TMI Blog2009 (6) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... s not that they were simply not produced before the court. Therefore, satisfied that the High Court took the correct view of the matter and the judgment coming under appeal does not suffer from any infirmity. Appeal dismissed. The respondents are discharged from their bail bonds. - CRL.A. 1158 OF 2004 - - - Dated:- 11-6-2009 - ALAM, AFTAB AND REDDY,B.SUDERSHAN, JJ. AFTAB ALAM, J. 1. The two respondents Shah Alam and Mazzum Haq were held guilty of illegally possessing 100 grams of heroin each and were accordingly convicted by the trial court under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t serial no.56). After the amendment of the Act with effect from October 2, 2001 (vide Act 9 of 2001) the punishment for illegal possession of 100 grams of heroin is provided under Section 21 (b) of the Act which reads as under:- 21. Punishment for contravention in relation to manufactured drugs and preparations. - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,- (a).................... (b) where the contravention involves quantity, lesser than c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of 100 grams of heroin has now become the maximum permissible punishment as the law stands today. Having regard to the way the Act has been amended by the Legislature and the graded form it has come to assume both in regard to the quantities of narcotics and the punishments it would not have been wrong for this court to decline to interfere in this matter on the ground that the respondents have already served 4/5th of the (now) maximum permissible punishment for the offence. Nevertheless, we have examined the case on its merits and we are satisfied that the judgment of the High Court does not suffer from any infirmity and it does not call for any interference. 7. According to the prosecution case, on receipt of confidential inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. being carried by him/her and hence, the provisions of section 50 had no application in the facts of this case. Learned Counsel further submitted that as a matter of fact heroin was first recovered from the bags being carried by the respondents and then they were also subjected to a search of their persons but the personal search did not lead to any further recoveries and, therefore, there was no question of any violation of Section 50 of the Act. In support of the submission he relied upon a three-judge Bench decision of this Court in State of H.P. vs. Pawan Kumar (2005) 4 SCC 350. In paragraphs 10 and 11 of the decision it was observed as under: 10. We are not concerned here with the wide definition of the word perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... religious belief do not cover their body with clothings, are not be taken notice of. Therefore, the word person would mean a human being with appropriate coverings and clothings and also footwear. 11. A bag, briefcase or any such article or 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ably, 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 person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done. 10. On the facts of the case we find that the alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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