Dr. A. S. ANAND, C.J.I - (1.) -On 15-7-1997 when this batch of appeals/special leave petitions was placed before a two-Judge Bench, it was noticed that there was divergence of opinion between different Benches of this Court with regard to the ambit and scope of S. 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter '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 S. 50 of NDPS Act. In the cases of State of Punjab v. Balbir Singh; (1994) 3 SCC 299, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala (1994) 6 SCC 569; Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat (1995) 3 SCC 610 and a number of other cases, it was laid down that failure to observe the safeguards, while conducting search and seizure, as provided by Sec. 50 would render the conviction and sentence of an accused illegal. In Ali Mustaffa's case (supra), the judgment in Pooran Mal v. Director of Inspection (Investigation), New Delhi (1974) 1 SCC 345, was also considered and it was opined that the judgment in Pooran Mal's case could not be interpreted to have laid down that the contraband seized as a result of illegal search or seizure could by itself be treated as evidence of possession of the contraband to fasten liability, arising out of unlawful possession of the contraband, on the person from whom the alleged contraband had been seized during an illegal search conducted in violation of the provisions of Section 50 of NDPS Act. However in State of Himachal Pradesh v. Pirthi Chand (1996) 2 SCC 37 and State of Punjab v. Labh Singh, (1996) 5 SCC 520, relying upon a judgment of this Court in Pooran Mal's case (supra), a discordant note was struck and it was held that evidence collected in a search conducted in violation of S. 50 of NDPS Act did not become inadmissible in evidence under the Evidence Act. The two-Judge Bench, therefore, on 15-7-1997, by the following order, referred the batch of cases to a larger Bench:"One of the questions that has been raised in these appeals/special leave petitions is whether compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory and, if so, what is the effect of the breach thereof. This question had been engaging the attention of this Court and answered in a number of cases. In State of Punjab v. Balbir Singh (1994) 3 SCC 299, a two-Judge Bench of this Court held that the above section is mandatory and it is obligatory on the part of the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. It was further held that non-compliance with the above section would affect the prosecution case and vitiate the trial. This judgment was affirmed by a three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat (1995) 3 SCC 610. In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala (1994) 6 SCC 569 a submission was made on behalf of the State of Kerala to reconsider the judgment in Balbir Singh's case (supra) keeping in view the judgment of this Court in Puran Mal v. Director of Inspection (1974) 1 SCC 345 . It was contended that even if the search and seizure of the contraband was held to be illegal and contrary to the provisions of S. 50, it would not affect the conviction because the seized articles could be used as evidence of unlawful possession of the contraband. In repelling the contention, the Court observed: The judgment in Pooran Mal's case (supra) only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against the party under the Income-tax Act. The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. "Unlawful possession" of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act. In view of the law laid down in Balbir Singh's case we hold that there has been violation of the provisions of S. 50 of the NDPS Act and consequently the conviction of the appellant cannot be sustained. (Emphasis supplied) It, however, appears that while dealing with S. 50 in State of Himachal Pradesh v. Pirthi Chand (1996) 2 SCC 37, another two-Judge Bench of this Court referred to and relied upon the judgment in Pooran Mal's case (supra) and held that the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The Court further observed that even if search was found to be in violation of law, what weight should be given to the evidence collected was a question to be gone into during trial. With the above observations, the Bench recorded a finding that the Sessions Judge was not justified in discharging the accused after filing of the charge-sheet holding that mandatory requirements of S. 50 had not been complied with. It, however, appears that the Court's attention was not drawn to Ali Mustaffa (supra). The view expressed in Pirthi Chand (supra) was reiterated in State of Punjab v. Labh Singh (1996) 5 SCC 520 wherein this Court considered the case of Balbir Singh (supra), besides other cases and held as follows:- "In State of H.P. v. Pirthi Chand (supra), this Court further elaborately considered the effect of the violation of S. 50 and held that any evidence recorded and recovered in violation of the search and the contraband seized in violation of the mandatory requirement does not ipso facto invalidate the trial." From the above re'sume', it would thus appear that though a two-Judge Bench of this Court considered the earlier judgments of this Court, it held in the case of Pirthi Chand, (and affirmed in the case of Labh Singh (supra)), that breach of S. 50 does not affect the trial while in the case of Ali Mustaffa (supra), another Bench categorically laid down that breach of S. 50 makes the conviction illegal. In view of the divergent opinions so expressed, we deem it fit to refer these matters to a larger Bench. Let the records be placed before the Chief Justice for necessary orders."
(2.) The batch of cases was thereafter listed before a three-Judge Bench. However, when the three-Judge Bench took up the matter, it was of the opinion that the judgment of a three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat (supra), required reconsideration and, therefore, the cases were required to be considered still by a larger Bench and on 19-11-1997, the three-Judge Bench made the following order: "1. In this bunch of appeals/special leave petitions the following questions of law (besides other questions of law and facts) fall for determination: (i) Is it the mandatory requirement of S. 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, ("Act" for short) that when an officer, duly authorised under S. 42 of the Act, is about to search a person he must inform him of his right under sub-section (1) thereof of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search (ii) 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 S. 50(1) and (iii) Whether a trial held in respect of any recovery of contraband articles pursuant to such a search would be void ab initio 2. The above questions came up for consideration before a two-Judge Bench of this Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299, and it answered them as under (SCC p. 322, para 25): "On prior information the empowered officer or authorised officer while acting under S. 41(2) or 42 should comply with the provisions of S. 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of S. 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial." (Emphasis supplied) 3. In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala (1994) 6 SCC 569, a submission was made on behalf of the State of Kerala to reconsider the judgment in Balbir Singh's case (supra) in view of the judgment of the Constitution Bench of this Court in Pooran Mal v. Director of Inspection (Investigation), New Delhi (1974) 1 SCC 345 wherein it was observed that where the test of admissibility of evidence lay on relevancy (as in India and England), unless there was an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure was not liable to be shut out. Relying upon the above observation it was contended that even if the search and seizure of the contraband were held to be illegal and contrary to the provisions of S. 50 it would not affect the conviction because the seized article could be used as evidence of unlawful possession. In repelling this contention the two-Judge Bench of this Court observed as under: "The judgment in Pooran Mal's case (supra) only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against the party under the Income-tax Act. The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten that liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. "Unlawful possession" of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act. In view of the law laid down in Balbir Singh's case (supra) we hold that there has been violation of the provisions of S. 50 of NDPS Act and consequently the conviction of the appellant cannot be sustained." 4. The judgment in Balbir Singh's case (supra) was affirmed by a three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat (1995) 3 SCC 610. 5. A discordant note was, however, struck by a two-Judge Bench of this Court in State of H.P. v. Pirthi Chand (1996) 2 SCC 37, relying upon the judgment of this Court in Pooran Mal's case (supra), when it held that the evidence collected in a search in violation of law did not become inadmissible in evidence under the Evidence Act. The Court further observed that even if the search was found to be in violation of law, what weight should be given to the evidence collected was a question to be gone into during trial. The same view was reiterated by a two-Judge Bench in State of Punjab v. Labh Singh (1996) 5 SCC 520, with the observation that any evidence recorded and recovered in violation of the search and the contraband seized in violation of the mandatory requirement did not ipso facto invalidate the trial. (Emphasis supplied) 6. In our considered opinion the judgment of this Court in Saiyad Mohd. Saiyad Umar Saiyad's case (supra) (which was delivered by a three-Judge Bench) requires reconsideration and the questions formulated above answered by a larger Bench, not only in view of the subsequent judgments of this Court (delivered by a two-Judge Bench) referred to above, but also in view of the Constitution Bench judgment in Pooran Mal's case (supra). 7. Let these matters be, therefore, placed before the Hon'ble Chief Justice for necessary orders."
(3.) That is how this batch of criminal appeals/special leave petitions has been placed before this Constitution Bench.;