TMI Blog2023 (10) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... cused and the search is undertaken of such bag, etc., even then, according to those decisions, Section 50 would be applicable. It could legitimately be argued that the interpretation of Section 50 restricting its scope only to the search of a person of the accused would frustrate the object as the apprehension of the person concerned may continue to subsist that he may still be implicated by the police or any other person for more stringent punishment of carrying commercial quantity by getting rid of the rigor of the mandatory provision of Section 50 by implanting the contraband in a vehicle, bag, etc. accompanying the person. The statute clearly declared that for burglary to happen, the defendant should be physically 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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 630 - SUPREME COURT] that 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 - It is, therefore, absolutely imperative that those who indulge in this kind of nefarious activities should not go scotfree 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 incriminating article. The High Court was justified in holding the appellant guilty of the offence under the NDPS Act and at the same time, the High Court was also correct in saying that Section 50 of the NDPS Act was not required to be complied with as the recovery was from the bag. Appeal dismissed. - M. M. SUNDRESH And J. B. PARDIWALA , JJ. JUDGMENT J. B. PARDIWALA , J. 1. The capt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he may be carrying charas, they gave him the option of being searched before the police or before a Gazetted Officer or Magistrate. The person concerned consented to be searched before the police. Before the search of the person of the accused was undertaken, the police officials got themselves searched before the witnesses. The bag which the accused was carrying along with him was also searched. The search of the bag resulted in recovery of three polythene bags containing charas. Many other articles like the driving licence, etc. were also recovered from his bag. On being weighed, the charas was found to be 1 kg. 250 gms. 4. Two samples of 25 grams each were drawn from the polythene bags containing charas and the remaining charas was sealed with seal H . Seal impression was also taken on the NCB form and seal was handed over to the PW 9 Surinder Kumar. The charas was taken into possession vide recovery memo Ext. PK which was signed by the witnesses PW 9 Surinder Kumar, PW 10 Karam Singh and PW 12 Mohan Lal resply. The accused was informed of the grounds of his arrest, etc. vide memo Ext. PL. Ruqua Ext. PG was prepared and sent to the police station through the Constable Sant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression to search any person occurring in Section 50 of the NDPS Act means search of articles on the person or body of the person to be searched as well as the search of articles in immediate possession like bag and other luggage carried by him or in physical possession of the person to be searched. 11. The learned counsel argued that Section 50 of the NDPS Act was not complied with in its letter and spirit as although the case of the prosecution is that the appellant was given the option to be searched before the police or a Gazetted Officer or Magistrate, yet the appellant accused was not told that it is his right to be searched in the presence of a Magistrate or Gazetted Officer. The learned counsel argued that the fact that the accused was also given a third option of being searched before the police officer itself violated Section 50 of the NDPS Act. She would argue that Section 50 of the NDPS Act is mandatory and the Trial Court rightly held that Section 50 of the NDPS Act was not complied with. 12. In the last, the learned counsel argued that in case of search of person of the accused as well as the luggage which is in his immediate possession, then even in such ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the High Court committed any error in holding the appellant herein guilty of the offence punishable under Section 20 of the NDPS Act? 18. Before we advert to the rival submissions canvassed on either side, we must look into the relevant findings recorded by the High Court as well as by the Trial Court. 19. The Trial Court in its judgment of acquittal, while discussing Section 50 of the NDPS Act and its compliance, held as under:- 11. Regarding compliance of provisions of section 5O of the Act, which is also a mandatory provisions under the Act, none of the witnesses of this consent memo EX.PG have supported the version of the prosecution. PW-9 Surinder Kumar and PW-10 Karam Singh independent witnesses joined in the raiding party have categorically stated that no such notice was given in their presence to the accused nor accused gave in writing the endorsement EX. PG/1 in their presence. There is only bare statement of PW-14 ASI Lal Singh that this notice was given to the accused but when there were admittedly independent witnesses prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EVIDENCE ON RECORD:- 21. We shall now look into the deposition of PW 12 Mohan Lal. Head Constable No. 175, Kullu Police Station. PW 12 in his examination in chief has deposed as under:- Stated that I am posted in P.S. Kullu since 1997. On 23.8.1998 I with ASI Lal Singh, Constable Sant Ram and Baldev Dass proceeded from P.S. Kullu at 5.30 p.m. for patrolling. At about 6.30 p.m. ASI received secret information at Dhalpur. Whereupon ASI Lal Singh prepared Information Report and sent to S.P. through Const. Baldev Dass and I and ASI Lal Singh and Const. Sant Ram went to Bus Stand. Kullu (Sarbari). We reached Sarbari Bus Stand at 6.45 p.m. Surender, Bus Stand lncharge and Karam Singh were made to join the investigation. Accused Ranjan Chadha present in the court was standing in the verandah of Bus Stand and he had a black blue colour bag on his shoulder. Before witnesses Surender and Karam Singh, notice was issued by ASI Lal Singh to the accused to the effect that ASI has apprehension that you may be having charas in your possession and whether he wants to give his search to ASI or before G.O. or Magistrate. Accused gave in writing that he wants his search to be conducted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were asked to join the investigation who joined the investigation. The person with same features as told by informer was found standing at that bus stand who had a bag on his shoulder. Before witnesses I asked name of that person whereupon that person told his name as Ranjan Kumar Chadha S/o Ved Prakash Chadha, Sarva Priya Vihar, New Delhi. Before the witnesses, I asked that person that police has apprehension that he is in possession of charas and whether he wants that his personal search is to be conducted by police or by any G.0. or Magistrate. The accused present in the court is the same person who had given his consent in writing and verbally that he is ready to give his search to me. Consent Memo Exh.PJ was prepared in this regard and accused has given his consent thereon by writing the same in his handwriting. After that I gave my personal search through Exh.PM in the presence of witnesses. Then the bag which accused was holding was searched before the witnesses. Bag was black blue colour on which MITRE was found written. On search of bag, besides other belongings of accused such as D.L., Diary, etc., three polythene packets were recovered in which Charas in the form of Batt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ASI or before the Gazetted Officer or Magistrate. Thus, it is evident from the oral evidence of both PW 12 and PW 14 resply that three options were given to the appellant herein first to be searched before the ASI i.e. Assistant Sub-Inspector, second, before the Gazetted Officer and third, before any Magistrate. It is also pertinent to note that the appellant was not informed in so many words that it is his right under Section 50 of the NDPS Act to seek search before a Gazetted Officer or Magistrate. 26. So far as the issue of applicability of Section 50 of the NDPS Act is concerned, there are two aspects of the same. Even if we hold that Section 50 of the NDPS Act was not complied with, then the second question would be, whether Section 50 could at all be made applicable to the case on hand. 27. We have no hesitation in recording a finding that Section 50 of the NDPS Act was not complied with as the appellant could not have been offered the third option of search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted Officer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told, whether he wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh v. State of Punjab, (1977) 1 Crimes 242 (P H) and the Bombay High Court in Dharamveer Lekhram Sharma v. State of Maharashtra (2001) 1 Crimes 586 (Bom) meets with our approval. 18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent Surajm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he oral evidence of PW 12 and PW 14 respectively and the finding recorded by the High Court. The High Court in its impugned judgment has said in so many words that the appellant was searched in presence of the independent witnesses and the bag, which was on the shoulder of the appellant was also searched. But for the discrepancies, we could have considered applying the ratio as enunciated by this Court in the case of SK. Raju (supra) as well as Parmanand (supra). However, there is nothing in the oral evidence of the police officers on record to indicate that the search of the person of the appellant was also undertaken along with the bag. Therefore, we proceed on the assumption that it is only the bag which was searched which led to the recovery of the contraband. 31. The question, therefore, that requires consideration is what meaning should be assigned to the phrase to search any person occurring in Section 50 of the NDPS Act. Whether the phrase to search any person means (a) search of articles on the person or body of the person; (b) would include search of articles in immediate possession as such bag or other luggage carried by him or in physical possession of the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and true purport of Section 50 of the NDPS Act, we should bear in mind that the main object of Section 50 of the NDPS Act is to avoid the allegation of planting something or fabricating evidence by the prosecution or the authorized officer. 34. The aforesaid interpretation is made clear to a certain extent by Section 50(4) of the NDPS Act which provides for search of a female. Section 50(4) of the NDPS Act provides that no female shall be searched by anyone excepting a female . If the articles to be searched are not on the person or body, then there is no question of a search being carried out by a female. But when articles which are on the body of the person to be searched, then such search could be only done by another female. This is necessary as the law enjoins strict regard to decency. This provision also gives some clue as to how to interpret the phrase to search any person occurring in Section 50 of the NDPS Act. 35. There is a similar provision in the Code of Criminal Procedure, 1898 (for short, CrPC 1898 ) and also in the Code of Criminal Procedure, 1973 (for short, CrPC 1973 ). Section 51, Part III, of the CrPC 1898, provides that the officer making the arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid observations make it clear that when search of an arrested person is to be carried out, then the procedure prescribed under Section 50 is to be followed and not in those cases where search is to be carried out of any building, a conveyance or any premises which may be public or private where bags and baggage containing narcotic drugs are lying. The object and purpose of such search is also discussed in the said judgment and the relevant observations are as under:- 4. This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate. One of the questions raised is that what meaning is to be given to the words if the person to be searched so requires . Do they cast a duty upon the officer about to make the search to intimate such person that if he so requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise. When the contraband seized during such arrest or search attracts the provisions of the NDPS Act, then from that stage the other relevant provisions of the NDPS Act would be attracted and further steps have to be taken in accordance with the provisions of the said Act. 40. Thereafter, the Court considered whether the failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised officer while conducting the search affects the prosecution case, and held as under:- 18. It is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted. The Court thereafter held as under:- 20. When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arrest, search and seizure on reasonable suspicion that a cognizable offence was committed and not based on any prior information that any offence punishable under the NDPS Act was committed and, therefore, it was argued that complying with the provisions of the NDPS Act at the time of the said arrest, search and seizure did not arise inasmuch as such arrest, search and seizure was substantially in accordance with the provisions of CrPC 1973. It was, therefore, contended that such arrest, search and seizure cannot be declared as illegal. While examining the contention in the said background, Principle 1 in para 25 referred to above came to be rendered. (See : Gurjant Singh v. State of Punjab (2014) 13 SCC 603). 43. It all started with the Constitution Bench decision of this Court in the case of State of Punjab v. Baldev Singh, (1999) 6 SCC 172. The Constitution Bench had to be constituted in view of the cleavage of opinion expressed by this Court in the State of Punjab v. Balbir Singh reported in (1994) 3 SCC 299, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala reported in (1994) 6 SCC 569, and Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat reported in (199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the investigating officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the female concerned should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad. (Emphasis supplied) 46. This Court in Baldev Singh (supra) also explained the purpose behind the safeguards engraved under Section 50 and the reason as to why the right of the suspect to have his search conducted before a Gazetted Officer or Magistrate ought to be zealously guarded by the courts. It was held as under:- 25. To be searched before a gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timating to the suspect that he has a right to be searched before a gazetted officer or a Magistrate, would be violative of the reasonable, fair and just procedure and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be a fair , just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so requires, would place any premium on ignorance of the law. The argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a reasonable, fair and just procedure . x x x x 28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the use of evidence collected in violation of the Charter rights of an accused would render a trial unfair and the evidence inadmissible. x x x x 55. We, therefore, hold that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case. (Emphasis supplied) 48. This Court ultimately summed up its findings with the following ten conclusions reproduced below:- 57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y observed would have to be determined by the Court on the basis of evidence led at the trial. 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 therein were duly complied with, it would not be permissible to cutshort a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the concerned person of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or Magistrate. The relevant observations made therein are reproduced below:- 2. The provision only requires the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate; and on exercise of that option by the accused, it is for the officer concerned to have the search made in the presence of the nearest Gazetted Officer or the nearest Magistrate whosoever is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. It is clear from Section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused. (Emphasis supplied) 51. In Joseph Fernandez v. State of Goa reported in (2001) 1 SCC 707, this Court held that only subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the suspect at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it. 53. However, a five-Judge Bench of this Court in Vijaysinh Chandubha Jadeja v. State of Gujarat reported in (2011) 1 SCC 609, overruled the decisions in Prabha Shankar Dubey (supra) and Joseph Fernandez (supra) and disapproved the concept of substantial compliance and held that the obligation under Section 50 is mandatory and the failure to comply with the same would render the recovery of illicit article suspicious and vitiate the conviction, more particularly if the basis of conviction is the recovery of illicit article from the accused during search. The person to be searched is to be specifically informed that he has a right to be searched in presence of a Gazetted Officer or Magistrate. The Court also held that while it is the choice of police to take the suspect either before a Gazetted Officer or Magistrate, an endeavour should be made to take him before Magistrate. The relevant observations m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) this Court held that Section 50 confers a right upon the accused to be searched either by a Gazetted Officer or Magistrate, and as such while informing the suspect of its right, only the aforesaid two options can be provided. Section 50 could be said to be violated where a third option is also offered, be it that of being searched by the superintendent of police or by the police officer himself. 55. Although a superintendent of police is a Gazetted Officer, yet the reason why this court in Parmanand (supra) held the third option to be bad in law is because, first, in that case the Superintendent of Police was a part of the raiding party and as such was not an independent witness and secondly, as discussed, Section 50 provides for only two options, either a Magistrate or Gazetted Officer. 56. Thus, the person intended to be searched under Section 50 must be told in clear and unambiguous words that he has a right to have the search conducted in presence of either a Gazetted Officer or Magistrate. The person concerned must be made aware of his right and must be given only two options that have been provided under the section. 57. This Court in Parmanand (supra) has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Magistrate or gazetted officer. 24.3. Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband charas from him, was the gazetted officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband charas as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a gazetted officer. 24.4. Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a gazetted officer. 25. Though, the prosecution examined as many as five police officials (PW 1 to PW 5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a gazetted officer. 26. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is imperative on the part of the empowered officer to apprise the person of his right to be searched only before a Gazetted Officer or Magistrate; and this requires strict compliance; this Court simultaneously proceeded to reiterate that in Vijaysinh Chandubha Jadeja (supra) it is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act . 62. There is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistate categorically waives such right by electing to be searched by the empowered officer. The words if such person so requires , as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived such requisition , as mentioned in the opening sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right before proceeding to search the person of the suspect. (ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer. (iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate. (iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party. (v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without complying with Section 50 would be inadmissible. 66. We shall now look into the various decisions of this Court on the interpretation of Section 50. Section 50 does not cover a bag being carried by the accused 67. In Kalema Tumba v. State of Maharashtra reported in (1999) 8 SCC 257, 2 kgs of heroin was recovered from a bag belonging to the accused. It was argued that as the requirements under Section 50 were not complied with, the contraband recovered in the course of the search would be inadmissible. This Court, while rejecting such argument and relying upon Baldev Singh (supra), held that Section 50 would not apply to the search of a bag belonging to the accused. The relevant paragraph is as under:- 4. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh, wherein it was held that though poppy straw was recovered from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. This contention is really misconceived. In this case it was not the person of the appellant which was searched. He was found sitting on a plastic bag which belonged to him and which contained poppy straw. As pointed out by this Court in State of Punjab v. Baldev Singh [(1999) 6 SCC 172], Section 50 would come into play only in the case of search of a person as distinguished from search of any premise etc. As we do not find any substance in this appeal, it is dismissed. (Emphasis supplied) 70. In Kanhaiya Lal v. State of M.P. reported in (2000) 10 SCC 380, opium was recovered from the bag which was being carried by the accused. Section 50 was not made applicable as it was held that the recovery was made from the bag and not the person, and it was held as under:- 2. The only point raised in this appeal is that the mandatory requirement of Section 50 of the Act was not complied with in this case and therefore the conviction of the appellant is illegal. In our opinion, there is no substance in this contention because 1 kg of opium was not found from the person of the appellant but it was found from a bag which was being carried by the appellant. Therefore, this cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court acquitted the accused as Section 50 was not complied with while searching the accused. It was held as under:- 3. After referring to a host of judgments, the Constitution Bench of the Court held that the provisions of Sections 42 and 50 are mandatory and their noncompliance would render the investigation illegal. It was reiterated that severer the punishment, greater the care to be taken to see that all the safeguards provided in the statute are scrupulously followed. The safeguards mentioned in Section 50 are intended to serve a dual purpose ─ to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. If the empowered officer fails to comply with the requirements of the Section, the prosecution is to suffer for the consequences. The legitimacy of the judicial process may come under the 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. x x x x 5. Simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the High Court was reversed and the accused was convicted. It was held that:- 7. Apart from the aforesaid question, we are also of the view that Section 50 of the Act would not apply to a situation where the search undertaken is not of the person of the accused but of something carried in his hand. (Emphasis supplied) 75. In another decision of this Court in Saikou Jabbi v. State of Maharashtra reported in (2004) 2 SCC 186, the contraband was recovered from the accused s suitcase after its screening. This Court held that when the suitcase was searched during the screening, the same cannot be considered to be a personal search of the accused, and held as under:- 11. 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 v. State of Maharashtra, State of Punjab v. Baldev Singh and Gurbax Singh v. State of Haryana). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended. 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. So, on the facts of this case, it is difficult to hold that Section 50 stood attracted and noncompliance with that provision was fatal to the prosecution case. (Emphasis supplied) 78. Thereafter, in Abdul Rashid Ibrahim Mansuri v. State of Gujarat reported in (2000) 2 SCC 513, this Court (a three- Judge Bench) adopted a similar approach. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the bag was not found on the accused person. 11. In the instant case, the bag is brought by A-2 and the contents of the bag are taken out by him and given for search which is thereafter seized by the officials after having found contraband substance. In such a case the inextricable connection between the search of a person and the bag cannot be established but rather it is only the search of the bag and therefore the search and seizure conducted by the gazetted officer need not comply with the requirements under Section 50 of the Act. (Emphasis supplied) 80. However, it is important to note that the law down in Yasihey (supra) is no longer a good law. A three-Judge Bench in State of H.P. v. Pawan Kumar reported in (2005) 4 SCC 350, distinguished Namdi (supra) and held that the observations relied upon in it were obiter on this point. It was held as under:- 16. The Bench then finally concluded that on the facts of the case Section 50 was not attracted. The facts of the case clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent could not be sustained and the High Court rightly held that Section 50 had been breached. 82. Justice Arijit Pasayat while relying upon Gurbax Singh (supra) differed from Justice Sabharwal and held that the noncompliance with Section 50 would not render the recovery as inadmissible as the recovery was from the bag and not from the person of the accused. Justice Pasayat held as under:- 24. Baldev Singh's case (supra) made the position clear that the said provision has application in case of search of a person. The crucial question would be whether search of a bag carried on the shoulder or back of a person is covered by Section 50. I am of the view that it would not be so. There can be no basis for making a distinction between search of a bag found near a person and a bag carried by him. In Kanhaiya Lal v. State of M.P., (2000) 10 SCC 380, it was held that when a bag carried by the accused is searched, Section 50 has no application. In Gurbax Singh v. State of Haryana, (2001) 3 SCC 28, it was held that when a bag was being carried on the accused's shoulder, Section 50 has no application. 83. Accordingly, the matter was referred to a larger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter - The Rule of Literal Construction -p. 78 9th Edn.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. Raw Cotton Co. Ltd.: (1955) 1 SCR 1369 , 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. (Emphasis supplied) 86. The larger Bench also considered the dictionary meanings of the word person and held that any article like a bag, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 12. 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 of the word search of person . One of the tests, which can be applied is, where in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying. (Emphasis supplied) 88. Accordingly, the Court held that the benefit of Section 50 of the NDPS Act cannot be extended to include bags or articles as the same may lead to an unworkable understanding of the provision. It was held as under:- 18. 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 position from ground to hand or shoulder will take a fraction of a second but on the argument advanced by learned counsel for the accused that search of bag so carried would be search of a person, it will make a sharp differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word person occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him. (Emphasis supplied) 89. Thus, in Pawan Kumar (supra) the larger Bench while answering the reference in no uncertain terms stated that 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. The Court reasoned that a person of varying capacity can carry different items on his or her body but that does not make those items as a part of body. The Court observed, 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ]. A similar question was examined in Madan Lal v. State of H.P. [(2003) 7 SCC 465]. 93. In Balbir Kaur v. State of Punjab reported in (2009) 15 SCC 795, the contraband was recovered from two bags on which the accused was sitting but no personal search was conducted. This Court while holding that Section 50 would not be applicable held as under:- 22. It is also to be noted at this stage that the recovery of poppy husk was made from the bags carried by the appellant, so the submission that there was violation of the provisions of Section 50 is legally untenable. 94. The aforesaid view was affirmed in the case of Ajmer Singh v. State of Haryana reported in (2010) 3 SCC 746, wherein while searching the shoulder bag of the accused, some contraband was recovered. This Court held that compliance under Section 50 was not warranted and stated as under:- 15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, brief case etc., carried by the person and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity for imposition of such conviction and sentence. Taking note of the length of period in prison and continuing as on date and in view of non-compliance with sub-section (1) of Section 50 in respect of recovery of contraband from the appellants, we set aside the conviction and sentence imposed on them by the trial court and confirmed by the High Court. (Emphasis supplied) 97. Accordingly, Section 50 was read to be understood as applicable only to the personal search of a person and that would not extend to search of a vehicle or a container or a bag. The language of Section 50 was interpreted to include search in relation to a person and not to a search of premises, vehicles or articles. Judgments taking the view that Section 50 must be complied with when search of a bag as well as that of a person is carried out 98. However, in Dilip v. State of M.P. reported in (2007) 1 SCC 450, a contrary view was taken to that of Pawan Kumar (supra). In the said case, Section 50 was not complied with while conducting the search of the person and drugs were recovered from the accused s scooter. This Court while acquitting the accused held that the recovery made from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete violation of the provisions of Section 50 of the Act. 100. A similar view was taken by a Division Bench of this Court in Parmanand (supra). This Court was called upon to consider whether Section 50 ought to apply when the search of the person and his bag is carried out. This Court held that if the bag is searched without searching the accused, then Section 50 would have no application. However, as a corollary it was held that if the bag carried by the accused is searched along with his search, then Section 50 would be applicable. The relevant portion is as under:- 15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the 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 light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gazetted officer or a magistrate. ( Emphasis supplied ) 102. Thus, one view which originated from Dilip (supra) and relied upon in SK. Raju (supra) implied that if a person is searched and along with him or her, his or her bag is also searched, then the benefit of Section 50 should be extended while conducting the personal search of the accused. 103. However, it is pertinent to note that although Pawan Kumar (supra) has been referred to and considered in SK. Raju (supra) yet, the Court in SK. Raju (supra) overlooked the fact that in Pawan Kumar (supra) also the search was not only of the person of the accused but also of his bag. Even in such circumstances, the larger Bench in Pawan Kumar (supra) took the view that Section 50 would not apply if nothing incriminating is recovered from the person of the accused. Thus, there is an apparent conflict between the two decisions. Section 50 not applicable when recovery made from bag, conveyance, etc. 104. A three-Judge Bench in the State of Punjab v. Baljinder Singh reported in (2019) 10 SCC 473 considered the question:- 8. If a person found to be in possession of a vehicle containing contraband is subjected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. x x x x 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider the decision of Baldev Singh (supra). This Court held that:- 18. The decision of this Court in Dilip s case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in said judgment in Dilip s case is not correct and is opposed to the law laid down by this Court in Baldev Singh and other judgments. ( Emphasis supplied ) Settling the conflict between SK. Raju and Baljinder Singh 108. The High Court of Delhi in Akhilesh Bharti v. State reported in 2020 SCC OnLine Del 306 : (2020) 266 DLT 689, had the occasion to look into the cleavage of opinion expressed in Baljinder Singh (supra) and SK. Raju (supra). The High Court therein, noted the thin line of distinction drawn by SK. Raju (supra) where the contraband is recovered from an object which is held by the accused in his hand. In such a situation the High Court held that even if nothing is recovered from the person, Section 50 ought to be complied wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi), 2022 SCC OnLine Del 3761, and held as under:- 23. In the decision of S.K. Raju (supra), the Hon'ble Supreme Court has clearly held that since the search of the person of the appellant therein was also involved, therefore, Section 50 of the NDPS Act would be attracted in that case and accordingly the requirement of Section 50(1) of the NDPS Act was insisted. 24. So far as the decision relied upon by learned APP for the state in the case of State of HP Vs. Pawan Kumar is concerned, it is to be stated that in paragraph No. 17 of the decision in the case of S.K. Raju (supra) the Hon'ble Supreme Court has taken note of the decision in the case of Pawan Kumar (supra). The distinction between the two situations has been considered and if a bag, article or container etc. being carried by an accused is subjected to search independently without there being any search of the person of the appellant, the decision in the case of Pawan Kumar (supra) would have application. However, in a case where the person of accused is subjected to search along with the search of bag, article or container which he holds in his hand, there is requirement of compliance of Section 50 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson, held as under:- 15. Simultaneously, the arguments advanced by the appellant regarding non-compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar (supra) and Baljinder Singh (supra). Considering the facts of this case, the argument of non-compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled. ( Emphasis supplied ) 113. Similarly, in a recent judgement, this Court in Dayalu Kashyap v. State of Chhattisgarh reported in (2022) 12 SCC 398, held that an extended view of Section 50 cannot be given to include a polythene bag containi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Balbir Singh (supra) till Dayalu Kashyap (supra) is to highlight that Section 50 of the NDPS Act has been tried to be interpreted and understood in many ways. As noted earlier, in some of the decisions of this Court, the concept of inextricably linked to person was applied. In other words, if the bag, etc. is in immediate possession of the accused and the search is undertaken of such bag, etc., even then, according to those decisions, Section 50 would be applicable. It could legitimately be argued that the interpretation of Section 50 restricting its scope only to the search of a person of the accused would frustrate the object as the apprehension of the person concerned may continue to subsist that he may still be implicated by the police or any other person for more stringent punishment of carrying commercial quantity by getting rid of the rigor of the mandatory provision of Section 50 by implanting the contraband in a vehicle, bag, etc. accompanying the person. What we are trying to convey has been explained in the case of State v. Klein [See : John C. Derrnbachet.al., A Practical Guide to Legal Writing and Legal Method (1994)]. In the said case, the issue before the U.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See : Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5 SCC 515). The legislative casus omissus should not be supplied by judicial interpretative process. The language of Section 50 of the NDPS Act is plain and unambiguous. There is no scope of reading something into it as was done in many decisions of this Court which we have referred to in our judgment. 118. Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of applying the ratio of Parmanand (supra) and SK. Raju (supra). At the cost of repetition, we may state that in the case on hand, there is nothing to indicate that the search of the person of the accused was also undertaken along with the bag which he was carrying on his shoulder. 121. We do not propose to say anything further as regards SK. Raju (supra) as well as Baljinder Singh (supra). We adhere to the principles of law as explained by the Constitution Bench in Baldev Singh (supra) and the larger Bench answering the reference in Pawan Kumar (supra). 122. It has been observed in Baldev Singh (supra) that 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 which the Government of India has ratifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to that of the High Court, this Court would be discharging its duty as a court of appeal. But different considerations must inevitably arise where a previous decision of this Court has taken a particular view as to the construction of a statutory provision as, for instance, Section 66(4) of the Act. When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
