STATE OF PUNJAB . versus BALBIR SINGH AND ORS. ETC. ETC.

Citation: [1994] 2 S.C.R. 208 · Decided: 01-03-1994 · Supreme Court of India · Bench: S. RATNAVEL PANDIAN · Disposal: Disposed off

Cited by 4 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
STATE OF PUNJAB . 
v. 
BALBIR SINGH AND ORS. ETC. ETC. 
MARCH l, 1994 
B 
[S. RATNAVEL PANDJAN AND K. JAYACHANDRA REDDY, JJ.] 
c 
Narcotic Drugs and l'sychotropic Substances Ac4 1985 : Sections 41, 
42 and l'rovistr-Search and Amst-Wa"ant issued by a Magistrate not em-
powered-Action would be illegal-Section 42(2) held mandatory. 
l'roviso to Section 42-Search without warrant between sunrise and 
sunset-Officer must record thl! grounds of belief-To this extent provision is 
mandatory. 
Section SO-Applicability of-When officer pnceeds under Cr.l'.C. 
D without prior infonnation under N_Dl's Act Section SO is not attracted-When 
there is chance recovery of Narcotic Drugs from that stage provisions of 
Section SO are applicable. 
It is obligatory on the part of the officer to infonn the accused that he 
has a right to be searched before a Gazetted Officer or magistrate-Section 
E SO held mandatory. 
F 
Section SJ-Search and Seizure-Provisions in Cr.P.C. in so far as they 
are not inconsistent with NDPS Act are applicable to Search and Seizure 
under NDPS Act. 
Sections S2 and 57-Provisions dealing with steps to be taken after 
search and seizure-Held not mandatory-Violation of these provisions does 
not vitiate trial-Court should examine whether non-compliance has caused 
prejudice to the accused. 
G 
Code of Criminal Procedure, 1973 : Section 4-£xpression "otherwise 
dea_lt with''-Meaning and Scope of· 
• 
Sections JOO and 165-Non-compliance with-Effect of 
Indian Penal Code, 1860 : Section 26-'Reason to believe'-Meaning 
H of. 
208 
! 
STATE OF PUNJAB v. BALBIRSINGH 
209 
-
Intepretation of statutes-Statutory Provision-Detennination whether A 
) 
directory or mandatory-Court should keep in mind legislative intent and 
Scope of Act-Provisions creating public duties are generally directory. 
The present petitions and appeals have been filed by the State or 
Punjab questioning the order passed by the Trial Court acquitting the 
B 
respondents on the ground that the arrest, search al!d seizure were In 
violation of some of the relevant and mandatory provisions of the Narcotic 
Drugs and Psychotropic Substances Act, 1985. In the other connected cases 
~ 
the accused persons have questioned their conviction on the ground that 
their arrest and trial was illegal. 
c 
The question in all these cases is whether any arrest and search of 
a person or search of a place with1>ut conforming to the provisions or the 
NDPS Act becomes illegal and consequently vitiates the conviction. On· 
behalf of the State of Punjab, it was contended that as the police officers 
effected arrest, search and seizure on reasonable suspicion that a cog-
D 
oizable offence bas been committed and not on any prior information that 
any offence punishable under NDPS Act bas been committed, the question 
., 
of complying with some of the provisions of the NDPS Act in this,regard 
at the time of the said arrest, search and seizre would not arise and as 
long as such arrest, search and seizure are substantially in accordence 
with the provisions or the Code of Criminal Procedure, such arrest, S\!31'Cb E 
and seizure cannot he declared as illegal; even if it was not in strict 
conformity with the provisions of the Code or Criminal Procedure, at that 
stage, the same may at the most be irregnlar and the courts should only 
see whether any prejudice is caused to the accused but it cannot throw out 
the whole prosecution case as such. 
F 
• 
For the respondents-accused it was contended that since deterrent . 
punishments are prescribed under the NDPS Act, the Legislature has 
taken care to incorporate several provisions in Chapter V or the Act 
governing the arrest, search and seizure to afford safeguards so that 
innocent persons are not harassed and these provisions are mandatory in G 
nature and non-compliance of the same vitiates the trial. 
Disposing the appeals, this Court 
' ... 
HELD : 1. NDPS Act is not a complete code incorporating all the 
provisions relating to search, seizure or arrest etc. The said Act after H 
/ 
210 
SUPREME COURT REPORTS 
(1994) 2 S.C.R. 
A incorporating the broad principles regarding search, seizure or arrest etc. 
in Sections 41, 42, 43 and 49 has laid down in Section 51 that the provisions 
of Cr.P.C. shall apply in so far as they are not inconsistent with the 
provisions of the NDPS Act to all warrants issued and arrests, searches 
and seizures made under that Act. Therefore, the provisions of Sections 
B 100 and 165 Cr.P.

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