SURESH & ORS. versus STATE OF MADHYA PRADESH

Citation: [2012] 10 S.C.R. 1157 · Decided: 22-11-2012 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed

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

Judgment (excerpt)

[2012] 10 S.C.R. 1157 
SURESH & ORS. 
v. 
STATE OF MADHYA PRADESH 
(Criminal Appeal No. 300 of 2009) 
NOVEMBER 22, 2012. 
[P. SATHASIVAM AND RANJAN GOGOi, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985 
A 
B 
s. 50, read with ss. 8 and 18 - Search of person of c 
suspect- Procedure to be followed - Held: Sub-s. (1) of s.50 
makes it imperative for the empowered officer to "inform" the 
suspect of his right that if he so requires, he shall be searched 
before a gazetted officer or a Magistrate - Failure to do so 
would vitiate conviction and sentence where the conviction has 
D 
been recorded only on the basis of recovery of contraband 
from the person of the accused - The provision is mandatory 
and requires strict compliance - In the instant case, merely 
consent of appellants was sought for search of their person 
by police party - Therefore, recovery of opium from them is 
unsustainable for non-compliance of provisions of s.50(1) -
E 
If, the quantity recovered from the vehicle is excluded, the 
remaining would not come within the mischief of 'commercial 
quantity' for imposing of such conviction and sentence -
Taking note of the continuous period the appellants are in 
prison and non-compliance of the provisions of s. 50 (1), the 
sentence imposed on them by courts below, set aside. 
F 
Three appellants, traveling in a car, were stopped by 
the police party. On their consenting to personal search, 
they were searched in the presence of Panchas. They 
G 
were found in possession of one packet each containing 
825, 820 gms and 800 gms of "opium", respectively. On 
search of the vehicle, six more packets of "opium" were 
recovered. The trial court convicted each of the three 
1157 
H 
1158 
SUPREME COURT REPORTS 
[2012] 10 S.C.R. 
A accused u/s 8 read with s.18 of the Narcotic Drugs and 
Psychotropic Substances Act, 1985 and sentenced them 
to 10 yeas RI and a fine of Rs. 1 lakh each. Their appeals 
were dismissed by the High Court 
8 
In the instant appeal, it was contended for the 
appellants that the prosecuting authorities failed to 
apprise the appellants of their right to be searched before 
a Gazetted Officer or the nearest Magistrate and, 
therefore, their conviction was liable to be set aside on 
C this ground alone. 
Allowing the appeal, the Court 
HELD: 1.1. A reading of the Panchnama makes it 
clear that the appellants were not apprised about their 
0 legal right provided u/s 50 of the NDPS Act to be 
searched before a gazetted officer or a Magistrate, but 
consent was sought for their personal search. Merely 
asking them as to whether they would offer their personal 
search to the police officer or to gazetted officer may not 
E satisfy the protection afforded u/s 50 of the NDPS Act as 
interpreted in Ba/dev singh's case.* [para 11] [1173-D-F] 
*State of Punjab vs. Ba/dev Singh, 1999 (3) SCR 977 = 
(1999) 6 sec 172 - relied on 
F . 
1.2. It is reiterated that sub-s. (1) of s.50 makes it 
imperative for the empowered officer to "inform" the 
person concerned about the existence of his right that if 
he so requires, he shall be searched before a gazetted 
officer or a Magistrate. Failure to do so vitiates the 
G conviction and sentence of an accused where the 
conviction has been recorded only on the basis of the 
recovery of the illicit article from the person of the 
accused. It is also reiterated that the said provision is 
mandatory and requires strict compliance. Accordingly, 
H 
SURESH & ORS. v. STATE OF MADHYA PRADESH 1159 
in view of the language as evident from the panchnama, 
A 
this Court holds that in the case on hand, the search and 
seizure of the contraband from the person of the 
appellants is bad and conviction is unsustainable in law. 
[para 11-12] [117 4-C-E] 
B 
Vijaysinh Chandubha Jadeja vs. State of Gujarat 2010 
(13) SCR 255 = (2011) 1 SCC 609 - followed. 
Joseph Fernandez vs. State of Goa, (2000) 1 SCC 707; 
and Prabha Shankar Dubey vs. State of M.P., 2003 (6 ) 
Suppl. SCR 444 = (2004) 2 SCC 56 - stood disapproved. 
C 
Krishna Kanwar (Smt.) @ Thakuraeen vs. State of 
Rajasthan, 2004 (1) SCR 1101 = (2004) 2 SCC 608 -
referred to. 
1.3. Though a portion of the contraband (opium) was 
D 
recovered from the vehicle to which s.50 is not applicable, 
if the quantity recovered from the vehicle is excluded, the 
remaining would not come within the mischief of 
'commercial quantity' for imposition of such conviction 
and sentence. Taking note of length of continuous period 
E 
i

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