced them
  to 10 yeas RI and a fine of Rs. 1 lakh each. Their appeals
  were dismissed by the High Court

       In the instant appeal, it was contended for the
8
  appellants that the prosecuting authorities failed to
  apprise the appellants of their right to be searched before
  a Gazetted Officer or the nearest Magistrate and,
  therefore, their conviction was liable to be set aside on
C this ground alone.

         Allowing the appeal, the Court

       HELD: 1.1. A reading of the Panchnama makes it
  clear that the appellants were not apprised about their
0 legal right provided u/s 50 of the NDPS Act to be
  searched before a gazetted officer or a Magistrate, but
  consent was sought for their personal search. Merely
  asking them as to whether they would offer their personal
  search to the police officer or to gazetted officer may not
E satisfy the protection afforded u/s 50 of the NDPS Act as
  interpreted in Ba/dev singh's case.* [para 11] [1173-D-F]

         *State of Punjab vs. Ba/dev Singh, 1999 (3) SCR 977 =
     (1999) 6 sec 172 - relied on

F.     1.2. It is reiterated that sub-s. (1) of s.50 makes it
  imperative for the empowered officer to "inform" the
  person concerned about the existence of his right that if
  he so requires, he shall be searched before a gazetted
  officer or a Magistrate. Failure to do so vitiates the
G conviction and sentence of an accused where the
  conviction has been recorded only on the basis of the
  recovery of the illicit article from the person of the
  accused. It is also reiterated that the said provision is
  mandatory and requires strict compliance. Accordingly,
H
SURESH & ORS. v. STATE OF MADHYA PRADESH 1159


in view of the language as evident from the panchnama,        A
this Court holds that in the case on hand, the search and
seizure of the contraband from the person of the
appellants is bad and conviction is unsustainable in law.
[para 11-12] [117 4-C-E]
                                                              B
     Vijaysinh Chandubha Jadeja vs. State of Gujarat 2010
             =
(13) SCR 255 (2011) 1 SCC 609 - followed.

    Joseph Fernandez vs. State of Goa, (2000) 1 SCC 707;
and Prabha Shankar Dubey vs. State of M.P., 2003 (6 )
                  =
Suppl. SCR 444 (2004) 2 SCC 56 - stood disapproved.           C

     Krishna Kanwar (Smt.) @ Thakuraeen vs. State of
Rajasthan, 2004 (1) SCR 1101      =
                                (2004) 2 SCC 608 -
referred to.

     1.3. Though a portion of the contraband (opium) was      D
recovered from the vehicle to which s.50 is not applicable,
if the quantity recovered from the vehicle is excluded, the
remaining would not come within the mischief of
'commercial quantity' for imposition of such conviction
and sentence. Taking note of length of continuous period      E
in prison as on date and in view of non-compliance of
sub-s. (1) of s.50 in respect of recovery of contraband
from the appellants, the conviction and sentence imposed
on them by the trial court and confirmed by the High
Court is set aside. (para 13] [1174-F-G]                      F
                    Case Law Reference:
1999 (3) SCR 977             relied on            para 4
2010 (13) SCR 255            followed             para 4      G
(2000) 1 sec 101             stood disapproved para 6
2003 (6) Suppl. SCR 444      stood disapproved para 7
2004 (1) SCR 1101            referred to          para 8
                                                              H
    1160    SUPREME COURT REPORTS                 (2012] 10 S.C.R.


A       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 300 of 2009.

        From the Judgment & Order dated 23.08.2007 of the High
    Court of Madhya Pradesh Bench at Gwalior in Criminal Appeal
B   No. 738 and 772 of 2000.

       Dr. J.N. Dubey, Anurag Dubey, Meenesh Dubey, Anu
    Sawhney, S.R. Setia for the Appellants.

        C.D. Singh, Sakshi Kakkar for the Respondent.
c       The Judgment of the Court was delivered by

        P. SATHASIVAM,J. 1. This appeal is directed against the
  final judgment and order dated 23.08.2007 passed by the High
  Court of Madhya Pradesh, Bench at Gwalior in Criminal Appeal
D Nos. 738 and 772 of 2000 whereby the High Court dismissed
  the appeals filed by the appellants herein and confirmed the
  order of conviction and sentence dated 04.10.2000 passed by
  the Special Judge, Narcotic Drugs & Psychotropic Substances
  Act, Guna (M.P.) in Special Case No. 7of1998 by which they
E were convicted under Section 8 read with Section 18 of the
  Narcotic Drugs & Psychotropic Substances Act, 1985
  (hereinafter referred to as "the NDPS Act") and sentenced to
  undergo rigorous imprisonment for ten years with a fine of
  Rs.1,00,000/- with default stipulation.
F
        2. Brief facts:

        (a) On 30.07.1998, at about 1.30 p.m., Som Singh
        Raghuvanshi, SHO, Police Station Kumbhraj, along with
        the police party went from the police station to search for
G       the accused in connection with Crime No. 151 of 1998
        registered under Sections 302 and 201 of IPC. In the
        process of searching, when they came to Khatkya Tiraha,
        they saw that one Maruti Car was coming from the side of
        Beenaganj. When they tried to stop that car, the driver tried
H       to run away but they stopped the car and found three
SURESH & ORS. v. STATE OF MADHYA PRADESH 1161
            [P. SATHASIVAM, J.]

  persons sitting in it. On being asked about their names,       A
  they informed their names as Pramod, Suresh and Dinesh
  @ Pappu.

  (b) Under suspicious circumstances, Panchas Shri Lal and
  Rup Singh were called from the 'Tiraha' and consent of all
                                                                 8
  those persons was sought for their personal search and
  they gave their consent. After conducting the search,
  Panchnama was prepared. During search, they found that
  each of the appellants was having polythene bag in their
  possession which contained white colour substance and          C
  on its physical test, it was found "opium". The SDO (P),
  Radhogarh was informed about the incident. On weighing,
  all the three bags were contained 825 gms, 820 gms and
  800 gms of "Opium". Samples of 25 gms were taken
  separately from each of the packets and the contents were
  sealed. Thereafter, the vehicle was also searched and          D
  inside the front mudguard, six packets of polythene bag
  containing 'opium' were also recovered weighing 810 gms,
  820 gms, 690 gms, 820 gms, 800 gms and 615 gms
  respectively. Sample of 25 gms. from each of them were
  also taken and sealed. Thus, a total of 7 kg. Opium valued     E
  at Rs.1,03,575/- was seized from the appellants and they
  were arrested.

  (c) Thereafter, along with the appellants and seized
  articles, the police party came to Kumbhraj Police Station     F
  and FIR being Crime Case No. 165/1998 was registered
  against them under Section 8 read with Section 18 of the
  NDPS Act. After investigation, the police filed charge
  sheet against the accused persons and the Special Judge,
  NDPS Act, Guna framed charges under Section 8 read             G
  with Section 18 of the Act. After trial, the Special Judge,
  by order dated 04.10.2000, convicted all the three accused
  persons and sentenced them to undergo RI for ten years
  along with fine of Rs.1,00,000/- each, in default of payment
  of fine, each would suffer two years' additional RI.
                                                                 H
    1162    SUPREME COURT REPORTS               [2012) 10 S.C.R.


A       (d) Against the said order of conviction and sentence,
        Suresh and Pramod preferred appeal being Criminal
        Appeal No. 738 of 2000 and Dinesh preferred Criminal
        Appeal No. 772 of 2000 before the High Court. By
        common impugned judgment dated 23.08.2007, the High
B       Court dismissed both the appeals.

        (e) Aggrieved by the said judgment, the appellants have
        filed this appeal by way of special leave.

      3. Heard Dr. J.N. Dubey, learned senior counsel for the
C appellants and Mr. C.D. Singh, learned counsel for the
  respondent-State.

        4. The only point urged before us is about the non-
  compliance of Section 50 of the NDPS Act. According to Dr.
D J.N. Dubey, learned senior counsel for the appellant,
  considering the mandates provided under Section 50 of the
  NDPS Act as interpreted by two Constitution Benches of this
  Court, viz., State of Punjab vs. Baldev Singh, (1999) 6 SCC
  172 and Vijaysinh Chandubha Jadeja vs. State of Gujarat
E (2011) 1 SCC 609, the prosecuting authorities failed to apprise
  the right of the suspect provided under Section 50 of the NDPS
  Act, hence on this ground the conviction is to be set aside. On
  the other hand, Mr. C.D. Singh, learned counsel for the State
  by pointing out the Panchnama regarding consent for personal
  search submitted that the conditions prescribed in Section 50
F as explained in Ba/dev Singh's case (supra) have been fully
  complied with and prayed for dismissal of the appeal.

        5. Since the only question pertains to compliance of
    Section 50 of the NDPS Act, it is useful to refer the same:
G
              "50. Conditions under which search of persons
        shall be conducted.- (1) 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, take such person
H
 SURESH & ORS. v. STATE OF MADHYA PRADESH 1163
             [P. SATHASIVAM, J.]

     without unnecessary delay to the nearest gazetted officer       A
     of any of the departments mentioned in Section 42 or to
     the nearest Magistrate.

           (2) If such requisition is made, the officer may detain
     the person until he can bring him before the gazetted officer
                                                                     8
     or the Magistrate referred to in sub-section (1 ).

          (3) The gazetted officer or the Magistrate before
     whom any such person is brought shall, if he sees no
     reasonable ground for search, forthwith discharge the
     person but otherwise shall direct that search be made.          C

          (4) No female shall be searched by anyone excepting
     a female.

          (5) When an officer duly authorised under Section 42
    has reason to believe that it is not possible to take the        D
    person to be searched to the nearest gazetted officer or
    Magistrate without the possibility of the person to be
    searched parting with possession of any narcotic drug or
    psychotropic substance, or controlled substance or article
    or document, he may, instead of taking such person to the        E
    nearest gazetted officer or Magistrate, proceed to search
    the person as provided under Section 100 of the Code of
    Crlminal Procedure, 1973 (2 of 1974).

          (6) After a search is conducted under sub-section (5),     F
    the officer shall record the reasons for such belief which
    necessitated such search and within seventy-two hours
    send a copy thereof to his immediate official superior."

     After noticing divergence of opinion between different          G
Benches of this Court with regard to the ambit and scope of
Section 50 of the NDPS Act and, in particular with regard to
the admissibility of the evidence collected by an investigating
officer during search and seizure conducted in violation of the
provisions of Section 50, the issue was referred to the
Constitution Bench. These provisions have been interpreted by        H
    1164   SUPREME COURT REPORTS                  [2012] 10 S.C.R.


A the Constitution Bench in Baldev Singh's case (supra). After
  considering the mandate of the law as provided under Section
  50 of the NDPS Act and various earlier decisions, the
  Constitution Bench has concluded as under:

            "57. On the basis of the reasoning and discussion
B
       above, the following conclusions arise:

             (1) That when an empowered officer or a duly
       authorised officer acting on prior information is about to
       s~arch a person, it is imperative for him to inform the
c      person concerned of his right under sub-section (1) of
       Section 50 of being taken to the nearest gazetted officer
       or the nearest Magistrate for making the search. However,
       such information may not necessarily be in writing.

D            (2) That failure to inform the person concerned about
       the existence of his right to be searched before a gazetted
       officer or a Magistrate would cause prejudice to an
       accused.

             (3) That a search made by an empowered officer,
E      on prior information, without informing the person of his
       right that if he so requires, he shall be taken before a
       gazetted officer or a Magistrate for search and in case he
       so opts, failure to conduct his search before a gazetted
       officer or a Magistrate, may not vitiate the trial but would
F      render the recovery of the illicit article suspect and vitiate
       the conviction and sentence of an accused, where the
       conviction has been recorded only on the basis of the
       possession of the illicit article, recovered from his person,
       during a search conducted in violation of the provisions of
G      Section 50 of the Act.
             (4) That there is indeed need to protect society from
       criminals. The societal intent in safety will suffer if persons
       who commit crimes are let off because the evidence
       against them is to be treated as if it does not exist. The
H
SURESH & ORS. v. STATE OF MADHYA PRADESH 1165
            [P. SATHASIVAM, J.]
  answer, therefore, is that the investigating agency must A
  follow the procedure as envisaged by the statute
  scrupulously and the failure to do so must be viewed by
  the higher authorities seriously inviting action against the
  official concerned so that the laxity on the part of the
  investigating authority is curbed. In every case the end B
  result is important but the means to achieve it must remain
  above board. The remedy cannot be worse than the
  disease itself. The legitimacy of the judicial process may
  come under a cloud if the court is seen to condone acts
  of lawlessness conducted by the investigating agency c
  during search operations and may also undermine respect
  for the law and may have the effect of unconscionably
  compromising the administration of justice. That cannot be
  permitted. An accused is entitled to a fair trial. A conviction
  resulting from an unfair trial is contrary to our concept of
                                                                  0
  justice. The use of evidence collected in breach of the
  safeguards provided by Section 50 at the trial, would
  render the trial unfair.

        (5) That whether or not the safeguards provided in
  Section 50 have been duly observed would have to be             E
  determined by the court on the basis of the evidence led
  at the trial. Finding on that issue, one way or the other,
  would be relevant for recording an order of conviction or
  acquittal. Without giving an opportunity to the prosecution
  to establish, at the trial, that the provisions of Section 50   F
  and, particularly, the safeguards provided therein were duly
  complied with, it would not be permissible to cut short a
  criminal trial.

       (6) That in the context in which the protection has        G
  been incorporated in Section 50 for the benefit of the
  person intended to be searched, we do not express any
  opinion whether the provisions of Section 50 are
  mandatory or directory, but hold that failure to inform the
  person concerned of his right as emanating from sub-            H
     1166   SUPREME COURT REPORTS                  [2012] 10 S.C.R.


A       section (1) of Section 50, may render the recovery of the
        contraband suspect and the conviction and sentence of an
        accused bad and unsustainable in law.

               (7) That an illicit article seized from the person of an
        accused during search conducted in violation of the
B
        safeguards provided in Section 50 of the Act cannot be
        used as evidence of proof of unlawful possession of the
        contraband on the accused though any other material
        recovered during that search may be relied upon by the
        prosecution, in other proceedings, against an accused,
c       notwithstanding the recovery of that material during an
        illegal search.

              (8) A presumption under Section 54 of the Act can
        only be raised after the prosecution has established that
D       the accused was found to be in possession of the
        contraband in a search conducted in accordance with the
        mandate of Section 50. An illegal search cannot entitle the
        prosecution to raise a presumption under Section 54 of
        the Act.
E
              (9) xxx xxxx

              (10) xxx xxxx"

        6. After the decision in Baldev Singh's case (supra), a
F   Bench of three Judges of this Court in Joseph Fernandez vs.
    State of Goa, (2000) 1 SCC 707, has also considered the
    requirement of Section 50 of the NDPS Act and in para 2,
    observed as under:

        "Even then the searching officer informed him that "if you
G       wish you may be searched in the presence of a gazetted
        officer or a Magistrate". This according to us is in
        'substantial compliance' with the requirement of Section
        50. We do not agree with the contention that there was non-
        compliance with the mandatory provision contained in
H       Section 50 of the Act."
SURESH & ORS. v. STATE OF MADHYA PRADESH 1167
            [P. SATHASIVAM, J.]

    By saying so, after finding no reason to interfere with the      A
conviction and sentence passed on the appellant therein,
dismissed his appeal.

    7. In Prabha Shankar Dubey vs. State of M.P., (2004) 2
SCC 56, a two Judge Bench of this Court again considered             B
the object of Section 50 of the NDPS Act. The Bench also
extracted the conclusion arrived at in Ba/dev Singh's case
(supra). After adverting to those conclusions and relying on the
expression "substantial compliance" as '3tated in Joseph
Fernandez's case (supra) rejected the plea that there was non-       C
compliance with the requirement of Section 50 of the NDPS
Act and consequently dismissed the appeal.

     8. After the decision in Joseph Fernandez's case and
Prabha Shankar Dubey's case, on the one hand and Krishna
Kanwar (Smt.)@ Thakuraeen vs. State of Rajasthan, (2004)             D
2 sec 608 on the other, again the interpretation relating to
Section 50 was considered by the Constitution Bench in
Vijaysinh Chandubha Jadeja's case(supra). The question that
was posed before this Constitution Bench was whether Section
50 of the NDPS Act casts a duty on the empowered officer to          E
"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 presence of a Magistrate or a
gazetted officer can be said to be due compliance within the         F
mandate of the Section 50? Before going into the ultimate
conclusion arrived at by the Constitution Bench, the following
details mentioned in paragraph 2 are also relevant which are
as under:

           "2. When these appeals came up for consideration          G
     before a Bench of three Judges, it was noticed that there
     was a divergence of opinion between the decisions of this
     Court in Joseph Fernandez v. State of Goa, Prabha
     Shankar Dubey v. State of M.P. on the one hand and
     Krishna Kanwar v. State of Rajasthan on the other, with         H
    1168     SUPREME COURT REPORTS               [2012] 10 S.C.R.


A       regard to the dictum laid down by the Constitution Bench
        of this Court in State of Punjab v. Baldev Singh, in
        particular regarding the question whether before
        conducting search, the police officer concerned is merely
        required to ask the suspect whether he would like to be
B       produced before the Magistrate or a gazetted officer for
        the purpose of search or is the suspect required to be
        made aware of the existence of his right in that behalf
        under the law."

      In order to set the controversy raised, the Constitution
C Bench, at the foremost, recapitulated the decision arrived at by
  the Constitution Bench in Baldev Singh's case (supra). After
  considering all the earlier decisions, the latter Constitution
  Bench arrived at the following conclusions:

D             "24. Although the Constitution Bench in Baldev
        Singh case did not decide in absolute terms the question
       whether or not Section 50 of the NDPS Act was directory
       or mandatory yet it was held that provisions of sub-
       section (1 J of Section 50 make it imperative for the
E      empowered officer to «inform" the person concerned
       (suspect) about the existence of his right that if he so
       requires, he shall be searched before a gazetted officer
       or a Magistrate; failure to "inform" the suspect about the
       existence of his said right would cause prejudice to him,
F      and in case he so opts, failure to conduct his search before
       a gazetted officer or a Magistrate, may not vitiate the trial
       but would render the recovery of the illicit article suspect
       and vitiate the conviction and sentence of an accused,
       where the conviction has been recorded only on the basis
       of the possession of the illicit article, recovered from the
G
       person during a search conducted in violation of the
       provisions of Section 50 of the NDPS Act. The Court also
       noted that it was not necessary that the information
       required to be given under Section 50 should be in a
       prescribed form or in writing but it was mandatory that the
H
SURESH & ORS. v. STATE OF MADHYA PRADESH 1169
            [P. SATHASIVAM, J.]

  suspect was made aware of the existence of his right to          A
  be searched before a gazetted officer or a Magistrate. if
  so required bv him. We respectfully concur with these
  conclusions. Any other interpretation of the provision would
  make the valuable right conferred on the suspect illusory
  and a farce.                                                     B

                                         [Emphasis supplied]

         28. We shall now deal with the two decisions,
  referred to in the referral order, wherein "substantial
  compliance" with the requirement embodied in Section 50          C
  of the NDPS Act has been held to be sufficient. In Prabha
  Shankar Dubey a two Judge Bench of this Court culled
  out the ratio of Baldev Singh case on the issue before us,
  as follows: (Prabha Shankar Dubey case, SCC p. 64, para
  11)                                                              D

         "11 .... What the officer concerned is required to do
  is to convey about the choice the accused has. The
  accused (suspect) has to be told in a way that he
  becomes aware that the choice is his and not of the officer      E
  concerned, even though there is no specific form. The use
  of the word 'right' at relevant places in the decision of
  Baldev Singh case seems to be to lay effective emphasis
  that it is not by the grace of the officer the choice has to
  be given but more by way of a right in the 'suspect' at that
  stage to be given such a choice and the inevitable
                                                                   F
  consequences that have to follow by transgressing it."

        However, while gauging whether or not the stated
  requirements of Section 50 had been met on facts of that
  case, finding similarity in the nature of evidence on this       G
  aspect between the case at hand and Joseph Fernandez
  the Court chose to follow the views echoed in the latter
  case, wherein it was held that the searching officer's
  information to the suspect to the effect that "if you wish you
  may be searched in the presence of a gazetted officer or         H
    1170   SUPREME COURT REPORTS               [2012] 10 S.C.R.


A      a Magistrate" was in substantial compliance with the
       requirement of Section 50 of the NDPS Act. Nevertheless,
       the Court indicated the reason for use of expression
       "substantial compliance" in the following words: (Prabha
       Shankar Dubey case, SCC p. 64, para 12)
B
             "12. The use of the expression 'substantial
       compliance' was made in the background that the
       searching officer had Section 50 in mind and it was
       unaided by the interpretation placed on it by the
       Constitution Bench in Baldev Singh case4 • A line or a word
c
       in a judgment cannot be read in isolation or as if
       interpreting a statutory provision, to impute a different
       meaning to the observations."

       It is manifest from the afore-extracted paragraph that
D      Joseph Fernandez does not notice the ratio of Baldev
       Singh and in Prabha Shankar Dubey, Joseph Fernandez
       is followed ignoring the dictum laid down in Baldev Singh
       case.

E           29. 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
      minimise the allegations of planting or foisting of false
F
      cases by the law enforcement agencies, it would be
      imperative on the part of the empowered officer to apprise
      the person intended to be searched of his right to be
      searched before a gazetted officer or a Magi::trate. We
      have no hesitation in holding that insofar as the obligation
G
      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
      suspect and vitiate the conviction if the same is recorded
H
 SURESH & ORS. v. STATE OF MADHYA PRADESH 1171
             [P. SATHASIVAM, J.]

    only on the basis of the recovery of the illicit article from      A
    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.

         30. As observed in Presidential Poll, In re: (SCC p.
                                                                       B
    49, para 13)

            "13 .... It is the duty of the courts to get at the real
    intention of the legislature by carefully attending [to] the
    whole scope of the provision to be construed. 'The key to
    the opening of every law is the reason and spirit of the law,      C
    it is the animus imponentis, the intention of the law maker
    expressed in the law itself, taken as a whole.' "

          31. We are of the opinion that the concept of
    "substantial compliance" with the requirement of Section           D
    50 of the NDPS Act introduced and read into the mandate
    of the said section in Joseph Fernandez and Prabha
    Shankar Dubey is neither borne out from the language of
    sub-section (1) of Section 50 nor it is in consonance with
    the dictum laid down in Baldev Singh case. Needless to             E
    add that the question whether or not the procedure
    prescribed has been followed and the requirement of
    Section 50 had been met, is a matter of trial. It would
    neither be possible nor feasible to lay down any absolute
    formula in that behalf."
                                                                       F
     9. From the above, it is clear that the Constitution Bench
has not approved the concept of "substantial compliance" as
propounded in Joseph Fernandez (supra) and Prabha
Shankar Dubey (supra). Keeping the above principles, as laid
down in Vijaysinh Chandubha Jadeja's case (supra) which                G
considered all the earlier decisions including the decision in
Baldev Singh, in mind, let us consider whether the mandates
of Section 50 as interpreted have been fully complied with or
not?
                                                                       H
    1172        SUPREME COURT REPORTS               [2012) 10 S.C.R.


A        10. Since the main question roving only to "right to inform"
    about his choice, it is relevant to refer the Panchnama
    regarding consent for personal search which is as under:

        "Panchnama regarding consent for personal search
B       P.S. Kumbhraj, District Guna

        Crime Case No. 0/98

                                        Section 8/18 of N.D.P.S. Act
c       Place : A.B. Road, Khatakya Tiraha

        Dated: 30.7.98 at 09.30 O' Clock

        Names of witnesses:
D          1.    Sri Lal s/o Sri Narain by caste Dhobi aged 26
                 years 2/o Tapra Colony, Kumbhraj.

           2.    Bhup Singh s/o Ramnarain by caste Meena aged
                 25 years, r/o Kanakherhi P.S. Kumbhraj.
E
        In the presence of aforementioned 'panchas', I, the P.S.
        In-charge, asked the driver of Maruti Car No. D.N.C./7211
        namely, Pramod Kumar s/o Raghuvir Singh by caste
        Gadariya, aged 20 years, r/o Chitbhawan, P.S. Ekdil,
        District Etawah, Suresh, s/o Rambabu Khatik, aged 18
F
        years, r/o Village Chitbhawan, sitting with him in the case
        and Dinesh @ Pappu s/o Jagannath by caste Dube, aged
        25 years, r/o Tikri presently at village Ballapur, P.S. Ajitmal,
        District Etawah, sitting on the rear seat, regarding their
        personal search asking them as to whether they would
G       offer their personal search to me or to Gazetted Officer -
        S.D.O.P. Sahib. At this, all the three suspects gave their
        consent for their personal search by me, the P.S. In-
        charge, and they also agreed for search of the car by me.
        Panchnama regarding consent for search has been
H       prepared in the presence of the 'Panchas'.
 SURESH & ORS. v. STATE OF MADHYA PRADESH 1173
             [P. SATHASIVAM, J.]

                                            [Emphasis supplied]       A

     Sd/-                          Signature of suspects
     Sri Lal                      Sd/- Suresh
     Sd/- Pramod Kumar
     T.I. of Bhup Singh           Sd/- Dinesh Kumar @                 8
     Pappu
     Seen Sd/- (Illegible) 30.7.98"
        11. The above Panchnama indicates that the appellants
were merely asked to give their consent for search by the police
party and not apprised of .their legal right provided under           C
Section 50 of the NDPS Act to refuse/to allow the police party
to take their search and opt for being searched before the
Gazetted officer or by the Magistrate. In other words, a reading
of the Panchnama makes it clear that the appellants were not
apprised about their right to be searched before a gazetted           D
officer or a Magistrate but consent was sought for their personal
search. Merely asking them as to whether they would offer their
personal search to him, i.e., the police officer or to gazetted
officer may not satisfy the protection afforded under Section 50
of the NDPS Act as interpreted in Baldev singh's case. Further        E
a reading of the judgments of the trial Court and the High Court
also show that in the presence of Panchas, the SHO merely
asked all the three appellants for their search by him and they
simply agreed. This is reflected in the Panchnama. Though in
Baldev Singh's case, this Court has not expressed any opinion         F
as to whether the provisions of Section 50 are mandatory or
directory but "failure to inform" the person concerned of his right
as emanating from sub-section (1) of Section 50 may render
the recovery of the contraband suspect and the conviction and
sentence of an accused bad and unsustainable in law. In
Vijaysinh Chandubha Jadeja's case (supra), recently the               G
Constitution Bench has explained the mandate provided under
sub-section (1) of Section 50 and concluded that it is mandatory
and requires strict compliance. The Bench also held that failure
to comply with the provision would render the recovery of the
illicit article suspect and vitiate the conviction if the same is     H
\


     1174    SUPREME COURT REPORTS               [2012] 10 S.C.R.


A recorded only on the basis of the recovery of the illicit article
  from the person of the accused during such search. The
  concept of substantial compliance as noted in Joseph
  Fernadez (supra) and Prabha Shankar Dubey (supra) were
  not acceptable by the Constitution Bench in Vijaysinh
B Chandubha Jadeja, accordingly, in view of the language as
  evident from the panchnama which we have quoted earlier, we
  hold that, in the case on hand, the search and seizure of the
  suspect from the person of the appellants is bad and conviction
  is unsustainable in law.
c       12. We reiterate that sub-section (1) of Section 50 makes
  it imperative for the empowered officer to "inform" the person
  concerned about the existence of his right that if he so requires,
  he shall be searched before a gazetted officer or a Magistrate,
  failure to do so vitiate the conviction and sentence of an
D accused where the conviction has been recorded only on the
  basis of possession of the contraband. We also reiterate that
  the said provisiqn is mandatory and requires strict compliance.
        13. Though a portion of the contraband (opium) was
E recovered from the vehicle for which Section 50 is not
  applicable, if we exclude the quantity recovered from the vehicle,
  the remaining would not come within the mischief of 'commercial
  quantity' for imposition of such conviction and sentence. Taking
  note of length of period in prison and continuing as on date and
F in view of non-compliance of sub-section (1) of Section 50 in
  respect of recovery of contraband from the appellants, we set
  aside the conviction and sentence imposed on them by the trial
  Court and confirmed by the High Court.
       14. As a result, the appeal is allowed and the appellants
G are ordered to be released forthwith, if they are not required in
  any other case.
    R.P.                                          Appeal allowed.