TaxTMI 
TaxTMI 
2023 (10) TMI 866
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....e 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 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 office....
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....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 b....
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....entence 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 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 subm....
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....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 cont....
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....Singh and I affixed our respective signature on the Consent Memo Exh.PJ, Recovery Memo Exh.PK, 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 ....
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....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 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 ....
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....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 d....
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....dents 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 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) ....
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.... in section 42 or to the nearest Magistrate. (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 neces....
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....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, (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 an....
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....ed 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 police officer from any place. The Court observed that if there is non-compliance of Section 100 or 165 that itself cannot be a ....
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.... 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." 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 inform....
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.... 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 relatin....
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....eed 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 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 ri....
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.... 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 office....
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....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 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 ....
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.... 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 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 p....
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....strate, 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 age....
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....ve 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 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 p....
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.... 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 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 noncompliance 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 searche....
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....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. 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 subsection (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 ....
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....ividually 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....
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....h (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 proposed to be searched has, afte....
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....g 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 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 A....
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....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 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 per....
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....zetted Officer or a Magistrate." (Emphasis supplied) 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 Sing....
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....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 sea....
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....istrate. 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. 6. We are of the firm opinion that the provision of subsection (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....
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.... 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)....
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....n 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 noncompliance 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, v....
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....ng 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 Kumar 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....
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....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:- "8. One of the basic principles of interpretation of statutes is to construe them according to plain, literal and grammatical ....
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....re 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 o....
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....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 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 sear....
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.... 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 (3rd 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 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....
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....ccurring 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, 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, t....
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....son 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....
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.... 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:- "15. The legal proposition advanced by Mr. Terdal, based on the distinct....
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....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 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 ....
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....nd 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 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 c....
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....ry 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. 17. In the instant case, the personal search of the accused....
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.... 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 05.0....
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.... 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 jud....
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.... "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 stat....
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....ly 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). 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 sa....
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.... : (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 (supra) relied upon the judgment in Dilip (supra) while taking the view....
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....may contain the incriminating article. 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:- "23. In dealing with the question as to whether the earlier decisions of this Court in the New Jehangir Mills case, [1960] 1 S.C.R. 249, and the Petlad Co. Ltd. case, [1963] Supp, 1 S.C.R. 871, should be reconsidered and revised by us, we ought to be clear as to the approach which should be adopted in such cases. Mr. Palkhivala has not disputed the fact that in a proper case, this Court has inherent jurisdiction to reconsider and revise its earlier decisions, and so, the abstract question as to whether such a power vests in this Court or not need not detain us. In exercising this inherent power, however, this Court would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so. It is general judic....
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....on, 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 fo....