NDPS Act- Recovery Made Otherwise Not Vitiated Merely Because Personal Search Violated Section 50: Supreme Court

The Supreme Court, in an order passed last week, rejected an interpretation that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated.

"We cannot give such an extended view", the bench comprising Justices Sanjay Kishan Kaul and MM Sundresh said while dismissing an appeal filed by an accused who was concurrently (by the Trial Court and Chhattisgarh High Court) convicted under Section 20(b)(ii)(c) of the NDPS Act.

The accused was found carrying Ganja in a green polythene bag on a wooden Kanwad from Bhaisabeda to Pithapur for transportation.  In appeal before the Apex Court, the accused relied on State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345, and State of Punjab v. Baldev Singh – 1999 (6) SCC 172. In these judgments, it is held that if a search is made by an empowered Officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only the on basis of possession of illicit articles recovered from his person.

The third option stated to be given to the accused to get himself searched from the Officer concerned not being part of the statute, the same could not have been offered to the appellant and thus, the recovery from him is vitiated, the court noted.

However, the court noticed that the recovery was in a polythene bag which was being carried on a Kanwad and was not in person. 

"Learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by learned counsel for the appellant.", the court said while dismissing the appeal.

In State Of Punjab vs. Baljinder Singh, a three judge bench of the Supreme Court had observed that merely because there was non-compliance of Section 50 as far as "personal search" of the accused was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Another three judge bench in Sk. Raju @ Abdul Haque @ Jagga had held that 'as soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not.'

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