2019 7 23 46366 Judgement 22-Aug-2023

2023INSC776
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.________ OF 2023

(ARISING OUT OF S.L.P. (CRIMINAL) NO.3166 OF 2023)
MINA PUN … APPELLANT(s)
VERSUS
STATE OF UTTAR PRADESH … RESPONDENT(s)
WITH
CRIMINAL APPEAL NO._________ OF 2023

(ARISING OUT OF S.L.P. (CRIMINAL) No. 3167 OF 2023)
J U D G M E N T
ABHAY S. OKA, J.
1. Heard learned counsel for the appellants and

learned counsel for the respondent.
2. In the present appeals, the challenge is to the

conviction of the appellants for the offences
punishable under Section 20(b)(ii)(C) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short,
“NDPS Act”). The substantive sentence imposed on the
appellants is ten years of rigorous imprisonment. The
appellants were directed to pay a fine of Rs.1,00,000/-
(Rupees One Lakh) and in default of payment of fine, to
suffer rigorous imprisonment for two years.
Signature Not Verified
Digitally signed by
Deepak Guglani
Date: 2023.08.29
18:49:23 IST
Reason:
3. It is not in dispute that the appellants have
1
undergone the entire substantive sentence and a
sentence for a period of six months in default of the
payment of the fine. The High Court has upheld the
order of conviction.
4. The first submission made by Mr. Ajit Sharma,

learned counsel appointed as Amicus Curiae, is of the
violation of the safeguard provided in Section 50 of
the NDPS Act. He invited our attention to the evidence
of Sanjay Singh (PW-4), a Police Officer who was
present at the time of the seizure of the contraband.
He also invited our attention to the cross-examination
of the said witness in which the witness admitted that
a consent letter was already prepared on which the
signatures of the appellants were taken. However, he
admitted that there is no mention in the consent
letters that the appellants were informed that they
have a right to say that their body search should be
conducted before a Magistrate or a Gazetted Officer.
5. The case of the prosecution is that on the body

search of the appellants, packets of charas were found.
It is necessary for us to reproduce the relevant part
of the cross-examination of Sanjay Singh (PW-4). The
same reads thus:
“Consent-letter was prepared before
taking search of accused, on which
Exhibit Ka-1 is marked. There is no
mention in this consent-letter that it is
right of accused that they can give their
body search before some Magistrate or
Gazetted Officer. Recovery of material
was made from body of the accused.
Recovery was done at public place. There
is no other arrest in memo, there is no
independent witness, time of arrest is
2
12.10 O’clock. There is no mention of
A.M. or P.M., but incident was of
daytime. Information regarding arrival
of accused persons from spy has not been
mentioned anywhere beside the Memo. No
information was done before arrest.
Weight of material was done with
electronic scale. I reached on police
station Dhebrua at 14.55 O’clock. G.D.
and F.I.R. was instituted together.”
(underlines supplied)
6. Thus, it is an admitted position that in the

consent letter, it is not mentioned that the appellants
were informed about their right to insist that either a
Magistrate or a Gazetted Officer remains present when
their body search is conducted.
7. Learned counsel appearing for the appellants read

over the consent letter at Exhibit Ka-1 which only
records that the appellants had voluntarily agreed to a
body search. Thus, the appellants were not informed
about their right to be searched before a Magistrate or
a Gazetted officer.
8. In view of the law laid down by a Constitution

bench of this Court in Vijaysinh Jadeja vs State of
Gujarat1, it is crystal clear that there was a
violation of the safeguard provided by Section 50 of
the NDPS Act. In paragraphs 24 and 29 of its decision,
the Constitution Bench held thus:
“24. Although the Constitution Bench in
Baldev Singh case [(1999) 6 SCC 172 :
1999 SCC (Cri) 1080] 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
1(2011)1SCC 609
3
that provisions of sub-section (1) of
Section 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 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
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 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 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. 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.
25………
26……...
27……...
28………
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
4
and to minimise the allegations of
planting 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 searched of his right to be searched
before a gazetted officer or a
Magistrate. We have no hesitation in
holding that insofar as the obligation 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 only on the basis of the
recovery of the illicit article from 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.”
(underlines supplied)
9. Therefore, the conviction of the appellants cannot

be sustained. Accordingly, the appeals are allowed,
and the appellants are acquitted of the offences
alleged against them. If the appellants are already
enlarged on bail, we direct that their bail bonds stand
cancelled. If the appellants continue to be in custody,
they shall be forthwith set at liberty.
10. Pending application(s) also stand disposed of.
..................J.
(ABHAY S.OKA)
...................J.
(PANKAJ MITHAL)
NEW DELHI;
August 22, 2023.

2019 7 23 46366 Judgement 22-Aug-2023

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2023INSC776

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO.________ OF 2023

MINA PUN … APPELLANT(s)

STATE OF UTTAR PRADESH … RESPONDENT(s)

CRIMINAL APPEAL NO._________ OF 2023

1. Heard learned counsel for the appellants and

2. In the present appeals, the challenge is to the

4. The first submission made by Mr. Ajit Sharma,

5. The case of the prosecution is that on the body

6. Thus, it is an admitted position that in the

7. Learned counsel appearing for the appellants read

8. In view of the law laid down by a Constitution

9. Therefore, the conviction of the appellants cannot

10. Pending application(s) also stand disposed of.

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