The captioned appeals are at the instance of a convict accused of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) and are directed against the judgment and order of conviction dated 20.08.2010 and the order of sentence dated 16.09.2010 resply passed by the High Court of Himachal Pradesh in the Criminal Appeal No Kullu of 1999 by which the High Court allowed the appeal filed by the State of Himachal Pradesh and thereby set aside the judgment and order 2 of acquittal passed by the Sessions Judge, 356 dated 31.03.1999 in the Sessions Trial No 44 of 1998. 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). Before the search of the person of the accused was undertaken, the police officials got themselves searched before the witnesses. Seal impression was also taken on the NCB form and seal was handed over to the PW 9 Surinder Kumar. Thereafter, PW 14 came to the Police Station along with the accused and deposited the case property including the samples and the NCB form before the SHO who resealed the case property and samples with seal-X. 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. The learned counsel submitted that the High Court committed a serious error in 6 recording the finding that Section 50 of the NDPS Act is not applicable in the present case as the recovery of the contraband substance was not made as a result of the personal search of the accused but on account of the search of his bag.
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. 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 8 be said to have been committed by the High Court in passing the impugned judgment and order of conviction and sentence. 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. The Trial Court in its judgment of acquittal, while discussing Section 50 of the NDPS Act and its compliance, held as under:- “11.
Moreover the recovery of charas from the bag of the accused is alleged to have taken place in presence of PW-9 Surinder Kumar and PW-10 Karam Singh in addition to PW-12 HC Mohan Lal, PW-13 Sant Ram and PW-14 ASI Lal Singh. 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. On 23.8.1998 I with ASI Lal Singh, Constable Sant Ram and Baldev Dass proceeded from P.S. Baldev Dass and I and ASI Lal Singh and Const. 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. Accused and witnesses Surender Singh, Karam Singh and I affixed our respective signature on the Consent Memo Exh.PJ, Recovery Memo Exh. PK, 12 Grounds of Arrest Exh.PN. 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. After that I, with HC Mohan Lal, Constable Sant Ram went to Sarbari Bus Stand on foot and we reached Sarbari bus stand at 6.45 p.m.
Consent Memo Exh. PJ was prepared in this regard and accused has given his consent thereon by writing the same in his handwriting. Statement of Surender Kumar Marked X, now Exhibited as Exh.PQ and statement of Karam Singh marked Y now exhibited as Exh. PR have been correctly recorded by me as given by them. During investigation, accused informed that charas has been 14 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. What is pertinent to note in the oral evidence of PW 12 and PW 14 respectively referred to above, is that the appellant herein was told or rather informed that if he so desired, he may get himself searched before the ASI or before the Gazetted Officer or Magistrate. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would 16 frustrate the very purport of Section 50. 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 our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. 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. We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S. 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. 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. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (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). Section 50(4) of the NDPS Act provides that “no female shall be searched by anyone excepting a female”. With regard to search of a female, Section 51(2) of the CrPC 1973, provides that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to 22 decency. 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 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. Do they cast a duty upon the officer about to make the search to intimate such 24 person that if he so requires he would be taken before the nearest Gazetted Officer or the nearest magistrate for the purpose of making search in their presence or it is for such person to make such a request on his own without being informed by the officer? If on the other hand, he is not empowered 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.
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 25 police officer from any place. 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. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or 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. 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. It all started with the Constitution Bench decision of this Court in the case of State of Punjab v. This Court in Baldev Singh (supra) held that Section 50 would come into play only in cases where search of a person is conducted under the NDPS Act as contemplated under Section 42. 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. This expression implies that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the NDPS Act also except to the extent they are “inconsistent with the provisions of the Act”. 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. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. 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 right to require his search being conducted in the presence of a gazetted officer or a Magistrate and that the failure to inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a gazetted officer or 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. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right.
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. 33 Conducting a search under Section 50, without intimating 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. 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”. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose — to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. 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 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. 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 35 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 search conducted in violation of the provisions of Section 50 of the Act.
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. Courts cannot allow admission of evidence 36 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 particularly when that conduct had caused prejudice to the accused. (as his Lordship, Chief Justice of the Supreme Court of Canada then was) opined that the use of evidence collected in violation of the Charter rights of an accused would render a trial unfair and the evidence inadmissible. However, such information may not necessarily be in writing; 37 (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 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 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. 38 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 cut- short 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 any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance Director of Inspection (Investigation), (1974) 1 SCC 345, cannot be understood to have 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. This Court in a number of cases has dealt with this very aspect and laid down the principles with respect to when Section 50 be said to be complied with. … 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. According to the learned counsel for the appellant the searching officer should have told the person who was subjected to search that he had a right to be searched in the presence of a gazetted officer or a Magistrate. 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 searched is only required to be made aware that he has a choice of having his search conducted before a Gazetted Officer or Magistrate. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. 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. 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 sub- section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. 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. 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.
Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “charas” was not made from the appellant in the presence of any Magistrate or gazetted officer. 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” provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a gazetted officer. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. 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 48 proposed to be searched has, after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate, but has expressly waived this right in clear and unequivocal terms; it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate.
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 49 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. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only “if he so requires”, upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act. 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 Act.
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. (vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate. (viii) Where during a search under any statute other than 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. However, over a period of time, this Court started reading the word “person” in a slightly broader sense so as to mandate that Section 50 be complied with even while conducting a search of anything that is inextricably linked to the accused. 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. In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate.” (Emphasis supplied) 55 68. 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. What is now contended by the learned counsel for the appellant is that the mandatory requirement of Section 50 of the NDPS Act, 1985, viz., that the person to be searched should be told about his right to be examined in the presence of a Magistrate or agazetted officer was not complied with in this case.
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. 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. 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. The accused was required to be apprised of his right conferred under Section 50 giving him the option to search being made in presence of a gazetted officer or the Magistrate.
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 Maharashtra reported in (2004) 2 SCC 186, the contraband was recovered from the accused’s suitcase after its screening. 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. 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. On a plain reading of sub-section (1) of Section 50, it is obvious that it applies to cases of search of any person and not search of any article in the sense that the article 62 is at a distant place from where the offender is actually searched. 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. The argument based on non-compliance of 63 Section 50 as explained in the case of Baldev Singh (supra) was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused. But in cases where the line of separation is thin and fine between search of a person and an artificial object, the test of inextricable connection is to be applied and then conclusion is to be reached as to whether the search was that of a person or not. 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. … The Bench then finally concluded that on the facts of the case Section 50 was not attracted. 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 testimony of PW 7 is that the person of the accused was then searched by the Deputy Superintendent of Police and on search, bag containing opium was found. 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. While checking 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. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh ed.
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. The larger Bench also considered the dictionary meanings of the word “person” and held that any article like a bag, briefcase or container cannot under any circumstance be 69 considered as a person or a part thereof. 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.
Therefore, the word “person” would mean a human being with appropriate coverings and clothings and also footwear. 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. 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.
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.” The Bench recorded its conclusion in para 57 of the reports and sub-paras (1), (2), (3) and (6) are being reproduced below : x x x x 14. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. After receiving information, an officer empowered under Section 42 of the Act, may proceed to search this kind of baggage of a person which may have been placed on the ground, but if at that very moment when he may be about to open it, the person lifts the bag or keeps it on his shoulder or some other place on his body, Section 50 may get attracted. ), 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 73 been intended by Parliament. 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. 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, Pawan Kumar (supra) concluded that an external article which does not form part of body is outside the ambit of the word “person” occurring in Section 50 of the NDPS Act. 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, 75 this Court took the view that Section 50 would have no application. … A bare reading of Section 50 shows that it only applies in case of personal search of a person. 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.
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. Search and recovery from a bag, brief case, container, etc., does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly 77 speaks of search of person only. This Court held that though the requirement of Section 50 was not complied with qua the personal search of the accused, yet the provision was inapplicable qua the recovery made from the 78 vehicle.
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. 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. 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. 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 81 carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. This Court, while 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. 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. Therefore, the search conducted by PW 2 was not only of the bag which the appellant was carrying, but also of the appellant’s person.
If a person found to be in possession of a vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements under Section 50 of the Act; but the search of the vehicle results in recovery of contraband material, which stands proved independently; would the accused be entitled to benefit of acquittal on the ground of non-compliance of Section 50 of the Act even in respect of material found in the search of the vehicle?” 105. This Court, while explaining the object of Section 50 and relying on the Constitution Bench judgement in Vijaysinh Chandubha Jadeja (supra), held that:- “10. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, 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 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.
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. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as “personal search” was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Raju (supra) was not looked into, however, the decision in the case of Dilip (supra) was considered and held to be not laying down the correct law on the ground that it did not consider the decision of Baldev Singh (supra).
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. 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 (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. 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 the NDPS Act.” (Emphasis supplied) 89 110. 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. Raju (supra), which it 90 appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (supra). 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. 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 containing narcotics being carried by the accused. 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.
Case Title: RANJAN KUMAR CHADHA Vs.STATE OF HIMACHAL PRADESH
Case Number: CRIMINAL APPEAL NOS. 2239-2240 OF 2011 (2023INSC878)
