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Illegal Search and Arrest — Its Effect on Trial
An Appraisal of Decisions in Balbir and Saiyad Mohd.
by Justice J.K. Mathur*

Cite as : (1997) 6 SCC (Jour) 12

The Supreme Court in State of Punjab v. Balbir Singh 1  has laid down that a search or arrest in violation of the provisions of the NDPS Act (hereinafter referred to as "the Act") vitiates the trial. This was followed in the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat 2 . These decisions run counter to the settled law and have the potential to impede enforcement of the Act with serious social consequences. It is therefore necessary to closely examine them.

Decision in Balbir Singh1

In the case of Balbir Singh1 a two-Judge Bench was hearing appeals against decisions of the Punjab High Court acquitting the accused in a number of cases. The facts of the case were not given in the judgment. The Supreme Court proceeded to consider the effect of violation of provisions relating to arrest and search contained in the reference to the facts. While disposing of the appeals it noted that though in most of the cases provisions of Section 50 were not attracted the accused were acquitted on the ground of non-compliance of that section. Still the Court refused to interfere with acquittals on the ground that the offences had been committed long time back. The Court summed up its decisions explicitly in its judgment.

Decision in Saiyad2

In the case of Saiyad Mohd.2 violation of Section 50 was pleaded but in the absence of any evidence a presumption was raised under Section 114 Illustration (e) of the Evidence Act to find due compliance.

The Supreme Court found that this presumption could not supply the proof of compliance of provisions of Section 50 and set aside the conviction only on the finding of non-compliance of the provisions of Section 50. It also quoted from Balbir1 and endorsed the findings that the provisions of Section 50 are mandatory and that its language obliges 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.

These decisions have far-reaching and serious consequences inasmuch as for infraction on the part of the searching or arresting officer a person may be relieved of a grave liability in respect of a serious offence against the society, without trial. So it is necessary to examine as to why the court did not follow the precedents to arrive at the present ruling.

In Balbir Singh1 the provisions which require arrests and searches were considered together. Illegality in arrest was not considered independently. This has given rise to some anomaly.

As regards illegal arrest the rule that emerges out of the formulations of the Court is that if an arrest has been made in violation of the statutory provisions regulating arrests it is illegal arrest because it is not in accordance with the procedure established by the law that the arrest has been made. Thus it may be violation of Article 21 of the Constitution also. This much seems alright. But what needs to be examined is the consequence stipulated in the decision that on arrest being illegal the trial would vitiate and as a necessary result the person would be entitled to be acquitted of the offence for which he is arrested.

It has been consistently held that illegal arrest would not have any impact on the legality or otherwise of the proceedings3 . This view came to be accepted by the Supreme Court in H.N. Rishbud v. State of Delhi4  and Mobarik Ali Ahmed v. State of Bombay5 .

None of these cases were brought to the notice of the Court when it held illegality in arrest vitiates the trial.

Reasons for decision

Two main reasons have been mentioned by the Supreme Court for its departure from precedents. They are: the provisions in the Act are mandatory and the punishments prescribed in the Act are severe. Both these reasons do not seem to be compelling. Any arrest which violates any statutory safeguard is violative of Article 21 and is illegal. Mandatory provisions governing arrests are not peculiar to the Act but are also contained in the Constitution, Code of Criminal Procedure and other statutes.

Similarly severe punishments are provided in other laws also. In the Indian Penal Code itself sentence of death or life imprisonment is provided for some offences and arrests for those offences are governed by the CrPC. Singling out trials for offences under the Act for their being vitiated if arrest is illegal was, therefore, not justified.

The judgment in Balbir Singh1cited some cases decided by the Rajasthan and Punjab and Haryana High Courts (none of which dealt with consequences of illegal arrests) to conclude that an arrest or search contemplated under Sections 41 and 42 made under a warrant issued by any other Magistrate or by an officer not empowered or authorised, would per se be illegal and would affect the prosecution case and vitiate the trial.

If the ratio of this decision is extended to its logical conclusion, in every case where an arrest is made in violation of the provisions of the Constitution or CrPC, which provisions have also been held to be mandatory, the person arrested would be relieved of the offence for which he is arrested howsoever grievous it may be and even if there is clinching evidence to prove his guilt.

This conclusion is not per se correct and cannot be accepted without explicit reasons because there is no cogent nexus between the manner of arrest and prejudice in trial. The manner of arrest is totally irrelevant to the process of prosecution and proof of guilt.

Frequently cases are taken to courts in which legality of arrest is challenged. The only accepted remedy asked for as relief is release of the person arrested. In some cases damages are also awarded for unlawfully interfering with the liberty and in cases where arrest is mala fide the arresting officer may be prosecuted. In no case is quashing of the prosecution asked for or ordered.

Decision in Balbir Singh1

The decision relating to the searches is to the effect that a search conducted

under a warrant issued by a Magistrate not empowered,

or by an officer not authorised under Section 41(2) or 42(1), or

under authorisation of an officer not empowered, or

between sunset and sunrise without recording grounds of belief, or

without sending the information recorded under Section 41(2) or 42(1) to his immediate superior, or

with prior information, without following the provisions of Section 50 either by not informing the person to be searched or after he has indicated his desire to be produced before a Magistrate or a Gazetted Officer, not taking him before them,

would be illegal and trial would be vitiated.

It also holds that violation of the provisions of CrPC which also apply to these searches or of Sections 52 and 57 of the Act would be an irregularity which will be examined by the court to find if there has been any prejudice caused to the accused and will also be taken into account in appreciating evidence.

Safeguards - Reasons and effect of non-compliance

Search is an integral part of investigation and is meant to get evidence of offence. To ensure that the searches and seizures are credible, safeguards are provided in CrPC and in special laws including the NDPS Act. If the safeguards are not followed the logical consequence would be that the search would not have the same credibility which a search would have if the safeguards are duly followed. Non-compliance cannot have the effect of totally effacing the search or seizure. And the courts have been following this principle for a fairly long time.

Normally a person accused of an offence is tried and his guilt is determined on the basis of the evidence produced. However when there is a procedural lapse which vitally affects the trial to the prejudice of the accused and is irreversible, the accused would be entitled to be acquitted. In such a case the court has to be satisfied of the prejudice caused. This principle has been consistently followed by the courts.6 

Giving the accused benefit of every small irregularity is no longer permissible. The interest of the society is also to be considered, with equal concern for the liberty of an individual.7 

These principles were not considered by the Supreme Court in the case. Nor did it examine its own precedents which run to a large number and some of which were rendered by larger benches.8 

These cases clearly hold that illegal searches do not affect the trial. The only consequences of illegality in search is reduced credibility so that the courts have to examine the evidence more carefully, and right of the person searched to resist it.

In Balbir Singh1some of these decisions were not noticed at all. Among the cases it considered there was none which dealt with the question whether non-compliance with these provisions was an illegality or irregularity.

To brush aside some important decisions saying that contraventions of the provisions of CrPC are irregularities while non-compliance with the provisions of the Act is illegal and would vitiate the trial, was not justified especially when the earlier decisions were explicit in stating that even if the search is illegal it would not affect the trial. None of these cases had distinguished violation of CrPC from violations of the provisions of the Act and therefore did not provide justification for this conclusion.

It is therefore necessary to reassess this dictum in the light of the consistent view of the Supreme Court and to state reasons for deviating from the established principle, if it is necessary and just to do so.

Exclusionary Rule

Another important facet of the consequence of illegal search was also not considered by the Court. It has been held by the courts in this country consistently that evidence obtained by illegal search cannot be shut out on that ground alone. A Constitution Bench of the Supreme Court considered this question in Pooran Mal v. Director of Inspection9 . In this case it was urged that the material obtained by an illegal search be not permitted to be used in evidence. The High Court rejected this contention even after assuming the search to be illegal. The Supreme Court upheld this decision and said: (SCC p. 364, para 24)

"So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and courts in India and England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure."

The Supreme Court relied on the decisions in Emperor v. Allahdad Khan10 , Kuruma v. R.11 , King v. The Queen12  and Barindra Kumar Ghose v. Emperor13 .

This principle was reiterated by another Constitution Bench of the Supreme Court in State of Kerala v. Alasserry Mohammed14  when it categorically rejected the exclusionary rule.

The view that the exclusionary rule is bad law and that the criminal should not go free because the constable had blundered, was approved in the case of Joginder Kumar v. State of U.P.15 

The Balbir Singh1 Court did not notice any of these decisions rendered by the Constitution Benches nor was this doctrine rejecting exclusionary rule placed before the Court. Non-consideration of these decisions which have an important bearing on the effect of illegal searches, renders the value of Balbir Singh1, as a precedent, doubtful.

In this country where less than ten persons out of a hundred tried for serious offences are convicted these rules will further diminish the effectiveness of the criminal justice system. The waning faith in the system may reach vanishing point if people find persons accused of serious offences being set free to continue their trade by introduction of artificial rules which stifle the truth altogether for the fault of the law enforcement agencies, instead of correcting them.

Decision-making

Once the Court held that the provisions of Section 50 did not apply, the question of consequences of non-compliance did not arise for determination. Non-observance of the other provisions was not in issue at all in any of these cases.

Interpreting the entire set of provisions and formulating rules about the consequences of not complying with them was not necessary for decision of the appeals before the Court. None of these principles were used to decide the appeals. The entire set of rules evolved are but obiter dictum.

The doctrine of precedents reinforced by the provisions in the Constitution make the decision of the Supreme Court binding on all the courts. When a principle of law is enunciated in deciding a matter it is to be followed unless the facts on which it was rendered can be distinguished from the ones involved in the case in which it is sought to be applied. But when principles of general application are laid down in abstract even that escape is not available. They are to be applied in every case. In such a case the Supreme Court has a duty to foresee all the possible situations which are likely to attract their application and state the rules in terms as may be validly applicable to all those.

These principles will apply even where non-compliance is collusively obtained, or where the compliance is almost impossible. If a person reported to be in possession of the offending substance is in a position to escape or dispose of the substance irretrievably in a very short time, standing near a fast running stream or a deep crevice or near a person sitting on a vehicle with engine running or himself sitting on such a vehicle, asking him to indicate his choice about the officer before whom he would like to be searched would give him that opportunity and the officer would be placed in a no-win position. If he asks the mandatory question, he cannot affect recovery. If he does not inform, the person cannot be convicted. Thus these rules may affect the enforcement of the law having not taken into account the actual situations that may arise. The only just approach would be to let the Court assess the reason(s) for non-compliance when there is one and then consider its effect on trial, as has been the settled law. It is heartening to note that post-Balbir Singh1 decisions have gone back to the original position. In State of Punjab v. Jasbir Singh16 , Balbir Singh1 was not followed, by stating: (SCC p. 289, para 2)

"... 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."

Again in State of H.P. v. Pirthi Chand17  appeal was filed against discharge of a person on the ground that the provisions of Section 50 had not been complied with. The Supreme Court noted the decisions in Balbir Singh1 and Saiyad Mohd.2 but relied on the decisions in Pooran Mal9 etc. cases and held that the evidence collected on search in violation of law did not become inadmissible under the Evidence Act and that even if it was found to be in violation of law what weight should be given to the evidence was yet another question which the Court had to consider.

Thus the Supreme Court has again reverted to the earlier position on this question.

These decisions however require reconsideration to clarify the confusion about the correct proposition of law relating to the consequences of illegality in search and arrest under the Act.

* Retired Judge, Calcutta High Court Return to Text

1. (1994) 3 SCC 299 : 1994 SCC (Cri) 634 Return to Text
2. (1995) 3 SCC 610 : 1995 SCC (Cri) 564 Return to Text
3. See Nagarmal Jankiram Agarwale, Re, AIR 1941 Nag 338; Emperor v. Ravalu Kesigadu, ILR (1903) 26 Mad 124; Emperor v. Madho Dhobi, ILR (1904) 31 Cal 557; Guru Subramania Chetty, Re, AIR 1941 Mad 181; Emperor v. Vinayak Damodar Savarkar, ILR (1911) 35 Bom 225; Parbhu v. Emperor, AIR 1944 PC 73; Scott, ex p, (1829) 9 B&C 446 Return to Text
4. AIR 1955 SC 196 (204) Return to Text
5. AIR 1957 SC 857 Return to Text
6. H.N. Rishbud v. State of Delhi, AIR 1955 SC 196; Joydeb Mittra v. State of W.B., (1972) 4 SCC 155 : 1973 SCC (Cri) 856 etc. Return to Text
7. Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424. Also see Supreme Court decision in Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172 Return to Text
8. See the recent ones such as State of Maharashtra v. Natwarlal Damodardas Soni, (1980) 4 SCC 669; Partap Singh (Dr) v. Director of Enforcement, (1985) 3 SCC 72 : 1985 SCC (Cri) 312 etc. Return to Text
9. (1974) 1 SCC 345 Return to Text
10. ILR (1913) 35 All 358 Return to Text
11. 1955 AC 197 : (1955) 1 All ER 236, PC Return to Text
12. (1969) 1 AC 304 : (1968) 2 All ER 610, PC Return to Text
13. ILR (1910) 37 Cal 467 Return to Text
14. (1978) 2 SCC 386 : 1978 SCC (Cri) 198 Return to Text
15. (1994) 4 SCC 260 : 1994 SCC (Cri) 1172 Return to Text
16. (1996) 1 SCC 288 : 1996 SCC (Cri) 1 Return to Text
17. (1996) 2 SCC 37 : 1996 SCC (Cri) 210 Return to Text