Full Judgment Text
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CASE NO.:
Appeal (crl.) 222 of 1997
PETITIONER:
State of Himachal Pradesh
RESPONDENT:
Pawan Kumar
DATE OF JUDGMENT: 27/09/2004
BENCH:
ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
I am in respectful agreement with the view expressed by my
learned and respected Brother that the opinion of Chemical
Examiner, Kandaghat Laboratory was not to be excluded. However,
I am unable to agree with the views as regards Section 50 of the
NDPS Act.
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.
In Saikou Jabbi v. State of Maharashtra (2003 (9) JT 609)
it was held as follows:
"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 and
Anr. (JT 1999 (8) SC 293), The State of Punjab
v. Baldev Singh (JT 1999 (4) SC 595), Gurbax
Singh v. State of Haryana (2001(3) SCC 28).
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’s case (supra). Above being the
position, the contention regarding non-
compliance of Section 50 of the Act is also
without any substance. 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 to be a recovery made from the
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person of the accused by a personal search. In
Birakishore Kar v. State of Orissa (2001 (9)
SCC 541) it was held that when there was a
recovery from a plastic bag belonging to the
accused on which he was found sitting on
railway compartment, Section 50 was not
applicable. Baldev’s case (supra) was referred
to hold that Section 50 in case of search comes
into play only in case of search by a person as
distinguished from search from any premises
etc. The position was also highlighted
recently in Madan LaL & Anr. v. State of
Himachal Pradesh (2003 AIR SCW 3969). Above
being the position the High Court was justified
in holding that Section 50 had no application."
Therefore, in my view there was no infraction of the
requirements of Section 50 of NDPS. The High Court went wrong in
holding otherwise.
In a case of this nature, having regard to the purport and
object of the Act, the language cannot be any strained meaning so
as to frustrate the legislative purpose.