Vijaysinh Chandubha Jadeja v. State of Gujarat
Supreme Court of India · 29 October 2010 · 5 judges
Section 50(1) of the NDPS Act obliges the empowered officer to inform a suspect of the right to be searched before a gazetted officer or Magistrate; this is mandatory, and 'substantial compliance' is not enough.
Facts
A three Judge Bench hearing these appeals noticed a divergence, on the dictum of the Constitution Bench in State of Punjab v. Baldev Singh, between Joseph Fernandez v. State of Goa and Prabha Shankar Dubey v. State of M.P., which held the words the officer used to the suspect to be substantial compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and Krishna Kanwar v. State of Rajasthan, which required the suspect to be made aware of the right. The matter was referred to a Constitution Bench for clarification. As the reference was limited to interpreting Section 50, the Court did not state the facts of the individual appeals.
Questions before the Court
- Does Section 50(1) of the NDPS Act require the empowered officer to inform the suspect of the right to be searched before a gazetted officer or a Magistrate, or is a mere enquiry whether he would like to be so searched enough?
- Is 'substantial compliance' with Section 50(1) sufficient?
- What is the effect of sub-sections (5) and (6), inserted in 2001, on the duty under Section 50(1)?
What the Court held
- The empowered officer must apprise the person to be searched of the right to be searched before a gazetted officer or a Magistrate. The obligation under Section 50(1) is mandatory and requires strict compliance; the information need not be in writing or in a set form.
- Failure to comply renders the recovery of the illicit article suspect and vitiates the conviction where it rests only on the recovery from the accused's person during that search.
- The concept of 'substantial compliance' read into Section 50 in Joseph Fernandez and Prabha Shankar Dubey is not borne out by the language of Section 50(1) and is not consistent with Baldev Singh.
- Sub-sections (5) and (6) do not obliterate the duty to inform under sub-section (1); the flexibility they allow can be used only in emergent situations, and the reasons recorded remain subject to judicial scrutiny at trial.
- Whether Section 50 was complied with is a matter for trial. In the first instance, the officer should try to produce the suspect before the nearest Magistrate.
Why it matters
The Constitution Bench resolved the conflict in later decisions on Baldev Singh, concurring with its conclusions and holding that the duty to inform the suspect under Section 50(1) is mandatory and requires strict compliance. It rejected the 'substantial compliance' approach of Joseph Fernandez and Prabha Shankar Dubey, and confined the 2001 amendment to urgent situations.
In the Court's words
Copied from the official judgment; each passage links to its page.
“it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search.”
“We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra).”
“In our opinion, the insertion of these two sub-sections does not obliterates the mandate of sub-section (1) of Section 50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate.”
Provisions interpreted
Related judgments
- Follows State of Punjab v. Baldev Singh (1999)“We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.” (page 16)
Case and bench
- Parties
- Vijaysinh Chandubha Jadeja v. State of Gujarat
- Case
- Criminal Appeal No. 943 of 2005, with Criminal Appeal No. 974 of 2003 and Criminal Appeal No. 1809 of 2009
- Decided
- 29 October 2010
- Bench
- D.K. Jain, J., B. Sudershan Reddy, J., Dr. Mukundakam Sharma, J., R.M. Lodha, J., Deepak Verma, J.
- Opinions
- Unanimous. Judgment of the Constitution Bench delivered by D.K. Jain, J., signed by all five Judges.
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