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SVKM’S

NMIMS KIRIT P MEHTA SCHOOL OF LAW

A PROJECT SUBMITTED ON

STATE OF PUNJAB V BALDEV SINGH: CASE STUDY

IN COMPLIANCE TO THE PARTIAL FULFILLMENT OF THE MARKING SCHEME

FOR SEMMESTER-VI,

ACADEMIC YEAR 2018-2019,

FOR THE SUBJECT OF LAW OF EVIDENCE

SUBMITTED TO : PROF. EKTA SAINI

SUBMITTED BY : RAJEEV SHARMA

ROLL NO : A058

COURSE : B.B.A.L.L.B (HONS.)

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Table of Contents

No. Content Page No.

1. Statement of Problem 4

2. Objectives 5

3. Review of Literature 6

4. Research Methodology 8

5. Research Question & Hypothesis 9

6. Contentions of Parties 9

7. Conclusion 10
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Table of Cases

1. Saiyad Mohd. Saiyad Umar Saiyad and 1995 SCC (3) 610
others v. State of Gujarat

2. Ali Mustaffa Abdul Rahman Moosa v. State 1994 (6) SCC 569
of Kerala

3. Pooran Mal v. The Director of Inspection 1974 (1) SCC 345

(Investigation), New Delhi & Ors

4. State of Punjab v. Jasbir Singh & others (1996) 1 SCC 288

5. State Of West Bengal And Ors v Babu 2004 Supp(4) SCR 17

Chakraborty

PROVISIONS IN QUESTION

SECTION ACT

SEC 50 The Narcotic Drugs and Psychotropic

Substances Act, 1985

SEC 42 The Narcotic Drugs and Psychotropic

Substances Act, 1985

SEC 43 The Narcotic Drugs and Psychotropic

Substances Act, 1985

SEC 17 The Indian Evidence Act, 1872

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Statement of Problem

In this Case, The Accused i.e. Baldev Singh was arrested for Unlawful Possession of
Contraband under Sec 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985
which states the conditions under which search of persons shall be conducted. After Filing
the Charge sheet in the Sessions Court, the Sessions Judge discharged the Accused holding
that Mandatory Requirements of Sec 50 were not complied with by the State. When the
State went in Appeal, High Court acquitted the Accused. The High Court declined to grant
appeal against the order of acquittal. So, The State of Punjab thereupon filed appeals by
special leave in the Supreme Court. When this batch of appeals/special leave petitions
(there were other cases which were tagged with this case having a Common question of
Law) was placed before a two-Judge Bench, but it was noticed that there was divergence of
opinion between different Benches of the Supreme Court with regard to the ambit and
scope of Section 50 of NDPS Act and in particular with regard to the admissibility of the
evidence collected by an investigating officer during search and seizure conducted in
violation of the provisions of Section 50 of NDPS Act.

When the Special Leave Petition was being heard by the Two Judge bench of the Supreme
Court, this issue had already been decided in ‘conflicting view’ judgments of the same bench
strength. So, they referred this case to a three Judge Bench, but the same problem emerged
here too since there was another judgment i.e. Saiyad Mohd. Saiyad Umar Saiyad and
others v. State of Gujarat1 in conflicting view of the same matter which held that failure to
observe the safeguards, while conducting search and seizure, as provided by Section
50 would render the conviction and sentence of an accused illegal. So, then the Court
decided to decide this question of law once and for all and referred it to a constitutional
bench of the Supreme Court.

1
1995 SCC (3) 610
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Objectives

There were several principles that emerged in this case. First, was that if the Evidence Act,
1872 which is a law consolidating, defining and amending the law of evidence, no provision
of which is challenged as violating the Constitution permits relevancy as the only test of
admissibility of evidence and that Act or any other similar law in force does not exclude
relevant evidence on the ground that it was obtained under an illegal search or seizure. It,
therefore, follows that neither by invoking the spirit of our Constitution nor by a strained
construction of any of the fundamental rights can we spell out the exclusion of evidence
obtained on an illegal search. Second, was that the question of admissibility of evidence,
which may be relevant to the question in issue, has thus to be decided in the context and
the manner in which the evidence was collected and is sought to be used. Third, was that
the investigating agency must follow the procedure as envisaged by the statute scrupulously
and the failure to do so must be viewed by the higher authorities seriously inviting action
against the concerned official so that the laxity on the part of the investigating authority is
curbed.
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Review of Literature

In this Case, the Court has referred to the following cases:

 Ali Mustaffa Abdul Rahman Moosa v. State of Kerala2

The appellant, a Kuwaiti national, was convicted for an offence under Section 20(b)(ii) of
the NDPS Act and sentenced to suffer imprisonment for 11 years and a fine of Rs 1 Lakh by
the learned Sessions Judge, Quilon. His appeal against the conviction failed before the High
Court of Kerala though the sentence of imprisonment was reduced to 10 years' RI. The
imposition of fine of Rs 1 Lakh as also the imprisonment in default of the payment of fine as
imposed by the trial court was, however, maintained. It was held in this case that even if
search and seizure of the contraband was held to be illegal having been conducted in
violation of the provisions of Section 50, it could not affect the conviction because the
recovered articles could still be used as "admissible evidence" under the Evidence Act to
establish unlawful possession of the contraband on the concerned person from whom it was
recovered during that search.

 Pooran Mal v. The Director of Inspection (Investigation), New Delhi & Ors. 3

In the proceedings before the Supreme Court two of them being writ petitions under Art. 32
of the Constitution and two others were appeals from the orders of the Delhi High Court in
writ petitions under Art. 226-relief was claimed in respect of the search of certain premises
and seizure of account books, documents, cash, jewellery and other valuables by Income-tax
authorities purporting to act u/s 132 of the Income Tax Act, 1961.The petitioners/
appellants challenged the validity of Sec. 132(1) and (5) of Rule 112(A) on the ground that
they violate Art.14, Article 19(1)(f) and (g) and 31 of the Constitution. It was also contended
that a writ of prohibition to restrain the authorities from using the 'information gathered
from the documents seized should be issued. In the writ petitions, the actual search and
seizure were challenged on the ground that they were carried out in contravention of the
provisions of Sec. 132 and Rule 112-A.The Court negated all the contentions.

2
1994 (6) SCC 569
3
1974 (1) SCC 345
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The Court had held 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.

The judgment cannot be interpreted to lay down that 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.

 State of Punjab v. Jasbir Singh & others4

In this Case, it was held that 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.

 State of Punjab v Baldev Singh was relied upon in the Case of State Of West Bengal And
Ors v Babu Chakraborty5 regarding a question of law which emerged from Sub Section
(1) of Section 42 of the NDPS Act, which held that "Section 42 deals with the power of
seizure and arrest of the suspect in a public place. The material difference between the
provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of
reasons for belief and for taking down information received in writing with regard to the
commission of an offence before conducting search and seizure. Section 43 does not
contain any such provision and as such while acting under Section 43 of the Act, the
empowered officer has the power of seizure of the article etc. and arrest of a person who
is found to be in possession of any narcotic drug or psychotropic substance in a public
place where such possession appears to him to be unlawful."

4
(1996) 1 SCC 288
5
2004 Supp(4) SCR 17
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Research Methodology

The Principle of Admissibility of Evidence states that there are legal rules that prohibit
evidence from being presented at a trial even though it is relevant to a factual
proposition that is material and in issue. These rules render the evidence to which they
apply “inadmissible” and require the judge to “exclude” it. It is common
for irrelevant evidence, or evidence of an immaterial fact to be described as
“inadmissible”. What this means is that the court will refuse to receive evidence if it is
irrelevant or immaterial. But, importantly, the court also excludes evidence for reasons
other than irrelevance and immateriality.

This Principle emerged in the year 1898 when a commission was set up under the
chairmanship of Sir Henry Mayne. He submitted the draft but it was found unsuitable to
Indian conditions. Later in the year 1870 this task of codification of the rules of law of
evidence was entrusted to Sir James Fitz James Stephen. Stephen submitted his draft
and it was referred to the select committee and also to High Courts and members of Bar
to elicit the opinion, and, after gathering opinion, the draft was placed before the
legislature and it was enacted.

Sir James Fitz James Stephen said that Admissibility involves the process whereby the
court determines whether the Law of Evidence permits that relevant evidence to be
received by the court. The admissibility of evidence, depends first on the concept of
relevancy of a sufficiently high degree of probative value, and secondly, on the fact that
the evidence tendered does not infringe any of the exclusionary rules that may be
applicable to it. Admissibility is the duty of the court to decide whether evidence should
be received by the court or no.
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Research Question

 What is the Scope of Admissibility of Evidence and How & When is it applied?

Hypothesis

 Admissibility of Evidence will vary according to the circumstances of the Case.

Contentions

Prosecution:

 Even if the search and seizure of the contraband was held to be illegal and contrary
to the provisions of Section 50 of NDPS Act, it would not affect the conviction
because the seized articles could be used as evidence of unlawful possession of the
contraband.
So, they said that the principle of admissibility of evidence under Sec 17 of the Indian
Evidence Act would not be defeated if evidence is gathered in an illegal search or
seizure and the Accused would be Convicted accordingly.

Defence:

 Unlawful Possession of the Contraband is Sin Qua Non for Conviction under the
NDPS Act, but the Prosecution has to prove it beyond Reasonable Doubt.
Since they were contending that the accused wasn’t in unlawful possession of
contrabands, the prosecution has to prove that he had such unlawful possession of
contraband beyond reasonable doubt and that the principle of Sin Qua Non which
applies to all offences under the NDPS Act won’t apply the accused.

Exceptions to the Principle:

If after careful consideration of the material on the record it is found by the court that
the admission of evidence collected in search conducted in violation of Section 50 would
render the trial unfair then that evidence must be excluded.
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Conclusion

The Court held that this particular Principle of Admissibility of Evidence in case of an illegal
search or seizure is not functional. Even if, it be assumed for the sake of argument that all
the material seized during an illegal search, may be admissible as relevant evidence in other
proceedings, but the illicit drug or psychotropic substance seized in an illegal search cannot
by itself be used as proof of unlawful conscious possession of the contraband by the
accused. An illegal search cannot also entitle the prosecution to raise a presumption
under Section 54 of the NDPS Act because presumption is an inference of fact drawn from
the facts which are known as proved. A presumption under Section 54 of the NDPS Act can
only be raised after the prosecution has established that the accused was found to be in
possession of the contraband in a search conducted in accordance with the mandate
of Section 50. They therefore, held that an illicit article seized from the person of an
accused, during search conducted in violation of the safeguards provided in Section 50 of
the NDPS Act, cannot by itself be used as admissible evidence of proof of unlawful
possession of the contraband on the accused. Any other material/article recovered during
that search may, however, be relied upon by the prosecution in other/independent
proceedings against an accused notwithstanding the recovery of that material during an
illegal search and its admissibility would depend upon the relevancy of that material and the
facts and circumstances of that case.