VIJAYSINH CHANDUBHA JADEJAversusSTATE OF GUJARAT

               [2010] 13 (ADDL.) S.C.R. 255


            VIJAYSINH CHANDUBHA JADEJA                          A
                              v.
                   STATE OF GUJARAT
            (Criminal Appeal No. 943 of 2005)
                    OCTOBER 29, 2010
                                                                B
    [D.K. JAIN, B. SUDERSHAN REDDY, DR.
MUKUNDAKAM SHARMA; R.M. LODHA AND DEEPAK
                  VERMA, JJ.]

    Narcotic Drugs and Psychotropic Substances Act, 1985:       C
      Section 50 - Search of persons (suspects) -
Requirements - Expression "if the person to be searched so
requires" - Scope of - HELD: Obligation of the authorised
officer under sub-s.(1) of s.50 is mandfjtory and requires a 0
strict compliance - The mandate of s. 50 is precise and clear
- If the person intended to be searched expresses to the
authorised officer his desire to be taken to the nearest
gazetted officer or the Magistrate, he cannot be searched till ·
the gazetted officer or the Magistrate, as the case may be,
directs the authorised officer to do so - The insertion of sub- E
ss. (5) and (6) does not obliterate the mandate of sub-s.(1) to
inform the person to be searched of his right to be taken
before a gazetted officer or Magistrate -Though s.50 gives an
option to the empowered officer to take the suspect either
before the nearest gazetted officer or the magistrate, but in F
order to impart authenticity, transparency and credit worthiness
to the entire proceedings, in the first instance, an endeavour
should be made to produce the suspect before the nearest
Magistrate.
                                                                 G
      Section 50 - Object of - Explained.

    A Bench of three Judges of the Supreme Court
before which the instant appeals were listed for hearing,
                            255                                 H
    256     SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A felt that there was divergence of opinion as regards the
  dictum laid down by the Constitution Bench of the Court
  in Baldev Singh's case 1 • The appeal was, therefore,
  referred to the Constitution Bench. The question for
  consideration before the Court was: "whether Section 50
B of the Narcotic Drugs and Psychotropic Substances Act,
  1985 casts a duty on the empowered officer to 'inform'
  the suspect of his right to be searched in the presenc:e
  of a Gazetted Officer or a Magistrate, if he so desires or
  whether a mere enquiry by the said officer as to whether
c the suspect would like to be searched in the presence of
  a Magistrate or a Gazetted Officer can be said to be due
  compliance with the mandate of the said Section?"

          Answering the reference, the Court

D       HELD: 1.1 In order to prevent abuse of the provisions
    of the NDPS Act, which confer wide powers on the
    empowered officers, the safeguards provided by the
    Legislature have to be observed strictly. [para 12] [269-
    A-B]
E
         1.2 The issue before the Court in terms of the referral
    order is not about the applicability of s.50 of the NDPS
    Act per se but is confined to the scope and width of the
    expression "if the person to be searched so requires" as
    figuring in sub-s. (1) of the said Section. However, it may
    be seen that while considering the question of
    compliance with s. 50 of the NDPS Act, the Constitution
    Bench in Baldev Singh considered the provisions of s. 41
    as well. [para 16] [271-G-H; 272-A-B]     I



        1.3 The object with which the right u/s 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

    1.   State of Punjab vs. Baldev Singh 1999 (3) SCR 977.
    VIJAYSINH CHANDUBHA JADEJA v. STATE OF                 257
                   GUJARAT

  of planting or foisting of false cases by the law               A
  enforcement agencies, it would be imperative on the part
  of the empowered officer to apprise the suspect of his
  right to be searched before a gazetted officer or a
· Magistrate. In so far as the obligation of the authorised
  officer under sub-s. (1) of s. 50 is concerned, it is           B
  mandatory and requires a 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 only on the basis of the recovery of the
  illicit article from the person of the accused during such      c
  search. Thereafter, the suspect may or may not choose
  to exercise the right provided to him under the said
  provision. [para 22] [278-8-E]

   Re: Presidential Poll 1975 (1) SCR 504 = 1974 (2)
SCC 33 - referred to.                                             D

     1.4 Section 50 prescribes the conditions under which
personal search of a person is required to be conducted.
Sub-s. (1) of the said Section provides that when the
empowered officer is about to search any suspect, he              E
shall, if the person to be searched so requires, take him to
the nearest gazetted officer or the Magistrate for the
purpose. Under sub-s.(2), it is laid down that if such
request is made by the suspect, the officer who is to take
the search, may detain the suspect until he can be                F
brought before such gazetted officer or the Magistrate.
The mandate of s.50 is precise and clear, viz. if the person
intended to be searched expresses to the authorised
officer his desire to be taken to the nearest gazetted
officer or the Magistrate, he cannot be searched till the         G
gazetted officer or the Magistrate, as the case may be,
directs the authorised officer to do so. [para 14-15] [270-
A-B; 271-B-F]

     1.5 Although the Constitution Bench in Baldev Singh
 did not decide in absolute terms the question whether or         H
   258   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A not s. 50 of the NDPS Act was directory or mandatory yet
  it was held that provisions of sub-s. (1) of s. 50 make it
  imperative for the 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
s gazetted officer or a Magistrate; failure to "inform" the
  suspect about the existence of his said right would
  cause prejudice to him, and in case he so opts, failure to
  conduct his search before a gazetted o.ffi<;er or a
  Magistrate, may not vitiate the trial but would render the
c 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 person
  during a search conducted in violation of the provisions
  of s. 50. The Court also noted that it was not necessary
0
  that the information required to be given u/s 50 should
  be in a prescribed form or in writing but it was mandatory
  that the suspect was made aware of the existence of his
  right to be searched before a gazetted officer or a
  Magistrate, if so required by him. The Court concurred
E with the conclusions. Any other interpretation of the
  provision would make the valuable right conferred on the
  suspect illusory and a farce. [para 18] [274-0-H; 275-A]

      State of Punjab vs. Baldev Singh 1999 (3) SCR 977     =
F 1999 (6) sec 172 - explained and relied on.

       1.6 Sub-ss. (5) and (6) were inserted ins. 50 by Act 9
  of 2001. It is pertinent to note that although by t,he
  insertion of the said two sub-sections, the rigour of strict
G procedural requirement is sought to be diluted under the
  circumstances mentioned in the sub-sections, viz.-when
  the authorised officer has reason to believe that any delay
  in search of the person is fraught with the possibility of
  the person to be searched parting with possession of any
  narcotic drug or psychotropic substance etc., or article -
H
   VIJAYSINH CHANDUBHA JADEJA v. STATE OF                 259
                  GUJARAT
or document, he may proceed to search the person                 A
instead of taking him to the nearest gazetted officer or
Magistrate. However, even in such cases, a safeguard
against any arbitrary use of power has been provided
under sub-s.(6), viz. the empowered officer is obliged to
send a copy of the reasons, so recorded, to his immediate        B
official superior within seventy two hours of the search.
The insertion of these two sub-sections does not
obliterate the mandate of sub-s. (1) of s.50 to inform the
person, to be searched, of his right to be taken before a
gazetted officer or a Magistrate. [para 19] [275-8-F]            c
    1.7 The object and the effect of insertion of sub-ss.
(5) and (6) were considered by another Constitution
Bench of this Court in KamaH Singh**. Although in the
said decision the Court did observe that by virtue of
insertion of sub-ss. (5) and (6), the mandate given in           D
Baldev Singh's case is diluted, but the Court also opined
that it cannot be said that by the said insertion, the
protection or safeguards given to the suspect have been
taken away completely. [para 19] [275-E-G]         ·
                                                                 E
    **Kamai/ Singh Vs. State of Haryana 2009 (11) SCR 470
= 2009 (8) sec 539 - referred to.
      1.8 It can, thus, be seen that apart from the fact that
in Kamai/ Singh, the issue was regarding the scope and
applicability of s. 42 of the NDPS Act in the matter of          F
conducting search, seizure and arrest without warrant or
authorisation, the said decision does not depart from the
dictum laid down in Baldev Singh's case in so far as the
obligation of the em1fowered officer to inform the suspect
of his right enshrined in sub-s. (1) of s. 50 is concerned.      G
It is also plain from Kamai/ Singh's case that the flexibility
in procedural requirements in terms of the two newly
inserted sub-sections can be resorted to only in emergent
and urgent situations, contemplated in the provision, and
                                                                 H
    260 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A not as a matter of course. Additionally, sub-s. (6) of s. 50
  makes it imperative and obligatory on the authorised
  officer to send a copy of the reasons recorded by him for
  his belief in terms of sub-s. (5), to his immediate superior
  officer, within the stipulated time, which exercise would
B again be subjected to judicial scrutiny during the course
  of trial. [para 20] [276-D-G]

         1.9 As regards the judgments in Joseph Ffjrnandez
    and Prabha Shanakar Dubey£, it is manifest that Joseph
    Fernandez does not notice the ratio of Baldev Singh and
C   in Prabha Shankar Dubey, Joseph Fernandez is followed
    ignoring the dictum laid down in Baldev Singh's case. The
    concept of "substantial compliance" with the requirement
    of s. 50 of the NDPS introduced and read into the
    mandate of the said Section in Joseph Fernandez and
D   Prabha Shankar Dubey is neither borne out from the
    language of sub-s. (1) of s.50 nor is it in consonance with
    the dictum laid down in Baldev Singh's case. The question
    whether or not the procedure prescribed has been
    followed and the requirement of s.50 had been met, is a
E   matter of trial. It would neither be possible nor feasible
    to lay down any absolute formula in that behalf. Further,
    though s. 50 gives an option to the empowered officer to
    take such person (suspect) either before the nearest
    gazetted officer or the Magistrate but in order to impart
F   authenticity, transparency and creditworthiness to the
    entire proceedings, in the first instance, an endeavour
    should be to produce the suspect before the nearest
    Magistrate, who enjoys more confidence of the common
    man compared to any other officer. It would not only add
G   legitimacy to the search proceedings, it may verily
    strengthen the prosecution as well. [para 21-22] [278-A-
    B-F-H; 279-A-C]

      £Joseph Fernandez Vs. State of Goa 2000 (1) SCC 707
  Prabha Shankar Dubey Vs. State of M.P. 2003 (6) Suppl.
H SCR 444 = 2004 (2) SCC 56 - disapproved.
   VIJAYSINH CHANDUBHA JADEJA v. STATE OF                 261
                  GUJARAT              ,
     Krishna Kanwar (Smt) alias Thakuraeen Vs. State of         A
Rajasthan 2004 (1) SCR 1101 = 2004 (2) SCC 608 -
referred to.

     Beckodan Abdul Rahiman Vs. State of Kera/a 2002
(3) SCR 53 = 2002 (4) SCC 229; M.Prabhu/al Vs. Assistant        B
Director, Directorate of Revenue Intelligence 2003 (3) Suppl.
 SCR 958 = 2003 (8 ) SCC 449; and Union of India Vs.
Satrohan 2008 (10) SCR 888 = 2008 (8) SCC 313; Ahmed
Vs. State of Gujarat (2000) 7 SCC 477; State of Rajasthan
Vs. Ram Chandra 2005 (3) SCR 496 =2005 (5) SCC 151;
State of Punjab Vs. Balbir Singh 1994 (2) SCR 208 =1994         C
(3) SCC 299; Saiyad Mohd. Saiyad Umar Saiyad & Ors. Vs.
State of Gujarat 1995 (3) SCR 117 = 1995 (3) SCC 610; Ali
Mustaffa Abdul Rahman Moosa Vs. State of Kera/a 1994 (4)
Suppl. SCR 52 = 1994 (6) sec 569 - cited.
                                                                D
                     Case Law Refeence:
   2000 (1) sec 707             disapproved     para 2
   2003 (6) Suppl. SCR 444      disapproved     para 2
   2004 (1) SCR 1101            referred to     para 2          E

  1999 (3) SCR 977              relied on       para 2
  2002 (3) SCR 53               cited           para 7
  2003 (3) Suppl. SCR 958       cited           para 8          F
                     !'
  2008 (10) SCR 888             cited           para 8
  (2000) 1 sec 477              cited           para 8
  2005 (3) SCR 496              cited           para 9
                                                                G
  1994 (2) SCR 208              cited           para 10
  1995 (3) SCR 117              cited           para 10
  1994 (4) Suppl. SCR 52        cited           para 10
                                                                H
    262    SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A     2009 (11) SCR 470              referred to      para 19
      1975 (1) SCR 504               cited            para 22

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 943 of 2005.
B
        From the Judgment & Order dated 21.10.2002 of the High
    Court of Gujarat at Ahmedabad in Criminal Appeal No. 962 of
    1999.

                                WITH
c
    Crl. A. No. 974 of 2003.

    Crl. A. No. 809 of 2009.

       Pravin H. Parekh Siddharth Luthra, S.K. Dubey, P.P.
D Malhotra, ASG, Sameer Parekh, Lalit Chauhan, Ranjeeta
  Rohatgi, Rajat Nair, Pallavi Srivastava (for Parekh & Co.) Tara
  Chandra Sharma, Neelam Sharma, Ajay Sharma, Kishan
  Datta, Chittaranjan, Radha Shyam Jeena, Hemantika Wahi,
  Jesal, Somnath Pradhan, Ranjan Mukherjee, S. Bhowmick,, P.K.
E Dey, Shashi Kumar Dubey, Sadhna Sandhu, Anil Katiyar and
  Subhash Kaushik for the appearing parties.

          The Judgment of the Court was delivered by

F      D.K. JAIN, J. 1. 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 "the NDPS Act") casts a duty on the empowered
  officer tb 'inform' the suspect of his right to be searched in the
G 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 with the mandate of the said Section?

H
       VIJAYSINH CHANDUBHA JADEJA v. STATE OF                    263
                 GUJARAT [D.K. JAIN, J.]
       2. When these appeals came up for consideration before            A
  a bench of three Judges, it was noticed that there was a
  divergence of opinion between the decisions of this Court in
  the case of Joseph Fernandez Vs. State of Goa 1, Prabha
  Shankar Dubey Vs. State of M. P. 2 on the one hand and
  Krishna Kanwar (Smt) alias Thakuraeen Vs. State of                     B
· Rajasthan 3 on the other, with regard to the dictum laid down
  by the Constitution Bench of this Court in State of Punjab Vs.
  Ba/dev Singh 4 , in particular regarding the question whether
  before conducting search, the concerned police officer is
  merely required to ask the suspect whether he would like to be         C
  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. It would
  be expedient to extract the relevant portion of the order:-

               "When the matter came up before this Court, it was        D
        found that in some of the decisions rendered by this Court,
        a slightly different view was taken than what was expressed
        by the Constitution Bench with regard to interpretation of
        Section 50 of the NDPS Act. In the case Joseph
        Fernandez Vs. State of Goa, 2001 (1) SCC p.707, a                E
        Bench of three Hon'ble Judges held that even when the
        searching officer informed him that "if you wish you may
        be searched in the presence of a gazetted officer or a
        Magistrate"; it was held that it was in substantial
        compliance with the requirement of Section 50 of the             F
        NDPS Act, and the Court observed that it did not agree
        with the contention that there was non-compliance of the
        mandatory provisions contained in Section 50 of the
        NDPS Act. In another decision of this Court in Prabha
        Shankar Dubey Vs. State of M.P. 2004(2) SCC p.56, the            G
        following information was conveyed to the accused: "By
  1.   (2000) 1 sec 101.
  2.   (2004) 2 sec 56.
  3.   (2004) 2 sec 608.
  4.   (1999) 6 sec 112.                                                 H
    264 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A      way of this notice, you are informed that we have received
       information that you are illegally carrying opium with you,
       therefore, we are required to search your scooter and you
       for this purpose. You would like to give me search or you
       would like to be searched by a gazetted officer or by a
B      Magistrate". This was held to be substantial compliance
       of Section 50 of the NDPS Act. In Krishan Kanwar (Smt.)
       Alias Thakuraeen Vs. State of Rajasthan, 2004(2) SCC
       p.608, the same question was considered and it was held
       that there is no specific form prescribed or initiated for
       conveying the information required to be given under
c      Section 50 of the NDPS Act and it was held that "what is
       necessary is that the accused (suspect) should be made
       aware of the existence of his right to be searched in the
       presence of one of the officers named in the section itself.
       Since no specific mode or manner is prescribed or
D      intended, the court has to see the substance and not the
       form of intimation. Whether the requirement of Section 50
       have been met is a question which is to be decided on
       the facts of each case and there cannot be any sweeping
       generalization and/or a straitjacket formula.
E


              Thus, in a way, it all depends on the oral evidence
       of the officer who conducts search, in case nothing is
       mentioned in the search mahazar or any other
F
       contemporaneous document prepared at the time of
       search. In view of the large number of cases coming up
       under the provisions of the NDPS Act the interpretation of
       Section 50 of the Act requires a little more clarification as
       its. applicability is quite frequent in many cases. In
G      appreciating the. law laid down by the Constitution Bench
       in Baldev Singh's case (supra), we have noticed that
       conflicting decisions have been rendered by this court. We
       feel that the matter requires some clarification by a larger
       Bench. The matter be placed before the Hon'ble Chief
H
   VIJAYSINH CHANDUBHA JADEJA v. STATE OF                     265
             GUJARAT [D.K. JAIN, J.]
    Justice of India for taking further action in this regard."       A

That is how these appeals came to be placed before this
Constitution Bench.

     3. Since the cases have come up before us for a limited
purpose of clarification as to the interpretation of Section 50       B
of the NDPS Act by the Constitution Bench in Baldev Singh's
case (supra), we deem it unnecessary to state the background
facts, giving rise to these appeals.

    4. We have heard learned counsel for the appellant, State         c
of Gujarat, State of West Bengal, Government of National
Capital Territory of Delhi and learned Additional Solicitor
General on behalf of Union of India.

     5. Mr. P.H. Parekh, learned senior counsel appearing on
                                                                      D
behalf of appellant (Criminal Appeal No.943 of 2005),
strenuously urged that a conjoint reading of Section 50(1) and
50(3) of the NDPS Act, in its common grammatical connotation,
makes it abundantly clear that the procedural safeguards
envisaged under Section 50 are to be employed effectively and
honestly while informing, apprising and advising the suspect of       E
his vested fight to be searched only by a Gazetted Officer or a
Magistrat~. It was contended that the ambit of statutory
protection' granted by the Parliament under Section 50(1) of the
NDPS Act having been explained unambiguously and clearly
by the Constitution Bench in the case of Baldev Singh (supra),        F
there is no scope for any other interp,retation or clarification of
Section 50 of the NDPS Act.

     6. Learned counsel vehemently contended that in the light
of the dictum laid down in Baldev Singh (supra), the decisions        G
of this Court in Joseph Ferna.ndez (supra) and Prabha
Shankar Dubey (supra) wherein the concept of 'substantial
compliance' has been erroneously read into Section 50 of the
NDPS Act, do not lay down the correct proposition of law. It
was argued that Section 50 being the only safeguard provided
                                                                      H
    266   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A to the suspect under the NDPS Act, the legislature, while
  enacting it, gave it the character of a "due process" clause,
  thereby placing some minimum procedural limitations on the
  exercise of such extensive statutory power, by insisting on the
  strict observance of the procedure established under the said
s Section. According to the _learned counsel, this safeguard is
  meant to ensure that the powers under the NDPS Act are not
  abused and a person is not falsely implicated and subjected
  to grave consequences which are likely to follow under the said
  Act. Relying on the decision of this Court in Beckodan Abdul
c Rahiman Vs. State of Kera/a 5 , learned counsel submitted that
  the harsh provisions of the NDPS Act cast a heavier duty upon
  the prosecution to strictly follow and comply with the safeguards.

       7. Learned counsel thus, argued that the theory of
  'substantial compliance' cannot be applied to defeat, negate
D or neutralise important safeguards provided by the legislature.
  It was asserted that merely asking the suspect whether he
  would like to be produced before a Magistrate or a Gazetted
  Officer for the purpose of the search can never amount to due
  compliance with Section 50 of the NDPS Act.
E
        8. Mr. Siddharth Luthra, learned senior counsel appearing
  on behalf of State of Gujarat, on the other hand, submitted that
  the rigours of Section 50 of the NDPS Act are neither
  applicable to the officers who have been empowered by a
F warrant under Section 41 (1 ); nor to the gazetted/empowered
  officers who order search or arrest under Section 41(2). It was
  argued that Section 41(1) of the NDPS Act grants the
  Magistrate the power to issue warrants for arrest or search,
  whether by day or night, inter alia, in relation to a person whom
G the Magistrate has reason to believe has committed an offence
  under the NDPS Act. It was urged that a reading of Sections
  41 (1 ), 41(3), 42, 43 and 50 of the NDPS Act shows that an
  officer acting under a warrant by a Magistrate under Section
  41 (1) would not fall within the ambit of Section 50(1) of the

H 5. (20021 4 sec 229.
     VIJAYSINH CHANDUBHA JADEJA v. STATE OF                   267
               GUJARAT [D.K. JAIN, J.]
NDPS Act. It was submitted that from the language of Section. A
41 (2) of the NDPS Act, it is clear that the Central Government·
or the State Government, as the case may be, can only
empower an officer of a gazetted rank who can either himself
act or authorise his subordinate on the terms stated in the.
Section. On the contrary, however, under Section 42(1) of the B
NDPS Act, there is no restriction on the Central Government
or the State Government to empower only a gazetted officer
and, therefore, additional checks and balances over officers
acting under Section 42 have been provided in the proviso to
Section 42(1) and in Section 42(2) of. the !\!DPS Act. It was, . C
thus, contended that the language of Section 42 of the NDPS
Act makes it clear that the provision applies only to an officer
empowered under Section 42( 1) and not an empowered
Gazetted Officer under Section 41 (2) of the NDPS Act. In
support of the submission that a distinction between a Gazetted
Officer and an officer acting under Section 42 of the NDPS Act D
has to be maintained, learned counsel commended us to the
decisions of this Court in M. Prabhulal Vs. Assistant Director,
Directorate of Revenue lntelligence 6 and Union of India Vs.
Satrohan 7 . It was pleaded that the divergent view on the point
expressed by this Court in Ahmed Vs. State of GujarafB, does · E
not lay down the correct proposition of law.

      9. It ~s then contended by Mr. Luthra that a reading of
sub-sections (1) and (3) of Section 50 of the NDPS Act makes
it clear that the.right granted to a suspect is not the right to be   F
searched before:the nearest Gazetted Officer or nearest
Magistrate,'but the right to be taken before the nearest Gazetted
Officer or ·nearest Magistrate, whereupon such officer or
Magistrate :is duly empowered under Section 50(3), to either
discharge the suspect from detention or direct that a search          G
be made.    In support of the proposition, reliance is placed on a

6.   (2003) 8 sec 449
7. (2ooai a ~cc 313.
8. (2000) 7 sec 477.
                                                                      H
   268     SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A decision of this Court in State of Rajasthan Vs. Ram Chandra 9 •

       10. Learned counsel also submitted that the decisions of
  this Court in State of Punjab Vs. Ba/bir Singh 10 , Saiyad Moi1d.
  Saiyad Umar Saiyad & Ors. Vs. State of Gujarat 11, Ali Mustaffa
  Abdul Rahman Moosa Vs. State of Kerata 12 and affirmed in
8 Baldev Singh (supra) have all read the phrase 'for making the
  search' into Section 50(1) of the NDPS Act, which has led to
  safeguards and protections· to an accused person, as
  envisaged under Section 50 of the !\DPS Act to be read down,
  making the said provision virtually ineffective and, therefore, the
C decision of this Court in· Baldev Singh (supra) needs
  reconsideration.

        11. Adopting the same line of arguments, Mr. P.P.
  Malhotra, the learned Additional Solicitor General, appearing
o on behalf ·of the Government of NCT of Delhi maintained that it
  is clear fiom language of Sections 41 (2), 42 and 43 of the
  NDPS Act that the legislature has dealt with gazetted offic.ers
  differently, reposing higher degree of trust in them and,
  therefore, if a search of a person is conducted by a gazetted
E officer, he would not be required to comply with the rigours of
  Section 50(1) of the Act. It was argued that the view expressed
  by this Court in Ahmed (supra), is incorrect and. therefore,
  deserves to be reversed.

      12. The NDPS Act was enacted in the year 1985, with a
F view to consolidate and amend the law relating to narcotic
  drugs, incorporating stringent provisions for control and
  regulation of operations relating to narcotic drugs and
  psychotropic substances. The object of the said legislation has
  been explained time and again by this Court in a plethora of
G cases and, therefore, we f~el that it is not necessary to delve
   9.   (2005) s sec 151.
   10. (1994) 3 sec 299.
   11. (1995) 3 sec 510.
H 12. (1994) 6 sec 569.
   VIJAYSINH CHANDUBHA JADEJA v. STATE OF                    269
             GUJARAT [D.K. JAIN, J.]

upon this aspect all over again, except to re-emphasise that in A
order to prevent abuse of the provisions of the NDPS Act,
which confer wide powers on the empowered officers, the
safeguards provided by the Legislature have to be observed.
strictly. Moreover, having regard to the terms of reference to.
the larger Bench, extracted above, it is equally unnecessary to-~ B
extract extensively all the provisions of the NDPS Act to which
reference was made by learned counsel appearing for the
States, and a brief reference to these provisions would suffice.
                               I
      13. Under Section 41 of the NDPS Act, certain classes of       C
Magistrates are competent to issue warrants for the arrest of
any person whom such Magistrates have reason to believe to
have committed any offence punishable under the NDPS Act,
or for the search of any building, conveyance or place in which
such Magistrate has reason to believe any narcotic drug or
psychotropic substance or controlled substance in respect of         D
which an offence punishable under the said Act has been
committed. or any document or other article which may furnish
evidence of the commission of such offence or any illegally
acquired property or any document or other article which may
furnish evidence of holding any illegally acquired property which    E
is liable for seizure or freezing or forfeiture under Chapter VA
is kept or concealed. Under Section 42 of the NDPS Act, the
empowered officer can enter, search, seize and arrest even
without warrant or authorisation, if he has reason to believe from
his personal knowledge or information taken down in writing,         F
that an offence under Chapter IV of the said Act has been
committed. Under proviso to sub-section (1 ), ·if such officer has
reason to believe that a search warrant or authorisation cannot
be obtained without affording opportunity for the concealment
of evidence or facility for the escape of an offender, he may        G
enter and search such building, conveyance or enclosed place
at any time between sunset and sunrise after recording the
grounds of his belief and send the same to his immediate
official superior in terms of sub-section (2) of the Section.
                                                                     H
    270     SUPREME COURT REPORTS [2010} 13 (ADDL.) S.C.R.


A      14. Section 50 of the NDPS Act prescribes the conditions
  under which personal search of a person is required to be
  conducted. Being the pivotal provision, the Section, (as
  amended by Act 9 of 2001 - inserting sub-sections (5) and (6)
  with effect from 2nd October 2001) i~ extracted in full. It reads
B as under:

          "50. Conditions under which search of persons shall be
          conducted.-(1) When any officer duly authorised Linder
          section 42 is about to search any person under the
          provisions of section 41 , section 42 or section 43, he shall,
c         if such person so requires, take such person without
          unnecessary delay to the nearest Gazetted Officer of any
          of the departments mentioned in section 42 or to the
          nearest Magistrate.

D         (2) If such requisition is made, the officer may detain the
          person until he can bring him before the Gazetted Officer
          or the Magistrate referrecl 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
E
          ground for search, forthwith discharge the person but
          otherwise shall direct that search be made.

          (4) No female shall be searched by anyone excepting a
          female.
F
          (5) When an officer duly authorised under section 42 has
          reason to believe that it is not possible to take the person
          to be searched to the nearest Gazetted Officer or
          Magistrate without the possibility of the person to be
G         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
          nearest Gazetted Officer or Magistrate, proceed to search
          the person as provided under section 100 of the Code of
          Criminal Procedure, 1973 (2 of 1974).
H
   VIJAYSINH CHANDUBHA JAOEJA v. STATE OF                     271
             GUJARAT [D.K. JAIN, J.)
    (6) After a search is conducted under sub-section (5), the        A
    officer shall record the reasons for such belief Which
    necessitated such search and within seventy-two hours
                                                                9
    send a copy thereof to his immediate official superior.

      15. Sub-section (1) of the said Section provides that when
                                                                      8
the empowered officer is about to search any suspected
person, he shall, if the person to be searched so requires, take
him to the nearest gazetted officer or the Magistrate for the
purpose. Under sub-section (2), it is laid down that if such
request is made by the suspected person, the officer who is to
take the search, may detain the suspect until he can be brought       C
before such gazetted officer or the Magistrate. It is manifest that
if the suspect expresses the desire to be taken to the gazetted
officer or the Magistrate, the empowered officer is restrained
from effecting the search of the person concerned. He can only
detain the suspect for being produced before the gazetted             D
officer or the Magistrate, as the case may be. Sub-section (3)
lays down that when the person to be searched is brought
before such gazetted officer or the Magistrate and such
gazetted officer or the Magistrate finds that there are no
reasonable grounds for search, he shall forthwith discharge the       E
person to be searched, otherwise he shall direct the search to
be made. The mandate of Section 50 is precise and clear, viz.
if the person intended to be searched expresses to the
authorised officer his desire to be taken to the nearest gazetted
officer or the Magistrate, he cannot be searched till the gazetted    F
officer or the Magistrate, as the case may be, directs the
authorised officer to do so.

     16. At this juncture, we must state that the issue before us
in terms of the referral order is not about the applicability of      G
Section 50 of the NDPS Act per se but is confined to the scope
and width of the expression "if the person to be searched so
requiresn as figuring in sub-section (1) of the said Section.
Therefore, we deem it unnecessary to evaluate the submissions
made by the learned counsel regarding the applicability of the
                                                                      H
    272    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   rigours of Section 50 of the NDPS Act when a search of the
    suspect is conducted by an officer empowered under Section
    41 of the said Act. We may, however, add that while
    considering the question of compliance with Section 50 of the
    NDPS Act, the Constitution Bench in Baldev Singh (supra)
    considered the provisions of Section 41 as well. It observed
    as under:-

          "8. Section 41 of the NDPS Act provides that a
          Metropolitan Magistrate or a Magistrate of the First Class
          or any Magistrate of the Second Class specially
c         empowered by the State Government in this behalf, may
          issue a warrant for the arrest of and for search of any
          person whom he has reason to believe to have committed
          any offence punishable under Chapter IV. Vide sub-section
          (2) the power has also been vested in gazetted officers of
D         the Departments of Central Excise, Narcotics, Customs,
          Revenue Intelligence or any other department of the
          Central Government or of the Border Security Force,
          empowered in that behalf by a general or special order of
          the State Government to arrest any person, who he has
E         reason to believe to have committed an offence punishable
          under Chapter IV or to search any person or conveyance
          or vessel or building etc. with a view to seize any
          contraband or document or other article which may furnish
          evidence of the commission of such an offence, concealed
F         in such building or conveyance or vessel or place."

        17. In the above background, we shall now advert to the
   controversy at hand. For this purpose, it would be necessary
   to recapitulate the conclusions, arrived at by the Constitution
G ·Bench in Baldev Singh's case (supra). We are concerned with
   the following conclusions:-

          "57. (1) That when an empowered officer or a duly
          authorised officer acting on prior information is about to
          search a. person, it is imperative for him to inform the
H         person concerned of his right under sub-section (1) of
VIJAYSINH. CHANDUBHA JADEJA v. STATE OF                     273
           GUJARAT [D.K. JAIN, J.]
 Section 50 of being taken to the nearest gazetted officer         A
 or the nearest Magistrate for making the search. However,
 such information may not necessarily be in writing.

~(2) That failure to inform the person concerned about the
 existence of his right to be searched before a gazetted           8
 officer or a Magistrate would cause prejudice to an
 accused.

 (3) That a search made by an empowered officer, on prior
 information, without informing the person of his right that if
 he so requires, he shall be taken before a gazetted officer       C
 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 render the
 recovery of the illicit article suspect and vitiate the
 conviction and sentence of an accused, where the                  D
 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
 Section 50 of the Act.
                                                                   E
       xxxxx xxxxx xxxxx xxxxx
 (5) That whether or not the safeguards provided in Section
 50 have been duly observed would have to be 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             F
 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 and,
 particularly, the safeguards provided therein were duly
 complied with, it would not be permissible to cut short a         G
 criminal trial.

(6) That in the context in which the protection has been
incorporated in Section 50 for the benefit of the person
intended to be searched, we do not express any opinion
                                                                   H
    274     SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


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

          (7) That an illicit article seized from the person (]If an
          accused during search conducted in violation of the
          safeguards,.,,provided in Section 50 of the Act cannot be
          used as-evidence of proof of unlawful possession of the
c         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,
          notwithstanding the recovery. of that material during an
          illegal search."
D
          18. Although the Constitution Bench 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) of Section 50 make it imperative
E   for the 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, and in case he so opts.
F   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,
G   recovered from the 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   suspect was made aware of the existence of his right to be
   VIJAYSINH CHANDUBHA JADEJA v. STATE OF                      275
             GUJARAT [D.K. JAIN, J.]
searched before a gazetted officer or a Magistrate, if so             A
required by 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.

      19. As noted above, sub-sections (5) and (6) were inserted
in Section 50 by Act 9 of 2001 . It is pertinent to note that         8
although by the insertion of the said two sub-sections, the rigour
of strict procedural requirement is sought to be diluted under
the circumstances mentioned in the sub-sections, viz. when the
authorised officer has reason to believe that any delay in search
of the person is fraught with the possibility of the person to be     C
searched parting with possession of any narcotic drug or
psychotropic substance etc., or article or document, he may
proceed to search the person instead of taking him to the
nearest gazetted officer or Magistrate. However, even in such
cases a safeguard against any arbitrary use of power has been         D
provided under sub-section (6). Under the said sub-section, the
empowered officer is obliged to send a copy of the reasons,
so recorded, to his immediate official superior within seventy
two hours of the search. In our opinion, the insertion of these
two sub-sections does not obliterates the mandate of sub-             E
section (1) of Section 50 to inform / the person, to be searched,
of his right to be taken before a gazetted officer or a Magistrate.
The object and the effect of insertion of sub-sections (5) and
(6) were considered by a Constitution Bench of this Court, of
which one of us (D.K. Jain, J.) was a member, in Kamai/ Singh         F
 Vs. State of Haryana 13 • Although in the said decision the Court
did observe that by virtue of insertion of sub-sections (5) and
(6), the mandate given in Baldev Singh's case (supra) is diluted
but the Court also opined that it cannot be said that by the said
insertion, the protection or safeguards given to the suspect have     G
been taken away completely. The Court observed :-

     'Through this amendment the strict procedural requirement
     as mandated by Baldev Singh case was avoided as
13. (2009) a sec 539.                                                 H
    276    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A         relaxation and fixing of the reasonable time to send the
          record to the superior official as well as exercise of
          Section 100 CrPC was included by the legislature. The
          effect conferred upon the previously mandated strict
          compliance with Section 50 by Baldev Singh case was
B         that the procedural requirements which may have
          handicapped an emergency requirement of search and
          seizure and give the suspect a chance to escape were
          made directory based on the reasonableness of such
          emergency situation. Though it cannot be said that the
          protection or safeguard given to the suspects have been
c/        taken away completely but certain flexibility in the
          procedural norms were adopted only to balance an urgent
          situation. As a consequence the mandate given in Baldev
          Singh case is diluted."

D      20. It can, thus, be seen that apart from the fact that in
  Kamai/ Singh (supra}, the issue was regarding the scope and
  applicability of Section 42 of the NDPS Act in the matter of
  conducting searcn, seizure and arrest without warrant or
  authorisation, the said decision does not depart from the dictum
E laid down in Baldev Singh's case (supra) in so far as the·
  obligation of the empowered officer to inform the suspect of his
  right enshrined in sub-section (1) of Section 50 of the NDPS
  Act is concerned. It is also plain from the said paragraph that
  the flexibility in procedural requirements in terms of the two
F newly inserted sub-sections can be resorted to only in emergent
  and urgent situations, contemplated in the provision, and not
  as a matter of course. Additionally, sub-section (6) of Section
  50 of the NDPS Act makes it imperative and obligatory on the
  authorised officer to send a copy of the reasons recorded by
G him for his belief in terms of sub-section (5), to his immediate
  superior officer, within the stipulated time, which exercise would
  again be subjected to judicial scrutiny during the course of trial.

         21. We shall now deal with the two decisions, referred to
    in the referral order, wherein "substantial compliance" with the
H
    VIJAYSINH CHANDUBHA JADEJA v. STATE OF                     277
              GUJARAT [D.K. JAIN, J.]
requirement embodied in Section 50 of the NDPS Act has                A
been held to be sufficient. In Prabha Shankar Dubey (supra),
a two Judge bench of this Court culled out the ratio of Baldev
Singh's case (supra), on the issue before us, as follows:

     "What the officer concerned is required to do is to convey       B
     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 concerned, even though
     there is no specific form. The use of the word "right" at
     relevant places in the decision of Baldev Singh case             C
     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 consequences that have
     to follow by transgressing it."
                                                                      D
 However, while gauging whether or not the stated requirements
 of Section 50 had been met on facts of that case, find~ng
 similarity in the nature of evidence on this aspect between the
 case at hand and Joseph Fernandez (supra), the Court chose
 to follow the views echoed in the latter case, wherein it was held   E
 that searching officer's information to the susped to the effect
 that "if you wish you may be searched in the presence of a
 gazetted officer or 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              F
·expression "substantial compliance" in the following words:

     "The use of the expression "substan_tial 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 . G
     case. A line or a word 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 Joseph         H
       278    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A      Fernandez (supra) does not notice the ratio of Baldev Singh
       (supra) and in Prabha Shankar Dubey (supra), Joseph
       Fernandez (supra) is followed ignoring the dictum laid down
       in Baldev Singh's case (supra).

8
               22. In view of the foregoing discussi.on, we are of the firm
       opinion that the object with which 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
C      or foisting of false cases by the law enforcement agencies, it
       would be imperative on the part of the empowered officer to
       apprise the person intended to be s.earched of his right to be
       searched before a gazetted officer or a Magistrate. We have
       no hesitation in holding that in so far as the obligation of the
       authorised officer under sub-section (1) of Section 50 of the
D      NDPS Act is concerned, it is mandatory and requires a 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 only on the basis of the recovery of the
       illicit article from the person of the accused during such search.
E      Thereafter, the suspect may or may not choose to exercise the
       right provided to him under the said provision. As observed in
       Re Presidential Po/1 14, 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
F      opening of every law is the reason and spirit of the law, it is
       the animus imponentis, the intention of the law maker
       expressed in the law itself, taken as a whole." We are of the
       opinion that the concept of "substantial compliance" with the
       requirement of Section 50 of the NDPS Act introduced and
G      read into the mandate of the said Section in Jos.eph Fernandez
       (supra) and Prabha Shankar Dubey (supra) 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's
       case (supra). Needless to add that the question whether or not
1-;1   14. (t974) 2 sec 33.
   VIJAYSINH CHANDUBHA JADEJA v. STATE OF                     279
             GUJARAT [D.K. JAIN, J.]
the procedure prescribed has been followed and the                   A
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. We also feel that though Section 50 gives
an option to the empowered officer to take such person
(suspect) either before the nearest gazetted officer or the          a
Magistrate but in otder to impart authenticity, transparency and
creditworthiness to the enttre proceedings, in the first instance,
an endeavour should be to produce the suspect before the
nearest Magistrate, who enjoys more confidence of the
common man compared to any other officer. It would not only          c
add legitimacy to the search proceedings, it may verily
strengthen the prosecution as well.

       23. Accordingly, we answer the reference in the manner
aforesaid. The appeals shall, now, be placed before the
appropriate Bench for disposal.                                      D

R.P.                                     · Reference answered.