Not admissible Held Evidence admissible
1. State of Punjab v. Balbir Singh
MANU/SC/0436/1994 : 1994CriLJ3702, a
two Judge Bench of this Court held that the
above section is mandatory and it is obligatory
on the part of the officer concerned to inform
the person to be searched of his right to
demand that the search be conducted in the
presence of a Gazetted Officer or a Magistrate.
It was further held that a non-compliance with
the above section would affect the prosecution
case and vitiate the trial.
2. In Ali. Mustaffa Abdul Rahman Moosa v.
State of Kerala MANU/SC/0050/1995 :
AIR1995SC244 a submission was made on
behalf of the State of Kerala to reconsider the
judgment in Balbir Singh's case (supra)
keeping in view the judgment of this Court in
Puran Mal v. Director of Inspection
MANU/SC/0055/1973 :
[1974]93ITR505(SC). The court held that
judgment in Puran Mal case cannot be
interpreted to lay down that a contraband
seized as a result of illegal search or seizure,
can be used to fasten the liability of unlawful
possession of the contraband on the person
from whom the contraband had allegedly been
seized in an illegal manner. "Unlawful
possession" of the contraband is the sine qua
non for conviction under the NDPS Act and
that factor has to be established by the
prosecution beyond a reasonable doubt. Indeed
the seized contraband is evidence but in the
absence of proof of possession of the same, an
accused cannot be held guilty under the NDPS
Act. In view of the law laid down in Balbir
Singh case we hold that there has been
violation of the provisions of Section 50 of the
NDPS Act and consequently the conviction of
the appellant cannot be sustained.
I. Puran Mal v. Director of Inspection
MANU/SC/0055/1973 :
[1974]93ITR505(SC).
: The judgment in Pooran Mal case only lays
down that the evidence collected as a result of
illegal search or seizure, could be used as
evidence in proceedings against the party under
the Income Tax Act.
II. Himachal Pradesh v. Pirthi Chand and Anr.
MANU/SC/0259/1996 : 1996CriLJ1354
another two-Judge Bench of this Court referred
to and relied upon the judgment in Pooran
Mal's case (supra) and held that the evidence
collected in a search in violation of law does
not become inadmissible in evidence under the
Evidence Act. The Court further observed that
even if search was found to be in violation of
law, what weight should be given to the
evidence collected was a question to be gone
into during trial. With the above observations,
the Bench recorded a finding that the Sessions
Judge was not justified in discharging the
accused after filing of the charge sheet holding
that mandatory requirements of Section 50 had
not been complied with. It, however, appears
that the Court's attention was not drawn to
Ali Mustaffa.
The Bench agreed with the view in Balbir
Singh's case regarding to duty to inform the
suspect of his right as emanating from Section
50 of the NDPS Act. The Court opined :
...Compliance of the safeguards in Section 50
is mandatory obliging the officer 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.

3. The judgment in Balbir Singh's case (supra)
was affirmed by a three Judge Bench in
Saiyad Mohd. Saiyad umar Saiyad v. State
of Gujarat MANU/SC/0695/1995 :
1995CriLJ2662.
4. Mohinder Kumar v. State, Panaji, Goa
MANU/SC/0230/1995 : 1995CriLJ2074 the
Bench held that for failure to comply with the
provisions of Sections 42 and 50, the accused
was entitled to an order of acquittal and
consequently the appeal was allowed and the
order of conviction and sentence against the
accused was set aside.
The possession of illicit articles has to be
satisfactorily established 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 of the protection the
law gives him and must find that possession of
illicit articles was not established.
III. State of Punjab v. Labh Singh
MANU/SC/1208/1996 : 1996CriLJ3996 The
court in this case reiterated the view in Pirthi
Chands case and also considered the case of
Balbir Singh (supra), besides other cases and
held as follows :- "In State of H.P. v. Pirthi
Chand, this Court further elaborately
considered the effect of the violation of Section
50 and held that any evidence recorded and
recovered in violation of the search and the
contraband seized in violation of the
mandatory requirement does not ipso facto
invalidate the trial.
It was reiterated that the accused has been
provided with a protection of being informed
of his right to be searched in presence of a
Gazetted Officer or a Magistrate and failure to
give an opportunity to the concerned person to
avail of the protection would render the
prosecution case unsustainable.
IV. State of Punjab v. Jasbir singh and Ors.
MANU/SC/0987/1996 : 1996(54)ECC79, it
was opined : Having considered the evidence
we find it difficult to set aside the order of
acquittal recorded by the Additional Sessions
Judge. Though the offence involved is of a
considerable magnitude of 70 bags containing
34 kgs. Of poppy husk, each without any
permit/licence, this Court is constrained to
confirm the acquittal for the reasons that the
mandatory requirements of Section 50 of
Narcotic Drugs and Psychotropic Substances
Act, 1985 has not been complied with.
 Protection given by Section 50 is a valuable
right to the offender and compliance thereof
intended to be mandatory. In case the police
officers had prior knowledge that illegal
transport of the contraband is in movement and
persons are in unlawful possession and intends
to intercept it, conduct search and
consequentially to seize the contraband, they
are required to inform the offender that he has
the right that the search will be conducted in
the presence of a gazetted officer or a
Magistrate. Thereafter on their agreeing to be
searched by the police officers, the search and
seizure of the contraband from their unlawful
possession would become legal and valid.
However, the evidence collected in breach of
mandatory requirement does not become
inadmissible. It is settled law that evidence
collected during investigation in violation of
the statutory provisions does not become
inadmissible and the trial on the basis thereof
does not get vitiated. Each case is to be
considered on its own backdrop.
5. State of Punjab Vs. Baldev Singh and Ors.
1999.
The court held: -
That a search made, by an empowered officer,
on prior information, without informing the
person of his right that, if he so requires, he
shall be taken before a Gazetted Officer or a
Magistrate for search and in case he so opts,
failure to conduct his search before a Gazetted
Officer or a Magistrate, may not vitiate the
trial but would render the recovery of the illicit
article suspect and vitiate the conviction and
sentence of an accused, where the conviction
has been recorded only on the basis of the
possession of the illicit article, recovered from
his person, during a search conducted in
violation of the provisions of Section 50 of the
Act.
That the judgment in Pooran Mal's case
cannot be understood to have laid down that
an illicit article seized during a search of a
person, on prior information, conducted in
violation of the provisions of Section 50 of the
Act, can by itself be used as evidence of
unlawful possession of the illicit article on the
person from whom the contraband has been
seized during the illegal search;

That the judgment in Ali Mustaffa's case

correctly interprets and distinguishes the
judgment in Pooran Mal's case and the broad
observations made in Pirthi Chand's case and
Jasbir Singh's case are not in tune with the
correct exposition of law as laid down in
Pooran Mal's case.