REPORTABLE
2023INSC878
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2239-2240 OF 2011
RANJAN KUMAR CHADHA …APPELLANT(S)
VERSUS
STATE OF HIMACHAL PRADESH …RESPONDENT(S)
J U D G M E N T
J.B. PARDIWALA, J. :
1. The captioned appeals are at the instance of a convict
accused of the offence punishable under Section 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short, “the NDPS Act”) and are directed against the judgment
and order of conviction dated 20.08.2010 and the order of
sentence dated 16.09.2010 resply passed by the High Court of
Himachal Pradesh in the Criminal Appeal No. 356 of 1999 by
Signature Not Verified
which the High Court allowed the appeal filed by the State of
Digitally signed by
CHETAN KUMAR
Date: 2023.10.06
15:46:49 IST
Reason:
Himachal Pradesh and thereby set aside the judgment and order
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of acquittal passed by the Sessions Judge, Kullu dated
31.03.1999 in the Sessions Trial No. 44 of 1998. With the High
Court allowing the State’s acquittal appeal, the appellant herein
stood convicted of the offence punishable under Section 20 of
the NDPS Act.
2. The appellant was heard on the point of sentence and
ultimately, the High Court vide order dated 16.09.2010
sentenced the appellant herein to undergo rigorous
imprisonment for a period of two years and to pay fine of Rs.
50,000/- (Rupees Fifty Thousand Only), and in default of
payment of fine to undergo further rigorous imprisonment for
six months.
CASE OF THE PROSECUTION
3. On 23.08.1998 ASI Lal Singh (PW 14) was on patrolling
duty along with Head Constable Mohan Lal (PW 12), Constable
Sant Ram (PW 13) and Constable Baldev Dass (PW 6). At about
6.30 pm while they all were at Dhalpur, the ASI Lal Singh (PW
14) received a secret information that one well built person
wearing a white T-shirt and green trouser was standing at the
Sarwari bus stand and was ready to board a bus bound for
Delhi. The information was that the said person at the bus stand
had in his possession contraband in the form of charas. The
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secret information was recorded by the PW 14 and forwarded to
the Superintendent of Police, Kullu through the Constable
Baldev Dass (PW 6). The ASI Lal Singh (PW 14), HC Mohan Lal
(PW 12) and Constable Sant Ram (PW 13) accordingly left for
Sarwari bus stand and reached there at about 6.45 pm. The
officers were able to locate and identify the said person at the
bus stand carrying a bag on his shoulder. In the presence of two
independent witnesses, the said person was asked to disclose
his identity. The person standing at the bus stand disclosed his
identity as Ranjan Kumar Chadha son of Shri Ved Parkash
Chadha resident of New Delhi. As the police officials suspected
that he may be carrying charas, they gave him the option of
being searched before the police or before a Gazetted Officer or
Magistrate. The person concerned consented to be searched
before the police. Before the search of the person of the accused
was undertaken, the police officials got themselves searched
before the witnesses. The bag which the accused was carrying
along with him was also searched. The search of the bag resulted
in recovery of three polythene bags containing charas. Many
other articles like the driving licence, etc. were also recovered
from his bag. On being weighed, the charas was found to be 1
kg. 250 gms.
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4. Two samples of 25 grams each were drawn from the
polythene bags containing charas and the remaining charas was
sealed with seal “H”. Seal impression was also taken on the NCB
form and seal was handed over to the PW 9 Surinder Kumar.
The charas was taken into possession vide recovery memo Ext.
PK which was signed by the witnesses PW 9 Surinder Kumar,
PW 10 Karam Singh and PW 12 Mohan Lal resply. The accused
was informed of the grounds of his arrest, etc. vide memo Ext.
PL. Ruqua Ext. PG was prepared and sent to the police station
through the Constable Sant Ram. The site plan Ext. PP was
prepared on the spot. The statements of the witnesses were
recorded. Thereafter, PW 14 came to the Police Station along
with the accused and deposited the case property including the
samples and the NCB form before the SHO who resealed the case
property and samples with seal-X. One of the samples was sent
for chemical examination to the CIL, Kandaghat and vide report
Ext. PO the samples were found to be of charas having resin
content of 33.58%. On this basis the accused was charge
sheeted with having committed an offence as aforesaid.
5. The accused pleaded not guilty before the Trial Court and
claimed to be tried. The defence of the accused was that when
the bus was about to leave for Delhi and while the accused was
sitting in the bus with some other passengers, one unclaimed
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bag was found and the accused was wrongly stated to be the
owner of the said bag. In short, the case of the accused before
the Trial Court was that he was falsely implicated in the case.
6. The Trial Court upon appreciation of the oral as well as
documentary evidence came to the conclusion that the
prosecution had failed to prove its case against the accused
beyond a reasonable doubt and accordingly, acquitted the
accused.
7. The State of Himachal Pradesh, being dissatisfied with
the judgment and order of acquittal passed by the Trial Court,
went in appeal before the High Court. The appeal came to be
allowed by the High Court and the appellant herein stood
convicted for the offence under Section 20 of the NDPS Act.
8. In such circumstances referred to above, the appellant is
here before this Court with the present appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANT
9. Mrs. Pragya Baghel, the learned counsel appearing for
the appellant, vehemently submitted that the High Court
committed a serious error in holding the appellant guilty of the
offence under the NDPS Act. She would submit that the High
Court should not have disturbed a well reasoned judgment of
acquittal passed by the Trial Court. The learned counsel
submitted that the High Court committed a serious error in
5
recording the finding that Section 50 of the NDPS Act is not
applicable in the present case as the recovery of the contraband
substance was not made as a result of the personal search of
the accused but on account of the search of his bag.
10. It was argued that the expression “to search any person”
occurring in Section 50 of the NDPS Act means search of
articles on the person or body of the person to be searched as
well as the search of articles in immediate possession like bag
and other luggage carried by him or in physical possession of
the person to be searched.
11. The learned counsel argued that Section 50 of the NDPS
Act was not complied with in its letter and spirit as although the
case of the prosecution is that the appellant was given the option
to be searched before the police or a Gazetted Officer or
Magistrate, yet the appellant accused was not told that it is his
right to be searched in the presence of a Magistrate or Gazetted
Officer. The learned counsel argued that the fact that the
accused was also given a third option of being searched before
the police officer itself violated Section 50 of the NDPS Act. She
would argue that Section 50 of the NDPS Act is mandatory and
the Trial Court rightly held that Section 50 of the NDPS Act was
not complied with.
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12. In the last, the learned counsel argued that in case of
search of person of the accused as well as the luggage which is
in his immediate possession, then even in such circumstances
Section 50 of the NDPS Act will apply and would have to be
complied with. She would argue that in the case on hand not
only the search of the person of the accused was undertaken but
the search of the bag was also undertaken. To fortify this
submission, the learned counsel relied on the decision of this
Court in the case of SK. Raju alias Abdul Haque alias Jagga
v. State of West Bengal reported in (2018) 9 SCC 708.
According to the learned counsel, the ratio of the decision of this
Court in SK. Raju (supra) is that if the search is of both the bag
as well as the person of the accused, Section 50 of the NDPS Act
would be attracted.
13. In such circumstances referred to above, the learned
counsel prayed that there being merit in her appeals, the same
be allowed and the judgment and order of conviction and
sentence passed by the High Court may be set aside.
SUBMISSIONS ON BEHALF OF THE STATE
14. Mr. Anil Nag, the learned counsel appearing for the State,
on the other hand, vehemently opposed these appeals
submitting that no error, not to speak of any error of law, could
7
be said to have been committed by the High Court in passing
the impugned judgment and order of conviction and sentence.
He would argue that the High Court was justified in holding the
appellant herein guilty of the offence punishable under Section
20 of the NDPS Act. It was vehemently argued that Section 50 of
the NDPS Act is not applicable at all in the present case as the
search was made only of the bag which the appellant was
carrying on his shoulder and the person of the appellant was
not searched. It was argued that the decision of this Court in
SK. Raju (supra) is of no avail to the appellant herein as in the
said case not only the person of the accused was searched but
even the bag was searched and as the recovery of the contraband
was from the bag, this Court took the view that Section 50 of the
NDPS Act would be attracted.
15. The learned counsel appearing for the State in support of
his aforesaid submission placed strong reliance on the decision
of this Court in the case of State of Punjab v. Baljinder Singh
reported in (2019) 10 SCC 473.
16. In such circumstances referred to above, the learned
counsel appearing for the State prayed that there being no merit
in the appeals, those may be dismissed.
8
ANALYSIS
17. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
only question that falls for our consideration is, whether the
High Court committed any error in holding the appellant herein
guilty of the offence punishable under Section 20 of the NDPS
Act?
18. Before we advert to the rival submissions canvassed on
either side, we must look into the relevant findings recorded by
the High Court as well as by the Trial Court.
19. The Trial Court in its judgment of acquittal, while
discussing Section 50 of the NDPS Act and its compliance, held
as under:-
“11. Regarding compliance of provisions of section 5O of
the Act, which is also a mandatory provisions under the
Act, none of the witnesses of this consent memo EX.PG
have supported the version of the prosecution. PW-9
Surinder Kumar and PW-10 Karam Singh independent
witnesses joined in the raiding party have categorically
stated that no such notice was given in their presence to
the accused nor accused gave in writing the endorsement
EX. PG/1 in their presence. There is only bare statement
of PW-14 ASI Lal Singh that this notice was given to the
accused but when there were admittedly independent
witnesses present on the spot as per case of the
prosecution, who have been declared hostile in court, it
was for the prosecution to prove that these witnesses
have suppressed truth from the court, but nothing has
been proved against them as to why they should have
deposed falsely against the prosecution or in favour of the
9
accused and therefore, it is held that the prosecution has
failed to prove beyond reasonable doubt the compliance
of Section 50 of the Act, which is mandatory provision and
on this score the accused Ranjan Chadha is entitled to
acquittal. Moreover the recovery of charas from the bag of
the accused is alleged to have taken place in presence of
PW-9 Surinder Kumar and PW-10 Karam Singh in
addition to PW-12 HC Mohan Lal, PW-13 Sant Ram and
PW-14 ASI Lal Singh. However both the independent
witnesses PW-9 Surinder Kumar and PW-10 Karam Singh
have been declared hostile when they deposed that no
bag was found in possession of the accused in their
presence nor search of the accused was conducted in
their presence and nothing has been proved against
them, in their cross examination as to why they should
have deposed falsely. From the statements of these
witnesses, who have been declared hostile, I am of the
opinion that reasonable doubt has been created in the
case of the prosecution by the accused regarding alleged
recovery of charas from the conscious and exclusive
possession of the accused and accordingly by giving the
benefit of doubt to the accused, it is held that the
prosecution has failed to prove that on 23.8.1998 at 6.30
pm 1.250 grams of charas was recovered from the
conscious and exclusive possession of the accused point
No. I is accordingly answered.”
20. The High Court, while reversing the judgment and order
of acquittal passed by the Trial Court and more particularly on
the issue of applicability of Section 50 of the NDPS Act, held as
under:-
“As far as Section 50 of the Act is concerned the same is
not at all applicable to the facts of the present case. The
recovery of the contraband substance was not made as
a result of the personal search of the accused but on
account of the search from his bag. In such eventuality
the police is not required to comply with Section 50 of the
Act. In this behalf reference may be made to the decision
of the Apex Court in State of Himachal Pradesh
Versus Pawan Kumar Latest HLJ 2004 [SC] 1247 .”
10
ORAL EVIDENCE ON RECORD:-
21. We shall now look into the deposition of PW 12 Mohan
Lal. Head Constable No. 175, Kullu Police Station. PW 12 in his
examination in chief has deposed as under:-
“Stated that I am posted in P.S. Kullu since 1997. On
23.8.1998 I with ASI Lal Singh, Constable Sant Ram and
Baldev Dass proceeded from P.S. Kullu at 5.30 p.m. for
patrolling. At about 6.30 p.m. ASI received secret
information at Dhalpur. Whereupon ASI Lal Singh
prepared Information Report and sent to S.P. through
Const. Baldev Dass and I and ASI Lal Singh and Const.
Sant Ram went to Bus Stand. Kullu (Sarbari). We reached
Sarbari Bus Stand at 6.45 p.m. Surender, Bus Stand
lncharge and Karam Singh were made to join the
investigation. Accused Ranjan Chadha present in the
court was standing in the verandah of Bus Stand and he
had a black blue colour bag on his shoulder. Before
witnesses Surender and Karam Singh, notice was issued
by ASI Lal Singh to the accused to the effect that ASI has
apprehension that you may be having charas in your
possession and whether he wants to give his search to
ASI or before G.O. or Magistrate. Accused gave in writing
that he wants his search to be conducted by the police.
Memo of this was also prepared. Accused told his name
as Ranjan Kumar Chadha. After that accused along with
witnesses was taken to a room which is adjacent to the
room of Incharge of Bus Stand. ASI searched the bag and
besides personal luggage of Ranjan Chadha, Charas in
three polythene packets were recovered from the bag and
it was weighed and the charas was found to be 1 kg. 250
gms. Out of which two samples of 25 gm. each were taken
and sample and recovered charas were separately
sealed in two packets with seal H. After affixing seal on
samples, the seal was handed over to Surender Kumar
witness. After that ASI prepared Rukka and gave it to
constable who took the Rukka to police station. Accused
was arrested and accused was told of the ground of
arrest and sentence. Accused and witnesses Surender
Singh, Karam Singh and I affixed our respective signature
on the Consent Memo Exh.PJ, Recovery Memo Exh.PK,
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Grounds of Arrest Exh.PN. Exh.P.1 packet and Exh.P.2
sample are same. Personal search of accused was
conducted. Exh.PE the memo of personal search bears my
signature as witness.”
22. We also looked into the cross examination of the PW 12
by the defence counsel. We take notice of the fact that nothing
substantial could be elicited from the PW 12 in his cross
examination. We also take notice of the fact that except
suggestions put to the witness, there is no other form of cross
examination.
23. We shall now look into the evidence of PW 14 ASI Lal
Singh of Kullu Police Station. The PW 14 in his examination in
chief has deposed as under:-
“Stated that I am posted in P.S. Kullu since 1997. On
23.8.98, I along with HC Mohan Lal, Constables Sant
Ram and Baldev Dass moved out of police station Kullu
at 5.30 p.m. for patrolling. The departure report was
entered in the GD. When we were present at Dhalpur at
6.30 p.m., I got information from informer that one person
wearing white T Shirt and green pajama and having
French cut beard and is healthy is having one big bag
with him and he with charas is ready to go to Delhi by
bus from Sarbari Bus Stand. Thereupon I prepared
information report and sent it to SP, Kullu through
Constable Baldev Dass. Exh.PB is copy of it. After that I,
with HC Mohan Lal, Constable Sant Ram went to Sarbari
Bus Stand on foot and we reached Sarbari bus stand at
6.45 p.m. Surender Kumar, Bus Stand Incharge and
Karam Singh were asked to join the investigation who
joined the investigation. The person with same features
as told by informer was found standing at that bus stand
who had a bag on his shoulder. Before witnesses I asked
name of that person whereupon that person told his
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name as Ranjan Kumar Chadha S/o Ved Prakash
Chadha, Sarva Priya Vihar, New Delhi. Before the
witnesses, I asked that person that police has
apprehension that he is in possession of charas and
whether he wants that his personal search is to be
conducted by police or by any G.0. or Magistrate. The
accused present in the court is the same person who had
given his consent in writing and verbally that he is ready
to give his search to me. Consent Memo Exh.PJ was
prepared in this regard and accused has given his
consent thereon by writing the same in his handwriting.
After that I gave my personal search through Exh.PM in
the presence of witnesses. Then the bag which accused
was holding was searched before the witnesses. Bag
was black blue colour on which MITRE was found written.
On search of bag, besides other belongings of accused
such as D.L., Diary, etc., three polythene packets were
recovered in which Charas in the form of Battis and
tablets were recovered. On weighing, charas 1 kg. 250
gms. was found out of recovered charas, 2 samples of 25
grns. each were taken out and charas and samples were
sealed with seal H. After filling up NCB Form and sample
seal, seal was handed over to witness Surender Kumar.
Charas was seized through seizure memo Exh.PJ on
which accused affixed his signature and witnesses
affixed their signatures. Accused was informed through
Exh.PN regarding grounds of arrest, etc. Rukka Exh.PH
was prepared and sent to Police Station through
Constable Sant Ram and after registration of FIR he
brought the file from police station. Site plan Exh.PP was
prepared correctly. Statements of witnesses were
recorded. Statement of Surender Kumar Marked X, now
Exhibited as Exh.PQ and statement of Karam Singh
marked Y now exhibited as Exh.PR have been correctly
recorded by me as given by them. Nothing was left out
and nor anything was added of my own in their
statements. Memo of personal search Exh.PE was
prepared and tickets Exh.PF for Delhi Bus was recovered
from accused. Thereafter I with accused and case
property came to police station. Case property, sample
and NCB Form were submitted by me to SHO who sealed
case property and sample with seal X. Parcels are Exh.P1
and Sample is Exh.P2. Accused was produced in the court
on 24.8.98 and remand of accused obtained. During
investigation, accused informed that charas has been
13
given to him by Nathan Ashley for taking the same to
Delhi and that person is staying at Nest Guest House
located near bus stand. We went to that Guest House but
no person of this name was found there. On 25.8.98 I
prepared special report and sent to SP through. constable
Lakshman Dass and Exh.PC is copy of the same. After
completing the investigation, documents and papers were
given to SHO who (SHO) has prepared the challan.”
24. We also looked into the cross examination of the PW 14
by the defence counsel. We take notice of the fact that nothing
substantial could be elicited from the PW 14 in his cross
examination. We also take notice of the fact that except
suggestions put to the witness, there is no other form of cross
examination.
25. What is pertinent to note in the oral evidence of PW 12
and PW 14 respectively referred to above, is that the appellant
herein was told or rather informed that if he so desired, he may
get himself searched before the ASI or before the Gazetted Officer
or Magistrate. Thus, it is evident from the oral evidence of both
PW 12 and PW 14 resply that three options were given to the
appellant herein – first to be searched before the ASI i.e.
Assistant Sub-Inspector, second, before the Gazetted Officer
and third, before any Magistrate. It is also pertinent to note that
the appellant was not informed in so many words that it is his
14
right under Section 50 of the NDPS Act to seek search before a
Gazetted Officer or Magistrate.
26. So far as the issue of applicability of Section 50 of the
NDPS Act is concerned, there are two aspects of the same. Even
if we hold that Section 50 of the NDPS Act was not complied
with, then the second question would be, whether Section 50
could at all be made applicable to the case on hand.
27. We have no hesitation in recording a finding that Section
50 of the NDPS Act was not complied with as the appellant could
not have been offered the third option of search to be conducted
before the ASI. Section 50 of the NDPS Act only talks about a
Gazetted Officer or Magistrate. What is the legal effect if an
accused of the offence under the NDPS Act is being told,
whether he would like to be searched before a police officer or a
Gazetted Officer or Magistrate?
28. This Court in State of Rajasthan v. Parmanand and
another , (2014) 5 SCC 345, held that it is improper for a police
officer to tell the accused that a third alternative is also available
i.e. the search before any independent police officer. This Court
also took the view that a joint communication of the right
available under Section 50 of the NDPS Act to the accused would
15
frustrate the very purport of Section 50. We quote the relevant
observations made by this Court as under:-
“15. Thus, if merely a bag carried by a person is searched
without there being any search of his person, Section
50 of the NDPS Act will have no application. But if the bag
carried by him is searched and his person is also
searched, Section 50 of the NDPS Act will have
application. In this case, respondent 1 Parmanand’s bag
was searched. From the bag, opium was recovered. His
personal search was also carried out. Personal search of
respondent 2 Surajmal was also conducted. Therefore, in
the light of the judgments of this Court mentioned in the
preceding paragraphs, Section 50 of the NDPS Act will
have application.
16. It is now necessary to examine whether in this
case, Section 50 of the NDPS Act is breached or not. The
police witnesses have stated that the respondents were
informed that they have a right to be searched before the
nearest gazetted officer or the nearest Magistrate or
before PW 5 J.S. Negi, the Superintendent. They were
given a written notice. As stated by the Constitution
Bench in State of Punjab v. Baldev Singh (1999) 6 SCC
172, it is not necessary to inform the accused person, in
writing, of his right under Section 50(1) of the NDPS Act.
His right can be orally communicated to him. But, in this
case, there was no individual communication of right. A
common notice was given on which only respondent 2
Surajmal is stated to have signed for himself and for
respondent 1 Parmanand. Respondent 1 Parmanand did
not sign.
17. In our opinion, a joint communication of the right
available under Section 50(1) of the NDPS Act to the
accused would frustrate the very purport of Section 50.
Communication of the said right to the person who is
about to be searched is not an empty formality. It has a
purpose. Most of the offences under the NDPS Act carry
stringent punishment and, therefore, the prescribed
procedure has to be meticulously followed. These are
minimum safeguards available to an accused against the
possibility of false involvement. The communication of
16
this right has to be clear, unambiguous and individual.
The accused must be made aware of the existence of such
a right. This right would be of little significance if the
beneficiary thereof is not able to exercise it for want of
knowledge about its existence. A joint communication of
the right may not be clear or unequivocal. It may create
confusion. It may result in diluting the right. We are,
therefore, of the view that the accused must be
individually informed that under Section 50(1) of the
NDPS Act, he has a right to be searched before the nearest
gazetted officer or before the nearest Magistrate. Similar
view taken by the Punjab and Haryana High Court in
Paramjit Singh v. State of Punjab, (1977) 1 Crimes 242
(P&H) and the Bombay High Court in Dharamveer
Lekhram Sharma v. State of Maharashtra (2001) 1
Crimes 586 (Bo0m) meets with our approval.
18. It bears repetition to state that on the written
communication of the right available under Section
50(1) of the NDPS Act, respondent Surajmal has signed
for himself and for respondent 1 Parmanand. Respondent
1 Parmanand has not signed on it at all. He did not give
his independent consent. It is only to be presumed that he
had authorized respondent 2 Surajmal to sign on his
behalf and convey his consent. Therefore, in our opinion,
the right has not been properly communicated to the
respondents. The search of the bag of respondent 1
Parnanand and search of person of the respondents is,
therefore, vitiated and resultantly their conviction is also
vitiated.
19. We also notice that PW 10 SI Qureshi informed the
respondents that they could be searched before the
nearest Magistrate or before the nearest gazetted officer
or before PW 5 J.S. Negi, the Superintendent, who was a
part of the raiding party. It is the prosecution case that
the respondents informed the officers that they would like
to be searched before PW 5 J.S. Negi by PW 10 SI Qureshi.
This, in our opinion, is again a breach of Section 50(1) of
the NDPS Act. The idea behind taking an accused to the
nearest Magistrate or the nearest gazetted officer, if he so
requires, is to give him a chance of being searched in the
presence of an independent officer. Therefore, it was
improper for PW 10 SI Qureshi to tell the respondents that
a third alternative was available and that they could be
17
searched before PW 5 J.S. Negi, the Superintendent, who
was part of the raiding party. PW 5 J.S. Negi cannot be
called an independent officer. We are not expressing any
opinion on the question whether if the respondents had
voluntarily expressed that they wanted to be searched
before PW 5 J.S. Negi, the search would have been
vitiated or not. But PW 10 SI Qureshi could not have given
a third option to the respondents when Section 50(1) of
the NDPS Act does not provide for it and when such option
would frustrate the provisions of Section 50(1) of the
NDPS Act. On this ground also, in our opinion, the search
conducted by PW 10 SI Qureshi is vitiated.”
(Emphasis supplied)
29. Thus, from the oral evidence on record as discussed
above it is evident that Section 50 of the NDPS Act stood violated
for giving a third option of being searched before a police officer.
30. However, the important question that falls for our
consideration is whether Section 50 of the NDPS Act is at all
applicable to the present case? We have noticed few
discrepancies in the oral evidence of PW 12 and PW 14
respectively and the finding recorded by the High Court. The
High Court in its impugned judgment has said in so many words
that the appellant was searched in presence of the independent
witnesses and the bag, which was on the shoulder of the
appellant was also searched. But for the discrepancies, we could
have considered applying the ratio as enunciated by this Court
in the case of SK. Raju (supra) as well as Parmanand (supra).
However, there is nothing in the oral evidence of the police
officers on record to indicate that the search of the person of the
18
appellant was also undertaken along with the bag. Therefore, we
proceed on the assumption that it is only the bag which was
searched which led to the recovery of the contraband.
31. The question, therefore, that requires consideration is
what meaning should be assigned to the phrase “to search any
person” occurring in Section 50 of the NDPS Act. Whether the
phrase “to search any person” means (a) search of articles on
the person or body of the person; (b) would include search of
articles in immediate possession as such bag or other luggage
carried by him or in physical possession of the person to be
searched; (c) would include search of bag or luggage which is
presumed to be in possession of the person even though it may
be lying in a house or railway compartment or at the airport; or
(d) whether application of Section 50 could be extended to a case
of search of a place, a conveyance or a house if the accused is
physically present at the time of the search.
32. Section 50 of the NDPS Act is reproduced hereinbelow:-
“ Section 50. Conditions under which search of
persons shall be conducted .
(1) When any officer duly authorised under section 42 is
about to search any person under the provisions of
section 41, section 42 or section 43, he shall, if such
person so requires, take such person without
unnecessary delay to nearest Gazetted Officer of any of
the departments mentioned in section 42 or to the nearest
Magistrate.
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(2) If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer
or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom
any such person is brought shall, if he sees no reasonable
ground for search, forthwith discharge the person but
otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a
female.
(5) When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the person
to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be
searched parting with possession of any narcotic drug or
psychotropic substance, or controlled substance or article
or document, he may, instead of taking such person to the
nearest Gazetted Officer or Magistrate, proceed to search
the person as provided under section 100 of the Code of
Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the
officer shall record the reasons for such belief which
necessitated such search and within seventy-two hours
send a copy thereof to his immediate official superior.”
33. Ordinarily, it could be said or argued that “to search any
person” would mean, to search the articles on the person or body
of the person to be searched and would normally not include the
articles which are not on the body of the person to be searched.
When we are deliberating on the scope and true purport of
Section 50 of the NDPS Act, we should bear in mind that the
main object of Section 50 of the NDPS Act is to avoid the
allegation of planting something or fabricating evidence by the
prosecution or the authorized officer.
20
34. The aforesaid interpretation is made clear to a certain
extent by Section 50(4) of the NDPS Act which provides for
search of a female. Section 50(4) of the NDPS Act provides that
“no female shall be searched by anyone excepting a female” . If
the articles to be searched are not on the person or body, then
there is no question of a search being carried out by a female.
But when articles which are on the body of the person to be
searched, then such search could be only done by another
female. This is necessary as the law enjoins strict regard to
decency. This provision also gives some clue as to how to
interpret the phrase “to search any person” occurring in Section
50 of the NDPS Act.
35. There is a similar provision in the Code of Criminal
Procedure, 1898 (for short, “CrPC 1898”) and also in the Code
of Criminal Procedure, 1973 (for short, “CrPC 1973”). Section
51, Part III, of the CrPC 1898, provides that the officer making
the arrest or, when the arrest is made by a private person, the
police officer to whom he makes over the person arrested, may
search such person, and place in safe custody all articles, other
than necessary wearing apparel, found upon him. With regard
to search of a female, Section 51(2) of the CrPC 1973, provides
that whenever it is necessary to cause a female to be searched,
the search shall be made by another female with strict regard to
21
decency. Same safeguards are provided under Section 102(3) of
the CrPC 1898 and Section 100 of the CrPC 1973.
36. Considering the aforesaid provisions, the inference which
can be drawn is that “to search any person” would mean only
search of the body or wearing apparels of such person and in
that case the procedure which is required to be followed would
be the one prescribed under Section 50 of the NDPS Act. In
contrast, if search of any building, conveyance or place,
including a public place, is to be carried out, then there is no
question of following the procedure prescribed under Section 50.
However, when a suspected or arrested person is to be searched,
then the procedure prescribed under Section 50 comes into
operation and the procedure thereunder is required to be
followed. This can be seen by referring to Section 100(3) of the
CrPC 1973 which provides that where any person is reasonably
suspected of concealing about his person any article for which
search should be made, such person may be searched and if
such person is a woman, the search shall be made by another
woman with strict regard to decency. The concealment which is
suspected is on the person or about his person.
37. The provisions of Section 50 were exhaustively construed
by this Court in the case of State of Punjab v. Balbir Singh ,
22
(1994) 3 SCC 299. We may refer to the relevant observations
made in paragraph 21 of the aforesaid judgment which deals
with this aspect. It is as under:-
| “21. Both under Sections 41 and 42, the officers | |
|---|
| empowered can enter and search the place and also | |
| arrest the person suspected to have committed the offence | |
| either on the basis of his own knowledge or on the basis | |
| of information reduced to writing. If an arrest is made and | |
| a person is to be searched, then as noted above Section | |
| 50 comes into operation and the search of the person has | |
| to be carried out in the manner provided thereunder. …” | |
| (Emphasis supplied) | |
| | |
| 38. The aforesaid observations make it clear that when | | |
| search of an arrested person is to be carried out, then the | | |
| procedure prescribed under Section 50 is to be followed and not | | |
| in those cases where search is to be carried out of any building, | | |
| a conveyance or any premises which may be public or private | | |
| where bags and baggage containing narcotic drugs are lying. The | | |
| object and purpose of such search is also discussed in the said | | |
| judgment and the relevant observations are as under:- | | |
| “4. … This provision obviously is introduced to avoid any | |
| harm to the innocent persons and to avoid raising of | |
| allegation of planting or fabrication by the prosecuting | |
| authorities. It lays down that if the person to be searched | |
| so requires, the officer who is about to search him under | |
| the provisions of Sections 41 to 43, shall take such person | |
| without any unnecessary delay to the nearest Gazetted | |
| Officer of any of the departments mentioned in Section 42 | |
| or to the nearest magistrate. One of the questions raised | |
| is that what meaning is to be given to the words “if the | |
| person to be searched so requires”. Do they cast a duty | |
| upon the officer about to make the search to intimate such | |
23
| person that if he so requires he would be taken before the | |
|---|
| nearest Gazetted Officer or the nearest magistrate for the | |
| purpose of making search in their presence or it is for such | |
| person to make such a request on his own without being | |
| informed by the officer? …” | |
| | |
| In paragraph 5, the Court observed:- | | |
| | |
| “5. … But when a police officer carrying on the | |
| investigation including search, seizure or arrest | |
| empowered under the provisions of the CrPC comes | |
| across a person being in possession of the narcotic drugs | |
| or psychotropic substances then two aspects will arise. If | |
| he happens to be one of those empowered officers under | |
| the NDPS Act also then he must follow thereafter the | |
| provisions of the NDPS Act and continue the investigation | |
| as provided thereunder. If on the other hand, he is not | |
| empowered then the obvious thing he should do is that he | |
| must inform the empowered officer under the NDPS Act | |
| who should thereafter proceed from that stage in | |
| accordance with the provisions of the NDPS Act. But at | |
| this stage the question of resorting to Section 50 and | |
| informing the accused person that if he so wants, he | |
| would be taken to a Gazetted Officer and taking to | |
| Gazetted Officer thus would not arise because by then | |
| search would have been over. As laid down in Section 50 | |
| the steps contemplated thereunder namely informing and | |
| taking him to the Gazetted Officer should be done before | |
| the search. When the search is already over in the usual | |
| course of investigation under the provisions of CrPC then | |
| the question of complying with section 50 would not | |
| arise.” | |
39. Thereafter the Court considered the provisions of
Sections 100 and 165 resply of the CrPC 1973 which deal with
the search of the premises and the person. Section 100(1) deals
with the search of a closed place and Section 100(3) deals with
search of a person, whereas Section 165 deals with search by a
24
police officer from any place. The Court observed that if there is
non-compliance of Section 100 or 165 that itself cannot be a
ground for rejecting the prosecution case outright. The effect of
such non-compliance will have a bearing on appreciation of
evidence of official witnesses and other material depending upon
the facts and circumstances of each case. In carrying out such
searches if they come across any substance covered by the
NDPS Act, the question of complying with the provisions of the
said Act including Section 50 at that stage would not arise.
When the contraband seized during such arrest or search
attracts the provisions of the NDPS Act, then from that stage the
other relevant provisions of the NDPS Act would be attracted
and further steps have to be taken in accordance with the
provisions of the said Act.
40. Thereafter, the Court considered whether the failure to
comply with the conditions laid down in Section 50 of the NDPS
Act by the empowered or authorised officer while conducting the
search affects the prosecution case, and held as under:-
“18. … It is obvious that the legislature while keeping in
view the menace of illicit drug trafficking deemed it fit to
provide for corresponding safeguards to check the misuse
of power thus conferred so that any harm to innocent
persons is avoided and to minimise the allegations of
planting or fabricating by the prosecution, Section 50 is
enacted.”
25
| The Court thereafter held as under:- | |
|---|
| |
| “20. …When such is the importance of a right given to an |
| accused person in custody in general, the right by way of |
| safeguard conferred under Section 50 in the context is all |
| the more important and valuable. Therefore it is to be |
| taken as an imperative requirement on the part of the |
| officer intending to search to inform the person to be |
| searched of his right that if he so chooses, he will be |
| searched in the presence of a Gazetted Officer or a |
| Magistrate. Thus the provisions of Section 50 are |
| mandatory.” |
| |
| 41. When we refer to the decision of this Court in Balbir | |
| Singh (supra), what has been held therein as a broad principle | |
| in para 25(1), is as under:- | |
| “25. The questions considered above arise frequently | | |
|---|
| before the trial courts. Therefore we find it necessary to | | |
| set out our conclusions which are as follows: | | |
| | |
| (1) If a police officer without any prior information as | |
| contemplated under the provisions of the NDPS Act | |
| makes a search or arrests a person in the normal | |
| course of investigation into an offence or suspected | |
| offences 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 | |
| thereunder would not arise. If during such search or | |
| arrest there is a chance recovery of any narcotic drug | |
| or psychotropic 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. If he happens to be an | |
| empowered officer also, then from that stage onwards, | |
| he should carry out the investigation in accordance | |
| with the other provisions of the NDPS Act.” | |
| | |
| | |
26
42. The said principle clearly postulates a situation where a
police officer in the normal course of investigation of an offence
or suspected offences as provided under the provisions of CrPC
1973 and in the course of such investigation when a search is
completed and in that process happens to stumble upon
possession of a narcotic drug or psychotropic substance, the
question of invoking Section 50 would not arise. When that
principle is examined carefully one can easily understand that
without any prior information as to possession of any narcotic
drug and psychotropic substance, a police officer might have
held a search in the course of discharge of his duties as
contemplated under the provisions of CrPC 1973 and, therefore,
it would be well-neigh impossible to state that even under such
a situation, the application of Section 50 would get attracted.
The facts involved in Balbir Singh (supra) would indicate that
the police officer effected the arrest, search and seizure on
reasonable suspicion that a cognizable offence was committed
and not based on any prior information that any offence
punishable under the NDPS Act was committed and, therefore,
it was argued that complying with the provisions of the NDPS
Act at the time of the said arrest, search and seizure did not
arise inasmuch as such arrest, search and seizure was
substantially in accordance with the provisions of CrPC 1973. It
27
was, therefore, contended that such arrest, search and seizure
cannot be declared as illegal. While examining the contention in
the said background, Principle 1 in para 25 referred to above
came to be rendered. (See : Gurjant Singh v. State of Punjab
(2014) 13 SCC 603).
43. It all started with the Constitution Bench decision of this
Court in the case of State of Punjab v. Baldev Singh , (1999) 6
SCC 172. The Constitution Bench had to be constituted in view
of the cleavage of opinion expressed by this Court in the State
of Punjab v. Balbir Singh reported in (1994) 3 SCC 299, Ali
Mustaffa Abdul Rahman Moosa v. State of Kerala reported
in (1994) 6 SCC 569, and Saiyad Mohd. Saiyad Umar Saiyad
and Ors. v. State of Gujarat reported in (1995) 3 SCC 610.
44. This Court in Baldev Singh (supra) held that Section 50
would come into play only in cases where search of a person is
conducted under the NDPS Act as contemplated under
Section 42. Where there is no search of a person under the NDPS
Act, Section 50 would have no application. However, where in
the course of a general search being conducted under the CrPC,
1973 in connection with any offence or suspected offence except
one under the NDPS Act, there is recovery of any contraband,
the provisions of the NDPS Act shall forthwith apply in such
28
cases also. The relevant observations made are reproduced
below:-
“12. On its plain reading, Section 50 would come into
play only in the case of a search of a person as
distinguished from search of any premises etc. However,
if the empowered officer, without any prior information as
contemplated by Section 42 of the Act makes a search or
causes arrest of a person during the normal course of
investigation into an offence or suspected offence and on
completion of that search, a contraband under the NDPS
Act is also recovered, the requirements of Section 50 of
the Act are not attracted.
13. Vide Section 51, the provisions of the Code of Criminal
Procedure, 1973 shall apply, insofar as they are not
inconsistent with the provisions of the NDPS Act, to all
warrants issued and arrests, searches and seizures
made under the NDPS Act. Thus, the NDPS Act, 1985 after
incorporating the broad principles regarding search,
seizure and arrest etc. in Sections 41, 42, 43, 49 and 50
has laid down in Section 51 that the provisions of the
Code of Criminal Procedure shall apply insofar as they
are not inconsistent with the provisions of the NDPS Act.
The expression “insofar as they are not inconsistent with
the provisions of this Act” occurring in Section 51 of the
NDPS Act is of significance. This expression implies that
the provisions of the Code of Criminal Procedure relating
to search, seizure or arrest apply to search, seizure and
arrest under the NDPS Act also except to the extent they
are “inconsistent with the provisions of the Act”. Thus,
while conducting search and seizure, in addition to the
safeguards provided under the Code of Criminal
Procedure, the safeguards provided under the NDPS Act
are also required to be followed. Section 50(4) of the NDPS
Act lays down that no female shall be searched by
anyone excepting a female. This provision is similar to the
one contained in Section 52 of the Code of Criminal
Procedure, 1898 and Section 51(2) of the Code of Criminal
Procedure, 1973 relating to search of females. Section
51(2) of the Code of Criminal Procedure, 1973 lays down
that whenever it is necessary to cause a female to be
searched, the search shall be made by another female
with strict regard to decency. The empowered officer
29
must, therefore, act in the manner provided by Section
50(4) of the NDPS Act read with Section 51(2) of the Code
of Criminal Procedure, 1973 whenever it is found
necessary to cause a female to be searched. The
document prepared by the investigating officer at the spot
must invariably disclose that the search was conducted
in the aforesaid manner and the name of the female
official who carried out the personal search of the female
concerned should also be disclosed. The personal search
memo of the female concerned should indicate compliance
with the aforesaid provisions. Failure to do so may not
only affect the credibility of the prosecution case but may
also be found as violative of the basic right of a female to
be treated with decency and proper dignity.
14. The provisions of Sections 100 and 165 CrPC are not
inconsistent with the provisions of the NDPS Act and are
applicable for affecting search, seizure or arrest under the
NDPS Act also. However, when an empowered officer
carrying on the investigation including search, seizure or
arrest under the provisions of the Code of Criminal
Procedure, comes across a person being in possession of
the narcotic drug or the psychotropic substance, then he
must follow from that stage onwards the provisions of the
NDPS Act and continue the investigation as provided
thereunder. If the investigating officer is not an
empowered officer then it is expected of him that he must
inform the empowered officer under the NDPS Act, who
should thereafter proceed from that stage in accordance
with the provisions of the NDPS Act. In Balbir Singh case
after referring to a number of judgments, the Bench
opined that failure to comply with the provisions of CrPC
in respect of search and seizure and particularly those of
Sections 100, 102, 103 and 165 per se does not vitiate
the prosecution case. If there is such a violation, what the
courts have to see is whether any prejudice was caused
to the accused. While appreciating the evidence and other
relevant factors, the courts should bear in mind that there
was such a violation and evaluate the evidence on record
keeping that in view.”
45. This Court in Baldev Singh (supra) further observed that
the conditions prescribed in Section 50 are an obligation
30
imposed upon the empowered officer and the same must be duly
complied with before conducting any search of a person. The
relevant observations are reproduced hereunder:-
“24. … There is, thus, unanimity of judicial
pronouncements to the effect that it is an obligation of the
empowered officer and his duty before conducting the
search of the person of a suspect, on the basis of prior
information, to inform the suspect that he has a right to
require his search being conducted in the presence of a
gazetted officer or a Magistrate and that the failure to
inform the suspect of his right, would render the search
illegal because the suspect would not be able to avail of
the protection which is inbuilt in Section 50. Similarly, if
the person concerned requires, on being so informed by
the empowered officer or otherwise, that his search be
conducted in the presence of a gazetted officer or a
Magistrate, the empowered officer is obliged to do so and
failure on his part to do so would also render the search
illegal and the conviction and sentence of the accused
bad.” (Emphasis supplied)
46. This Court in Baldev Singh (supra) also explained the
purpose behind the safeguards engraved under Section 50 and
the reason as to why the right of the suspect to have his search
conducted before a Gazetted Officer or Magistrate ought to be
zealously guarded by the courts. It was held as under:-
“25. To be searched before a gazetted officer or a
Magistrate, if the suspect so requires, is an extremely
valuable right which the legislature has given to the
person concerned having regard to the grave
consequences that may entail the possession of illicit
articles under the NDPS Act. It appears to have been
incorporated in the Act keeping in view the severity of the
punishment. The rationale behind the provision is even
otherwise manifest. The search before a gazetted officer
or a Magistrate would impart much more authenticity and
31
creditworthiness to the search and seizure proceeding. It
would also verily strengthen the prosecution case. There
is, thus, no justification for the empowered officer, who
goes to search the person, on prior information, to effect
the search, of not informing the person concerned of the
existence of his right to have his search conducted before
a gazetted officer or a Magistrate, so as to enable him to
avail of that right. It is, however, not necessary to give the
information to the person to be searched about his right
in writing. It is sufficient if such information is
communicated to the person concerned orally and as far
as possible in the presence of some independent and
respectable persons witnessing the arrest and search.
The prosecution must, however, at the trial, establish that
the empowered officer had conveyed the information to
the person concerned of his right of being searched in the
presence of a Magistrate or a gazetted officer, at the time
of the intended search. Courts have to be satisfied at the
trial of the case about due compliance with the
requirements provided in Section 50. No presumption
under Section 54 of the Act can be raised against an
accused, unless the prosecution establishes it to the
satisfaction of the court, that the requirements of Section
50 were duly complied with.
26. The safeguard or protection to be searched in the
presence of a gazetted officer or a Magistrate has been
incorporated in Section 50 to ensure that persons are only
searched with a good cause and also with a view to
maintain the veracity of evidence derived from such
search. We have already noticed that severe punishments
have been provided under the Act for mere possession of
illicit drugs and narcotic substances. Personal search,
more particularly for offences under the NDPS Act, are
critical means of obtaining evidence of possession and it
is, therefore, necessary that the safeguards provided in
Section 50 of the Act are observed scrupulously. The duty
to inform the suspect of his right to be searched in the
presence of a gazetted officer or a Magistrate is a
necessary sequence for enabling the person concerned to
exercise that right under Section 50 because after
Maneka Gandhi v. Union of India it is no longer
permissible to contend that the right to personal liberty
can be curtailed even temporarily, by a procedure which
is not “reasonable, fair and just” and when a statute itself
provides for a “just” procedure, it must be honoured.
32
Conducting a search under Section 50, without intimating
to the suspect that he has a right to be searched before a
gazetted officer or a Magistrate, would be violative of the
“reasonable, fair and just procedure” and the safeguard
contained in Section 50 would be rendered illusory, otiose
and meaningless. Procedure based on systematic and
unconscionable violation of law by the officials
responsible for the enforcement of law, cannot be
considered to be a “fair”, just or reasonable procedure.
We are not persuaded to agree that reading into Section
50, the existence of a duty on the part of the empowered
officer, to intimate to the suspect, about the existence of
his right to be searched in the presence of a gazetted
officer or a Magistrate, if he so requires, would place any
premium on ignorance of the law. The argument loses
sight of a clear distinction between ignorance of the law
and ignorance of the right to a “reasonable, fair and just
procedure”.
x x x x
28. This Court cannot overlook the context in which the
NDPS Act operates and particularly the factor of
widespread illiteracy among persons subject to
investigation for drug offences. It must be borne in mind
that severer the punishment, greater has to be the care
taken to see that all the safeguards provided in a statute
are scrupulously followed. We are not able to find any
reason as to why the empowered officer should shirk from
affording a real opportunity to the suspect, by intimating
to him that he has a right “that if he requires” to be
searched in the presence of a gazetted officer or a
Magistrate, he shall be searched only in that manner. As
already observed the compliance with the procedural
safeguards contained in Section 50 are intended to serve
a dual purpose — to protect a person against false
accusation and frivolous charges as also to lend
creditability to the search and seizure conducted by the
empowered officer. The argument that keeping in view the
growing drug menace, an insistence on compliance with
all the safeguards contained in Section 50 may result in
more acquittals does not appeal to us. If the empowered
officer fails to comply with the requirements of Section 50
and an order or acquittal is recorded on that ground, the
prosecution must thank itself for its lapses. Indeed in
every case the end result is important but the means to
33
achieve it must remain above board. The remedy cannot
be worse than the disease itself. The legitimacy of the
judicial process may come under a cloud if the court is
seen to condone acts of lawlessness conducted by the
investigating agency during search operations and may
also undermine respect for the law and may have the
effect of unconscionably compromising the administration
of justice. That cannot be permitted.”
(Emphasis supplied)
47. As to what would be the consequences of a recovery made
in violation of Section 50, it was observed in Baldev Singh
(supra) that it would have the effect of rendering such
incriminating material inadmissible in evidence and hence,
cannot be relied upon to hold the accused guilty for being found
to be in unlawful possession of any contraband. The Court
further held that it would not impede the prosecution from
relying upon recovery of any other incriminating article in any
other independent proceedings. It was further held that the
burden of proving that the conditions of Section 50 were
complied with, would lie upon the prosecution to establish. The
relevant observations are being reproduced hereunder:-
“32. However, the question whether the provisions of
Section 50 are mandatory or directory and, if mandatory,
to what extent and the consequences of non-compliance
with it does not strictly speaking arise in the context in
which the protection has been incorporated in Section 50
for the benefit of the person intended to be searched.
Therefore, without expressing any opinion as to whether
the provisions of Section 50 are mandatory or not, but
bearing in mind the purpose for which the safeguard has
been made, we hold that the provisions of Section 50 of
the Act implicitly make it imperative and obligatory and
34
cast a duty of the investigating officer (empowered officer)
to ensure that search of the person (suspect) concerned is
conducted in the manner prescribed by Section 50,
by intimating to the person concerned about the existence
of his right, that if he so requires, he shall be searched
before a gazetted officer or a Magistrate and in case he
so opts, failure to conduct his search before a gazetted
officer or a Magistrate would cause prejudice to the
accused and render the recovery of the illicit article
suspect and vitiate the conviction and sentence of the
accused, where the conviction has been recorded only on
the basis of the possession of the illicit article, recovered
during a search conducted in violation of the provisions of
Section 50 of the Act. The omission may not vitiate the
trial as such, but because of the inherent prejudice which
would be caused to an accused by the omission to be
informed of the existence of his right, it would render his
conviction and sentence unsustainable. The protection
provided in the section to an accused to be intimated that
he has the right to have his personal search conducted
before a gazetted officer or a Magistrate, if he so requires,
is sacrosanct and indefeasible — it cannot be
disregarded by the prosecution except at its own peril.
33. The question whether or not the safeguards provided
in Section 50 were observed would have, however, to be
determined by the court on the basis of the evidence led
at the trial and the finding on that issue, one way or the
other, would be relevant for recording an order of
conviction or acquittal. Without giving an opportunity to
the prosecution to establish at the trial that the provisions
of Section 50 and, particularly, the safeguards provided
in that section were complied with, it would not be
advisable to cut short a criminal trial.
x x x x
45. … Prosecution cannot be permitted to take advantage
of its own wrong. Conducting a fair trial for those who are
accused of a criminal offence is the cornerstone of our
democratic society. A conviction resulting from an unfair
trial is contrary to our concept of justice. Conducting a fair
trial is both for the benefit of the society as well as for an
accused and cannot be abandoned. While considering the
aspect of fair trial, the nature of the evidence obtained
and the nature of the safeguard violated are both relevant
factors. Courts cannot allow admission of evidence
35
against an accused, where the court is satisfied that the
evidence had been obtained by a conduct of which the
prosecution ought not to take advantage particularly
when that conduct had caused prejudice to the accused.
If after careful consideration of the material on 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. In R. v. Collins, (1987) 1 SCR 265 (Canada), the
Supreme Court of Canada speaking through Lamer, J. (as
his Lordship, Chief Justice of the Supreme Court of
Canada then was) opined that the use of evidence
collected in violation of the Charter rights of an accused
would render a trial unfair and the evidence
inadmissible. …
x x x x
55. We, therefore, hold 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
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.” (Emphasis supplied)
48. This Court ultimately summed up its findings with the
following ten conclusions reproduced below:-
“57. On the basis of the reasoning and discussion above,
the following conclusions arise:
(1) That when an empowered officer or a duly authorised
officer acting on prior information is about to search a
person, it is imperative for him to inform the person
concerned of his right under sub-section (1) of Section 50
of being taken to the nearest gazetted officer or the
nearest Magistrate for making the search. However, such
information may not necessarily be in writing;
36
(2) That failure to inform the person concerned about the
existence of his right to be searched before a gazetted
officer or a Magistrate would cause prejudice to an
accused;
(3) That a search made, by an empowered officer, on prior
information, without informing the person of his right that,
if he so requires, he shall be taken before a gazetted
officer or a Magistrate for search and in case he so opts,
failure to conduct his search before a gazetted officer or a
Magistrate, may not vitiate the trial but would render the
recovery of the illicit article suspect and vitiate the
conviction and sentence of an accused, where the
conviction has been recorded only on the basis of the
possession of the illicit article, recovered from his person,
during a search conducted in violation of the provisions of
Section 50 of the Act;
(4) That there is indeed need to protect society from
criminals. The societal intent in safety will suffer if
persons who commit crimes are let off because the
evidence against them is to be treated as if it does not
exist. The answer, therefore, is 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. In every case the
end result is important but the means to achieve it must
remain above board. The remedy cannot be worse than
the disease itself. The legitimacy of judicial process may
come under cloud if the court is seen to condone acts of
lawlessness conducted by the investigating agency
during search operations and may also undermine
respect for law and may have the effect of unconscionably
compromising the administration of justice. That cannot
be permitted. An accused is entitled to a fair trial. A
conviction resulting from an unfair trial is contrary to our
concept of justice. The use of evidence collected in breach
of the safeguards provided by Section 50 at the trial,
would render the trial unfair.
(5) That whether or not the safeguards provided in Section
50 have been duly observed would have to be determined
by the Court on the basis of evidence led at the trial.
Finding on that issue, one way or the other, would be
relevant for recording an order of conviction or acquittal.
37
Without giving an opportunity to the prosecution to
establish, at the trial, that the provisions of Section 50,
and particularly the safeguards provided therein were
duly complied with, it would not be permissible to cut-
short a criminal trial;
(6) That in the context in which the protection has been
incorporated in Section 50 for the benefit of the person
intended to be searched, we do not express any opinion
whether the provisions of Section 50 are mandatory or
directory, but hold that failure to inform the concerned
person of his right as emanating from sub-section (1) of
Section 50, may render the recovery of the contraband
suspect and the conviction and sentence of an accused
bad and unsustainable in law;
(7) 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 Act cannot be
used as evidence of proof of unlawful possession of the
contraband on the accused though any other material
recovered during that search may be relied upon by the
prosecution, in other proceedings, against an accused,
notwithstanding the recovery of that material during an
illegal search;
(8) A presumption under Section 54 of the 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. An illegal search cannot entitle the
prosecution to raise a presumption under Section 54 of
the Act.
(9) That the judgment in Pooran Mal v. Director of
Inspection (Investigation), (1974) 1 SCC 345, cannot be
understood to have laid down that an illicit article seized
during a search of a person, on prior information,
conducted in violation of the provisions of Section 50 of
the Act, can by itself be used as evidence of unlawful
possession of the illicit article on the person from whom
the contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case correctly
interprets and distinguishes the judgment in Pooran Mal's
case and the broad observations made in State of H.P. v.
Pirthi Chand, (1996) 2 SCC 37, and State of Punjab v.
Jasbir Singh, (1996) 1 SCC 288, case are not in tune with
38
the correct exposition of law as laid down in Pooran Mal's
case.” (Emphasis supplied)
49. Thus, the Constitutional Bench in express terms laid
down that although the non-compliance of Section 50 may not
vitiate the trial yet would render the recovery of the contraband
doubtful and may vitiate the conviction of the accused. The
emphasis laid by the Court is on illicit articles seized from the
“person of an accused” during the search conducted in violation
of safeguards provided in Section 50 of the NDPS Act. In other
words, according to Baldev Singh (supra), 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.
When Section 50 could be said to be complied with?
50. This Court in a number of cases has dealt with this very
aspect and laid down the principles with respect to when
Section 50 be said to be complied with. This Court in Manohar
Lal v. State of Rajasthan reported in (1996) 11 SCC 391, held
that Section 50 only requires the option to be given to the
accused to say whether he would like to be searched in the
presence of a Gazetted Officer or Magistrate. The relevant
observations made therein are reproduced below:-
39
“2. … The provision only requires the option to be given to
the accused to say whether he would like to be searched
in the presence of a Gazetted Officer or a Magistrate; and
on exercise of that option by the accused, it is for the
officer concerned to have the search made in the presence
of the nearest Gazetted Officer or the nearest Magistrate
whosoever is conveniently available for the purpose in
order to avoid undue delay in completion of that exercise.
It is clear from Section 50 of the NDPS Act that the option
given thereby to the accused is only to choose whether he
would like to be searched by the officer making the search
or in the presence of the nearest available Gazetted
Officer or the nearest available Magistrate. The choice of
the nearest Gazetted Officer or the nearest Magistrate has
to be exercised by the officer making the search and not
by the accused.” (Emphasis supplied)
51. In Joseph Fernandez v. State of Goa reported in (2001)
1 SCC 707, this Court held that only substantial compliance of
Section 50 is required, and informing the suspect that if he
wishes he may be searched in presence of a Gazetted Officer or
Magistrate without the use of the word “right” would not amount
to breach of Section 50. The relevant observations made therein
are reproduced below:-
“2. Learned counsel tried to highlight a point that Section
50 of the Narcotic Drugs and Psychotropic Substances
Act has not strictly been complied with by PW 8, the
officer who conducted the search. According to the
learned counsel for the appellant the searching officer
should have told the person who was subjected to
search that he had a right to be searched in the presence
of a gazetted officer or a Magistrate. In this case PW 8
has deposed that she told the appellant that if he wished
he could be searched in the presence of the gazetted
officer or a Magistrate to which the appellant had not
favourably reciprocated. According to us the said offer is
40
a communication about the information that the
appellant has a right to be searched so. It must be
remembered that the searching officer had only Section
50 of the Act then in mind unaided by the interpretation
placed on it by the Constitution Bench. Even then the
searching officer informed him that “if you wish you may
be searched in the presence of a gazetted officer or a
Magistrate”. This according to us is in substantial
compliance with the requirement of Section 50. We do
not agree with the contention that there was non-
compliance with the mandatory provision contained in
Section 50 of the Act.”
52. In Prabha Shankar Dubey v. State of M.P. reported in
(2004) 2 SCC 56, this Court held that for the purpose of due
compliance of Section 50 there is no specific word or form in
which the communication is to be made and it is not necessary
to use the word “right”, as the person to be searched is only
required to be made aware that he has a choice of having his
search conducted before a Gazetted Officer or Magistrate. The
relevant observations made in it are reproduced hereunder:-
“11. ... What the officer concerned is required to do is to
convey about the choice the accused has. The accused
(suspect) has to be told in a way that he becomes aware
that the choice is his and not of the officer concerned, even
though there is no specific form. The use of the word
“right” at relevant places in the decision of Baldev Singh
case seems to be to lay effective emphasis that it is not
by the grace of the officer the choice has to be given but
more by way of a right in the “suspect” at that stage to be
given such a choice and the inevitable consequences that
have to follow by transgressing it.”
53. However, a five-Judge Bench of this Court in Vijaysinh
Chandubha Jadeja v. State of Gujarat reported in (2011) 1
41
SCC 609, overruled the decisions in Prabha Shankar Dubey
(supra) and Joseph Fernandez (supra) and disapproved the
concept of “substantial compliance” and held that the obligation
under Section 50 is mandatory and the failure to comply with
the same would render the recovery of illicit article suspicious
and vitiate the conviction, more particularly if the basis of
conviction is the recovery of illicit article from the accused
during search. The person to be searched is to be specifically
informed that he has a right to be searched in presence of a
Gazetted Officer or Magistrate. The Court also held that while it
is the choice of police to take the suspect either before a Gazetted
Officer or Magistrate, an endeavour should be made to take him
before Magistrate. The relevant observations made therein are
reproduced below:-
“29. In view of the foregoing discussion, we are of the firm
opinion that the object with which the right under Section
50(1) of the NDPS Act, by way of a safeguard, has been
conferred on the suspect viz. to check the misuse of
power, to avoid harm to innocent persons and to minimise
the allegations of planting or foisting of false cases by the
law enforcement agencies, it would be imperative on the
part of the empowered officer to apprise the person
intended to be searched of his right to be searched before
a gazetted officer or a Magistrate. We have no hesitation
in holding that insofar as the obligation of the authorised
officer under sub-section (1) of Section 50 of the NDPS Act
is concerned, it is mandatory and requires strict
compliance. Failure to comply with the provision would
render the recovery of the illicit article suspect and vitiate
the conviction if the same is recorded only on the basis of
the recovery of the illicit article from the person of the
42
accused during such search. Thereafter, the suspect may
or may not choose to exercise the right provided to him
under the said provision.
x x x x
31. We are of the opinion that the concept of “substantial
compliance” with the requirement of Section 50 of the
NDPS Act introduced and read into the mandate of the
said section in Joseph Fernandez and Prabha Shankar
Dubey is neither borne out from the language of sub-
section (1) of Section 50 nor it is in consonance with the
dictum laid down in Baldev Singh case. Needless to add
that the question whether or not the procedure prescribed
has been followed and the requirement of Section 50 had
been met, is a matter of trial. It would neither be possible
nor feasible to lay down any absolute formula in that
behalf.
32. We also feel that though Section 50 gives an option to
the empowered officer to take such person (suspect) either
before the nearest gazetted officer or the Magistrate but
in order to impart authenticity, transparency and
creditworthiness to the entire proceedings, in the first
instance, an endeavour should be to produce the suspect
before the nearest Magistrate, who enjoys more
confidence of the common man compared to any other
officer. It would not only add legitimacy to the search
proceedings, it may verily strengthen the prosecution as
well.” (Emphasis supplied)
54. In Parmanand (supra) this Court held that Section 50
confers a right upon the accused to be searched either by a
Gazetted Officer or Magistrate, and as such while informing the
suspect of its right, only the aforesaid two options can be
provided. Section 50 could be said to be violated where a third
option is also offered, be it that of being searched by the
superintendent of police or by the police officer himself.
43
55. Although a superintendent of police is a Gazetted Officer,
yet the reason why this court in Parmanand (supra) held the
third option to be bad in law is because, first , in that case the
Superintendent of Police was a part of the raiding party and as
such was not an independent witness and secondly , as
discussed, Section 50 provides for only two options, either a
Magistrate or Gazetted Officer.
56. Thus, the person intended to be searched under Section
50 must be told in clear and unambiguous words that he has a
right to have the search conducted in presence of either a
Gazetted Officer or Magistrate. The person concerned must be
made aware of his right and must be given only two options that
have been provided under the section.
57. This Court in Parmanand (supra) has also held that a
joint communication of the right under Section 50 would be bad
in law. The right under Section 50 could be said to be violated
where in a case of multiple persons intended to be searched,
only a joint communication has been given or where the right
has been exercised or declined by one of them on behalf of the
other. While, a written communication of the right is not
required, the right has to be communicated in clear words to
each person individually whose search is intended to be
44
conducted, and no person can either waive or exercise this right
at the behest of another. Thus, in case of multiple persons, each
of them must be individually communicated of their right and
must exercise or waive the same in their own individual
capacity.
58. We also looked into the decision of this Court in Arif
Khan alias Agha Khan v. State of Uttarakhand reported in
(2018) 18 SCC 380, wherein it was held that even where the
accused after being informed of his right under Section 50,
chooses to decline the same, his search by the police must be
conducted in presence of either a Gazetted Officer or Magistrate.
The relevant observations are as under:-
“4. … On apprehending the accused, he was informed by
the police personnel that he has a legal right to be
searched in the presence of a gazetted officer or a
Magistrate to which the accused replied that he has faith
in the raiding police party and consented to be searched
by them.
5. The raiding police party accordingly obtained his
consent in writing to be searched by the raiding police
party. The raiding police party then searched the accused
which resulted in seizure of “charas” weighing around
2.5 kg in quantity from his body.
x x x x
24. We do not agree to this finding of the two courts below
as, in our opinion, a search and recovery made from the
appellant of the alleged contraband “charas” does not
satisfy the mandatory requirements of Section 50 as held
45
by this Court in Vijaysinh Chandubha Jadeja. This we
say for the following reasons:
24.1. First, it is an admitted fact emerging from the
record of the case that the appellant was not
produced before any Magistrate or gazetted officer.
24.2. Second, it is also an admitted fact that due to
the aforementioned first reason, the search and
recovery of the contraband “charas” was not made
from the appellant in the presence of any Magistrate
or gazetted officer.
24.3. Third, it is also an admitted fact that none of
the police officials of the raiding party, who recovered
the contraband “charas” from him, was the gazetted
officer and nor they could be and, therefore, they
were not empowered to make search and recovery
from the appellant of the contraband “charas” as
provided under Section 50 of the NDPS Act except in
the presence of either a Magistrate or a gazetted
officer.
24.4. Fourth, in order to make the search and
recovery of the contraband articles from the body of
the suspect, the search and recovery has to be in
conformity with the requirements of Section 50 of the
NDPS Act. It is, therefore, mandatory for the
prosecution to prove that the search and recovery
was made from the appellant in the presence of a
Magistrate or a gazetted officer.
25. Though, the prosecution examined as many as five
police officials (PW 1 to PW 5) of the raiding police party
but none of them deposed that the search/recovery was
made in presence of any Magistrate or a gazetted officer.
26. For the aforementioned reasons, we are of the
considered opinion that the prosecution was not able to
prove that the search and recovery of the contraband
(charas) made from the appellant was in accordance with
the procedure prescribed under Section 50 of the NDPS
Act. Since the non-compliance of the mandatory
procedure prescribed under Section 50 of the NDPS Act is
fatal to the prosecution case and, in this case, we have
46
found that the prosecution has failed to prove the
compliance as required in law, the appellant is entitled to
claim its benefit to seek his acquittal.”
59. However, in our opinion, the observations made in Arif
Khan (supra) are in direct conflict with the Constitution Bench
decision of Baldev Singh (supra). It appears that the attention
of the learned Judges while rendering the decision of Arif Khan
(supra) was seemingly not invited to the words “ if the person to
be searched so requires” used in section 50.
60. Section 50 of the NDPS Act only goes so far as to prescribe
an obligation onto the police officer to inform the suspect of his
right to have his search conducted either in the presence of a
Gazetted Officer or Magistrate. Whether or not the search should
be conducted in the presence of a Gazetted Officer or Magistrate
ultimately depends on the exercise of such right as provided
under Section 50. In the event the suspect declines this right,
there is no further obligation to have his search conducted in
the presence of a Gazetted Officer or Magistrate, and in such a
situation the empowered police officer can proceed to conduct
the search of the person himself. To read Section 50 otherwise
would render the very purpose of informing the suspect of his
right a redundant exercise. We are of the view that the decision
of this Court in Arif Khan (supra) cannot be said to be an
authority for the proposition that notwithstanding the person
47
proposed to be searched has, after being duly apprised of his
right to be searched before a Gazetted Officer or Magistrate, but
has expressly waived this right in clear and unequivocal terms;
it is still mandatory that his search be conducted only before a
Gazetted Officer or Magistrate.
61. A plain reading of the extracted paragraphs of Arif Khan
(supra) referred to above would indicate that this Court while
following the ratio of the decision of the Constitution Bench in
Vijaysinh Chandubha Jadeja (supra) held that the same has
settled the position of law in this behalf to the effect that, whilst
it is imperative on the part of the empowered officer to apprise
the person of his right to be searched only before a Gazetted
Officer or Magistrate; and this requires strict compliance; this
Court simultaneously proceeded to reiterate that in Vijaysinh
Chandubha Jadeja (supra) “it is ruled that the suspect person
may or may not choose to exercise the right provided to him under
Section 50 of the NDPS Act”.
62. There is no requirement to conduct the search of the
person, suspected to be in possession of a narcotic drug or a
psychotropic substance, only in the presence of a Gazetted
Officer or Magistrate, if the person proposed to be searched,
after being apprised by the empowered officer of his right under
48
Section 50 of the NDPS Act to be searched before a Gazetted
Officer or Magistate categorically waives such right by electing
to be searched by the empowered officer. The words “if such
person so requires”, as used in Section 50(1) of the NDPS Act
would be rendered otiose, if the person proposed to be searched
would still be required to be searched only before a Gazetted
Officer or Magistrate, despite having expressly waived “such
requisition”, as mentioned in the opening sentence of
sub-Section (2) of Section 50 of the NDPS Act. In other words,
the person to be searched is mandatorily required to be taken
by the empowered officer, for the conduct of the proposed search
before a Gazetted Officer or Magistrate, only “if he so requires” ,
upon being informed of the existence of his right to be searched
before a Gazetted Officer or Magistrate and not if he waives his
right to be so searched voluntarily, and chooses not to exercise
the right provided to him under Section 50 of the NDPS Act.
63. However, we propose to put an end to all speculations
and debate on this issue of the suspect being apprised by the
empowered officer of his right under Section 50 of the NDPS Act
to be searched before a Gazetted Officer or Magistrate. We are of
the view that even in cases wherein the suspect waives such
right by electing to be searched by the empowered officer, such
waiver on the part of the suspect should be reduced into writing
49
by the empowered officer. To put it in other words, even if the
suspect says that he would not like to be searched before a
Gazetted Officer or Magistrate and he would be fine if his search
is undertaken by the empowered officer, the matter should not
rest with just an oral statement of the suspect. The suspect
should be asked to give it in writing duly signed by him in
presence of the empowered officer as well as the other officials
of the squad that “ I was apprised of my right to be searched
before a Gazetted Officer or Magistrate in accordance with Section
50 of the NDPS Act, however, I declare on my own free will and
volition that I would not like to exercise my right of being searched
before a Gazetted Officer or Magistrate and I may be searched by
the empowered officer .” This would lend more credence to the
compliance of Section 50 of the NDPS Act. In other words, it
would impart authenticity, transparency and credit worthiness
to the entire proceedings. We clarify that this compliance shall
henceforth apply prospectively.
64. From the aforesaid discussion, the requirements
envisaged by Section 50 can be summarised as follows:-
(i) Section 50 provides both a right as well as an obligation.
The person about to be searched has the right to have his
search conducted in the presence of a Gazetted Officer or
50
Magistrate if he so desires, and it is the obligation of the
police officer to inform such person of this right before
proceeding to search the person of the suspect.
(ii) Where, the person to be searched declines to exercise this
right, the police officer shall be free to proceed with the
search. However, if the suspect declines to exercise his
right of being searched before a Gazetted Officer or
Magistrate, the empowered officer should take it in
writing from the suspect that he would not like to exercise
his right of being searched before a Gazetted Officer or
Magistrate and he may be searched by the empowered
officer.
(iii) Before conducting a search, it must be communicated in
clear terms though it need not be in writing and is
permissible to convey orally, that the suspect has a right
of being searched by a Gazetted Officer or Magistrate.
(iv) While informing the right, only two options of either being
searched in presence of a Gazetted Officer or Magistrate
must be given, who also must be independent and in no
way connected to the raiding party.
(v) In case of multiple persons to be searched, each of them
has to be individually communicated of their right, and
each must exercise or waive the same in their own
51
capacity. Any joint or common communication of this
right would be in violation of Section 50.
(vi) Where the right under Section 50 has been exercised, it
is the choice of the police officer to decide whether to take
the suspect before a Gazetted Officer or Magistrate but
an endeavour should be made to take him before the
nearest Magistrate.
(vii) Section 50 is applicable only in case of search of person
of the suspect under the provisions of the NDPS Act, and
would have no application where a search was conducted
under any other statute in respect of any offence.
(viii) Where during a search under any statute other than the
NDPS Act, a contraband under the NDPS Act also
happens to be recovered, the provisions relating to the
NDPS Act shall forthwith start applying, although in such
a situation Section 50 may not be required to be complied
for the reason that search had already been conducted.
(ix) The burden is on the prosecution to establish that the
obligation imposed by Section 50 was duly complied with
before the search was conducted.
(x) Any incriminating contraband, possession of which is
punishable under the NDPS Act and recovered in
violation of Section 50 would be inadmissible and cannot
52
be relied upon in the trial by the prosecution, however, it
will not vitiate the trial in respect of the same. Any other
article that has been recovered may be relied upon in any
other independent proceedings.
Whether Section 50 is applicable while searching a bag of
the accused?
65. Baldev Singh (supra), discussed above, gave rise to a
debate as to what would be included within “search of a person”
as stipulated under Section 50. This Court started interpreting
the expression giving a literal or strict interpretation of the word
“person”, thereby distinguishing the search of a person from
that of a bag or vehicle or premises. As a result, even if there
was no compliance with Section 50 while searching the accused
person’s bag, the evidence of recovery would still be deemed
admissible. However, over a period of time, this Court started
reading the word “person” in a slightly broader sense so as to
mandate that Section 50 be complied with even while
conducting a search of anything that is inextricably linked to the
accused. As a result, a bag which was being carried by the
accused was considered to be inextricably linked to the accused,
and therefore, any recovery of a contraband from such a bag
without complying with Section 50 would be inadmissible.
53
66. We shall now look into the various decisions of this Court
on the interpretation of Section 50.
Section 50 does not cover a bag being carried by the accused
67. In Kalema Tumba v. State of Maharashtra reported
in (1999) 8 SCC 257, 2 kgs of heroin was recovered from a bag
belonging to the accused. It was argued that as the requirements
under Section 50 were not complied with, the contraband
recovered in the course of the search would be inadmissible.
This Court, while rejecting such argument and relying upon
Baldev Singh (supra), held that Section 50 would not apply to
the search of a bag belonging to the accused. The relevant
paragraph is as under:-
“4. … As rightly pointed out by the High Court search of
baggage of a person is not the same thing as search of
the person himself. In State of Punjab v. Baldev Singh this
Court has held that the requirement of informing the
accused about his right under Section 50 comes into
existence only when person of the accused is to be
searched. The decision of this Court in State of Punjab v.
Jasbir Singh, wherein it was held that though poppy
straw was recovered from the bags of the accused, yet he
was required to be informed about his right to be
searched in presence of a Gazetted Officer or a
Magistrate, now stands overruled by the decision in
Baldev Singh's case (supra). If a person is carrying a bag
or some other article with him and narcotic drug or the
psychotropic substance is found from it, it cannot be said
that it was found from his “person”. In this case heroin
was found from a bag belonging to the appellant and not
from his person and therefore it was not necessary to
make an offer for search in presence of a Gazetted Officer
or a Magistrate.” (Emphasis supplied)
54
68. In Sarjudas v. State of Gujarat reported in (1999) 8
SCC 508, the contraband was recovered from a bag which was
hanging on the accused’s scooter, which he was riding. This
Court while holding the bag not to be included in the “search of
the person” held as under:-
“4. What is contended by the learned Counsel for the
appellant is that the appellants were not informed of their
right under Section 50 of the NDPS Act that they were
entitled to be examined in presence of a gazetted officer
or a Magistrate and, therefore, the search of the
appellants was illegal and the evidence regarding
recovery of charas from their possession could not have
been relied upon.
5. We do not find any substance in this contention as the
charas was not found on the person of the appellants but
it was found kept in a bag which was hanging on the
scooter on which they were riding. Therefore, this was not
a case where the person of the accused was searched
and from his person narcotic drug or psychotropic
substance was found. The correct position of the law on
this point has been stated by this Court in State of Punjab
v. Baldev Singh” (Emphasis supplied)
69. In Birakishore Kar v. State of Orissa reported in (2000)
9 SCC 541, the contraband was recovered from a plastic bag on
which the accused was sitting while travelling in a train. As the
body of the accused was not searched, Section 50 was held to
be inapplicable. This Court held as under:-
55
“3. What is now contended by the learned counsel for the
appellant is that the mandatory requirement of Section 50
of the NDPS Act, 1985, viz., that the person to be searched
should be told about his right to be examined in the
presence of a Magistrate or a gazetted officer was not
complied with in this case. This contention is really
misconceived. In this case it was not the person of the
appellant which was searched. He was found sitting on
a plastic bag which belonged to him and which contained
poppy straw. As pointed out by this Court in State of
Punjab v. Baldev Singh [(1999) 6 SCC 172], Section 50
would come into play only in the case of search of a
person as distinguished from search of any premise etc.
As we do not find any substance in this appeal, it is
dismissed.” (Emphasis supplied)
70. In Kanhaiya Lal v. State of M.P. reported in (2000) 10
SCC 380, opium was recovered from the bag which was being
carried by the accused. Section 50 was not made applicable as
it was held that the recovery was made from the bag and not
the person, and it was held as under:-
“2. The only point raised in this appeal is that the
mandatory requirement of Section 50 of the Act was not
complied with in this case and therefore the conviction of
the appellant is illegal. In our opinion, there is no
substance in this contention because 1 kg of opium was
not found from the person of the appellant but it was
found from a bag which was being carried by the
appellant. Therefore, this cannot be said to be a case
where on search of the person of the accused, a narcotic
drug or psychotropic substance was found. In our opinion,
the courts below have correctly held that the appellant is
guilty of committing the said offence. The appeal is,
therefore, dismissed.” (Emphasis supplied)
71. Similarly, in Gurbax Singh v. State of Haryana
reported in (2001) 3 SCC 28, the accused therein was
56
apprehended while disembarking from a train carrying a gunny
bag containing poppy straw weighing 7 kgs. The counsel for the
State therein argued that the procedure under Section 50 was
not required to be followed as nothing was recovered from the
person. This Court while accepting the said argument and
referring to Baldev Singh (supra) held that:-
“8. In view of the aforesaid decision of the Constitutional
Bench, in our view, no further discussion is required on
this aspect. However, we may mention that this right is
extension of right conferred under Section 100(3) of the
Criminal Procedure Code. Sub-Section (1) of Section 100
of the Code provides that whenever any place liable to
search or inspection is closed, any person residing in, or
being in charge of, such place, shall, on demand of the
officer or other person executing the warrant, and on
production of the warrant, allow him free ingress thereto,
and afford all reasonable facilities for a search therein.
Sub-Section (3) provides that where any person in or
about such place is reasonably suspected of concealing
about his person any article for which search should be
made, such person may be searched and if such person
is a woman, the search shall be made by another woman
with strict regard to decency. Sub-section (7) of Section
100 further provides that when any person is searched
under sub-section (3) a list of all things taken possession
of shall be prepared and a copy thereof shall be delivered
to such person. This would also be clear if we refer to
search and seizure, procedure provided under Sections
42 and 43 of the building, conveyance or place. Hence, in
our view, Section 50 of the NDPS Act would be applicable
only in those cases where the search of the person is
carried out.” (Emphasis supplied)
72. In Beckodan Abdul Rahiman v. State of Kerala
reported in (2002) 4 SCC 229, the contraband had been recovered
from a polythene bag hidden in the folds of the dhoti, which the
57
accused was wearing. The Court acquitted the accused as
Section 50 was not complied with while searching the accused. It
was held as under:-
“3. … After referring to a host of judgments, the
Constitution Bench of the Court held that the provisions
of Sections 42 and 50 are mandatory and their non-
compliance would render the investigation illegal. It was
reiterated that severer the punishment, greater the care
to be taken to see that all the safeguards provided in the
statute are scrupulously followed. The safeguards
mentioned in Section 50 are intended to serve a dual
purpose ─ to protect the person against false accusation
and frivolous charges as also to lend credibility to the
search and seizure conducted by the empowered officer.
If the empowered officer fails to comply with the
requirements of the Section, the prosecution is to suffer
for the consequences. The legitimacy of the judicial
process may come under the cloud if the court is seen to
condone acts of lawlessness conducted by the
investigating agency during search operations and may
also undermine respect for the law and may have the
effect of unconscionably compromising the administration
of justice.
x x x x
5. … Similarly the provisions of Section 50 have not been
complied with as the accused has not been given any
option as to whether he wanted to be searched in
presence of a gazetted officer or the Magistrate. The
compliance of Section 50 is held to have been fulfilled on
his (PW 1) asking the accused “whether I should search
him in the presence of senior officers or gazetted officer”.
The accused was required to be apprised of his right
conferred under Section 50 giving him the option to search
being made in presence of a gazetted officer or the
Magistrate. The accused is not shown to have been
apprised of his right nor any option offered to him for
search being conducted in the presence of the Magistrate.
58
6. We are of the firm opinion that the provision of sub-
section (2) of Section 42 and the mandate of Section 50
were not complied with by the prosecution, which
rendered the case as not established. In view of the
violation of the mandatory provision of the Act, the
appellant was entitled to be acquitted. …”
(Emphasis supplied)
73. In Madan Lal v. State of Himachal Pradesh reported
in (2003) 7 SCC 465, the recovery was effected from the search
of a bag placed inside the accused person’s car. This Court,
while differentiating between the search of a person and a
vehicle in terms of the applicability of Section 50, held as under:-
“16. A bare reading of Section 50 shows that it only
applies in case of personal search of a person. It does not
extend to search of a vehicle or a container or a bag or
premises (See Kalema Tumba vs. State of Maharashtra
and Anr., State of Punjab vs. Baldev Singh, Gurbax Singh
vs. State of Haryana). The language of section is implicitly
clear that the search has to be in relation to a person as
contrast to search of premises, vehicles, or articles. This
position was settled beyond doubt by the Constitution
Bench in Baldev Singh's case (supra). Above being the
position, the contention regarding non-compliance of
Section 50 of the Act is also without any substance.”
(Emphasis supplied)
74. In State of Punjab v. Makhan Chand reported in (2004)
3 SCC 453, the accused was apprehended from a bus with a tin
box in his hand from which the contraband was recovered. The
High Court therein had acquitted the accused on the ground of
non-compliance of Section 50. On the finding that Section 50
59
would apply to the case, the judgment of the High Court was
reversed and the accused was convicted. It was held that:-
“7. Apart from the aforesaid question, we are also of the
view that Section 50 of the Act would not apply to a
situation where the search undertaken is not of the
person of the accused but of something carried in his
hand. …” (Emphasis supplied)
75. In another decision of this Court in Saikou Jabbi v.
State of Maharashtra reported in (2004) 2 SCC 186, the
contraband was recovered from the accused’s suitcase after its
screening. This Court held that when the suitcase was searched
during the screening, the same cannot be considered to be a
personal search of the accused, and held as under:-
“11. A bare reading of Section 50 shows that it only
applies in case of personal search of a person. It does not
extend to search of a vehicle or a container or a bag or
premises. (See Kalema Tumba v. State of
Maharashtra, State of Punjab v. Baldev
Singh and Gurbax Singh v. State of Haryana). The
language of Section 50 is implicitly clear that the search
has to be in relation to a person as contrasted to search
of premises, vehicles or articles. This position was settled
beyond doubt by the Constitution Bench in Baldev Singh
case. Above being the position, the contention regarding
non-compliance with Section 50 of the Act is also without
any substance.
12. In the case at hand, the contraband articles were
suspected to be hidden in the blue suitcase of the
accused, and was not in his physical possession. The
suitcase was put on the screening machine. This cannot
be equated with a recovery made from the person of the
accused by a personal search.”
60
Test of item being inextricably linked to person
76. This Court gave another interpretation, wherein it said
that the items such as bags or containers which are
“inextricably linked” to the person of the accused should be
included within the ambit of Section 50. As a result, a wider
meaning was given to the word “person”.
77. In Namdi Francis Nwazor v. Union of India reported
in (1998) 8 SCC 534, the luggage of a foreign national was
searched on the basis of some information. Nothing
incriminating was recovered from the hand bags, but narcotics
were recovered from the check-in baggage. Accordingly, he was
charged under the NDPS Act. The petitioner therein pleaded that
there was non-compliance with Section 50 while searching his
baggage. This Court while dismissing the appeal held that as the
bag was not in the immediate possession of the accused, there
was no requirement to comply with Section 50. However, this
Court went on to elaborate that had the contraband been
recovered from the handbags, which were on the person of the
accused at the time of the search, Section 50 would have to be
complied with. The relevant observations made by the three-
Judge Bench are as under:-
“3. On a plain reading of sub-section (1) of Section 50, it
is obvious that it applies to cases of search of any person
and not search of any article in the sense that the article
61
is at a distant place from where the offender is actually
searched. This position becomes clear when we refer to
Sub-section (4) of Section 50 which in terms says that no
female shall be searched by anyone excepting a female.
This would, in effect, mean that when the person of the
accused is being searched, the law requires that if that
person happens to be a female, the search shall be
carried out only by a female. Such a restriction would not
be necessary for searching the goods of a female which
are lying at a distant place at the time of search. It is
another matter that the said article is brought from the
place where it is lying to the place where the search takes
place but that cannot alter the position in law that the
said article was not being carried by the accused on his
or her person when apprehended. We must hasten to
clarify that if that person is carrying a handbag or the like
and the incriminating article is found therefrom, it would
still be a search of the person of the accused requiring
compliance with Section 50 of the Act. However, when an
article is lying elsewhere and is not on the person of the
accused and is brought to a place where the accused is
found, and on search, incriminating articles are found
therefrom it cannot attract the requirements of Section 50
of the Act for the simple reason that it was not found on
the accused person. So, on the facts of this case, it is
difficult to hold that Section 50 stood attracted and non-
compliance with that provision was fatal to the
prosecution case.” (Emphasis supplied)
78. Thereafter, in Abdul Rashid Ibrahim Mansuri v. State
of Gujarat reported in (2000) 2 SCC 513, this Court (a three-
Judge Bench) adopted a similar approach. It is relevant to note
that the Bench was presided over by Dr. A.S. Anand, CJ, who
authored the Constitution Bench decision in Baldev Singh
(supra). In the said matter, four gunny bags were found in an
auto rickshaw, which the accused was driving and no other
person was present. The argument based on non-compliance of
62
Section 50 as explained in the case of Baldev Singh (supra) was
rejected on the ground that the gunny bags were not inextricably
connected with the person of the accused. It was held that:-
“12. In the present case, even the appellant has no case
that he was searched by the police party. The place
where the gunny bags were found stacked in the vehicle
was not inextricably connected with the person of the
appellant. Hence it is an idle exercise in this case, on the
fact-situation, to consider whether there was non-
compliance with the conditions stipulated in Section 50 of
the Act.” (Emphasis supplied)
79. Thereafter, in Yasihey Yobin. v. Department of
Customs, Shillong reported in (2014) 13 SCC 344, the test of
an item being “inextricably linked to the person” was laid down
while relying upon Namdi (supra) . This Court held that in cases
where the line of separation between the search of a person and
an artificial object is thin and fine, the test of inextricable
connection should be applied and then conclusion should be
reached whether the search was that of a person or not. It was
held that:-
“10. This position in law is settled by the Constitution
Bench in the case of State of Punjab v. Baldev Singh, and
in Megh Singh v. State of Punjab, (2003) 8 SCC 666,
where application of Section 50 is only in case of search
of a person as contrasted to search of premises, vehicles
or articles. But in cases where the line of separation is
thin and fine between search of a person and an artificial
object, the test of inextricable connection is to be applied
and then conclusion is to be reached as to whether the
search was that of a person or not. The above test has
63
been noticed in the case of Namdi Francis Nwazor v.
Union of India and Anr. (1998) 8 SCC 534, wherein it is
held that if the search is of a bag which is inextricably
connected with the person, Section 50 of the Act will
apply, and if it is not so connected, the provisions will not
apply. It is when an article is lying elsewhere and is not
on the person of the accused and is brought to a place
where the accused is found, and on search, incriminating
articles are found therefrom it cannot attract the
requirements of Section 50 of the Act for the simple reason
that the bag was not found on the accused person.
11. In the instant case, the bag is brought by A-2 and
the contents of the bag are taken out by him and given for
search which is thereafter seized by the officials after
having found contraband substance. In such a case the
inextricable connection between the search of a person
and the bag cannot be established but rather it is only the
search of the bag and therefore the search and seizure
conducted by the gazetted officer need not comply with
the requirements under Section 50 of the Act.”
(Emphasis supplied)
80. However, it is important to note that the law down in
Yasihey (supra) is no longer a good law. A three-Judge Bench
in State of H.P. v. Pawan Kumar reported in (2005) 4 SCC
350, distinguished Namdi (supra) and held that the
observations relied upon in it were obiter on this point. It was
held as under:-
“16. … The Bench then finally concluded that on the facts
of the case Section 50 was not attracted. The facts of the
case clearly show that the bag from which incriminating
article was recovered had already been checked in and
was loaded in the aircraft. Therefore, it was not at all a
search of a person to which Section 50 may be attracted.
The observations, which was made in the later part of the
judgment (reproduced above), are more in the nature of
obiter as such a situation was not required to be
considered for the decision of the case. No reasons have
64
been given for arriving at the conclusion that search of a
handbag being carried by a person would amount to
search of a person. It may be noted that this case was
decided prior to the Constitution Bench decision in State
of Punjab v. Baldev Singh. After the decision in Baldev
Singh, this Court has consistently held that Section 50
would only apply to search of a person and not to any
bag, article or container, etc. being carried by him.”
(Emphasis supplied)
The term “person” ought to be construed strictly
81. The decision of the larger Bench in Pawan Kumar
(supra) came as a result of a reference by a Division Bench of
this Court in State of H.P. v. Pawan Kuma r reported in (2004)
7 SCC 735. In the said matter, opium was recovered from the
accused’s bag upon a search conducted by a constable. The
High Court acquitted the accused as during the search of the
bag, Section 50 was not complied with. Justice Y.K. Sabharwal
agreeing with the High Court’s order held that since the bag was
inextricably linked to the accused, Section 50 ought to have
been complied with. The finding recorded by Justice Sabharwal
are reproduced hereunder:-
“21. The case of the prosecution itself is that the accused
was carrying a bag on his shoulder; opium like smell was
coming from the bag; and the Head Constable informed
the Deputy Superintendent of Police who came to the spot.
Before search, the Deputy Superintendent of Police was
informed of the suspected possession of the opium. The
testimony of PW 7 is that the person of the accused was
then searched by the Deputy Superintendent of Police and
on search, bag containing opium was found. On this fact
situation, it cannot be held that the search was not of a
65
person but was of a bag. Both are inextricably connected.
It has to be held that the search was that of the
respondent's person. Clearly, Section 50 of the NDPS Act
was applicable but was not complied. Therefore, the
conviction of the respondent could not be sustained and
the High Court rightly held that Section 50 had been
breached.”
82. Justice Arijit Pasayat while relying upon Gurbax Singh
(supra) differed from Justice Sabharwal and held that the non-
compliance with Section 50 would not render the recovery as
inadmissible as the recovery was from the bag and not from the
person of the accused. Justice Pasayat held as under:-
“24. Baldev Singh's case (supra) made the position clear
that the said provision has application in case of search
of a person. The crucial question would be whether
search of a bag carried on the shoulder or back of a
person is covered by Section 50. I am of the view that it
would not be so. There can be no basis for making a
distinction between search of a bag found near a person
and a bag carried by him. In Kanhaiya Lal v. State of
M.P., (2000) 10 SCC 380, it was held that when a bag
carried by the accused is searched, Section 50 has no
application. In Gurbax Singh v. State of Haryana, (2001)
3 SCC 28, it was held that when a bag was being carried
on the accused's shoulder, Section 50 has no application.”
83. Accordingly, the matter was referred to a larger bench
and came to be decided in Pawan Kumar (supra) wherein the
view taken by Justice Pasayat was affirmed. This Court held that
the term “person” under Section 50 would mean a natural
person or a living unit and not an artificial person i.e., a bag or
a briefcase.
66
84. The case of the prosecution in Pawan Kumar (supra)
was that two head constables namely, Hukum Singh and
Munshi Ram and some police personnel were checking buses at
the bus - stand, Mandi in the night of 18.07.1994. While
checking a bus at about 8.45 p.m., they noticed that the accused
Pawan Kumar (respondent accused therein), who was carrying
a bag, slipped out from the rear door of the bus and thereafter
started running towards the Subzi Mandi side. The police
personnel got suspicious and after a chase apprehended him
near the gate of bus stand. They felt smell of opium emitting
from the bag, and, therefore, telephonically informed Prem
Thakur, Deputy S.P./S.H.O., P.S. Sadar, Mandi. Prem Thakur
came to the spot and inquired from the accused whether he
wanted to be searched by police or by a Magistrate. The accused
disclosed his name and expressed his willingness to be searched
by the police. A search of the accused and the bag being carried
by him was then conducted and 360 gms. of opium wrapped in
polythene was found inside the bag.
85. This Court interpreted Section 50 strictly and stated that
the cardinal rule of interpretation of statutes is to read the
statute literally and give the words their grammatical and
natural meaning. In this regard, it was held as under:-
67
“8. One of the basic principles of interpretation of statutes
is to construe them according to plain, literal and
grammatical meaning of the words. If that is contrary to,
or inconsistent with, any express intention or declared
purpose of the Statute, or if it would involve any
absurdity, repugnancy or inconsistency, the grammatical
sense must then be modified, extended or abridged, so
far as to avoid such an inconvenience, but no further. The
onus of showing that the words do not mean what they
say lies heavily on the party who alleges it. He must
advance something which clearly shows that the
grammatical construction would be repugnant to the
intention of the Act or lead to some manifest absurdity
(See Craies on Statute Law, Seventh ed. page 83-85). In
the well known treatise - Principles of Statutory
Interpretation by Justice G.P. Singh, the learned author
has enunciated the same principle that the words of the
Statute are first understood in their natural, ordinary or
popular sense and phrases and sentences are construed
according to their grammatical meaning, unless that
leads to some absurdity or unless there is something in
the context or in the object of the Statute to suggest the
contrary (See the Chapter - The Rule of Literal
th
Construction -p. 78 – 9 Edn.). This Court has also
followed this principle right from the beginning. In
Jugalkishore Saraf v. Raw Cotton Co. Ltd.: (1955) 1 SCR
1369 , S.R. Das, J. said:-
“The cardinal rule of construction of statutes is to
read the statute literally, that is, by giving to the
words used by the legislature their ordinary, natural
and grammatical meaning. If, however, such a
reading leads to absurdity and the words are
susceptible of another meaning the Court may adopt
the same. But if no such alternative construction is
possible, the Court must adopt the ordinary rule of
literal interpretation.” (Emphasis supplied)
86. The larger Bench also considered the dictionary
meanings of the word “person” and held that any article like a
bag, briefcase or container cannot under any circumstance be
68
considered as a person or a part thereof. This Court stated that
one of the tests could be, where in the process of search the
human body comes into contact or shall have to be touched by
the person carrying out the search. If that be so, then it will be
search of a person. However, this Court was quick to clarify that
a bag or briefcase or any such article cannot be interpreted to
mean a person. It was held as under:-
“10. We are not concerned here with the wide definition
of the word “person”, which in the legal world includes
corporations, associations or body of individuals as
factually in these type of cases search of their premises
can be done and not of their person. Having regard to the
scheme of the Act and the context in which it has been
used in the Section it naturally means a human being or
a living individual unit and not an artificial person. The
word has to be understood in a broad common sense
manner and, therefore, not a naked or nude body of a
human being but the manner in which a normal human
being will move about in a civilized society. Therefore, the
most appropriate meaning of the word “person” appears
to be – “the body of a human being as presented to public
view usually with its appropriate coverings and
clothings”. In a civilized society appropriate coverings and
clothings are considered absolutely essential and no sane
human being comes in the gaze of others without
appropriate coverings and clothings. The appropriate
coverings will include footwear also as normally it is
considered an essential article to be worn while moving
outside one's home. Such appropriate coverings or
clothings or footwear, after being worn, move along with
the human body without any appreciable or extra effort.
Once worn, they would not normally get detached from
the body of the human being unless some specific effort
in that direction is made. For interpreting the provision,
rare cases of some religious monks and sages, who,
according to the tenets of their religious belief do not cover
69
their body with clothings, are not to be taken notice of.
Therefore, the word “person” would mean a human being
with appropriate coverings and clothings and also
footwear.
11. A bag, briefcase or any such article or container, etc.
can, under no circumstances, be treated as body of a
human being. They are given a separate name and are
identifiable as such. They cannot even remotely be
treated to be part of the body of a human being.
Depending upon the physical capacity of a person, he
may carry any number of items like a bag, a briefcase, a
suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a
carton, etc. of varying size, dimension or weight.
However, while carrying or moving along with them, some
extra effort or energy would be required. They would have
to be carried either by the hand or hung on the shoulder
or back or placed on the head. In common parlance it
would be said that a person is carrying a particular
article, specifying the manner in which it was carried like
hand, shoulder, back or head, etc. Therefore, it is not
possible to include these articles within the ambit of the
word “person” occurring in Section 50 of the Act.
12. An incriminating article can be kept concealed in the
body or clothings or coverings in different manner or in
the footwear. While making a search of such type of
articles, which have been kept so concealed, it will
certainly come within the ambit of the word "search of
person". One of the tests, which can be applied is, where
in the process of search the human body comes into
contact or shall have to be touched by the person carrying
out the search, it will be search of a person. Some
indication of this is provided by Sub-section (4) of Section
50 of the Act, which provides that no female shall be
searched by anyone excepting a female. The legislature
has consciously made this provision as while conducting
search of a female, her body may come in contact or may
need to be touched and, therefore, it should be done only
by a female. In the case of a bag, briefcase or any such
article or container, etc., they would not normally move
along with the body of the human being unless some
extra or special effort is made. Either they have to be
carried in hand or hung on the shoulder or back or placed
70
on the head. They can be easily and in no time placed
away from the body of the carrier. In order to make a
search of such type of objects, the body of the carrier will
not come in contact of the person conducting the search.
Such objects cannot be said to be inextricably connected
with the person, namely, the body of the human being.
Inextricable means incapable of being disentangled or
untied or forming a maze or tangle from which it is
impossible to get free.” (Emphasis supplied)
87. The larger Bench also relied upon Baldev Singh (supra)
while analysing the scope of Section 50 and held that:-
“13. The scope and ambit of Section 50 of the Act was
examined in considerable detail by a Constitution Bench
in State of Punjab v. Baldev Singh and para 12 of the
reports is being reproduced below:
“12. On its plain reading, Section 50 would come into
play only in the case of a search of a person as
distinguished from search of any premises etc.
However, if the empowered officer, without any prior
information as contemplated by Section 42 of the Act
makes a search or causes arrest of a person during
the normal course of investigation into an offence or
suspected offence and on completion of that search,
a contraband under the NDPS Act is also recovered,
the requirements of Section 50 of the Act are not
attracted.”
The Bench recorded its conclusion in para 57 of the
reports and sub-paras (1), (2), (3) and (6) are being
reproduced below :
x x x x
14. 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.” (Emphasis supplied)
71
88. Accordingly, the Court held that the benefit of Section 50
of the NDPS Act cannot be extended to include bags or articles
as the same may lead to an unworkable understanding of the
provision. It was held as under:-
“18. There is another aspect of the matter, which requires
consideration. Criminal law should be absolutely certain
and clear and there should be no ambiguity or confusion
in its application. The same principle should apply in the
case of search or seizure, which come in the domain of
detection of crime. The position of such bags or articles is
not static and the person carrying them often changes the
manner in which they are carried. People waiting at a bus
stand or railway platform sometimes keep their baggage
on the ground and sometimes keep in their hand,
shoulder or back. The change of position from ground to
hand or shoulder will take a fraction of a second but on
the argument advanced by learned counsel for the
accused that search of bag so carried would be search of
a person, it will make a sharp difference in the
applicability of Section 50 of the Act. After receiving
information, an officer empowered under Section 42 of the
Act, may proceed to search this kind of baggage of a
person which may have been placed on the ground, but if
at that very moment when he may be about to open it, the
person lifts the bag or keeps it on his shoulder or some
other place on his body, Section 50 may get attracted. The
same baggage often keeps changing hands if more than
one person are moving together in a group. Such transfer
of baggage at the nick of time when it is about to be
searched would again create practical problem. Who in
such a case would be informed of the right that he is
entitled in law to be searched before a Magistrate or a
gazetted officer? This may lead to many practical
difficulties. A statute should be so interpreted as to avoid
unworkable or impracticable results. In Statutory
rd
Interpretation by Francis Bennion (3 Edn.), para 313,
the principle has been stated in the following manner :
“The court seeks to avoid a construction of an
enactment that produces an unworkable or
impracticable result, since this is unlikely to have
72
been intended by Parliament. Sometimes however,
there are overriding reasons for applying such a
construction, for example where it appears that
Parliament really intended it or the literal meaning is
too strong.”
x x x x
26. The Constitution Bench decision in Pooran Mal v. The
Director of Inspection: (1974) 1 SCC 345, was considered
in State of Punjab v. Baldev Singh, 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.”
(Emphasis supplied)
89. Thus, in Pawan Kumar (supra) the larger Bench while
answering the reference in no uncertain terms stated that “ a
bag, briefcase or any such article or container, etc. can, under no
circumstances, be treated as body of a human being. They are
given a separate name and are identifiable as such. They cannot
even remotely be treated to be part of the body of a human being .”
73
The Court reasoned that a person of varying capacity can carry
different items on his or her body but that does not make those
items as a part of body. The Court observed, “ Depending upon
the physical capacity of a person, he may carry any number of
items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola,
a gathri, a holdall, a carton, etc. of varying size, dimension or
weight. However, while carrying or moving along with them, some
extra effort or energy would be required. They would have to be
carried either by the hand or hung on the shoulder or back or
placed on the head. In common parlance it would be said that a
person is carrying a particular article, specifying the manner in
.”
which it was carried like hand, shoulder, back or head, etc
Therefore, Pawan Kumar (supra) concluded that an external
article which does not form part of body is outside the ambit of
the word “person” occurring in Section 50 of the NDPS Act.
90. What is most important to note in Pawan Kumar (supra)
is that the search was not only of the bag, but also of the person
of the accused, however, the contraband was recovered only
from the bag and not from the person of the accused therein.
What we are trying to highlight is that although in Pawan
Kumar (supra) the search was of the accused as well as the bag,
yet since the recovery of the contraband was only from the bag,
74
this Court took the view that Section 50 would have no
application.
91. In State of Rajasthan v. Daulat Ram reported in (2005)
7 SCC 36, opium was recovered from a bag being carried on the
accused person’s head. This Court while relying upon Pawan
Kumar (supra) held that the recovery made from the accused
person’s bag would not constitute personal search of the
accused and thus, would not attract Section 50. It was held as
under:-
“9. … In view of the principles laid down in the aforesaid
judgment of this Court, there is no scope for the argument
that in the facts and circumstances of this case, the
provisions of Section 50 of the NDPS Act were attracted.
The judgment and order of the High Court must, therefore,
be set aside."
92. This Court in State of Haryana v. Mai Ram reported in
(2008) 8 SCC 292, while examining the scope of Section 50 held
as under:-
“14. … A bare reading of Section 50 shows that it only
applies in case of personal search of a person. It does not
extend to search of a vehicle or a container or a bag, or
premises. (See Kalema Tumba v. State of
Maharashtra, State of Punjab v. Baldev
Singh and Gurbax Singh v. State of Haryana).
15. The language of Section 50 is implicitly (sic explicitly)
clear that the search has to be in relation to a person as
contrasted to search of premises, vehicles or articles. This
position was settled beyond doubt by the Constitution
Bench in Baldev Singh case [(1999) 6 SCC 172]. A similar
75
question was examined in Madan Lal v. State of
H.P. [(2003) 7 SCC 465].”
93. In Balbir Kaur v. State of Punjab reported in (2009) 15
SCC 795, the contraband was recovered from two bags on which
the accused was sitting but no personal search was conducted.
This Court while holding that Section 50 would not be applicable
held as under:-
“22. It is also to be noted at this stage that the recovery
of poppy husk was made from the bags carried by the
appellant, so the submission that there was violation of
the provisions of Section 50 is legally untenable.”
94. The aforesaid view was affirmed in the case of Ajmer
Singh v. State of Haryana reported in (2010) 3 SCC 746,
wherein while searching the shoulder bag of the accused, some
contraband was recovered. This Court held that compliance
under Section 50 was not warranted and stated as under:-
“15. The learned counsel for the appellant contended that
the provision of Section 50 of the Act would also apply,
while searching the bag, brief case etc., carried by the
person and its non-compliance would be fatal to the
proceedings initiated under the Act. We find no merit in
the contention of the learned counsel. It requires to be
noticed that the question of compliance or non-compliance
of Section 50 of the NDPS Act is relevant only where
search of a person is involved and the said Section is not
applicable nor attracted where no search of a person is
involved. Search and recovery from a bag, brief case,
container, etc., does not come within the ambit of Section
50 of the NDPS Act, because firstly, Section 50 expressly
76
speaks of search of person only. Secondly, the Section
speaks of taking of the person to be searched by the
gazetted officer or a Magistrate for the purpose of search.
Thirdly, this issue in our considered opinion is no more
res-integra in view of the observations made by this court
in the case of Madan Lal vs. State of Himachal Pradesh
(2003) 7 SCC 465.” (Emphasis supplied)
95. Pawan Kumar (supra) was also relied upon in Jarnail
Singh v. State of Punjab reported in (2011) 3 SCC 521. In the
said case, opium was recovered from a bag which the accused
was carrying. Section 50 was held to be not applicable as
accused was not searched. It was held that:-
“16. This apart, it is accepted that the narcotic/opium, i.e.,
1 kg. and 750 grams was recovered from the bag (thaili)
which was being carried by the appellant. In such
circumstances, Section 50 would not be applicable. The
aforesaid Section can be invoked only in cases where the
drug/narcotic/NDPS substance is recovered as a
consequence of the body search of the accused. In case,
the recovery of the narcotic is made from a container being
carried by the individual, the provisions of Section 50
would not be attracted.” (Emphasis supplied)
96. In Suresh v. State of Madhya Pradesh reported in
(2013) 1 SCC 550, illicit articles were recovered from the
polythene bags placed in a vehicle found to be in the possession
of the accused person upon their personal search. This Court
held that though the requirement of Section 50 was not
complied with qua the personal search of the accused, yet the
provision was inapplicable qua the recovery made from the
77
vehicle. Therefore, this Court gave a restricted interpretation to
Section 50 and held as under:-
“19. Though a portion of the contraband (opium) was
recovered from the vehicle for which Section 50 is not
applicable, if we exclude the quantity recovered from the
vehicle, the remaining would not come within the mischief
of “commercial quantity” for imposition of such conviction
and sentence. Taking note of the length of period in prison
and continuing as on date and in view of non-compliance
with sub-section (1) of Section 50 in respect of recovery of
contraband from the appellants, we set aside the
conviction and sentence imposed on them by the trial
court and confirmed by the High Court.”
(Emphasis supplied)
97. Accordingly, Section 50 was read to be understood as
applicable only to the personal search of a person and that
would not extend to search of a vehicle or a container or a bag.
The language of Section 50 was interpreted to include search
in relation to a person and not to a search of premises, vehicles
or articles.
Judgments taking the view that Section 50 must be
complied with when search of a bag as well as that of a
person is carried out
98. However, in Dilip v. State of M.P. reported in (2007) 1
SCC 450, a contrary view was taken to that of Pawan Kumar
(supra). In the said case, Section 50 was not complied with while
conducting the search of the person and drugs were recovered
from the accused’s scooter. This Court while acquitting the
accused held that the recovery made from the scooter ought to
78
be inadmissible. It is pertinent to note that in this case the
judgement in Pawan Kumar (supra) was not looked into. The
Court held as under:-
“12. Before seizure of the contraband from the scooter,
personal search of appellants had been carried out and,
admittedly, even at that time the provisions of Section 50
of the Act, although required in law, had not been
complied with.
x x x x
15. Indisputably, however, effect of a search carried out
in violation of the provisions of law would have a bearing
on the credibility of the evidence of the official witnesses,
which would of course be considered on the facts and
circumstances of each case.
16. In this case, the provisions of Section 50 might not
have been required to be complied with so far as the
search of scooter is concerned, but, keeping in view the
fact that the persons of the appellants were also
searched, it was obligatory on the part of PW 10 to comply
with the said provisions. It was not done.”
(Emphasis supplied)
99. The decision of Dilip (supra) was relied upon in Union of
India v. Shah Alam reported in (2009) 16 SCC 644, wherein
packets of heroin were recovered from the accused’s shoulder
bag. This Court rejected the argument of the State that
Section 50 was not applicable as no further recoveries were
made from the person of the accused after the recovery from the
bag. Accordingly, the recovery was held to be in violation of
Section 50 and the accused’s acquittal was upheld. It was held
that:-
79
| “15. | The legal proposition advanced by Mr. Terdal, based | |
|---|
| on the distinction between search of someone's person | | |
| and the baggage carried by him/her is unexceptionable | | |
| but his submission is not supported by the facts of this | | |
| case. We have carefully gone through the records of this | | |
| case. From the evidence of the complainant, PW 1 and the | | |
| seizure memo (fard baramdegi) Ext Ka-2 it is evident that | | |
| the two respondents were subjected to a body search in | | |
| course of which packets of heroin were found in the | | |
| shoulder bags carried by them and were recovered from | | |
| there. | | |
| 16. The facts of the case in hand are very close to | |
| another decision of this Court in Dilip and Anr. v. State of | |
| M.P. where it was observed in paragraphs 12, 15 and 16 | |
| as under: … | |
17. On the facts of the case we find that the alleged
recovery of heroin from the respondents was made in
complete violation of the provisions of Section 50 of the
Act.”
100. A similar view was taken by a Division Bench of this
Court in Parmanand (supra). This Court was called upon to
consider whether Section 50 ought to apply when the search of
the person and his bag is carried out. This Court held that if the
bag is searched without searching the accused, then Section 50
would have no application. However, as a corollary it was held
that if the bag carried by the accused is searched along with his
search, then Section 50 would be applicable. The relevant
portion is as under:-
“15. Thus, if merely a bag carried by a person is searched
without there being any search of his person, Section 50
of the NDPS Act will have no application. But if the bag
80
carried by him is searched and his person is also
searched, Section 50 of the NDPS Act will have
application. In this case, Respondent 1 Parmanand's bag
was searched. From the bag, opium was recovered. His
personal search was also carried out. Personal search of
Respondent 2 Surajmal was also conducted. Therefore, in
light of judgments of this Court mentioned in the
preceding paragraphs, Section 50 of the NDPS Act will
have application.” (Emphasis supplied)
101. Parmanand (supra) was relied upon by a three-Judge
Bench in SK. Raju (supra). In the said case, the police received
information that a drug dealer was likely to visit a park. The
accused after being apprehended was searched and was found
to be in possession of 1.5 kgs of charas, which was recovered
from a jute bag he was carrying. This Court, while holding that
the search was not vitiated as Section 50 was complied with,
held that whenever a person and his or her bag is searched,
irrespective from where the recovery is made, Section 50 must
be complied with. It stated that:-
“20. The question which arises before us is whether
Section 50(1) was required to be complied with when
charas was recovered only from the bag of the appellant
and no charas was found on his person. Further, if the
first question is answered in the affirmative, whether the
requirements of Section 50 were strictly complied with by
PW 2 and PW 4.
21. … The appellant agreed to search PW 2 before the
latter carried out his search. On conducting the search,
only personal belongings of PW 2 were found by the
Appellant. On the search of the appellant in the presence
of the gazetted officer, a biscuit-coloured jute bag was
recovered from the Appellant, and Rs. 2400 cash in the
denomination of 24 notes of Rs. 100 each was found in
81
the left pocket of the Appellant's trouser. When the bag
was opened, a black polythene cover containing nineteen
rectangular broken sheets of a blackish/deep brown
colour weighing 1.5 kilograms was recovered. The sheets
were tested and were found to be charas.
22. PW 2 conducted a search of the bag of the appellant
as well as of the appellant's trousers. Therefore, the
search conducted by PW 2 was not only of the bag which
the appellant was carrying, but also of the appellant's
person. Since the search of the person of the appellant
was also involved, Section 50 would be attracted in this
case. Accordingly, PW 2 was required to comply with the
requirements of Section 50(1). As soon as the search of a
person takes place, the requirement of mandatory
compliance with Section 50 is attracted, irrespective of
whether contraband is recovered from the person of the
detainee or not. It was, therefore, imperative for PW 2 to
inform the appellant of his legal right to be searched
in the presence of either a gazetted officer or a
magistrate. …” (Emphasis supplied)
102. Thus, one view which originated from Dilip (supra) and
relied upon in SK. Raju (supra) implied that if a person is
searched and along with him or her, his or her bag is also
searched, then the benefit of Section 50 should be extended
while conducting the personal search of the accused.
103. However, it is pertinent to note that although Pawan
Kumar (supra) has been referred to and considered in SK. Raju
(supra) yet, the Court in SK. Raju (supra) overlooked the fact
that in Pawan Kumar (supra) also the search was not only of
the person of the accused but also of his bag. Even in such
circumstances, the larger Bench in Pawan Kumar (supra) took
82
the view that Section 50 would not apply if nothing
incriminating is recovered from the person of the accused. Thus,
there is an apparent conflict between the two decisions.
Section 50 not applicable when recovery made from bag,
conveyance, etc.
104. A three-Judge Bench in the State of Punjab v. Baljinder
Singh reported in (2019) 10 SCC 473 considered the question:-
“8. …
If a person found to be in possession of a vehicle
containing contraband is subjected to personal search,
which may not be in conformity with the requirements
under Section 50 of the Act; but
the search of the vehicle results in recovery of
contraband material, which stands proved
independently;
would the accused be entitled to benefit of acquittal on
the ground of non-compliance of Section 50 of the Act even
in respect of material found in the search of the vehicle?”
105. In the aforesaid case, poppy husk was recovered from
the accused’s vehicle. This Court, while explaining the object of
Section 50 and relying on the Constitution Bench judgement in
Vijaysinh Chandubha Jadeja (supra), held that:-
“10. Section 50 of the Act affords protection to a person in
matters concerning “personal search” and stipulates
various safeguards. It is only upon fulfilment of and strict
adherence to said requirements that the contraband
recovered pursuant to “personal search” of a person can
be relied upon as a circumstance against the person.
x x x x
83
12. Subsequently, another Constitution Bench of this
Court in Vijaysinh Chandubha Jadeja vs. State of
Gujarat, had an occasion to consider the case from the
standpoint whether the person who is about to be
searched ought to be informed of his right that he could
be searched in the presence of a gazetted officer or a
Magistrate. While considering the said question, this
Court also dealt with the judgment rendered in Baldev
Singh’s case and the discussion in paragraphs 24 and 29
was as under:
“24. Although the Constitution Bench in Baldev Singh
case [(1999) 6 SCC 172] did not decide in absolute
terms the question whether or not Section 50 of the
NDPS Act was directory or mandatory yet it was held
that provisions of sub-section (1) of Section 50 make
it imperative for the empowered officer to “inform” the
person concerned (suspect) about the existence of his
right that if he so requires, he shall be searched
before a gazetted officer or a Magistrate; failure to
“inform” the suspect about the existence of his said
right would cause prejudice to him, and in case he so
opts, failure to conduct his search before a gazetted
officer or a Magistrate, may not vitiate the trial but
would render the recovery of the illicit article suspect
and vitiate the conviction and sentence of an
accused, where the conviction has been recorded
only on the basis of the possession of the illicit article,
recovered from the person during a search conducted
in violation of the provisions of Section 50 of the
NDPS Act. The Court also noted that it was not
necessary that the information required to be given
under Section 50 should be in a prescribed form or in
writing but it was mandatory that the suspect was
made aware of the existence of his right to be
searched before a gazetted officer or a Magistrate, if
so required by him. We respectfully concur with these
conclusions. Any other interpretation of the provision
would make the valuable right conferred on the
suspect illusory and a farce.
x x x x
29. In view of the foregoing discussion, we are of the
firm opinion that the object with which the right
under Section 50(1) of the NDPS Act, by way of a
safeguard, has been conferred on the suspect viz. to
84
check the misuse of power, to avoid harm to innocent
persons and to minimise the allegations of planting
or foisting of false cases by the law enforcement
agencies, it would be imperative on the part of the
empowered officer to apprise the person intended to
be searched of his right to be searched before a
gazetted officer or a Magistrate. We have no
hesitation in holding that insofar as the obligation of
the authorised officer under sub-section (1) of Section
50 of the NDPS Act is concerned, it is mandatory and
requires strict compliance. Failure to comply with the
provision would render the recovery of the illicit
article suspect and vitiate the conviction if the same
is recorded only on the basis of the recovery of the
illicit article from the person of the accused during
such search. Thereafter, the suspect may or may not
choose to exercise the right provided to him under the
said provision.” (Emphasis supplied)
106. The Court went on to hold that Section 50 would be
applicable only to the personal searches and not to the
searches of vehicles or bags. This was in line with the ratio laid
down in Pawan Kumar (supra) and Baldev Singh (supra).
This Court held that:-
“15. As regards applicability of the requirements under
Section 50 of the Act are concerned, it is well settled that
the mandate of Section 50 of the Act is confined to
“personal search” and not to search of a vehicle or a
container or premises.
16. The conclusion (3) as recorded by the Constitution
Bench in Para 57 of its judgment in Baldev Singh clearly
states that the conviction may not be based “only” on the
basis of possession of an illicit article recovered from
personal search in violation of the requirements under
Section 50 of the Act but if there be other evidence on
record, such material can certainly be looked into.
85
17. In the instant case, the personal search of the accused
did not result in recovery of any contraband. Even if there
was any such recovery, the same could not be relied upon
for want of compliance of the requirements of Section 50
of the Act. But the search of the vehicle and recovery of
contraband pursuant thereto having stood proved, merely
because there was non-compliance of Section 50 of the
Act as far as “personal search” was concerned, no benefit
can be extended so as to invalidate the effect of recovery
from the search of the vehicle. Any such idea would be
directly in the teeth of conclusion (3) as aforesaid.”
(Emphasis supplied)
107. It is pertinent to note here that in Baljinder Singh
(supra) the decision of SK. Raju (supra) was not looked into,
however, the decision in the case of Dilip (supra) was considered
and held to be not laying down the correct law on the ground
that it did not consider the decision of Baldev Singh (supra).
This Court held that:-
“18. The decision of this Court in Dilip’s case, however,
has not adverted to the distinction as discussed
hereinabove and proceeded to confer advantage upon the
accused even in respect of recovery from the vehicle, on
the ground that the requirements of Section 50 relating to
personal search were not complied with. In our view, the
decision of this Court in said judgment in Dilip’s case is
not correct and is opposed to the law laid down by this
Court in Baldev Singh and other judgments.”
(Emphasis supplied)
Settling the conflict between SK. Raju and Baljinder Singh
108. The High Court of Delhi in Akhilesh Bharti v. State
reported in 2020 SCC OnLine Del 306 : (2020) 266 DLT 689,
86
had the occasion to look into the cleavage of opinion expressed
in Baljinder Singh (supra) and SK. Raju (supra). The High
Court therein, noted the thin line of distinction drawn by SK.
Raju (supra) where the contraband is recovered from an object
which is held by the accused in his hand. In such a situation
the High Court held that even if nothing is recovered from the
person, Section 50 ought to be complied with. The High Court
held as under:-
“26. It is essential to observe that vide the verdict of the
Hon'ble three Judge Bench of the Hon’ble Supreme Court
dated 05.09.2018 in “SK. Raju alias Abdul Haque alias
Jagga Vs. State of West Bengal” (2018) 9 SCC 708, it has
specifically been observed to the effect that where merely
a bag carried by a person is searched without there being
any search of his person, Section 50 of the NDPS Act,
1985 will have no application but if the personal search
of the accused is also conducted, the provisions of Section
50 of the NDPS Act, 1985 would wholly apply. The verdict
of the Hon'ble Supreme Court dated 15.10.2019 in “State
of Punjab Vs. Baljinder Singh and Another” is also a
verdict of the Hon'ble three Judge Bench of the Hon'ble
Supreme Court in which the personal search of the
accused did not result into recovery of any contraband
but there was a recovery of contraband effected from the
vehicle in which the accused persons were seated with
one of them being the driver. Though, the Hon'ble
Supreme Court in “State of Punjab Vs. Baljinder Singh
and Another” (supra) has observed to the effect that the
judgment of the Hon'ble Supreme Court in Dilip's case is
not correct and is opposed to the decision to the law laid
down by the Hon'ble Supreme Court in Baldev Singh's
and other judgments, the observations in the verdict of
the Hon'ble Supreme Court in “S.K. Raju alia Abdul Haque
alias Jagga Vs. State of West Bengal” (supra) dated
05.09.2018 (which are not adverted to in “State of Punjab
Vs. Baljinder Singh and Another” (supra) dated
15.10.2019) lay down a fine distinction and in these
87
circumstances thus, where the contraband is recovered
from an object which is held by an accused in his hand
and the search of the person of such an accused is also
conducted which lead to no recovery of any contraband,
though, there are recoveries of other personal assets of a
person from his personal search, in view of the judgments
of the Hon'ble Supreme Court in “SK. Raju alia Abdul
Haque alias Jagga Vs. State of West Bengal” (supra), the
non compliance of Section 50 of the NDPS Act, 1985 would
prima facie vitiate the recovery.” (Emphasis supplied)
109. Akhilesh Bharti (supra) referred to above was
considered by a co-ordinate Bench of the Delhi High Court in
Kamruddin v. State (NCT of Delhi) , 2022 SCC OnLine Del
3761, and held as under:-
“23. In the decision of S.K. Raju (supra), the Hon'ble
Supreme Court has clearly held that since the search of
the person of the appellant therein was also involved,
therefore, Section 50 of the NDPS Act would be attracted
in that case and accordingly the requirement of Section
50(1) of the NDPS Act was insisted.
24. So far as the decision relied upon by learned APP for
the state in the case of State of HP Vs. Pawan Kumar is
concerned, it is to be stated that in paragraph No. 17 of
the decision in the case of S.K. Raju (supra) the Hon'ble
Supreme Court has taken note of the decision in the case
of Pawan Kumar (supra). The distinction between the two
situations has been considered and if a bag, article or
container etc. being carried by an accused is subjected to
search independently without there being any search of
the person of the appellant, the decision in the case of
Pawan Kumar (supra) would have application. However,
in a case where the person of accused is subjected to
search along with the search of bag, article or container
which he holds in his hand, there is requirement of
compliance of Section 50 of the NDPS Act.”
(Emphasis supplied)
88
110. It appears that the Delhi High Court laboured under an
erroneous impression that in Pawan Kumar (supra) the search
was only of the bag and not of the accused. However, at the cost
of repetition, we state that in Pawan Kumar (supra) the search
was of both the accused as well as the bag which he was
carrying. This is evident from para 2 of the judgment in Pawan
Kumar (supra) wherein it has been observed as under:-
“2. … A search of the accused and the bag being carried
by him was then conducted and 360 gm of opium
wrapped in polythene was found inside the bag. …”
(Emphasis supplied)
111. In Than Kunwar v. State of Haryana reported in (2020)
5 SCC 260, this Court took a different view. In the said case, the
personal search of the accused did not lead to any recovery.
However, upon conducting the search of the bag, opium was
recovered. This Court acknowledged the divergent views and
noted that the decision of SK. Raju (supra) was not considered
while deciding Baljinder Singh (supra). However, the latter was
applied and was read to be in line with Baldev Singh (supra). It
was held that:-
“22. Having regard to the judgment by the three-Judge
Bench, which directly dealt with this issue, viz., the
correctness of the view in Dilip (supra) reliance placed
by the appellant on para 16 may not be available. As
already noticed, we are not oblivious of the observation
which has been made in the other three-Judge Bench
judgment of this Court in SK. Raju (supra), which it
89
appears, was not brought to the notice to the Bench
which decided the case later in Baljinder Singh (supra).
We notice however that the later decision draws
inspiration from the Constitution Bench decision in
Baldev Singh (supra). We also notice that this is not a
case where anything was recovered on the alleged
personal search. The recovery was effected from the
bag for which it is settled law that compliance with
Section 50 of the Act is not required.”
(Emphasis supplied)
112. Baljinder Singh (supra) was followed by this Court in
Kallu Khan v. State of Rajasthan reported in 2021 SCC
OnLine 1223, wherein the search and seizure was made from
the accused’s motorcycle. This Court while holding that the
search cannot be said to be vitiated on account of non-
compliance of Section 50 as the same only applies to a search of
a person, held as under:-
“15. Simultaneously, the arguments advanced by the
appellant regarding non-compliance of Section
50 of NDPS Act is bereft of any merit because no
recovery of contraband from the person of the accused
has been made to which compliance of the
provision of Section 50 NDPS Act has to follow
mandatorily. In the present case, in the search of motor
cycle at public place, the seizure of contraband was
made, as revealed. Therefore, compliance of Section 50
does not attract in the present case. It is settled in the
case of Vijaysinh (supra) that in the case of personal
search only, the provisions of Section 50 of the Act is
required to be complied with but not in the
case of vehicle as in the present case, following the
judgments of Surinder Kumar (supra) and Baljinder
Singh (supra). Considering the facts of this case, the
argument of non-compliance of Section 50 of NDPS Act
advanced by the counsel is hereby repelled.”
(Emphasis supplied)
90
113. Similarly, in a recent judgement, this Court in Dayalu
Kashyap v. State of Chhattisgarh reported in (2022) 12 SCC
398, held that an extended view of Section 50 cannot be given
to include a polythene bag containing narcotics being carried by
the accused. This Court rejected the argument that as three
options were given to the accused to get himself searched from
the officer which was in violation of Section 50, the search
conducted, even of the polythene bag, ought to be vitiated. It was
held as under:-
“4. The learned counsel submits that the option given to
the appellant to take a third choice other than what is
prescribed as the two choices under sub-section (1) of
Section 50 of the Act is something which goes contrary to
the mandate of the law and in a way affects the
protection provided by the said section to the accused. To
support his contention, he has relied upon the judgment
of State of Rajasthan v. Parmanand [State of
Rajasthan v. Parmanand, (2014) 5 SCC 345], more
specifically, SCC para 19. The judgment in turn, relied
upon a Constitution Bench judgment of this Court in State
of Punjab v. Baldev Singh [State of Punjab v. Baldev
Singh, (1999) 6 SCC 172] to conclude that if a search is
made by an empowered officer on prior information
without informing the person of his right that he has to be
taken before a Gazetted Officer or a Magistrate for search
and in case he so opts, failure to take his search
accordingly would render the recovery of the illicit article
suspicious and vitiate the conviction and sentence of the
accused where the conviction has been recorded only on
the basis of possession of illicit articles recovered from his
person. The third option stated to be given to the accused
to get himself searched from the Officer concerned not
being part of the statute, the same could not have been
offered to the appellant and thus, the recovery from him
is vitiated.
91
5. In the conspectus of the facts of the case, we find that
the recovery was in a polythene bag which was being
carried on a kanwad. The recovery was not in person. The
learned counsel seeks to expand the scope of the
observations made by seeking to contend that if the
personal search is vitiated by violation of Section 50 of
the NDPS Act, the recovery made otherwise also would
stand vitiated and thus, cannot be relied upon. We cannot
give such an extended view as is sought to be contended
by the learned counsel for the appellant.”
(Emphasis supplied)
FINAL ANALYSIS
114. The only idea with which we have referred to the various
decisions of this Court starting with Balbir Singh (supra) till
Dayalu Kashyap (supra) is to highlight that Section 50 of the
NDPS Act has been tried to be interpreted and understood in
many ways. As noted earlier, in some of the decisions of this
Court, the concept of “inextricably linked to person” was applied.
In other words, if the bag, etc. is in immediate possession of the
accused and the search is undertaken of such bag, etc., even
then, according to those decisions, Section 50 would be
applicable. It could legitimately be argued that the
interpretation of Section 50 restricting its scope only to the
search of a person of the accused would frustrate the object as
the apprehension of the person concerned may continue to
subsist that he may still be implicated by the police or any other
person for more stringent punishment of carrying commercial
92
quantity by getting rid of the rigor of the mandatory provision of
Section 50 by implanting the contraband in a vehicle, bag, etc.
accompanying the person. What we are trying to convey has
been explained in the case of State v. Klein [See : John C.
Derrnbachet.al., A Practical Guide to Legal Writing and Legal
Method (1994)]. In the said case, the issue before the U.S. Court
was that whether a person can be held guilty for the offence of
burglary more particularly when such person did not enter the
house per se but tried to steal the object with the help of tree
snips. The statute clearly declared that for burglary to happen,
the defendant should be physically present. In this case,
although the defendant never entered the house, yet he did
extend his tree snips through the window. The Court held that,
“there is no meaningful difference between the snips and his arm
because the penetration by the snips was merely an extension of
Klein’s person.” Therefore, in the said case, the object which a
person was carrying was held to be part of his body. A similar
view could also have been adopted while interpreting the term
“personal search”. However, in view of plain and unambiguous
statutory provision, there is no scope of interpreting Section 50
in any other manner than the interpretation explained in Baldev
Singh (supra) and Pawan Kumar (supra).
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115. It is a well-settled principle in law that the Court should
not read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the legislature. The
language employed in a statute is the determinative factor of the
legislative intent. The first and primary rule of construction is
that the intention of the legislation must be found in the words
used by the legislature itself. The question is not what may be
supposed and has been intended but what has been said. Judge
Learned Hand said, “ Statutes should be construed, not as
theorems of Euclid, but with some imagination of the purposes
which lie behind them ”. (See : Lehigh Valley Coal
Co. v. Yensavage , 218 FR 547). The view was reiterated
in Union of India v. Filip Tiago De Gama of Vedem Vasco De
Gama , (1990) 1 SCC 277.
116. In D.R. Venkatchalam v. Dy. Transport
Commissioner , (1977) 2 SCC 273, it was observed that the
Courts must avoid the danger of an a priori determination of the
meaning of a provision based on their own preconceived notions
of ideological structure or scheme into which the provision to be
interpreted is somewhat fitted. They are not entitled to usurp
the legislative function under the disguise of interpretation.
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117. While interpreting a provision, the Court only interprets
the law and cannot legislate it. If a provision of law is misused
and subjected to the abuse of process of law, it is for the
legislature to amend, modify or repeal it, if deemed necessary.
(See : Rishabh Agro Industries Ltd. v. P.N.B. Capital
Services Ltd. , (2000) 5 SCC 515). The legislative casus omissus
should not be supplied by judicial interpretative process. The
language of Section 50 of the NDPS Act is plain and
unambiguous. There is no scope of reading something into it as
was done in many decisions of this Court which we have referred
to in our judgment.
118. Two principles of construction — one relating to casus
omissus and the other in regard to reading the statute as a whole
— appear to be well settled. Under the first principle a casus
omissus cannot be supplied by the Court except in the case of
clear necessity and when reason for it is found in the four
corners of the statute itself but at the same time a casus omissus
should not be readily inferred and for that purpose all the parts
of a statute or section must be construed together and every
clause of a section should be construed with reference to the
context and other clauses thereof so that the construction to be
put on a particular provision makes a consistent enactment of
the whole statute. This would be more so if literal construction
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of a particular clause leads to manifestly absurd or anomalous
results which could not have been intended by the legislature.
“An intention to produce an unreasonable result” , said
Danckwerts, L.J., in Artemiou v. Procopiou , (1966) 1 QB 878 :
(1965) 3 All ER 539 : (1965) 3 WLR 1011 (CA)] (at All ER p.
544-I), “is not to be imputed to a statute if there is some other
construction available” . Where to apply words literally would
“defeat the obvious intention of the legislation and produce a
wholly unreasonable result” , we must “do some violence to the
words” and so achieve that obvious intention and produce a
rational construction. [Per Lord Reid in Luke v. IRC [1963 AC
557 : (1963) 1 All ER 655 : (1963) 2 WLR 559 (HL)] where at AC
p. 577 he also observed : (All ER p. 664-I) “This is not a new
problem, though our standard of drafting is such that it rarely
emerges.” ] (See : Padma Sundara Rao (Dead) & Ors. v. State
T.N. & Ors. , (2002) 3 SCC 533)
119. As such, there is no direct conflict between SK. Raju
(supra) and Baljinder Singh (supra). It is pertinent to note that
in SK. Raju (supra) the contraband was recovered from the bag
which the accused was carrying, whereas in Baljinder Singh
(supra) the contraband was recovered from the vehicle. This
makes a lot of difference even while applying the concept of any
object being “inextricably linked to the person”. Parmanand
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(supra) relied upon the judgment in Dilip (supra) while taking
the view that if both, the person of the accused as well as the
bag is searched and the contraband is ultimately recovered from
the bag, then it is as good as the search of a person and,
therefore, Section 50 would be applicable. However, it is
pertinent to note that Dilip (supra) has not taken into
consideration Pawan Kumar (supra) which is of a larger Bench.
It is also pertinent to note that although in Parmanand (supra)
the Court looked into Pawan Kumar (supra), yet ultimately it
followed Dilip (supra) and took the view that if the bag carried
by the accused is searched and his person is also searched,
Section 50 of the NDPS Act will have application. This is
something travelling beyond what has been stated by the large
Bench in Pawan Kumar (supra). Baljinder Singh (supra), on
the other hand, says that Dilip (supra) does not lay down a
good law.
120. In the facts of the present case, there is no scope of
applying the ratio of Parmanand (supra) and SK. Raju (supra).
At the cost of repetition, we may state that in the case on hand,
there is nothing to indicate that the search of the person of the
accused was also undertaken along with the bag which he was
carrying on his shoulder.
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121. We do not propose to say anything further as regards SK.
Raju (supra) as well as Baljinder Singh (supra). We adhere to
the principles of law as explained by the Constitution Bench in
Baldev Singh (supra) and the larger Bench answering the
reference in Pawan Kumar (supra).
122. It has been observed in Baldev Singh (supra) that drug
abuse is a social malady. While drug addiction eats into the
vitals of the society, drug trafficking not only eats into the vitals
of the economy of a country, but illicit money generated by drug
trafficking is often used for illicit activities including
encouragement of terrorism. It has acquired the dimensions of
an epidemic, affects the economic policies of the State, corrupts
the system and is detrimental to the future of a country.
Reference in the said decision has also been made to some
United Nation Conventions which the Government of India has
ratified. It is, therefore, absolutely imperative that those who
indulge in this kind of nefarious activities should not go scot-
free on technical pleas which come handy to their advantage in
a fraction of second by slight movement of the baggage, being
placed to any part of their body, which baggage may contain the
incriminating article.
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123. This matter reminds us of the observations made by a
seven-Judge Bench of this Court in the case of Keshav Mills
Co. Ltd. v. Commissioner of Income Tax, Bombay North,
Ahmedabad , (1965) 2 SCR 908 : AIR 1965 SC 1636. We quote
the relevant observations:-
| [1960] 1 S.C.R. 249, | |
|---|
| 1 S.C.R. 871, | shoul |
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Court has taken a particular view as to the construction
of a statutory provision as, for instance, Section 66(4) of
the Act. When it is urged that the view already taken by
this Court should be reviewed and revised, it may not
necessarily be an adequate reason for such review and
revision to hold that though the earlier view is a
reasonably possible view, the alternative view which is
pressed on the subsequent occasion is more reasonable.
In reviewing and revising its earlier decision, this Court
should ask itself whether in the interests of the public
good or for any other valid and compulsive reasons, it is
necessary that the earlier decision should be revised.
When this Court decides questions of law, its decisions
are, under Article 141, binding on all courts within the
territory of India, and so, it must be the constant
endeavour and concern of this Court to introduce and
maintain an element of certainty and continuity in the
interpretation of law in the country. Frequent exercise by
this Court of its power to review its earlier decisions on
the ground that the view pressed before it later appears
to the Court to be more reasonable, may incidentally tend
to make law uncertain and introduce confusion which
must be consistently avoided. That is not to say that if on
a subsequent occasion, the Court is satisfied that its
earlier decision was clearly erroneous, it should hesitate
to correct the error; but before a previous decision is
pronounced to be plainly erroneous, the Court must be
satisfied with a fair amount of unanimity amongst its
members that a revision of the said view is fully justified.
It is not possible or desirable, and in any case it would be
inexpedient to lay down any principles which should
govern the approach of the Court in dealing with the
question of reviewing and revising its earlier decisions. It
would always depend upon several relevant
considerations:- What is the nature of the infirmity or error
on which a plea for a review and revision of the earlier
view is based? On the earlier occasion, did some patent
aspects of the question remain unnoticed, or was the
attention of the Court not drawn to any relevant and
material statutory provision, or was any previous
decision of this Court bearing on the point not noticed? Is
the Court hearing such plea fairly unanimous that there
is such an error in the earlier view? What would be the
impact of the error on the general administration of law or
on public good? Has the earlier decision been followed on
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subsequent occasions either by this Court or by the High
Courts? And, would the reversal of the earlier decision
lead to public inconvenience, hardship or mischief? These
and other relevant considerations must be carefully borne
in mind whenever this Court is called upon to exercise its
jurisdiction to review and revise its earlier decisions.
These considerations become still more significant when
the earlier decision happens to be a unanimous decision
of a Bench of five learned Judges of this Court.”
(Emphasis supplied)
124. The aforesaid observations made by the seven-Judge
Bench of this Court, more particularly the last three lines
referred to above, “ These considerations become still more
significant when the earlier decision happens to be a unanimous
decision of a Bench of five learned Judges of this Court.”
persuade us to say that we must adhere to the principle of law
as explained by the Constitution Bench in Baldev Singh (supra)
and the larger Bench in Pawan Kumar (supra).
125. For all the foregoing reasons, we are of the view that the
High Court was justified in holding the appellant guilty of the
offence under the NDPS Act and at the same time, the High
Court was also correct in saying that Section 50 of the NDPS Act
was not required to be complied with as the recovery was from
the bag.
126. In the result, both the appeals fail and are hereby
dismissed.
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127. Pending application, if any, also stands disposed of
accordingly.
………………………………..J.
( M.M. SUNDRESH )
………………………………..J.
(J.B. PARDIWALA)
NEW DELHI;
OCTOBER 06, 2023
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