 Judge of Karnataka High Court came that day for the first and today also it's first and as they say that if you have something common and is the way sessions are doing well on the previous one. We expect that it will continue to remain one of the fastest moving sessions because the way he takes insights of a particular topic is always party and it gives the insights which anybody can understand. In fact, it is one of the rare webinars where normally I got messages to the effect that they had heard this message webinars time and again with the ease with the cheesebook. Now the search seizure and arrest are important aspects under the NDPS Act, though in other criminal jurisprudence also it plays its important aspects. And section 41, 42, 43 and 50 also are the important aspects as such, which one would like to understand. And coming from a speaker who is not only known through his judgments but is erudite speaking of things and hammering the point at the say hitting the nail at the top of the head. It's one of his art, which is Michael Guna had. He was quite busy taking sessions with the Karnataka Judicial Academy. We continue to persuade because we kept on receiving the messages that we should call Justice Guna. And as they say before the Gandhi said the most peaceful way is the best way to persuade somebody and eventually Justice Guna accepted. And it's that is all in the lighter way and he has always that important flip to give the knowledge. And today we are partners with Rukram and Associates in this webinar. I will ask Mr. Rukram to give just a brief point and in the end we will have his conclusions from here. Good evening everybody because I think you have not left any single point for me to mention here and I wouldn't take I wouldn't take much time because I don't want to come midway and people are set to listen to his lordship. So once again on behalf of Beyond Law CLC and my personal behalf I extend a very warm welcome to his lordship over to your lordships. Yes. So thank you Mr. Vikas and Mr. Trivekram. I think straight away getting to the subject. We are going to discuss I think only four sections out of the total 83 sections contained in the NDPS Act and all these provisions are procedural in nature. I think the general understanding within the advocates or with the judges. I think that procedure is only a handmade of justice. So even if there is any violation in the in complying with the requirements of the procedures, I think that may not affect the substantial substantive rights of the parties. The accused is prejudiced thereby or any miscarriage of justice is caused. I think that is the general impression. But when it comes to the NDPS Act, I would say that better not we carry this impression. I think as all of you may be knowing the scheme of the act. Unlike the traditional crimes like murder, theft, assault, etc. NDPS Act deals with a special species of the offenses and that too of recent origin. What we call it white collar crimes or the socio economic crimes affecting the public at large. Therefore, these crimes are committed by organized gangs, well equipped with all modern gadgets or modern technology. I think the ingenious way they operate or they commit these offenses, it far surpasses the expertise or the acumen of our law enforcing agencies. On the 29th itself, you might have read in the newspaper that four foreign nationals were apprehended where they were involved in growing hydroganja in the villa where they were staying. And that too for the new states using LED lights, heaters and temperature regulators. You can imagine how far and why in what sophisticated manner these offenses are committed. And added to that, if you see that even the law commission in its 155th report has observed that there is generally nexus between the politicians, law enforcing agencies and the offenders indulging directly in such crimes. I think it is all because of this, the stringent provisions are devised under the act to contain this manas of drug trafficking and drug addicts. I think the presumptions are cowed or enacted in the act. Special courts or the special machinery is constituted both for the purpose of investigation and for conducting the prosecution. Special procedures are laid down and more than that, wide powers are conferred on the investigating agencies. Even the investigating agency can arrest on the spot without even complying with other ordinary procedures what we find in CRPC or any other criminal jurisprudence or the criminal procedure. And that being the case, that is certainly the likelihood of the powers being misused to the disadvantage of the accused. And therefore, the provisions what we are going to discuss now, if you really see that these measures are prescribed under the act only to safeguard the interest of the accused. To provide or provide a measure for the fair investigation and for fair trial, which is a constitutionally recognized guaranteed right of an accused. Therefore, when we discuss these four sections, we should not, we should approach this with this perspective. We should not go under the impression that these are the procedural matters. We have got nothing to do with the trial of the accused. If you understand the significance and the implications of these, what you call these four provisions, I would say their importance cannot be undermined at all. Now, in order to understand what is the effect or the implication of these provisions. I would just request all the viewers just to take note of the fact that the provisions relating to search, seizure, arrest are found in the criminal procedure code. I think there are all of you may be aware section 41 deals with the powers of the police officer to arrest section. I want to highlight on that provision section 46 prescribes how the arrest has to be made. Section 51 says search of the arrested persons. In chapter seven, we come across section 93 search warrant by the courts. Section 100 which is very relevant and which has got a bearing on the subject what we are going to discuss deals with how to conduct search of a close to places. What all requirements or preconditions to be followed by the police officers, how he has to warm, how what is the document he has to prepare to to instill the regularity or instill confidence in the procedure or in the arrest or this is affected. Section 165 deals with the search by the police officers without warrant. So, therefore, what we must understand is that there are enough provisions in the CRPC for affecting the search, arrest or seizure. And even if you see section 51 of the NDPS Act. Section 51 provisions of the code of criminal procedure 1973 to apply to warrants, arrest, searches and seizures. So, even the special procedures what we are going to study. The act itself says the provisions of the code of criminal procedure shall apply in so far as they are not inconsistent with the provisions of this act to all warrants issued and arrest searches and seizures made under this act. So, the provisions of CRPC are made applicable even by the specific or express provision of the act itself and in this context if you see section four of CRPC. Even section four what it says all offenses under the IPC shall be investigated, inquired, tried or otherwise dealt with according to the provisions here in after content. For IPC offense, the procedure prescribed is as per the CRPC, then all offense under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions. So, CRPC basically is applicable not only to the IPC, but also to the other laws, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offense. So, except to the extent that is provided in this special acts, I think the provisions of CRPC are made applicable to all the offenses, the investigation trial or the entire all the incidental matters connected there to this matter. However, because it has got a bearing on the discussions that we are going to have. In other words, the point that I want to tell you is that provisions of CRPs are applicable, even to the searches, seizure or an estimate under the provisions of the, respect of the offenses under the provisions of NDPS Act, except to the extent provided therein. And what is that except to the extent provided in the special act and that exactly is what we are going to deal today and that is the provisions or a special procedure which is contemplated in section 41, 42, 43 and section 50. So, we can locate the very provisions of the act. So, it is the special procedure, how it differs or differs from the general provisions and only to that extent we have to apply these provisions to any investigation or to any search or arrest that is made by the investigating agencies. I think if we go into this act, of course, these four provisions, they, on the appearance, I can say they look very lengthy and what you call repetitive. But I think we can explain, you can understand these provisions or the gist of it itself, we can immediately we can gather. See section 41 deals with the power to issue warrant, to deal with the issuance of warrant that is subsection 1 of section 41 deals with the issuance of warrant. Of course, for the purpose of affecting the arrest, search or seizure, it only subsection 1 deals with the issuance of the warrant. Who can issue the warrant? Under this provision, a special procedure has been contemplated is because of the nature of the offense. It says, a metropolitan magistrate or a magistrate of the first class or any magistrate of the second class specially empowered by the state government in this behalf may issue a warrant for the arrest. So, this subsection 1 of section 42 states that a warrant for the arrest or search or seizure could be issued only by the magistrate specially empowered, not by any other ordinary magistrate, specially empowered. And second condition what he has to do to issue the warrant, to in this behalf he may issue the warrant, so specially empowered magistrate to for arrest of any person he has reason to believe to have committed the offense. So, one precondition I said these provisions are engrafted as a safeguard to the accused to protect from the arbitrary use of powers by the investigating agents. To say that he is been accorded with a fair investigation, a fair trial and therefore one of the safeguard is that if a search or an arrest has to be made, the warrant must be issued by the magistrate empowered and that magistrate should have reason to believe that an offense under the provisions of this act has been committed or any of the or any evidence is of relating to that offense has been considered. So, that is the subsection 1 deals only with the issuance of the warrant by the magistrate. Subsection 2 deals with the authorization by the gazetted officers of the department. And see that because having regard to the I said the way in which the offenses are being committed a special procedure has to be made for to expedite the investigation without waiting for all these procedural assets. So, therefore subsection 2 says see a subsection 1 says the warrant can be issued by the special by the empowered magistrate. Subsection 2 and authorization can be issued by the gazetted officers of the department of the central government which are those departments. Central exercise, narcotics, customs, revenue intelligence or any other department of the central government. So, it should be a gazetted officer, including the paramilitary force or the armed forces is empowered in this behalf by general or special order. So, that gazetted officer also must be empowered by a special order or a general order or any such officer of the revenue drugs drugs control exercise police or any other department of the state government is empowered. So, the gazetted officers of the central government of the following departments or the gazetted officers of the state department who are duly empowered by a special order. So, that is essential. Otherwise, if that condition is not fulfilled, the whole exercise will go far. So, that is the idea. So, then, so he can authorize, but on what condition, what are they on what basis is important by general or special order, if he has reason to believe from personal knowledge or information given by any person taken down taken in subsection 1 is addressed and the officer who authorized the arrest or search who is so authorized under subsection 2 shall have all the powers of an officer acting under section 42. So, an officer who is either armed with the warrant issued under 42 one or an authorization issued under 42, he becomes a competent person or an authorized officer to search or arrest. So, that is the section 41 section 42 deals with the power of search seizure and arrest without warrant or authorization. See that first is that is obtaining the warrant, then power of entry, search and arrest without warrant or authorization. Any such officer, so that means who has been authorized there or who has this one what you call him, has obtained the authorization that person, if he has reason to believe at the middle of the section. If he has reason to believe from personal knowledge or information given by any person taken down in writing. So, these are the safeguards because if he is going on a routine job and he suspects someone if to know whether what he is doing is legal or not. Otherwise, he can implicate any other person. Therefore, the law says that if it is without warrant or authorization, then if it is in relation to the, he must record that reason that personal knowledge or information given by any person had taken down in writing that any narcotic drug or psychotropic substance or control in documents or other things which are available. So, then he himself can conduct the raid between sunrise and sunset and in the process he can enter and search, he can break open, he can seize the substance and he can detail and search. See, all these powers are given but further, if provided further, if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment. So, between sunset and sunrise, even then he can do it provided he records the grounds of his belief. The first is the power of search without warrant or authorization. That is the procedure of obtaining the warrant and the procedure of obtaining the authorization. When there is an authorization, such person can conduct the search, search conduct the search during sunrise and sunset. So, this is from the enclosed places and subsection 2 says when an officer takes down any information in writing and the subsection 1 or records grounds for his belief under the proviso, he shall within 72 hours send a copy thereof to his immediate official superiors. These are not empty formalities. See, these formalities of course will discuss what is the legal effect of it, whether they are directory or whether they are mandatory. But in order to validate the search, validate the arrest, validate the seizure, he has to comply with these preconditions, these safeguards. Then only the proceedings conducted by him becomes valid. Section 43 deals with the search in the public place. See, the difference what you can see is that when the search is from the enclosed place, from the conveyance, if he has got an information, the procedure is that he must either obtain the warrant or obtain the authorization, then only conduct the search and even while conducting the search, he must record the reasons and communicate it within 72 hours to his official superiors. If it is from the open place, none of these procedures need to be known, these preconditions required to be followed. So here, the power of search, the only thing is the requirement is that the search should be or the seizure should be from the public place. Any officer of any of the department mentioned in section 42, so 42 means only the gazetted officer or any of the officers who has been authorized by the gazetted officer may seize in any public place or in transit, any narcotic drug or psychotropic substance or control in respect of which he has reason to believe an offense punishable has been committed, committed, or any article which may furnish evidence has been considered, then he can seize it. He does not prescribe any condition at all, any condition at all, then he can detain, search any person whom he has reason to believe has committed an offense because the provisions have gotten a purpose to serve an officer. Then let us say he goes to the routine, routine check, or any other routine duty, then he finds such person moving suspiciously. Then what is, if he had previous information about to the commission of that offense by that self person, then the law says he cannot get into section 43, he must follow the procedures under 41 on 42, 42. But without having any information, if he finds a person and he arrest him as a routine, that arrest that seizure will be under the provisions of CRPC only. But while conducting the search, if he comes to know that he is in position of any contraband, which is an offense under the NDPS Act, from that moment he should stop. He should do handover the investigation or he should follow the procedures contemplated under that. See the, what they call the underlying principle is whether he has got an information of an offense. So that is the only safeguard. If he had information of an offense, otherwise, I think that investigating officer can act arbitrarily without thinking he can implicate any person and can say that he was involved in that. Just to know that what action he has taken has got to validity for the interest of to safeguard that to ensure the accused that he has not been falsely implicated that some procedures have been laid down. So it is only on complying with these procedures he has to proceed. Otherwise, his action becomes tainted, suspicious. So therefore, the law says when he has got an information, go through under section 41 or 42 and then between day and day night, you effect the search. Even if there is no warrant, you record your reasons and during sunset and during the night also you conduct the search, provided there is something in writing, recorded and the copy of it is sent to the superiors. But if it is from the public place, then no such requirements or preconditions have been prescribed under the act because of the nature of the offense. Section 50, section 50, am I am I clear if anyone wants to this one interact, they can always ask if I am not very clear. At the end of the session, we'll go ahead with that. Yes, the section 50 deals with the personal search. So when either under warrant or let us say without warrant or under authorization or from a public place, if the person of the accused has to be searched, you see, there's a difference between searching the conveyance, searching the place and searching the person. Section 50 is applicable only when the person is to be searched. Then section 15 provides the safeguard or the precautions, that is, the person one who conducts the search must give an option to the accused or to the suspect that whether he wants to be searched by the gazetted officer or by the magistrate. And if he expresses, if he says that he wants to be searched by the gazetted officer, he should be taken before the gazetted officer or the magistrate. Without giving this option, if he conducts the search, the search becomes illegal or invalid. I think that is only section 50. So these are the, what you call the precautions or the safeguards that are these are only the four procedures, a special procedure that has been engrafted under the act to protect the interest of the accused. Because this is the, if at all the accused can set up any defense, I think under this that having regard to this stringent punishment and the, especially the what you call presumptions. I think this is the section 41, 42 and 43 and section 50 are the only defense that we can say it would be available to the accused. Therefore, this provision any person practicing on the or representing the interest of the accused must know that any search, any arrest or any seizure would be valid only if it is from the closed place 41 and 42. If it is from public place, he must satisfy that it is a public place. Now, for example, recently there was a, there was a case, I think, what is that buta Singh, buta Singh, it was in a live law, it was reported where a person was napped or apprehended, he was sitting in his Jeep, in his Jeep and in a public place. The Jeep was a private Jeep. It was a private Jeep and he was found in a possession of the possession of the articles. The question was whether the place where this contraband was found, is it a private place or public place? So, all the trial code and the high court handle, it is a public place because it was found in the, on the public road, which has got an excess because you may be knowing that is whether it is a private place and a public place. I think the law takes a different shade or a different color in a different situation. For example, if a person is wearing a mask, is not wearing a mask in his private car, we say that he's going in a public place, even an excise department, if he's drinking in a public place, even if it is in a private car, we say it is a public place. So, that being the interpretation, all the court said that no, it was in a public place. So, therefore, the investigating agency did not comply with any of the preconditions prescribed in section 41 and 42. But the honorable Supreme Court disagreed. In that Bhuta Singh's case, I think in 2021 decision and it said that section 43 explanation. For the purpose of this section, the expression public place includes public conveyance, hotel, shop or other place intended for use or accessible to the public. It said a private vehicle, private jeep, though it is in the public place, it is not a public place. Therefore, the non-compliance of the requirements under section 42 and 41 would entitle him for equity. See, that is how the law, because that is the effect of these provisions. These are not what I told you. The general provisions are there under the CRPC. But these special provisions are enacted keeping in mind the special nature of the offences, because the police every time the investigating officer cannot be expected to run after and get in warrant. So, he has been authorized to act even to immediately to get into this job, even by authorization from his department. But to safeguard the interest of the accused says to validate such an action, he must strictly comply. And therefore, all these provisions, compliance of section 41, 42, 43 and 50 are held to be mandated. So, if you want to go through what is the legal effect of these, or the implications of these provisions, of course, you can find any number of decisions, but I would just give one decision which is often a recent decision. Tophan Singh versus the state of Tamil Nadu. Tophan Singh versus the state of Tamil Nadu. AAR 2020 Supreme Court 5592. Of course, the question involved in this case is whether an officer empowered under section 42 and 53 are police officers. And whether the statement made by the accused under section 67 of the act, whether it is a confessional statement, which is hit by section 25 of the evidence act. So, that was the point which was under consideration. So, to determine or to answer this question, the court has gone through in detail or summarized the entire law relating to the sections 41, 42 and 43. It has analyzed what we call the development of the law, because right from the constitution bench decision, till late, how the law was laid down and how it was diluted to say, and what is the present position of law, I think that has been dealt very elaborately. And in this decision that for I said only one decision, it analyzes all the previous decisions. So, therefore this one decision I would say is a compendium by which you can get to know the present position of law with regard to the legal effect of the four provisions what we are discussing today, whether they are directory or mandatory. See here, the Honorable Supreme Court as a refer to the constitution bench decision in Baldev Singh, Baldev Singh, 1999, 6 SCC 172. That decision had taken into consideration the conclusions eroded by two judge bench in state of Punjab versus Balbir Singh. That is 1994 Supreme Court 1872 1872. The questions considered above arise frequently before us because instead of dealing from point to point I'll just refer to this, I think that gives a fair idea of what the issues that are likely to be a reason. Considering the applicability of these four provisions are dead. The questions considered above arise frequently before the trial course. Therefore, we find it necessary to set out our conclusions, which are as follows. One, if a police officer without any prior information as contemplated under the provisions of NDPS act makes a search or arrest a person in the normal course of investigation into an offense or suspected offense as provided under the provisions of CRPC. And when such search is completed at that stage section 50 of the NDPS act would not be attracted. And the question of complying with the requirements would not arise. If during such search or arrest, there is a chance recovery of any narcotic drug or psychiatric substance, then the police officer who is not empowered should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS act. This is what I told you. Now, for example, a forest officer, police officer who is not empowered, I said to validate the search or seizure. It could be done either when there is an information because that is a pre condition. When there is an information of the commission of the offense, you can proceed only under warrant or authorization from the gazette office. Now, here is a case where a police officer who is not an empowered officer at all. Then in the routine checkup, he comes across or stumbles upon a case. And during the search or interrogation, he comes to know that the person is in possession of the contraband, which is an offense under this act. Then what should he do? Then the search or the arrest or whatever procedure so far he has conducted will be treated as the procedure under CRPC, either under section 41 or under 100 or 165. But the moment NDPS, this one is that he has to stop and from that stage, the authorized officer has to continue. Authorized officer, if he has to continue, he has to follow the same procedure. He has to see the same procedure. So, next, under section 41-1, subsection 1, only the empowered magistrate can issue warrant for the arrest. See the legal implications. So, we did not run to any what is the position of law. This one decision has summarized the position of law. He says under section 41-1, only an empowered magistrate can issue warrant for the arrest or for the search in respect of the offenses punishable under chapter 4 of the actor. When such warrant for arrest or search is issued by a magistrate who is not empowered, then such search or arrest if carried out would be illegal. So, here itself will get what is the legal effect. So, if the person who issued the warrant is not empowered by special order or is not an authorized officer, who has been authorized in terms of section 42, then the search becomes illegal. Next, under subsection 41-2, only the empowered officer can give the authorization. If there is a contravention that would affect the prosecution case and initiate the conviction, see the results of it. So, generally we said the procedural violation does not affect the substantive case unless prejudice has been shown. But here is the provisions which I showed you, told you are enacted for the interest of the accused to give him an opportunity or a forum for fair trial, fair investigation. Therefore, any violation is treated as mandatory and violations will render the entire trial initiated. Then under section 42-1, the empowered officer, if he has prior information, he should necessarily take it down in writing. It is nothing but a reproduction of the conditions or the preconditions what are there in 41 and 42. So, he must necessarily take down in writing, he may carry out the arrest or search without a warrant between sunrise and sunset. So, if he takes down without a warrant also, he can of the magistrate, he can do that if there is an authorization and the information has been taken down. That means sufficient compliance. To this extent, the provisions are mandatory and contravention of the same would affect the prosecution case and initiate the trial. So, every stage by stage they have set the effect. 41-2, if it is no empowered, it wishes. 41-2, it wishes. Then under section 42-2, such empowered officer who takes down any information in writing or records the grounds under 41-2 should work with the send a copy thereof to his immediate official superior. That is another condition. If there is total non-application of this provision, the same affects the prosecution case. See here I want to tell you because if you read this entire judgment, gradually the law was diluted. Because what was earlier it was said that if there is a, all these provisions are mandatory. Non-compliance of any of these conditions, any of these conditions would render the entire exercise futile. It will vitiate the trial, entitling the accused for acquittal. But gradually the sum of the courts, even the honorable Supreme Court said, if there is a substantial compliance or if there is a delayed compliance, let us say the section says within 72 hours we have to send the information to the superiors. Let us say it is sent beyond 72 hours. Then even though there is delayed compliance, you take it as a substantial compliance. Or for example, other conditions which are required, one or two conditions are satisfied. He has taken down but has not sent. Still we say that there is a substantial compliance. So therefore it says that that was the position of law. But now with this decision, even everything, all gray areas are, no gray areas are left. The matter is set down. Now it says that once the conditions are prescribed to safeguard the interest of the accused. They are to be treated as mandatory. If it is mandatory, they have to be complied in full, in total or no, not at all. You can't comply it in part and say that there is substantial compliance. There is no scope. That is the present position of law that has been laid down in this decision. If a police officer, even if section 4A, police officer, even if he happens to be an empowered officer by defecting an arrest or search during normal investigation into an offense purely under the provisions of CRPC fails to strictly comply with the provisions of 165, including the requirement to record reasons such failure would only amount to an irregularity. That's why I said first I told you, you must take note of the provisions contained under section under the CRPC. CRPC is made applicable to the search and seizure. While effecting, now for example, section 41 and 42 prescribe only the mode of issuing the warrant or the who is the competent authorities. It does not say how the search has to be made or how the arrest has to be made. Section 100 says that under warrant when you make the search, you have to get two respectable persons. Then he says you have to prepare the search memo. You have to give the copy to the other. If these requirements are also required to be complied. So that means section 100 and 160 just to be complied. If you do not comply the requirements laid down under 116, then 100 and 165, then that can be maybe treated as irregularity, but not the other provisions. So that is the distinction. So if there is in compliance of the provisions of the section 100 and 103, if there is any violation, you can treat it as an irregularity, but not the compliance of the conditions or the preconditions laid down in 41, 42, 43 and 50. So that is the difference. And therefore after this judgment, after this judgment, so the judgment was rendered by the bench in 1999, in 2000 amendment was brought. Amendment was brought to section 50. And if you see section 50, section 50, they said section sub clause five was introduced. And it was inserted with effect from 2001. When an officer duly authorized under section 42, has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer see how the law was tried to be the what was initially intended to be a mandatory provision. After this judgment, because what it said is that compliance of or failure to comply of 100 would only be irregularity rest of things are mandatory. Then it said, so when it is not possible to be searched by the nearest gazetted officer or magistrate, without the possibility of person to be searched, parting with position of any narcotic drugs or consulted substance, he may, instead of taking such person to the nearest gazetted officer, proceed to search the person as provided under section 100 of CRPC. So he said, even if it is not possible, you record the reasons and you proceed under section 100. But that has been interpreted now in this decision he says, when the entire intention of framing or enacting section 42, 41, 42, 43 and 50 is to safeguard the interest. It is treated as in the nature of mandatory nature. So therefore it said that section 100, what the section 5, you can implement it or you can enforce it, use it only in exceptional circumstances. Otherwise, the compliance of these conditions are must, the prosecution must prove, for example, that he has given in the option, how to say that he has given in the option to be searched by the gazetted officer or by the magistrate. Generally, the investigating officer takes them in writing, in writing under these provisions also if you see that whatever writing or the signatures that has been taken are deemed to be correct and presumption is there under section 66. So he exercised that option. That will be the proof. His signature should be there. So otherwise, we have to take it, he has not followed the requirement, mandatory requirements of section 50 and he cannot take shelter stating that because it was not possible, therefore I have followed or conducted the search under section 100. See that is the difference. Hope you understand the what you call emphasis and the emphasis is that. So you cannot as a routine course follow under section where section 42 prescribes or 43 or 50 prescribes certain preconditions. Those preconditions are mandatory. Yes. The subject of such failure has to be born in mind. On prior information, the empowered officer or authorized officer while acting under section 41 to or 42 should comply with the provisions of section 50 before the searcher search of the person is made and such person should be informed so it says again the repeatedly same thing. See that another issue also arose because I said the law laid down by the Constitution bench. It was tried to be interpreted in a different way. See, there was an earlier decision. If the property is seized or recovered through an illegal search, whether such property or such object material object, can it be relied on which is recovered through illegal search? See under general criminal law, criminal jurisprudence, even if the search is illegal, the property recovered could be relied on and that same view was applied to the NDPS Act also. It said that even if it is what you call even if the search is illegal, you can consider or accept the properties that are seized but in this judgment it has been said even that is not possible. That is not what has been laid down by the Constitution bench. You can't incorporate a condition which is not there in section 50. So, it has been said that even the property recovered is as to be treated as illegal and cannot be relied on at all. So, these are in Puran Malskaya, I think in Puran Malskaya 1974 whatever it was said that property recovered through illegal search could be relied on but that position also it is said now it cannot be applied to NDPS cases. In NDPS cases, these provisions are mandatory. If there is no compliance, there is a total non-compliance, there cannot be substantial compliance at all, then the benefit should go to the accused. So, these are the provisions and ultimately if you see in section in power 55, in power 50, thus this extremely important safeguard continues or as has been originally enacted subject only to the exception in subsection 5 and 6 which can only be used in urgent and emergent situations. So, the ultimate conclusion of the honorable Supreme Court by analyzing all the earlier provisions or the law is that that recourse to section 100 could be taken only in exceptional circumstances. Otherwise, compliance of each and every conditions is mandatory. This Court has clearly held that non-compliance of this provision would lead to the conviction of the accused being initiated and that substantial compliance with these provisions would not save the prosecution case. So, the position of law is very clear. So, whatever preconditions that are laid down in section 42 are mandatory nature. There must be total compliance here, delayed compliance or substantial compliance is of no use at all. So, that is the position of law, we have understood and there are provisions and the legal effect and on the same point, I think you can also note one decision of the constitutional base in Mukesh Singh versus state of all versus state NCB. 2020-10 SCC 120. Here, of course, the issue was whether the investigating officer and the complainant can be one and the same because you may be knowing the special procedure here. See the name of the informant is not to be disclosed as per section 68. Then who is the complainant? That is, when an information has been, that's why I said this safeguards are there, safeguards in 40 to 42. When information has been received, he has to record it, record it in the concert register and then take further action either authorized or he himself conduct the search. And that after conducting the search or after affecting the arrest that person and that property either it should be produced before the magistrate, if the magistrate is issued the warrant, or it should be produced before the nearest station house officer or the authorized officer. So, that is the procedure and the report submitted by him at that time becomes the complaint. So, the complainant or the informant is not the complainant. The FIR is not registered. Therefore, there is a significance of this. So, thereafter the investigation, actual real investigation starts. So, here arrest seizure takes place before registration of the case. Therefore, the only reliable material is the information recorded by the officer. So, that is the rationale. That is the reason behind these rules. So, therefore the question arose whether there is, whether the complainant and the investigating officer can be one and the same. The Mohanlal's decision case was there. It said if he is one and the same, the entire thing is initiated. Prejudice is cost. Prejudice is cost. But Mohanlal's case is reversed. He is reversed in this decision and it said when it comes to NDPS Act, the section itself, section 53 itself authorizes because that is the scheme of the act because of the nature of the offenses. You can't first disclose the name of the other in the FIR, then there is nothing will be there to search. Nothing will be left. If you follow the routine procedure under CRPC, therefore the name of the informant is kept secret. Then all other procedures come in, then the investigation, the authorized officer under section 53 and section 53 says that the very same person one who conducted all this procedure, the gazetted officer, himself could be or then authorized officer by the gazetted officer under section 42. He himself could be the investigating officer, so there is nothing wrong. And in this decision, even the Supreme Court, the five judge bench, the constitutional bench, they have said that even the law, even in the criminal law also, you can't stretch it. This is the principle saying that the complainant and the investigating officer cannot be the same. It has said that even under criminal law also there is no invariable group. In NDPS Act, because of section 53 itself, the act itself authorizes the complainant and the investigation officer to be one and the same. But even under general law also says that the general principle is that he can be unless the EQ shows prejudice. But here the question of prejudice does not arise at all because section 53 authorizes it. So these are the provisions you should know it. So other decisions are there but all these decisions are referred in the Topfansings case. Therefore I have given you only one decision where the entire gamut of law has been discussed. Discussed position of law means very clear, authoritatively law is laid down. Therefore there is no ambiguity at all in the application of the legal effect of or the compliance of section 41, 42, 43. See there is section 57 is there, section 57, one section which I am going to touch. Report of arrest and seizure. Whenever any person makes any arrest or seizure under this act, he shall within 48 hours next after such arrest or seizure make a full report to all the particulars of such arrest or seizure to his immediate official superior. This is not mandatory. This is a post seizure or post arrest stage whereas compliance of the requirement is before arrest as laid down in section 41 and 42. Therefore non-compliance of this provision does not wish here the trial. You make a, understand the difference. Here also it lays down in condition but it is not mandatory. This is because after the, after what he has to do it, after effecting the search or the seizure and all other things within 44, this is not mandatory. However this is not mandatory. This operates in a totally different sphere whereas the conditions prescribed, the preconditions or the safeguards provided under section 42, 41, 42, 43 and 50 are mandatory. Non-compliance of it will initiate the entire trial. So these are the only defences that could be available to the accused. So Mr. Understand and appreciate the provisions in that manner. So this is not already, I thought that yes. Because I think Bingo, his lordship has taken exactly 60 minutes. Yes. That's the hallmark of any successful person. They say time is the essence. Read in the Limitation Act. Time is the essence for any contract. Yes. Out here we don't have anything. Let me check it on the, I was just checking it in YouTube also. We didn't have any questions. No questions. I'm just checking it out on the Facebook. YouTube and this thing we don't have. One has written, Ruchi Jain, what is the use of words if such a person so requires, if it is compulsory to take him to the magistrate or a desigent officer in second duty? No, if that person means that, but that option is to be given to the accused. See the option has to be given to the accused. This provision, as I told you, is enacted to protect the interest of the accused. Because I said, why do the powers are given? Presumptions are enacted. Why power is given even on the spot? He can make it. I said from public place. No warrant, nothing, not even recording. He can do it. So there is a likelihood of misuse, but see he can also plant any of the things within. Therefore, to protect all these, to protect the accused from all these, what do you call aspects, say an right has been given to the accused or in precondition, safeguard, which is enacted in section 56, if he wants only, because it's an option. An option is given to him, whether he wants to be searched before the gazette officer, before the magistrate. That's why he gives it in writing. In writing, if he says that before the magistrate, then he should be taken to the magistrate. So, therefore, that's the defense he can take it. He can say that I was, I exercised my option to take it to the magistrate. He has not done it. See what the magistrate, what they have to do that. If we cannot be taken to the magistrate, he would record the reason and conduct the search under section 100 by taking request to section 50 subsection 5, which has been inserted. That has been interpreted by the honorable Supreme Court in Tophan's case, saying that that can be resorted to only in exceptional cases. Otherwise, you have to go through this procedure. You have to give an option. So, that is because it is in the interest of the accused, it is left for him to take that exercise that option or not. Option has to be given in English or it has to be given mentally under the... It is under the paper because any such option, it should be made known to be understood because if it is in a language which is not understood, it is in the interest of the prosecution that he says that it has been explained. If it is in English and if it takes that, how can he exercise? So, that may be one of the ground for him to say that there is non-compliance. That itself may sometimes... because this is the stringent provisions, stringent provisions because harsh are the offence, harsh are the punishment, the stricter the proof. So, therefore any such even these single elements also may help the accused. They say for a harsh punishment or a harsh or this thing, it has to be given literal interpretation rather than the liberal interpretation. Yes, exactly. So, therefore it said that your substantial compliance, delayed compliance, partial compliance is a good meaningless because when the law says that total compliance, either total compliance or non-compliance at all. That has been interpreted in this and that seems to be the correct because otherwise there is no, for example, say how that... for example, student activities there. Let us say he should be implicated in this offence. One day he is going by his bicycle, a scooter. The police can stop it or in the routine check and ask him for his documents. One of them may be checking the documents, other may take the key and go to his scooter, open the dash box and put something in there. Is it not possible? So, therefore all these precautions are there to say that, to avoid or to prevent such misuse by the police. Because the power has been given to them to arrest on the spot. That puts it that if you had any information, you take it down or writing. Otherwise, you say if it is a private place or public place. So, all those things that will are sufficient rather that balances the right of the accused and the right of the investigative agents and the prosecution. So, that is the beauty of this provisions. Yes. Roadshops only elaborate on the registration of an FIR, subsequent to the seizure in light of Lalita Kumari's case. Yes. But that would be, I think, beneficial. Now, see Lalita Kumari says that whenever an information is given of the commission of a cognizable offence, the police have got no other option than to register the FIR. But that is the interpretation of section 154, 156 and 157. 157 and even if you see that under, I think, par 103 or something like that, they have said in five types of offences. That is, I think matrimonial offences and corruption offences and economic offences. You need not register the FIR. You can make a preliminary inquiry. And here, see the nature of the offences. I said these are the committed by the gang and very sophisticated manner. I said how they carry, how they hide these days. And if they get a little clue that the police will be around, they will not get any of the evidence. Therefore, all these procedures, and that circumstance, if you insist that an FIR should be first registered, then it should be taken to the magistrate. Thereafter, only you commence an investigation. That is, it says, that was section 68 says, name of the informant cannot be disclosed. That is otherwise, if that is disclosed, I think no offence will come to light at all. The informant, I think he has to fear his life and no one will give any information. But to say that, see that is actually the information in the nature of the first information. To say that there is an information, you should record it in writing. You need not register the FIR. But the scheme of the act is that after that sufficient safeguards are there for the accused because the information is recorded in writing. To show that that is a real information, the copy of it is sent to the higher officers. So, two proof are there, two safeguards. Then it is followed by your recovery, which guarantees the truth of the information. This itself regularity gives a kind of what you call sanctity to the entire procedure. So therefore, not registration. And therefore it says, well, after completing this, that person and the accused under section 52. Section 52 says that if he is arrested under warrant, the person and the property should be produced before the magistrate. If he is arrested under the authorization, he should be produced either before the station house officer or before the authorized officer under section 52, 53. He himself is the investigating officer. At that time, the person who conducted the search submits the report. And that is the meaning. If you see section 53 data, the section 53, the central government after consultation of the power to invest in the office, the state government. See on the report, based on this report, he has to proceed. Any officer in the United States and the state government notification published this portion of section, I think that is the one provision. Yes. Section 36, the jurisdiction, jurisdiction subsection, subsection one, D, a special court being upon perusal of the police report of the facts constituting an offense under this act or upon complaint made by an officer of the central government. So there is no fire or the information. So when he searches it, otherwise he can file a private complaint also. So he can take cognizance. Yes. And it is in compartment. It is not in violation of the dictum of the Lalitha Kumari because that itself provides. Right. Yes. They are judgements in which it has been said compulsorily like RF consent was taken by the police, but case went in favor of the accused. What is that? It is in continuation of the previous question. I can read the entire question what you had answered first. What is the use if such person so requires if it is compulsorily to take him to the magistrate or visited officer in section 50. But there are judgements in which it has been said held to be mandatory like in RF consent was taken by the police, but case went in favor of the accused. That Arif Khan it has been explained now it is not laying down the correct procedure. I think that has been explained in this decision. All these earlier that was not the intent. You can't read that into section 50 is what has been said. Of course the detail I have not read out only the salient aspects I just read out. If you go through this, they have reproduced the step by step, step by step. And they have. Yes. So it is a very elaborate lengthy decision, but through light on it and it has cleared much of the gray areas. And I would say there are hardly any gray areas are left. Earlier that is whether the complainant and the investigative officer put one in the scene. Whether without registration of the FIR with the procedure. Because generally under CRPC, we say that all before registration of the FIR any proceedings are conducted. We say it is invalid. I think of the High Court, our High Court, so division decision is there. But here the law permits it. This is a special act. Here the CRPC is made applicable, not made applicable en masse. Some provision are applicable, made applicable. Some provisions to some action. So that's how it has been made applicable to the act. Yes. Your insights want to conclude the session. Yes. Again, thanks Mr. Vikas for facilitating this wonderful opportunity. In fact, as I told you earlier, we were missing his lordship. It used to be like a classroom used to get room and we were sitting in the court hall. And again, you have facilitated by giving us this opportunity and the topic chosen is such a wonderful topic, especially for the practitioners practicing on the criminal side. May it be on the trial side or before the High Court or Supreme Court. These aspects are very important either for watching or for conducting the trial. And his none other person could have been so erudite and precise except his lordship. Thank you very much your lordships for this wonderful session. And thank you Mr. Vikas for giving us this wonderful opportunity. And for me also in particular to speak about his lordship and this particular presentation. As your lordship had said that the judgment has thrown the true light, I will say that his session has also actually thrown the true light. We have all come out of the dark LA's which could have been in the mindset, especially for the youngsters, it will help them. And tomorrow we will be having session on tips on translation, which is an important aspect, not only for the examination part, but also once you are doing in the High Court. What could be the tips for translation so that there are lists of mistakes. It would be by Mr. Vasanth Patwardhan, who is a Srishtradhar at Bidami and he is also taking a lot of sessions down south in the Karnataka. But do stay connected with us tomorrow at 6 p.m. And thank you sir, your session was excellent and we all learned from it. Thank you.