Full Judgment Text
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CASE NO.:
Appeal (crl.) 650 of 1999
PETITIONER:
State of Haryana
RESPONDENT:
Ranbir alias Rana
DATE OF JUDGMENT: 05/04/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
The State of Haryana is in appeal before us from a judgment and
order dated 19.08.1998 of the High Court of Punjab and Haryana in
Criminal Appeal No.715 of 1996 allowing the appeal preferred by the
respondent herein from a judgment of conviction and sentence dated
05.08.1996 passed by the learned Additional and Sessions Judge in Sessions
Case No.37 and Sessions Trial No.118 of 1994 under Sections 20 of the
Narcotic Drugs and Psychotropic Substances Act (for short, ’the Act’).
The prosecution case against the respondent was as under :
On 15.11.1993 when a police party, comprising of Sub-Inspector
Dunger Singh, Constable Randhir Singh, Head Constable Omkar, Constable
Umed Singh and Head Constable Om Prakash, were proceeding from Bamla
to CIA staff Bhiwani and reached the point on Rohtak-Bhiwani Road near
Sanjeev M. College, the respondent was seen coming from the opposite
direction, i.e., from the side of Bhiwani on foot, holding a plastic bag of
white colour. Having seen them, the respondent allegedly turned towards
his left side on the road as a result whereof a suspicion as regard his conduct
arose in their mind. The respondent was, thereafter, taken into custody. A
notice was allegedly served on the respondent by the Sub Inspector to the
effect "you (accused) have some contraband in your possession and your
search is to be effected in the presence of a gazetted police officer or a
magistrate", if he so desired. The respondent is said to have had no
objection if the search was conducted in presence of a gazetted officer or a
magistrate available at the spot. An intimation was thereafter sent to the
DSP, Headquarters, Bhiwani who reached the spot along with his staff. The
respondent was allegedly searched in his presence and on a search of the
plastic bag, which the respondent was carrying, a ’pipi’ containing ’charas’
weighing 2 kg. was found. The incharge of the police party separated 50
grams of ’charas’ by way of sample of the seized contraband and made a
sealed parcel thereof. Remaining amount of the seized article was said to
have been separately sealed and the entire property was taken into
possession wherefor a recovery memo. was prepared. The respondent
accused could not produce any licence or permit for possession of the said
contraband articles. Therefore a ’ruqa’ was sent to the police station for
registration of the case and a formal First Information Report was lodged.
On charged of possession of the said contraband article, the
respondent was put on trial.
The learned Sessions Judge found the appellant to be guilty of the said
offence and sentenced him to undergo rigorous imprisonment for a period
of 10 years and pay a fine of Rs.1,00,000/-. The respondent filed an appeal
thereagainst before the High Court.
Before the High Court only contention which was raised was that the
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mandatory provision of Section 50 of the Act had not been complied with.
According to the respondent although the article in question was found from
a bag, it was obligatory on the part of the Dy. S.P. to bring it to his notice
that he had a right to be searched by a magistrate or a gazetted officer and he
having not been informed of his right, the judgment of conviction and
sentence was vitiated in law.
The High Court in its judgment proceeded on the basis that Section 50
of the Act is mandatory in character. It was held :
"Reverting to the facts in hand, the notice,
Ex.PW-4/A, is very material. A close reading of this
notice only indicates that SI Dungar Singh had given the
option to the appellant by informing him that his search
was to be conducted in the presence of a gazetted police
officer or a magistrate. Beyond that, he notice, Ex.PW-
4/A is silent. SI Dungar Singh never apprised the
appellant that he had the right to be searched in the
presence of a Magistrate or a gazetted officer as
mentioned in Section 42 of the Act. Even the reply,
Ex.PW-4/B, given by the appellant is not in consonance
with the provisions of section 50 of the Act. The reply
simply states that the appellant was ready to give the
search in the presence of a Magistrate or a gazetted
police officer at the spot. Further, the accused has stated
vide Ex.PW-4/B that he had full confidence in the I.O.
Strange enough, the reply of the appellant has not been
attested by HC Randhir Singh or HC Om Kar who, of
course, have attested the notice, Ex.PW-4/A, allegedly
given by SI Dungar Singh. This indicates that PW-4/A,
and PW-4/B have been prepared at a different state and,
unfortunately, and for the benefit of the appellant\005"
The question as regards applicability of Section 50 of the Act need not
detain us for long. We may notice that in view of conflict in the opinions of
different benches as also difference of opinion between two judges of this
Court in State of Himachal Pradesh v. Pawan Kumar [(2004) 7 SCC 735] the
question was referred to a larger Bench. A three-Judge Bench of this Court
in State of Himachal Pradesh etc. v. Pawan Kumar [(2005) 4 SCC 350]
relying on or on the basis of a large number of decisions and in particular the
decision of the Constitution Bench of this Court in State of Punjab v.
Baldev Singh [(1999) 6 SCC 172] clearly held that Section 50 of the Act
would be applicable only in a case of personal search of the accused and not
when it is made in respect of some baggage like a bag, article or container
etc. which the accused at the relevant time was carrying.
Before us, however, the learned counsel appearing on behalf of the
respondent placed strong reliance on another three-Judge Bench of this
Court in Namdi Frnacis Nwazor v. Union of India and Another [(1998) 8
SCC 534], wherein the following observations were made :
"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 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
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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."
It was urged that this Court in Pawan Kumar (supra) wrongly
distinguished Namdi Francis Nwazor (supra) stating that the observations
made therein (underlined by us) were obiter and did not lay down a law.
We may at once notice the observations made in Pawan Kumar
(supra) as regards Namdi Francis Nwazor (supra) which is in the following
terms :
"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 were 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 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."
We do not agree with the contention of the learned counsel for the
respondent that in Namdi Francis Nwazor (supra), the observation of this
Court constituted a dicta and not an obiter. The appellant therein was
apprehended at the International Airport, New Delhi. He had already
checked in his baggage. The said baggage was cleared but later on, the same
was called to the customs counter at the airport and upon examination
thereof, it was found to be containing 153 cartons of tetanus vaccine, which
having been opened, found to be containing 152 cartons of ampoules
whereas the remaining one carton carried a polythene packet containing
brown-coloured powder packet with black adhesive tape, which was
suspected to be heroin and which was then seized.
It is in that context the court clearly came to the opinion that the
provisions of sub-section (1) of Section 50 was not required to be complied
with. The said conclusion was arrived at, inter alia, upon noticing the
provision of sub-section (4) of Section 50 of the Act. It was, therefore, not
necessary for the Bench, with utmost respect, to make any further
observation. It was not warranted in the fact of the said case. A decision, it
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is well-settled, is an authority for what it decides and not what can logically
be deduced therefrom. The distinction between a dicta and obiter is well
known. Obiter dicta is more or less presumably unnecessary to the decision.
It may be an expression of a view point or sentiments which has no binding
effect. See Additional District Magistrate, Jabalpur etc. v. Shivakant Shukla
etc. (1976) 2 SCC 521]. It is also well-settled that the statements which are
not part of the ratio decidendi constitute obiter dicta and are not
authoritative. [See Division Controller, KSRTC v. Mahadeva Shetty and
Another [(2003) 7 SCC 197]
In Director of Settlements, A.P. and Others v. M.R. Apparao and
Another [(2002) 4 SCC 638], it was held :
"\005An obiter dictum as distinguished from ratio
decidendi is an observation of the court on a legal
question suggested in a case before it but not arising in
such manner as to require a decision. Such a obiter may
not have binding precedent but it cannot be denied that it
is of considerable weight\005."
We may usefully refer to an observation of Delvin J. made in Behrens
v. Pertraman Mills, (1957) 2 QB 25], which is in the following terms :
"\005if the Judge gives two reasons for his decisions, both
are binding. It is not permissible to pick out one as being
supposedly the better reason and ignore the other one;
nor does it matter for this purpose which comes first and
which comes second. But the practice of making judicial
observation obiter is also well established. A judge may
often give additional reasons for his decision without
wishing to make them part of the ratio decidendi; he may
not be sufficiently convinced of their cogency as to want
them to have the full authority of the precedent, and yet
may wish to state them so that those who later may have
the duty of investigating the same point will start with
some guidance. This is the matter which judge himself is
alone capable of deciding, and any judge who comes
after him must ascertain which course he has adopted fro
the language used and not by consulting his own
preference."
Although the said observation of Delvin J. has been subjected to some
criticism, it throws some light on the subject; but may not be treated to be
an authority.
We are satisfied that the observations made in Namdi Francis Nwazor
(supra) is merely an obiter and does not constitute a ratio decidendi. The
three-judge Bench of this Court in Pawan Kumar (supra), therefore,
correctly distinguished the same. It was, thus, not necessary for the Bench
to follow the judgment of a coordinate bench in Pawan Kumar (supra) as
was argued by the learned counsel.
For the reasons aforementioned, the impugned judgment cannot be
sustained. The judgment of the High Court is, therefore, set aside and that of
the learned Sessions Judge is restored. The appeal is accordingly allowed.