TaxTMI 
TaxTMI 
2005 (4) TMI 549
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....ent herein), who was carrying a bag, Ex.P3, slipped out from the rear door of the bus and thereafter started running towards 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. Two samples of the recovered opium, each weighing 20 gms. were taken and were sealed separately and a seizure memo was prepared. On the basis of the Ruka Ex.P8, an FIR was lodged at the Police Station and thereafter usual investigation followed which culminated in filing of a charge-sheet against the accused. The leaned Sessions Judge, Mandi, by the judgment and order dated 26.11.1994 convicted the respondent (accused) under Section 18 of the NDPS Act and se....
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....rying with him." Finally it was held as under : "On this fact situation, it cannot be held that the search was not of a 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." Hon'ble Arijit Pasayat, J. expressed agreement with the view that the report of the Chemical Examiner could not be excluded but on the question of applicability of Section 50 of NDPS Act held that the said provision was applicable only in the case of a search of a person and not when search of a bag which is being carried by a person on his shoulder or back is conducted. His Lordship accordingly held that having regard to the purport and object of the NDPS Act, the language of Section 50 cannot be given any strained meaning so as to frustrate the legislative purpose. It was thus held that there was no infraction of the requirement of Section 50 and the finding to the contrary record....
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....meanings respectively assigned to them in that Code. Section 11 of the Indian Penal Code says that the word "person" includes any Company or Association or body of persons whether incorporated or not. Similar definition of the word "person" has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand. 7. 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 Statuto....
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.... 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 commonsense 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 clothing's". In a civilized society appropriate coverings and clothing's are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothing's. 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 clothing's or footwear, after being worn, move alo....
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....ch 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 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. 12. 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 1999 (6) SCC 172 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 ....
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....iner, etc. which he may be carrying. 14. Learned counsel for the State has referred to large number of decisions of this Court wherein Section 50 was held inapplicable in the case of search of some baggage or article etc., which was in immediate possession or was being carried by the accused. We do not consider it necessary to burden this judgment by referring to all the authorities cited but would only give a gist of some of the cases which is as under : I. Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 (2) SCC 513 -This is a decision by a Three Judge Bench presided over by Dr. A.S. Anand, C.J., who wrote the opinion of the Court in the Constitution Bench decision in State of Punjab v. Baldev Singh. In this case four gunny bags were found in an auto rickshaw which the accused was driving and there was no other person present. The argument based on non-compliance of Section 50 as explained in the case of Baldev Singh was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused. II. Madan Lal v. State of H.P. 2003 (7) SCC 465 (para 16) It was held that Section 50 would apply in the case of search of a persona as contrasted t....
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....travel. The bag was brought to the customs counter and on checking 180 gms. of heroine was found therein. The Bench held that on a plain reading of Sub-section (1) of Section 50, it applies to cases of search of a person and not to search of any article in the sense that the article is at a distant place from where the offender is actually searched. After arriving at the above finding, the Bench also observed - "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." 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 incriminati....
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....ace 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 Interpretation by Francis Bennion (Third ed.) 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 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." The learned author has referred to Sheffield City Council v. Yorkshire Water Services Ltd. (1991) 1 WLR 58 at 71, where it was held as under :  ....
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.... was convicted. The contention raised was that the search and seizure of the gold by the police was illegal. It was held that the police had powers under the Code of Criminal Procedure to search and seize the gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the custom authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs. 19. In Radha Kishan v. State of U.P. AIR 1963 SC 822, the recovery of certain articles was challenged on the ground that the search was made in contravention of Sections 103 and 165 Cr.P.C. The contention was repelled thus - "So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provision of Ss. 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searche....
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....s whether the evidence with regard to the unlawful possession of ammunition could be excluded on the ground that the evidence had been obtained on an unlawful search. The Privy Council stated the principle as under : "The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained". 15.1 This question has been examined threadbare by a Constitution Bench in Pooran Mal v. Director of Inspection 1974(1) SCC 345 and the principle enunciated therein is as under : "If the Evidence Act, 1872 permits relevancy as the only test of admissibility of evidence, and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some American Judges of the Americ....
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....enied the right to use convincing evidence of a defendant's guilt because it had been brought to light through the excessive zeal of an individual, whether an officer or not, whose misconduct must be deemed his own act and not that of the state." The Fourth Amendment of American Constitution guarantees the "right of the people to be secure in their persons, houses, papers and effects and against unreasonable searches and seizures." On the basis of the aforesaid Constitutional provision, the United States Supreme Court in some earlier decisions laid down the rule that evidence obtained by means of an unlawful search and seizure by federal officers is not admissible against an accused in a criminal prosecution in a federal court where timely objection to the use of such evidence has been made. However, in Stone v. Powell 428 US 465 the aforesaid view was reversed and it was held that the application of the rule deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded to a guilty defendant by application of the rule is contrary to the idea of proportionality that is esse....
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....Examiner had to be excluded and that there was non-compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal. 24. In the result, the appeal is allowed. The judgment and order dated 26.8.1996 of the High Court is set aside. The appeal preferred by the respondent Pawan Kumar shall be heard afresh by the High Court in the light of the findings recorded by this Court and in accordance with law. Criminal Appeal No. 375 of 2003 According to the case of the prosecution, Ram Niwas, SHO Police Station Pilibanga received information that the accused who was indulged in smuggling of opium was standing at the bus ....