TMI Blog2006 (4) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No.715 of 1996 allowing the appeal preferred by the respondent herein from a judgment of conviction and sentence dated 05.08.1996 passed by the learned Additional and Sessions Judge in Sessions Case No.37 and Sessions Trial No.118 of 1994 under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act (for short, the Act ). The prosecution case against the respondent was as under : On 15.11.1993 when a police party, comprising of Sub-Inspector Dunger Singh, Constable Randhir Singh, Head Constable Omkar, Constable Umed Singh and Head Constable Om Prakash, were proceeding from Bamla to CIA staff Bhiwani and reached the point on Rohtak-Bhiwani Road near Sanjeev M. College, the respondent was seen coming from the opposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and a formal First Information Report was lodged. On charged of possession of the said contraband article, the respondent was put on trial. The learned Sessions Judge found the appellant to be guilty of the said offence and sentenced him to undergo rigorous imprisonment for a period of 10 years and pay a fine of ₹ 1,00,000/-. The respondent filed an appeal thereagainst before the High Court. Before the High Court only contention which was raised was that the mandatory provision of Section 50 of the Act had not been complied with. According to the respondent although the article in question was found from a bag, it was obligatory on the part of the Dy. S.P. to bring it to his notice that he had a right to be searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds applicability of Section 50 of the Act need not detain us for long. We may notice that in view of conflict in the opinions of different benches as also difference of opinion between two judges of this Court in State of Himachal Pradesh v. Pawan Kumar [(2004) 7 SCC 735] the question was referred to a larger Bench. A three-Judge Bench of this Court in State of Himachal Pradesh etc. v. Pawan Kumar [(2005) 4 SCC 350] relying on or on the basis of a large number of decisions and in particular the decision of the Constitution Bench of this Court in State of Punjab v. Baldev Singh [(1999) 6 SCC 172] clearly held that Section 50 of the Act would be applicable only in a case of personal search of the accused and not when it is made in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case, it is difficult to hold that Section 50 stood attracted and non- compliance with that provision was fatal to the prosecution case. It was urged that this Court in Pawan Kumar (supra) wrongly distinguished Namdi Francis Nwazor (supra) stating that the observations made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cked in his baggage. The said baggage was cleared but later on, the same was called to the customs counter at the airport and upon examination thereof, it was found to be containing 153 cartons of tetanus vaccine, which having been opened, found to be containing 152 cartons of ampoules whereas the remaining one carton carried a polythene packet containing brown-coloured powder packet with black adhesive tape, which was suspected to be heroin and which was then seized. It is in that context the court clearly came to the opinion that the provisions of sub-section (1) of Section 50 was not required to be complied with. The said conclusion was arrived at, inter alia, upon noticing the provision of sub-section (4) of Section 50 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... better reason and ignore the other one; nor does it matter for this purpose which comes first and which comes second. But the practice of making judicial observation obiter is also well established. A judge may often give additional reasons for his decision without wishing to make them part of the ratio decidendi; he may not be sufficiently convinced of their cogency as to want them to have the full authority of the precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will start with some guidance. This is the matter which judge himself is alone capable of deciding, and any judge who comes after him must ascertain which course he has adopted fro the language used and not by c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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