Case: State of Himachal Pradesh &amp; Another Vs. Pawan Kumar &amp; Another

evidence obtained as a result of illegal search or seizure is not liable to be shut out." 21. In the United States the law regarding illegally obtained evidence has been stated as under in 29 American Jurisprudence 2d (para 408): "408. Generally In criminal prosecutions, in particular, evidence is frequently obtained by methods that are morally reprehensible and offensive to fair dealing, under circumstances which meet with disapprobation of the courts, and in many instances, by means that are illegal. However, it is a rule of the Common law that the admissibility of evidence is not affected by the illegality of the means by which it is obtained, and if evidence offered in support of a fact in issue is relevant and otherwise competent, it is generally admissible, though it may have been obtained unethically, wrongfully, or unlawfully, unless its admission will violate a constitutional guaranty of the person against whom its admission is sought, or is in contravention of a statutory enactment of the jurisdiction. Accordingly, the exclusion of evidence logically relevant in a criminal prosecution can be justified only by an overriding public policy expressed in the Constitution or the law of the land. The underlying principle admitting evidence wrongfully or illegally obtained is that the objection to an offer of proof made upon the trial raises no question other than competency, relevancy, and materiality, and the court cannot enter upon the trial of collateral issues as to the source from which the evidence was obtained. It has also been said that a far-reaching miscarriage of justice would result if the public were to be denied the right to use convincing evidence of a defendants guilt because it had been brought to light through the excessive zeal of an individual, whether an officer or not, whose misconduct must be deemed his own act and not that of the state..........." The Fourth Amendment of American Constitution guarantees the "right of the people to be secure in their persons, houses, papers and effects and against unreasonable searches and seizures." On the basis of the aforesaid Constitutional provision, the United States Supreme Court in some earlier decisions laid down the rule that evidence obtained by means of an unlawful search and seizure by federal officers is not admissible against an accused in a criminal prosecution in a federal court where timely objection to the use of such evidence has been made. However, in Stone vs. Powell 428 US 465 the aforesaid view was reversed and it was held that the application of the rule deflects the truth finding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded to a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. It was observed that although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice. The Court quoted with approval the following point highlighted by Justice Black, in his dissenting opinion in a earlier decision rendered in Kaufman vs. United States 394 US 237: "A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty." 22. The Constitution Bench decision in Pooran Mal vs. The Director of Inspector 1974 (1) SCC 345 was considered in State of Punjab vs. Baldev Singh, 1999 Drugs Case 150 : 1999 (6) SCC 172 and having regard to the scheme of the Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the judgment in the said case can be said to have laid down that the "recovered illicit article" can be used as "proof of unlawful possession" of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between recovery of illicit drugs etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-Section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him. 23. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present cases as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.It will be useful here to take note of the general law regarding search and seizure and the effect of any illegality committed during the course of search on the seizure or recovery made of any incriminating article. In State of Maharashtra vs. Natwarlal Damodardas Soni AIR 1980 SC 593 , the Anti-Corruption Bureau had recovered 100 gold bars each weighing 10 tolas having foreign markings from the residential premises of the accused, consequent upon which the custom authorities initiated proceedings in which he was convicted. The contention raised was that the search and seizure of the gold by the police was illegal. It was held that the police had powers under the Code of Criminal Procedure t search and seize the gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo that the search was illegal, them also, it will not affect the validity of the seizure and further investigation by the custom authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present cases as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal.