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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1563 OF 2010

Krishan Kumar ….. Appellant

(s)

Versus

State of Haryana ….. Respondent (s)

J U D G M E N T

A.K. SIKRI, J.

1.That the present statutory appeal is directed against the

impugned order dated 23.3.2010 whereby the High Court has

convicted the appellant by reversing the judgment of the Trial

Court, which had acquitted the appellant of the charges under

Section 18 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred to as the 'Act').

2.As per the case of the prosecution, on 15.9.1992 the appellant

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was spotted by the police party headed by Sub-Inspector,

Mohinder Singh at Bus Stand Ratta Khera. At that time, the

appellant was having a plastic bag in his hand. On seeing the

police party, appellant had tried to conceal his presence by

sitting near the water tank on the pretext of passing urine. The

appellant was apprehended on suspicion and notice (Ext. P-A)

under Section 50 of the Act was served upon him seeking his

consent as to whether he wanted his search to be made in the

presence of a Gazetted Officer or a Magistrate. The reply of the

appellant to the notice is Ex. P-A/1 whereby he desired that the

plastic bag, which he was carrying, be searched in the presence

of a Magistrate. Thereupon Chet Ram, Tehsildar (PW-2) was

summoned to the place of recovery and in his presence the

search of the bag of the appellant was conducted. Opium

weighing 5 Kgs. was found in the bag which was in possession

of the appellant. After separating a sample weighing 50 grams,

the sample and the remaining opium were separately sealed

with the seal bearing impression 'MS'., which was entrusted to

Khema Ram, Chaukidar, who had joined in the police party from

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Bus Stand, Ratta, Khera.

3.After the trial, the appellant was convicted of the charge

under Section 18 of the Act vide judgment dated 08.6.1995

passed by the Trial Court.

4.The appellant appealed against his conviction. The appeal was

decided on 29.1.1999 by the High Court. The conviction was set

aside on a technical ground and the matter was remitted back

to the Trial Court. It will be pertinent to mention here that the

said appeal was allowed primarily on the ground that it was not

clear as to whether Chet Ram, Tehsildar in whose presence the

search of the bag of the appellant was conducted, was

discharging the duties of a Magistrate as well or not. As pointed

out above, when the appellant was served with notice under

Section 50 of the Act seeking his consent about his search he

had desired that he be searched in the presence of a Magistrate.

It is on this request that Chet Ram, Tehsildar was summoned.

The contention of the appellant before the High Court was that

Chet Ram was not discharging the duties of a Magistrate and,

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therefore, there was violation of Section 50 of the Act. Since this

aspect was not examined while convicting the appellant of the

aforesaid offence, the appeal was allowed and the matter was

remitted back. This is clear from the following order passed by

the High Court:

“Resultantly, the appeal is allowed. The judgment

and order of the Trial Court stand set aside and

directions are given to the Trial Court to recall Chet

Ram and get an elucidation from him as to whether

he was discharging the duties of a Magistrate on the

date of the recovery of opium or not. Prosecution will

also be at liberty to lead such evidence in support of

their case in order to show that Chet Ram was

bestowed with powers of Magistracy. The accused

will also have the liberty to lead such evidence to

rebut the case of the prosecution.”

5.After the remand, the statement of Chet Ram (PW-2) was

recorded afresh by the Trial Court. The opportunity was given to

the prosecution as well as the appellant to produce additional

evidence. In support of its case that Chet Ram was conferred

with the duties of an Executive Magistrate as well, the

prosecution produced photostat copy of the Haryana

Government Notification No. 21/39/78-JJ(4) Part II published on

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16.6.1982 (Ex. P-X) whereby all the Tehsildars in the State of

Haryana were appointed as Executive Magistrates and affidavit

of Chet Ram, Tehsildar-cum-Executive Magistrate dated

25.6.1999 was placed on record.

6.The Trial Court after recording the additional evidence as

aforesaid, considered the matter again and this time it passed

judgment dated 14.12.1999 acquitting the appellant. The

reason for acquittal was that the prosecution could not prove

that Chet Ram was discharging the duties as a Magistrate on

the date of recovery of opium. The photocopy of Gazette

Notification dated 16.6.1982 (Ex. P-X) was not acted upon by

the Trial Court on the ground that the original Notification was

not produced for perusal.

7.The State filed an appeal against the aforesaid judgment. The

High Court vide impugned judgment has rejected the contention

of the appellant and reversed the finding of the Trial Court,

holding that it was not right for the Trial Court to discard the

said Notification only on the ground that original was not

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produced, when there was no reason for the Trial Court to doubt

the authenticity of the said Notification. It was, more so, when

Chet Ram had even filed his affidavit dated 25.6.1999 stating

that he had been promoted from the post of Naib Tehsildar to

the post of Tehsildar in May, 1983.

8.In the aforesaid backdrop, the High Court analysed the

testimony of Chet Ram and other witnesses to come to the

conclusion that recovery of the contraband from the bag of the

appellant was proved by the prosecution. This analysis is

summed up by the High Court in the following manner:-

“In this case, Assistant Sub-Inspector Guriya Ram

(PW1), Chet Ram, Tehsildar-cum-Executive

Magistrate (PW2) and Sub-Inspector Mohinder Singh

(PW3) had appeared in support of the prosecution

case. No ill will or animosity is attributed on the part

of any of the three witnesses examined by the

prosecution qua the accused. The recovery was

effected by the police officials in the discharge of

their official duties and they had no axe to grind

against the accused. There was no reason for the

police to plant 5 Kgs. of opium upon the accused.

Under the circumstances, the non-examination of

Chaukidar Khema Ram, who had joined in the police

party, does not in any manner render the

prosecution case unworthy of credit. The statements

of the official witnesses cannot be rejected merely

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because of their official status. In fact, no

discrepancy worth the name was noticed in the

statements of Assistant Sub-Inspector Guriya Ram

(PW1), Tehsildar-cum-Executive Magistrate Chet Ram

(PW2) and Sub Inspector Mohinder Singh (PW3).”

9.Resultantly, the High Court allowed the appeal of the State

and convicted the appellant under Section 18 of the Act,

sentencing him to undergo rigorous imprisonment of 10 years

and to pay fine of Rs. 1 lakh. It is also directed that in default of

payment of fine, the appellant shall undergo further rigorous

imprisonment for 1 year.

10.Mr. Tripurari Rai, learned Counsel appearing for the appellant

tried to persuade us to restore the findings of the Trial Court

holding that the prosecution could not prove that Chet Ram was

discharging the duties of Executive Magistrate as well. Referring

to the provisions of Section 50 of the Act his submission was

that these provisions were mandatory in nature. In the instant

case, when the appellant had specifically chosen to get himself

searched in the presence of the Magistrate and the search was

not conducted in the presence of the Magistrate, mandatory

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requirement of Section 50 of the Act had been violated and it

should have resulted in the acquittal of the appellant.

11.We are of the opinion that entire argument is misdirected. In

fact, the exercise undertaken by the Courts below viz. whether

Chet Ram was discharging the duties of Executive Magistrate or

not was totally irrelevant as Section 50 of the Act has no

application in the present case. Section 50 of the Act, which is

the sheet anchor of the appellant's defence reads as under:

“50. Conditions under which search of persons shall

be conducted.

(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 the nearest Gazetted

Officer of any of the departments mentioned

in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer

may detain the person until he can bring him

before the Gazetted Officer or the Magistrate

referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate

before whom any such person is brought

shall, if he sees no reasonable ground for

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search, forthwith discharge the person but

otherwise shall direct the search be made.

(4) No female shall be searched by anyone

except a female.

(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).

6.After a search is conducted under sub-

section (5), the officer shall record the

reasons for such belief which necessitated

such search and within seventy two hours

send a copy thereof to his immediate official

superior.”

12.It is clear from the reading of the aforesaid provision that it is

applicable only where search of a person is involved. It is not

made applicable in those cases where no search of a person is

to be conducted. In the instant case the appellant was carrying

a bag which was to be searched and on his request Chet Ram

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was summoned in whose presence search was conducted which

pertained to a bag. In Ajmer Singh v. State of Haryana; (2010)

3 SCC 746 this aspect is specifically considered and dealt with.

Following earlier Constitution Bench judgment, the Court held

that when search and recovery from a bag, brief case, container

etc. is to be made, provisions of Section 50 of the Act are not

attracted. It is so stated in the following manner:

“14. The object, purpose and scope of Section 50

of the Act was the subject-matter of discussion in a

number of decisions of this Court. The Constitution

Bench of five Judges of this Court in State of Punjab

v. Baldev Singh; (1999) 6 SCC 172 after

exhaustive consideration of the decisions of this

Court in Ali Mustaffa Abdul Rahman Moosa v. State

of Kerala; (1994) 6 SCC 569 and Pooran Mal v.

Director of Inspection (Investigation); (1974) 1

SCC 345 have concluded in para 57:

(I) When search and seizure is to be

conducted under the provisions of the Act, it is

imperative for him to inform the person

concerned of his right of being taken to the

nearest gazetted officer or the nearest

Magistrate for making search.

(II) Failure to inform the accused of such right

would cause prejudice to an accused.

(III) That a search made by an empowered

officer, on prior information, without informing

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the accused of such a right may not vitiate

trial, but would render the recovery of the

illicit article suspect and vitiate the conviction

and sentence of an accused, where the

conviction is solely based on the possession of

the illicit article recovered from his person,

during such search.

(IV) The investigating agency must follow the

procedure as envisaged by the statute

scrupulously and failure to do so would lead to

unfair trial contrary to the concept of justice.

(V) That the question as to whether the

safeguards provided in Section 50 of the Act

have been duly observed would have to be

determined by the court on the basis of the

evidence at the trial and without giving an

opportunity to the prosecution to establish the

compliance of Section 50 of the Act would not

be permissible as it would cut short a criminal

trial.

(VI) That the non-compliance of the procedure

i.e. informing the accused of the right under

sub-section (1) of Section 50 may render the

recovery of contraband suspect and conviction

and sentence of an accused bad and

unsustainable in law.

(VII) The illicit article seized from the person of

an accused during search conducted without

complying with the procedure under Section

50, cannot be relied upon as evidence for

proving the unlawful possession of the

contraband.

15. The learned counsel for the appellant

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contended that the provision of Section 50 of the

Act would also apply, while searching the bag,

briefcase, 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. It requires to be

noticed that the question of compliance or non-

compliance with Section 50 of the NDPS Act is

relevant only where search of a person is involved

and the said section is not applicable nor attracted

where no search of a person is involved. Search and

recovery from a bag, briefcase, container, etc. does

not come within the ambit of Section 50 of the

NDPS Act, because firstly, Section 50 expressly

speaks of search of person only. Secondly, the

section speaks of taking of the person to be

searched by the gazetted officer or a Magistrate for

the purpose of search. Thirdly, this issue in our

considered opinion is no more res integra in view of

the observations made by this Court in Madan Lal v.

State of H.P.; (2003) 7 SCC 465 . The Court has

observed:

“16. 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;

(1999) 8 SCC 257, State of Punjab v. Baldev

Singh; (1999) 6 SCC 172 and Gurbax Singh

v. State of Haryana; (2001) 3 SCC 28 . 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 Constitution Bench in Baldev

Singh case. Above being the position, the

contention regarding non-compliance with

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Section 50 of the Act is also without any

substance.”

16. In State of H.P. v. Pawan Kumar; (2005) 4 SCC

350 this Court has stated:

“11. A bag, briefcase or any such article or

container, etc. can, under no circumstances,

be treated as body of a human being. They

are given a separate name and are

identifiable as such. They cannot even

remotely be treated to be part of the body of

a human being. Depending upon the physical

capacity of a person, he may carry any

number of items like a bag, a briefcase, a

suitcase, a tin box, a thaila, a jhola, a gathri, a

holdall, a carton, etc. of varying size,

dimension or weight. However, while carrying

or moving along 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.”

(emphasis in original)

17. After discussion on the interpretation of the

word “person”, this Court concluded:

“14. … that the provisions of Section 50 will

come into play only in the case of personal

search of the accused and not of some

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baggage like a bag, article or container, etc.

which [the accused] may be carrying.”

The Court further observed:

“27. … In view of the discussion made earlier,

Section 50 of the Act can have no application

on the facts and circumstances of the present

case as opium was allegedly recovered from

the bag which was being carried by the

accused.”

13.Moreover, even if we proceed on the basis that Section 50

applies, we find that the requirement of Section 50 is the search

by Gazetted Officer or nearest Magistrate. It was not disputed

by the learned Counsel for the appellant, at the time of

arguments, that Chet Ram was a Gazetted Officer. Therefore,

even otherwise we find that the requirement of Section 50 was

fulfilled.

14.Half hearted attempt was made by Mr. Rai to dig loopholes in

the prosecution story. He argued that though Chaukidar was

also present at the time of search, he was not produced as a

witness; the prosecution did not join any independent witness at

the time of seizure of opium from the appellant even when

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witnesses were present near the spot; and that there was an

inordinate delay in sending the sample to Forensic Science

Laboratory. After going through the record, we find that there is

no merit in any of these submissions which are adequately

taken care of by the Courts below. We may re-emphasise that

the appellant was convicted by the Trial Court in the first

instance. However, the matter was remanded back by the High

Court to the Trial Court only to find out as to whether Chet Ram

was Executive Magistrate or not. Therefore, this was the limited

inquiry which was to be conducted. On that aspect, we have

already straightened the legal position which goes against the

appellant. On merits, we find that the prosecution has

established the guilt of the appellant by leading cogent

evidence and the guilt is proved beyond reasonable doubt.

There is no scope of interference with the said findings.

15.We thus, do not find any merit in this appeal. The appeal is

hereby dismissed.

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….............................J.

[B.S. CHAUHAN]

…............................J.

[A.K. SIKRI]

New Delhi

May 23, 2014

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