LexSTATE OF DELHI versus RAM AVTAR@ RAMA
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[2011] 7 S.C.R. 1129 STATE OF DELHI v . . RAM AVTAR@ RAMA (Criminal Appeal No. 1101 of 2004) JULY 7, 2011 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.] Narcotic Drugs and Psychotropic Substance Act, 1985: A B s.50 - Search and seizure - Safeguards provided u/s.50 c - Obligation of the searching officer to inform the person to be searched about his right to be taken to _the nearest Gazetted Officer or a Magistrate '.""' Held: The accused has right to be informed of the choice available to· him as regards his search - The duty is cast upon the searching officer to 0 make the accused aware of existence of such a right - Failure to provide such option in accordance with the provisions of the Act, render the recovery of contraband /illicit substance illegal - After amendment of s.50 and insertion of.sub-section 5, the mandate of s. 50(2) has not been nullified, and the obligation upon the searching officer to inform the person to E ·be searched of his rights still remained - Obviously, the legislative intent is that compliance with these provisions is imperative and not merely substantial compliance - While discharging the onus of s. 50, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect - Notice to the accused that a Gazetted Officer or a Magistrate could be arranged for taking F his search, if he so required could not be treated as communicating to him about rights available to him under law. s.21 - Conviction under - Essential ingredients - Held: For conviction u/s.21, the possession of the illicit article is a sine qua non -Contraband article should be recovered in accordance with the provisions of s.50 of the Act, otherwise, G 1129 H • 1130 SUPREME COURT REPORTS (2011] 7 S.C.R. A the recovery itself shall stand vitiated in law - Illegal recovery cannot be the foundation of conviction u/s.21 of the Act . . Criminal jurisprudence: Theory of 'substantial compliance' - Held: It is a settled canon of criminal 8 jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed - The theory of 'substantial compliance' would not be applicable to situations where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect - The safeguard cannot be treated as a formality, C but it must be construed in its proper perspective, compliance thereof must be ensured - Narcotic Drugs and Psychotropic Substance Act, 1985 - Interpretation of statutes. The prosecution case was that on 18th January D 1998, a secret informer informed the Assistant Sub Inspector (PW-8) that a person by the name 'R' (appellant) was carrying contraband substance. The police party left for the spot and apprehended th~ appellant. A police officer in the raiding party requested few persons, who E were passing by, to join the raid but they declined to do so on some ground or the other. The police officer served notice Ex.PW6/A in writing under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 upon the appellant but he declined to be searched either F in presence of a Gazetted Officer or a Magistrate. On search, three packets were recovered from his pocket which after test were found to be heroin. The trial court convicted the appellant under Section 21 of the Act. The High Court held that the expression 'duly' used in G Section 50 of the Act connoted not 'substantial' but 'exact and definite compliance' and since the notice served on the appellant was not in ·conformity with the provisions of Section 50 of the Act, he deserved acquittal. The instant appeal was filed challenging the order of the High Court. H STATE OF DELHI v. RAM AVTAR@ RAMA 1131 . . Dismissing the appeal, the Court A HELD: 1. In terms of the provisions of Section 50 of the Narcotic Drugs and Psychotropic Subs.tance Act, 1985, in force at the relevant time, i.e. the provisions as it was, prior to amendments made by Amending Act 9 of 2001 w.e.f. 2.10.2001, the respondent had a right to be 8 informed of the choice available to him and making him aware of the existence of such a right was an obligation on the part of the searching officer. This duty cast upon the officer was imperative and failure to provide such an option, in accordance with the provisions of the Act, C would render the recovery of the contraba
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