TMI Blog2005 (4) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... peal. For Criminal Appeal No. 375 of 2003 the search of the attachi revealed 5 kgs. of opium. After conducting other formalities and investigation of the case, the accused was put up for trial. The learned Sessions Judge convicted the accused under Section 8/18 of the NDPS Act and sentenced him to 10 years RI and a fine of Rs.1 lakh. The High Court by a very cryptic judgment held that the provisions of Section 50 of the NDPS Act were not complied with as the accused was not informed of his right to be searched in presence of a Magistrate or a Gazetted Officer and accordingly allowed the appeal and set aside the conviction and sentence of the accused. Thus the view taken by the High Court cannot be sustained as it was a case of search of an attachi which was carried by the accused. The appeal is accordingly allowed and the judgment and order dated 5.10.2001 of the High Court is set aside. The matter is remitted back to the High Court for a fresh consideration. - CRL.A. 222 OF 1997 - - - Dated:- 8-4-2005 - LAHOTI, R.C., MATHUR, G.P. AND BALASUBRAMANYAN P.K.I., JJ. G.P. MATHUR, J. Criminal Appeal No. 222 of 1997 1. In view of difference of opinion between two learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Act and the Rules and, therefore, the same had to be excluded from consideration. It was further held that the provisions of Section 50 of NDPS Act had not been complied with while conducting the search of the bag and, therefore, recovery of opium from the possession of the accused was not established. On these findings, the appeal was allowed by the judgment and order dated 26.8.1996 and the conviction of the respondent was set aside. 3. The State of Himachal Pradesh preferred the present appeal by special leave challenging the judgment of acquittal passed by the High Court. The appeal was initially heard by a Bench of two learned Judges. Hon'ble Y.K. Sabharwal, J. held that the view taken by the High Court that the report of the Chemical Examiner could not be taken into consideration was not correct. The finding recorded by the High Court that the prosecution had failed to prove that any incriminating substance had been recovered from the possession of the accused was accordingly reversed. Regarding the applicability of Section 50 of the NDPS Act, after referring to Namdi Francis Nwazor v. Union of India Anr. 1998 (8) SCC 534, His Lordship held as under : "T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned 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. The question, which requires consideration, is what is the meaning of the words "search any person" occurring in sub-Section (1) of Section 50 of the Act. Learned counsel for the accused has submitted that the word "person" occurring in Section 50 would also include within its ambit any bag, briefcase or any such article or container, etc., being carried by such person and the provisions of Section 50 have to be strictly complied with while conducting search of such bag, briefcase, article or container, etc. Learned counsel for the State has, on the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight from the beginning. In Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd. AIR 1955 SC 376, 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." A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 8. The dictionary meaning of the word "person" is as under : Chambers's Dictionary : An individual; a living soul; a human being; b: the outward appearance, c : bodily form; a distinction in form; according as the subject of the verb is the person speaking, spoken to or spoken of. Webster's Third New : An individual human being; a human International Dictionary body as distinguished from an animal or thing; an individual having a specified kind of bodily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 Section50 of the Act. (6) That in the context in which the protection has been incorporated in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... victed. V. Kanhaiya Lal v. State of M.P. 2000 (10) SCC 380 -One kg. of opium was found in a bag which was being carried by the accused. The argument based on Section 50 was rejected on the ground that it was not a case of search of the person of the accused. VI. Birakishore Kar v. State of Orissa 2000 (9) SCC 541 Accused was found lying on a plastic bag in a train compartment. Argument based on Section 50 was rejected on the ground that the accused was sitting on the plastic bag and it was not a case of the search of the person of the accused. VII. Krishna Kanwar v. State of Rajasthan 2004 (2) SCC 608 (para 19) -Held, Section 50 applies where search has to be in relation to a person as contrasted to search of premises, vehicles, articles or bag. VIII. Sarjudas v. State of Gujarat 1999 (8) SCC 508 The accused were riding a scooter on which a bag was hanging in which charas was found -Section 50 was held not applicable as it was not a case where the person of the accused was searched. IX. Saikou Jabbi v. State of Maharahstra JT 2003 (9) SC 609- Heroine was found in a bag. It was held that Section 50 was not applicable as it applies to search of a person. 15. Learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njab 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. Another judgment relied upon by the learned counsel for the accused is Beckodan Abdul Rahiman v. State of Kerala JT 2002 (3) Cri. L.J. 2529 (SC). Here 11 gms of opium was found in a polythene bag which had been concealed in the fold of dhoti which the accused was wearing. This was clearly a case of search of a persons, as explained above, and Section 50 was rightly held applicable. 16. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs and Excise Commissioners (1979) 2 All ER 91, observed that if the literal construction leads to impracticable results, it would be necessary to do little adjustment so as to make the section workable. 17. As pointed out in State of Punjab v. Baldev Singh, 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 against illicit trafficking in narcotic drugs, 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 incri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. The Evidence Act or the Code of Criminal Procedure or for that matter any other law in India does not exclude relevant evidence on the ground that it was obtained under an illegal search and seizure. Challenge to a search and seizure made under the Criminal Procedure Code on the ground of violation of fundamental rights under Article 20(3) of the Constitution was examined in M.P. Sharma v. Satish Chandra AIR 1954 SC 300 by a Bench of 8 Judges of this Court. The challenge was repelled and it was held as under : "A power of search and seizure is in any system of jurisprudence an over-riding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that theco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the United States the law regarding illegally obtained evidence has been stated as under in 29 American Jurisprudence 2d (para 408) : "408. Generally In criminal prosecutions, in particular, evidence is frequently obtained by methods that are morally reprehensible and offensive to fair dealing, under circumstances which meet with disapprobation of the courts, and in many instances, by means that are illegal. However, it is a rule of the common law that the admissibility of evidence is not affected by the illegality of the means by which it is obtained, and if evidence offered in support of a fact in issue is relevant and otherwise competent, it is generally admissible, though it may have been obtained unethically, wrongfully, or unlawfully, unless its admission will violate a constitutional guaranty of the person against whom its admission is sought, or is in contravention of a statutory enactment of the jurisdiction. Accordingly, the exclusion of evidence logically relevant in a criminal prosecution can be justified only by an overriding public policy expressed in the Constitution or the law of the land. The underlying principle admitting evidence wrongfully or illegally obta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant is guilty." 22. 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 1999 (6) SCC 172 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 just ..... X X X X Extracts X X X X X X X X Extracts X X X X
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