Criminal Law :

Narcotic Drugs and Psychotropic Substances Act, 1985 :

Section 50 - Search - Provisions - Due compliance of - Held : It is imperative and obligatory for the Investigating Officer to inform the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate - However, it is not necessary to give this information in writing; it is sufficient if it is communicated orally - Omission to give such information would not vitiate the trial but would render the recovery of illicit article illegal - The conviction and sentence, if recorded on the sole basis of possession of such illicit article, would be unsustainable - S.50 provides for a reasonable, fair and just procedure which must be honoured.

Section 50(1) - Search - "If such person so requires" - Meaning of - Held : If the person (suspect) concerned requires to be searched in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so or else the conviction and sentence based solely on the recovery of illicit article would be bad - Court must give opportunity to the prosecution to establish due compliance with S.50 and must be satisfied about such compliance.

Sections 50 and 54 - Search - In violation of S.50 - Illicit article seized during such search - Use of - Held : Cannot by itself be used as evidence of proof of unlawful possession - Other material recovered during that search can, however, be relied upon by the prosecution in other proceedings against an accused - An illegal search cannot entitle the prosecution to raise a presumption under S.54. Section 50 - Search - Person and premises - Applicability of - Held : Applies only in the case of a search of a person as distinguished from search of any premises etc.

Sections 50 and 42 - Search - Contraband article - Recovery of - In the course of normal investigation - Held: Requirements of S.50, not attracted.

Section 51(2) - Search of a female - Procedure - Held: Search must be made by a female - Failure to do so not only affects the credibility of the prosecution but also violative of the basic right of a female to be treated with decency and proper dignity - Criminal Procedure Code, 1973. Constitution of India, 1950 :

Article 21 - Fair trial - Object of - Held: It is for the benefit of society as well as for the accused - Nature of evidence obtained and nature of safeguard violated are both relevant factors - Hence, evidence collected in violation of a statutory provision, inadmissible.

Article 141 - Precedent - A decision is an authority for what it decides - Everything said in a decision does not constitute a precedent - A decision has to be considered in the context in which it is rendered.

Criminal Procedure Code, 1973 : Sections 100, 102, 103 and 165.

Narcotic drug or psychotropic substance - Recovery of - During normal course of investigation under Cr. P.C. - Duty of Investigating Officer - Held: Must follow the provisions of NDPS Act - If Investigating Officer is not the empowered officer he must inform one under the Act who should proceed from that stage in accordance with NDPS Act.

Words and Phrases:

"If such a person so requires" - Meaning of - In the context of S.50(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Doctrine:

Doctrine of Stare decisis - Discussed. 

The present batch of appeals/special leave petitions was initially placed G before a two Judge Bench and it was noticed that there was divergence of opinion between different Benches of this Court with regard to the ambit and scope of Section 50 of the Narcotic Drugs and Psychotropic Substances Act,- 1985. Therefore, this batch of cases was placed before a three Judge Bench, which was of the opinion that the Judgement of a three-Judge Bench is Saiyad Mohd. Saiyad Umar Saiyad's case required reconsideration and, H therefore, this batch of cases was required to be considered by a still larger Bench.

The three-Judge Bench, therefore, referred the following questions of law to this Constitution Bench :-

(a) Is it the mandatory requirement of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 that when an officer, duly authorised under Section 42 of the Act, is about to search a person he must inform him of his right under Sub-section (1) thereof being taken to the nearest Gazetted Officer or nearest Magistrate for making the search?

(b) If any search is made without informing the person of his such right would the search be illegal even if he does not of his own exercise his right under Section 50(1)? and

(c) Whether a trial held in respect of any recovery of contraband articles pursuant to such a search would be void ab initio?

Answering the reference, this Court