STATE OF HIMACHAL PRADESH versus SHRI PIRTHI CHAND AND ANR.

Citation: [1995] SUPP. 6 S.C.R. 29 · Decided: 30-11-1995 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Disposed off

Judgment (excerpt)

STATE OF HIMACHAL PRADESH 
A 
v. 
SHRI PIRTHI CHAND AND ANR. 
NOVEMBER 30, 1995 
[K. RAMASWAMY AND S.B. MAJMUDAR, JJ.] 
B 
Narcotic Drngs and Psychotropic Substances Act, 1985-Sections 20 
~ • 
and 5()-Mandatary provisions of Sec. SO-Violation of-To be proved at 
~ 
trial-Discharge of accused for non compliance of Sec 50, before trial con-
ducted-Not legally sustainable-Evidence collected in a search in violation C 
of law-Admissibility of 
Criminal Procedure Code 197rSection 482-Inherent powers-Exer-
cise of power to quash FIR/chargesheet/complaint-Exceptional considera-
tions in econoniic offences. 
The ·respondent was charge-sheeted for an offence u/s 20 of the 
Narcotic Drugs and Psychotropic Substances Act, 1985 but the Sessions 
Judge discharge him from the offence on the ground that the provisions 
D 
of section 50 of the Act had not been complied with. On revision, the High 
Court confirmed the order of discharge. Tims this appeal by special leave. E 
The questions raised for consideration were (i) whether the Sessions 
Judge was justified, at the stage of taking cognizance of the offence, in 
discharging the accused, even before the trial was conducted on merits, on 
the ground that the provisions of Section 50 of the Act had not been 
complied with, and (ii) whether the High Court would be justified in 
exercising its inherent power u/s 482 of the Code of Criminal Procedure 
or under Art. 226 of the Constitution to quash the FIR/chargesheet/com-
plaint. 
Disposing of the appeal, this Court 
F 
G 
HELD : I.I. Compliance of the safeguards in Section 50 of the Nar-
cotic Drugs & Psychotropic Substances Act is mandatory obliging the office 
concerned to inform the person to be searched of his right to demand that 
search could be conducted in the presence of a Gazetted Officer or a 
Magistrate. The possession of illicit articles has to be satisfactorily estab- H 
29 
30 
SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R. 
A 
lished before the Court. The officer who conducts search must state in his 
evidence that he had informed the accused of his right to demand, while he 
is searched, in the presence of a Gazetted Officer or a Magistrate and that 
the accused had not chosen to so demand. If no evidence to that effect is 
given, the Court must presume that the person searched was not informed 
B 
c 
of the protection the law given him and must find that possession of illicit 
articles was not established. The presumption under Section 114 illustra· 
tion (e) of the Evidence Act, that the official duty was properly performed, 
therefore, does not apply. It is the duty of the court to carefully scrutinise 
the evidence and satisfy that the accused had been informed, by the con· 
cerned officer, that he had a right to be searched before a Gazetted Officer 
or a Magistrate and that the person had not chosen to so demand. 
[34·E·G] 
1.2. Whether the accused has been afforded such a right and whether 
the authorised officer has violated the mandatory requirement, as a ques· 
tion of fact, has to be proved at the Trial. The organised traffic in 
D 
contraband generates deleterions effect on the national economic affecting 
the vitals of the economic life of the community. It is settled law that 
illegality committed in investigation does not render the evidence obtained 
during that investigation inadmissible. Inspite of illegal search property 
seized, on the basis of said search, still would form basis for further 
E 
F 
G 
investigation and prosecution against the accused. The manner in which 
the contraband is discovered may affect the factum of discovery but if the 
factum of discovery is otherwise proved then the manner becomes im· 
material. Every deviation from the details of the procedure prescribed for 
search, does not necessarily lead to the conclusion that search by the police 
renders the recovery of the articles pursuant to the illegal search, ir· 
relevant evidence nor the discovery of the fact inadmissible at the trial. 
Weight to be attached to such evidence depends on facts and circumstan-
ces in each case. The court is required to scan the evidence with care and 
to act upon it when it is proved and the court would hold that the evidence 
would be relied upon. [34-H, 35-F-G, 36-D] 
1.3. The evidence collected in a search in violation of law does not 
become inadmissible in evidence under the Evidence Act. The consequence 
would be that evidence discovered would be to prove unlawful possession 
of the con

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