2023INSC878 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2239 -2240 OF 2011

RANJAN KUMAR CHADHA …APPELLANT(S)

VERSUS

STATE OF HIMACHAL PRADESH …RESPONDENT(S)

J U D G M E N T

J.B. PARDIWALA, J. :

1. 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. 356 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

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of acquittal passed by the S essions Judge, Kullu dated

31.03.1999 in the Sessions Trial No. 44 of 1998. With the High

Court allowing the State’s acquittal appeal, the appellant herein

stood convicted of the offence punishable under Section 20 of

the NDPS Act.

2. The appellant was heard on the point of sentence and

ultimately, the High Court vide order dated 16.09.20 10

sentenced the appellant herein to undergo rigorous

imprisonment for a period of two years and to pay fine of Rs.

50,000/- (Rupees Fifty Thousand Only), and in default of

payment of fine to undergo further rigorous imprisonment for

six months.

CASE OF THE PROSECUTION

3. 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). At about

6.30 pm while they all were at Dhalpur, the ASI Lal Singh (PW

14) received a secret information that one well built person

wearing a white T-shirt and green trouser was standing at the

Sarwari bus stand and was ready to board a bus bound for

Delhi. The information was that the said person at the bus stand

had in his possession contraband in the form of charas. The

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secret information was recorded by the PW 14 and forwarded to

the Superintendent of Police, Kullu through the Constable

Baldev Dass (PW 6). The ASI Lal Singh (PW 14), HC Mohan Lal

(PW 12) and Constable Sant Ram (PW 13) accordingly left for

Sarwari bus stand and reached there at about 6.45 pm. The

officers were able to locate and identify the said person at the

bus stand carrying a bag on his shoulder. In the presence of two

independent witnesses, the said person was asked to disclose

his identity. The person standing at the bus stand disclosed his

identity as Ranjan Kumar Chadha son of Shri Ved Parkash

Chadha resident of New Delhi. As the police officials suspected

that 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.

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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 Ram. The site plan Ext. PP was

prepared on the spot. The statements of the witnesses were

recorded. 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. One of the samples was sent

for chemical examination to the CIL, Kandaghat and vide report

Ext. PO the samples were found to be of charas having resin

content of 33.58%. On this basis the accused was charge

sheeted with having committed an offence as aforesaid.

5. The accused pleaded not guilty before the Trial Court and

claimed to be tried. The defence of the accused was that when

the bus was about to leave for Delhi and while the accused was

sitting in the bus with some other passengers, one unclaimed

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bag was found and the accused was wrongly stated to be the

owner of the said bag. In short, the case of the accused before

the Trial Court was that he was falsely implicated in the case.

6. 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.

7. The State of Himachal Pradesh, being dissatisfied with

the judgment and order of acquittal passed by the Trial Court,

went in appeal before the High Court. The appeal came to be

allowed by the High Court and the appellant herein stood

convicted for the offence under Section 20 of the NDPS Act.

8. In such circumstances referred to above, the appellant is

here before this Court with the present appeals.

SUBMISSIONS ON BEHALF OF THE APPELLANT

9. Mrs. Pragya Baghel, the learned counsel appearing for

the appellant, vehemently submitted that the High Court

committed a serious error in holding the appellant guilty of the

offence under the NDPS Act. She would submit that the High

Court should not have disturbed a well reasoned judgment of

acquittal passed by the Trial Court. The learned counsel

submitted that the High Court committed a serious error in

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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.

10. It was argued that the expression “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.

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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 circumstances

Section 50 of the NDPS Act will apply and would have to be

complied with. She would argue that in the case on hand not

only the search of the person of the accused was undertaken but

the search of the bag was also undertaken. To fortify this

submission, the learned counsel relied on the decision of this

Court in the case of SK. Raju alias Abdul Haque alias Jagga

v. State of West Bengal reported in (2018) 9 SCC 708.

According to the learned counsel, the ratio of the decision of this

Court in SK. Raju (supra) is that if the search is of both the bag

as well as the person of the accused, Section 50 of the NDPS Act

would be attracted.

13. In such circumstances referred to above, the learned

counsel prayed that there being merit in her appeals, the same

be allowed and the judgment and order of conviction and

sentence passed by the High Court may be set aside.

SUBMISSIONS ON BEHALF OF THE STATE

14. Mr. 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.

He would argue that the High Court was justified in holding the

appellant herein guilty of the offence punishable under Section

20 of the NDPS Act. It was vehemently argued that Section 50 of

the NDPS Act is not applicable at all in the present case as the

search was made only of the bag which the appellant was

carrying on his shoulder and the person of the appellant was

not searched. It was argued that the decision of this Court in

SK. 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.

15. The learned counsel appearing for the State in support of

his aforesaid submission placed strong reliance on the decision

of this Court in the case of State of Punjab v. Baljinder Singh

reported in (2019) 10 SCC 473.

16. In such circumstances referred to above, the learned

counsel appearing for the State prayed that there being no merit

in the appeals, those may be dismissed.

9

ANALYSIS

17. Having heard the learned counsel appearing 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 present on the spot as per case of the

prosecution, who have been declared hostile in court, it

was for the prosecution to prove that these witnesses

have suppressed truth from the court, but nothing has

been proved against them as to why they should have

deposed falsely against the prosecution or in favour of the

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accused and therefore, it is held that the prosecution has

failed to prove beyond reasonable doubt the compliance

of Section 50 of the Act, which is mandatory provision and

on this score the accused Ranjan Chadha is entitled to

acquittal. 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. However both the independent

witnesses PW-9 Surinder Kumar and PW-10 Karam Singh

have been declared hostile when they deposed that no

bag was found in possession of the accused in their

presence nor search of the accused was conducted in

their presence and nothing has been proved against

them, in their cross examination as to why they should

have deposed falsely. 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. I is accordingly answered.”

20. The High Court, while reversing the judgment and order

of acquittal passed by the Trial Court and more particularly on

the issue of applicability of Section 50 of the NDPS Act, held as

under:-

“As far as Section 50 of the Act is concerned the same is

not at all applicable to the facts of the present case. 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 from his bag. In such eventuality

the police is not required to comply with Section 50 of the

Act. In this behalf reference may be made to the decision

of the Apex Court in State of Himachal Pradesh

Versus Pawan Kumar Latest HLJ 2004 [SC] 1247.”

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ORAL 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 the police.

Memo of this was also prepared. Accused told his name

as Ranjan Kumar Chadha. After that accused along with

witnesses was taken to a room which is adjacent to the

room of Incharge of Bus Stand. ASI searched the bag and

besides personal luggage of Ranjan Chadha, Charas in

three polythene packets were recovered from the bag and

it was weighed and the charas was found to be 1 kg. 250

gms. Out of which two samples of 25 gm. each were taken

and sample and recovered charas were separately

sealed in two packets with seal H. After affixing seal on

samples, the seal was handed over to Surender Kumar

witness. After that ASI prepared Rukka and gave it to

constable who took the Rukka to police station. Accused

was arrested and accused was told of the ground of

arrest and sentence. Accused and witnesses Surender

Singh, Karam Singh and I affixed our respective signature

on the Consent Memo Exh.PJ, Recovery Memo Exh.PK,

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Grounds of Arrest Exh.PN. Exh.P.1 packet and Exh.P.2

sample are same. Personal search of accused was

conducted. Exh.PE the memo of personal search bears my

signature as witness.”

22. We also looked into the cross examination of the PW 12

by the defence counsel. We take notice of the fact that nothing

substantial could be elicited from the PW 12 in his cross

examination. We also take notice of the fact that except

suggestions put to the witness, there is no other form of cross

examination.

23. We shall now look into the evidence of PW 14 ASI Lal

Singh of Kullu Police Station. The PW 14 in his examination in

chief has deposed as under:-

“Stated that I am posted in P.S. Kullu since 1997. 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. for patrolling. The departure report was

entered in the GD. When we were present at Dhalpur at

6.30 p.m., I got information from informer that one person

wearing white T Shirt and green pajama and having

French cut beard and is healthy is having one big bag

with him and he with charas is ready to go to Delhi by

bus from Sarbari Bus Stand. Thereupon I prepared

information report and sent it to SP, Kullu through

Constable Baldev Dass. Exh.PB is copy of it. 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. Surender Kumar, Bus Stand Incharge and

Karam Singh 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

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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 Battis and

tablets were recovered. On weighing, charas 1 kg. 250

gms. was found out of recovered charas, 2 samples of 25

grns. each were taken out and charas and samples were

sealed with seal H. After filling up NCB Form and sample

seal, seal was handed over to witness Surender Kumar.

Charas was seized through seizure memo Exh.PJ on

which accused affixed his signature and witnesses

affixed their signatures. Accused was informed through

Exh.PN regarding grounds of arrest, etc. Rukka Exh.PH

was prepared and sent to Police Station through

Constable Sant Ram and after registration of FIR he

brought the file from police station. Site plan Exh.PP was

prepared correctly. Statements of witnesses were

recorded. 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. Nothing was left out

and nor anything was added of my own in their

statements. Memo of personal search Exh.PE was

prepared and tickets Exh.PF for Delhi Bus was recovered

from accused. Thereafter I with accused and case

property came to police station. Case property, sample

and NCB Form were submitted by me to SHO who sealed

case property and sample with seal X. Parcels are Exh.P1

and Sample is Exh.P2. Accused was produced in the court

on 24.8.98 and remand of accused obtained. During

investigation, accused informed that charas has been

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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. We went to that Guest House but

no person of this name was found there. On 25.8.98 I

prepared special report and sent to SP through. constable

Lakshman Dass and Exh.PC is copy of the same. After

completing the investigation, documents and papers were

given to SHO who (SHO) has prepared the challan.”

24. We also looked into the cross examination of the PW 14

by the defence counsel. We take notice of the fact that nothing

substantial could be elicited from the PW 1 4 in his cross

examination. We also take notice of the fact that except

suggestions put to the witness, there is no other form of cross

examination.

25. 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. 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

15

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 would like to be searched before a police officer or a

Gazetted Officer or Magistrate?

28. This Court in State of Rajasthan v. Parmanand and

another, (2014) 5 SCC 345, held that it is improper for a police

officer to tell the accused that a third alternative is also available

i.e. the search before any independent police officer. 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. We quote the relevant

observations made by this Court 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

the light of the judgments of this Court mentioned in the

preceding paragraphs, Section 50 of the NDPS Act will

have application.

16. It is now necessary to examine whether in this

case, Section 50 of the NDPS Act is breached or not. The

police witnesses have stated that the respondents were

informed that they have a right to be searched before the

nearest gazetted officer or the nearest Magistrate or

before PW 5 J.S. Negi, the Superintendent. They were

given a written notice. As stated by the Constitution

Bench in State of Punjab v. Baldev Singh (1999) 6 SCC

172, it is not necessary to inform the accused person, in

writing, of his right under Section 50(1) of the NDPS Act.

His right can be orally communicated to him. But, in this

case, there was no individual communication of right. A

common notice was given on which only respondent 2

Surajmal is stated to have signed for himself and for

respondent 1 Parmanand. Respondent 1 Parmanand did

not sign.

17. 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.

Communication of the said right to the person who is

about to be searched is not an empty formality. It has a

purpose. Most of the offences under the NDPS Act carry

stringent punishment and, 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

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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 (Bo0m) 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 Surajmal has signed

for himself and for respondent 1 Parmanand. Respondent

1 Parmanand has not signed on it at all. He did not give

his independent consent. It is only to be presumed that he

had authorized respondent 2 Surajmal to sign on his

behalf and convey his consent. Therefore, in our opinion,

the right has not been properly communicated to the

respondents. The search of the bag of respondent 1

Parnanand and search of person of the respondents is,

therefore, vitiated and resultantly their conviction is also

vitiated.

19. 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. Negi, the Superintendent, who was a

part of the raiding party. It is the prosecution case that

the respondents informed the officers that they would like

to be searched before PW 5 J.S. Negi by PW 10 SI Qureshi.

This, in our opinion, is again a breach of Section 50(1) of

the NDPS Act. The idea behind taking an accused to the

nearest Magistrate or the nearest gazetted officer, if he so

requires, is to give him a chance of being searched in the

presence of an independent officer. Therefore, it was

improper for PW 10 SI Qureshi to tell the respondents that

a third alternative was available and that they could be

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searched before PW 5 J.S. Negi, the Superintendent, who

was part of the raiding party. PW 5 J.S. Negi cannot be

called an independent officer. We are not expressing any

opinion on the question whether if the respondents had

voluntarily expressed that they wanted to be searched

before PW 5 J.S. Negi, the search would have been

vitiated or not. 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. On this ground also, in our opinion, the search

conducted by PW 10 SI Qureshi is vitiated.”

(Emphasis supplied)

29. Thus, from the oral evidence on record as discussed

above it is evident that Section 50 of the NDPS Act stood violated

for giving a third option of being searched before a police officer.

30. However, the important question that falls for our

consideration is whether Section 50 of the NDPS Act is at all

applicable to the present case? We have noticed few

discrepancies in the 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

19

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 to be

searched; (c) would include search of bag or luggage which is

presumed to be in possession of the person even though it may

be lying in a house or railway compartment or at the airport; or

(d) whether application of Section 50 could be extended to a case

of search of a place, a conveyance or a house if the accused is

physically present at the time of the search.

32. Section 50 of the NDPS Act is reproduced hereinbelow:-

“Section 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 nearest Gazetted Officer of any of

the departments mentioned in section 42 or to the nearest

Magistrate.

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(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 search, forthwith discharge the person but

otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting 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.”

33. Ordinarily, it could be said or argued that “to search any

person” would mean, to search the articles on the person or body

of the person to be searched and would normally not include the

articles which are not on the body of the person to be searched.

When we are deliberating on the scope 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.

21

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 or, when the arrest is made by a private person, the

police officer to whom he makes over the person arrested, may

search such person, and place in safe custody all articles, other

than necessary wearing apparel, found upon him. 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. Same safeguards are provided under Section 102(3) of

the CrPC 1898 and Section 100 of the CrPC 1973.

36. Considering the aforesaid provisions, the inference which

can be drawn is that “to search any person” would mean only

search of the body or wearing apparels of such person and in

that case the procedure which is required to be followed would

be the one prescribed under Section 50 of the NDPS Act. In

contrast, if search of any building, conveyance or place,

including a public place, is to be carried out, then there is no

question of following the procedure prescribed under Section 50.

However, when a suspected or arrested person is to be searched,

then the procedure prescribed under Section 50 comes into

operation and the procedure thereunder is required to be

followed. 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 concealment which is

suspected is on the person or about his person.

37. The provisions of Section 50 were exhaustively construed

by this Court in the case of State of Punjab v. Balbir Singh,

23

(1994) 3 SCC 299. We may refer to the relevant observations

made in paragraph 21 of the aforesaid judgment which deals

with this aspect. It is as under:-

“21. Both under Sections 41 and 42, the officers

empowered can enter and search the place and also

arrest the person suspected to have committed the offence

either on the basis of his own knowledge or on the basis

of information reduced to writing. If an arrest is made and

a person is to be searched, then as noted above Section

50 comes into operation and the search of the person has

to be carried out in the manner provided thereunder. …”

(Emphasis supplied)

38. 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. 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

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? …”

In paragraph 5, the Court observed:-

“5. … But when a police officer carrying on the

investigation including search, seizure or arrest

empowered under the provisions of the C rPC comes

across a person being in possession of the narcotic drugs

or psychotropic substances then two aspects will arise. If

he happens to be one of those empowered officers under

the NDPS Act also then he must follow thereafter the

provisions of the NDPS Act and continue the investigation

as provided thereunder. 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. But at

this stage the question of resorting to Section 50 and

informing the accused person that if he so wants, he

would be taken to a Gazetted Officer and taking to

Gazetted Officer thus would not arise because by then

search would have been over. As laid down in Section 50

the steps contemplated thereunder namely informing and

taking him to the Gazetted Officer should be done before

the search. When the search is already over in the usual

course of investigation under the provisions of CrPC then

the question of complying with section 50 would not

arise.”

39. Thereafter the Court considered the provisions of

Sections 100 and 165 resply of the CrPC 1973 which deal with

the search of the premises and the person. 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. The Court observed that if there is

non-compliance of Section 100 or 165 that itself cannot be a

ground for rejecting the prosecution case outright. The effect of

such non-compliance will have a bearing on appreciation of

evidence of official witnesses and other material depending upon

the facts and circumstances of each case. In carrying out such

searches if they come across any substance covered by the

NDPS Act, the question of complying with the provisions of the

said Act including Section 50 at that stage would 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.”

26

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 part of the

officer intending to search to inform the person to be

searched of his right that if he so chooses, he will be

searched in the presence of a Gazetted Officer or a

Magistrate. Thus the provisions of Section 50 are

mandatory.”

41. When we refer to the decision of this Court in Balbir

Singh (supra), what has been held therein as a broad principle

in para 25(1), is as under:-

“25. The questions considered above arise frequently

before the trial courts. 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. If during such search or

arrest there is a chance recovery of any narcotic drug

or psychotropic substance then the police officer, who

is not empowered, should inform the empowered officer

who should thereafter proceed in accordance with the

provisions of the NDPS Act. If he happens to be an

empowered officer also, then from that stage onwards,

he should carry out the investigation in accordance

with the other provisions of the NDPS Act.”

27

42. 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. When that

principle is examined carefully one can easily understand that

without any prior information as to possession of any narcotic

drug and psychotropic substance, a police officer might have

held a search in the course of discharge of his duties as

contemplated under the provisions of CrPC 1973 and, therefore,

it would be well-neigh impossible to state that even under such

a situation, the application of Section 50 would get attracted.

The facts involved in Balbir Singh (supra) would indicate that

the police officer effected 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

28

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 (1995) 3 SCC 610.

44. 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. Where there is no search of a person under the NDPS

Act, Section 50 would have no application. However, where in

the course of a general search being conducted under the CrPC,

1973 in connection with any offence or suspected offence except

one under the NDPS Act, there is recovery of any contraband,

the provisions of the NDPS Act shall forthwith apply in such

29

cases also. The relevant observations made are reproduced

below:-

“12. On its plain reading, Section 50 would come into

play only in the case of a search of a person as

distinguished from search of any premises etc. 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.

13. Vide Section 51, the provisions of the Code of Criminal

Procedure, 1973 shall apply, insofar as they are not

inconsistent with the provisions of the NDPS Act, to all

warrants issued and arrests, searches and seizures

made under the NDPS Act. Thus, the NDPS Act, 1985 after

incorporating the broad principles regarding search,

seizure and arrest etc. 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.

The expression “insofar as they are not inconsistent with

the provisions of this Act” occurring in Section 51 of the

NDPS Act is of significance. 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”. Thus,

while conducting search and seizure, in addition to the

safeguards provided under the Code of Criminal

Procedure, the safeguards provided under the NDPS Act

are also required to be followed. Section 50(4) of the NDPS

Act lays down that no female shall be searched by

anyone 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

30

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.

14. The provisions of Sections 100 and 165 CrPC are not

inconsistent with the provisions of the NDPS Act and are

applicable for affecting search, seizure or arrest under the

NDPS Act also. 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. If the investigating officer is not an

empowered officer then it is expected of him 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. In Balbir Singh case

after referring to a number of judgments, the Bench

opined that failure to comply with the provisions of CrPC

in respect of search and seizure and particularly those of

Sections 100, 102, 103 and 165 per se does not vitiate

the prosecution case. If there is such a violation, what the

courts have to see is whether any prejudice was caused

to the accused. While appreciating the evidence and other

relevant factors, the courts should bear in mind that there

was such a violation and evaluate the evidence on record

keeping that in view.”

45. This Court in Baldev Singh (supra) further observed that

the conditions prescribed in Section 50 are an obligation

31

imposed upon the empowered officer and the same must be duly

complied with before conducting any search of a person. The

relevant observations are reproduced hereunder:-

“24. … 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. 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

32

creditworthiness to the search and seizure proceeding. It

would also verily strengthen the prosecution case. 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. It is, however, not necessary to give the

information to the person to be searched about his right

in writing. It is sufficient if such information is

communicated to the person concerned orally and as far

as possible in the presence of some independent and

respectable persons witnessing the arrest and search.

The prosecution must, however, at the trial, establish that

the empowered officer had conveyed the information to

the person concerned of his right of being searched in the

presence of a Magistrate or a gazetted officer, at the time

of the intended search. Courts have to be satisfied at the

trial of the case about due compliance with the

requirements provided in Section 50. No presumption

under Section 54 of the Act can be raised against an

accused, unless the prosecution establishes it to the

satisfaction of the court, that the requirements of Section

50 were duly complied with.

26. 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. We have already noticed that severe punishments

have been provided under the Act for mere possession of

illicit drugs and narcotic substances. Personal search,

more particularly for offences under the NDPS Act, are

critical means of obtaining evidence of possession and it

is, therefore, necessary that the safeguards provided in

Section 50 of the Act are observed scrupulously. The duty

to inform the suspect of his right to be searched in the

presence of a gazetted officer or a Magistrate is a

necessary sequence for enabling the person concerned to

exercise that right under Section 50 because after

Maneka Gandhi v. Union of India it is no longer

permissible to contend that the right to personal liberty

can be curtailed even temporarily, by a procedure which

is not “reasonable, fair and just” and when a statute itself

provides for a “just” procedure, it must be honoured.

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. 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 care

taken to see that all the safeguards provided in a statute

are scrupulously followed. We are not able to find any

reason as to why the empowered officer should shirk from

affording a real opportunity to the suspect, by intimating

to him that he has a right “that if he requires” to be

searched in the presence of a gazetted officer or a

Magistrate, he shall be searched only in that manner. 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. The argument that keeping in view the

growing drug menace, an insistence on compliance with

all the safeguards contained in Section 50 may result in

more acquittals does not appeal to us. If the empowered

officer fails to comply with the requirements of Section 50

and an order or acquittal is recorded on that ground, the

prosecution must thank itself for its lapses. Indeed in

every case the end result is important but the means to

34

achieve it must remain above board. The remedy cannot

be worse than the disease itself. The legitimacy of the

judicial process may come under a 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. That cannot be permitted.”

(Emphasis supplied)

47. 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 such

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. The Court

further held that it would not impede the prosecution from

relying upon recovery of any other incriminating article in any

other independent proceedings. It was further held that the

burden of proving that the conditions of Section 50 were

complied with, would lie upon the prosecution to establish. The

relevant observations are being reproduced hereunder:-

“32. However, the question whether the provisions of

Section 50 are mandatory or directory and, if mandatory,

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

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. The omission may not vitiate the

trial as such, but because of the inherent prejudice which

would be caused to an accused by the omission to be

informed of the existence of his right, it would render his

conviction and sentence unsustainable. The protection

provided in the section to an accused to be intimated that

he has the right to have his personal search conducted

before a gazetted officer or a Magistrate, if he so requires,

is sacrosanct and indefeasible — it cannot be

disregarded by the prosecution except at its own peril.

33. The question whether or not the safeguards provided

in Section 50 were observed would have, however, to be

determined by the court on the basis of the evidence led

at the trial and the 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

in that section were complied with, it would not be

advisable to cut short a criminal trial.

x x x x

45. … Prosecution cannot be permitted to take advantage

of its own wrong. Conducting a fair trial for those who are

accused of a criminal offence is the cornerstone of our

democratic society. A conviction resulting from an unfair

trial is contrary to our concept of justice. Conducting a fair

trial is both for the benefit of the society as well as for an

accused and cannot be abandoned. While considering the

aspect of fair trial, the nature of the evidence obtained

and the nature of the safeguard violated are both relevant

factors. 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.

If after careful consideration of the material on record it is

found by the court that the admission of evidence

collected in search conducted in violation of Section 50

would render the trial unfair then that evidence must be

excluded. In R. v. Collins, (1987) 1 SCR 265 (Canada), the

Supreme Court of Canada speaking through Lamer, J. (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. …

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

concerned of his right under sub-section (1) of Section 50

of being taken to the nearest gazetted officer or the

nearest Magistrate for making the search. 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 the

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 societal intent in safety will suffer if

persons who commit crimes are let off because the

evidence against them is to be treated as if it does not

exist. 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. In every case the

end result is important but the means to achieve it must

remain above board. The remedy cannot be worse than

the disease itself. The legitimacy of judicial process may

come under 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 law and may have the effect of unconscionably

compromising the administration of justice. That cannot

be permitted. An accused is entitled to a fair trial. A

conviction resulting from an unfair trial is contrary to our

concept of justice. The use of evidence collected in breach

of the safeguards provided by Section 50 at the trial,

would render the trial unfair.

(5) That whether or not the safeguards provided in Section

50 have been duly 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.

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 with the mandate of

Section 50. An illegal search cannot entitle the

prosecution to raise a presumption under Section 54 of

the Act.

(9) That the judgment in Pooran Mal v. 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. v.

Pirthi Chand, (1996) 2 SCC 37, and State of Punjab v.

Jasbir Singh, (1996) 1 SCC 288, case are not in tune with

39

the correct exposition of law as laid down in Pooran Mal's

case.” (Emphasis supplied)

49. Thus, the Constitutional Bench in express terms laid

down that although the non-compliance of Section 50 may not

vitiate the trial yet would render the recovery of the contraband

doubtful and may vitiate the conviction of the accused. The

emphasis laid by the Court is on illicit articles seized from the

“person of an accused” during the search conducted in violation

of safeguards provided in Section 50 of the NDPS Act. In other

words, according to Baldev Singh (supra), 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. which he may be carrying.

When Section 50 could be said to be complied with?

50. 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. This Court in Manohar

Lal v. State of Rajasthan reported in (1996) 11 SCC 391, held

that Section 50 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 Magistrate. The relevant

observations made therein are reproduced below:-

40

“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 substantial compliance of

Section 50 is required, and informing the suspect that if he

wishes he may be searched in presence of a Gazetted Officer or

Magistrate without the use of the word “right” would not amount

to breach of Section 50. The relevant observations made therein

are reproduced below:-

“2. Learned counsel tried to highlight a point that Section

50 of the Narcotic Drugs and Psychotropic Substances

Act has not strictly been complied with by PW 8, the

officer who conducted the search. 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. In this case PW 8

has deposed that she told the appellant that if he wished

he could be searched in the presence of the gazetted

officer or a Magistrate to which the appellant had not

favourably reciprocated. According to us the said offer is

41

a communication about the information that the

appellant has a right to be searched so. It must be

remembered that the searching officer had only Section

50 of the Act then in mind unaided by the interpretation

placed on it by the Constitution Bench. Even then the

searching officer informed him that “if you wish you may

be searched in the presence of a gazetted officer or a

Magistrate”. This according to us is in substantial

compliance with the requirement of Section 50. We do

not agree with the contention that there was non -

compliance with the mandatory provision contained in

Section 50 of the Act.”

52. In Prabha Shankar Dubey v. State of M.P. 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

relevant observations made in it are reproduced hereunder:-

“11. ... What the officer concerned is required to do is to

convey about the choice the accused has. 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. The use of the word

“right” at relevant places in the decision of Baldev 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

42

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 made therein are

reproduced below:-

“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 that insofar as the obligation of the authorised

officer under sub-section (1) of Section 50 of the NDPS Act

is concerned, it is mandatory and requires strict

compliance. Failure to comply with the provision would

render the recovery of the illicit article suspect and vitiate

the conviction if the same is recorded only on the basis of

the recovery of the illicit article from the person of the

43

accused during such search. Thereafter, the suspect may

or may not choose to exercise the right provided to him

under the said provision.

x x x x

31. 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. Needless to add

that the question whether or not the procedure prescribed

has been followed and the requirement of Section 50 had

been met, is a matter of trial. It would neither be possible

nor feasible to lay down any absolute formula in that

behalf.

32. 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. It would not only add legitimacy to the search

proceedings, it may verily strengthen the prosecution as

well.” (Emphasis supplied)

54. In Parmanand (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.

44

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 also held that a

joint communication of the right under Section 50 would be bad

in law. The right under Section 50 could be said to be violated

where in a case of multiple persons intended to be searched,

only a joint communication has been given or where the right

has been exercised or declined by one of them on behalf of the

other. While, a written communication of the right is not

required, the right has to be communicated in clear words to

each person individually whose search is intended to be

45

conducted, and no person can either waive or exercise this right

at the behest of another. Thus, in case of multiple persons, each

of them must be individually communicated of their right and

must exercise or waive the same in their own individual

capacity.

58. We also looked into the decision of this Court in Arif

Khan alias Agha Khan v. 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.

The relevant observations are as under:-

“4. … On apprehending the accused, he was informed by

the police personnel that he has a legal right to be

searched in the presence of a gazetted officer or a

Magistrate to which the accused replied that he has faith

in the raiding police party and consented to be searched

by them.

5. The raiding police party accordingly obtained his

consent in writing to be searched by the raiding police

party. The raiding police party then searched the accused

which resulted in seizure of “charas” weighing around

2.5 kg in quantity from his body.

x x x x

24. We do not agree to this finding of the two courts below

as, in our opinion, a search and recovery made from the

appellant of the alleged contraband “charas” does not

satisfy the mandatory requirements of Section 50 as held

46

by this Court in Vijaysinh Chandubha Jadeja. This we

say for the following reasons:

24.1. First, it is an admitted fact emerging from the

record of the case that the appellant was not

produced before any Magistrate or gazetted officer.

24.2. 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.

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 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. Since the non-compliance of the mandatory

procedure prescribed under Section 50 of the NDPS Act is

fatal to the prosecution case and, in this case, we have

47

found that the prosecution has failed to prove the

compliance as required in law, the appellant is entitled to

claim its benefit to seek his acquittal.”

59. However, in our opinion, the observations made in Arif

Khan (supra) are in direct conflict with the Constitution Bench

decision of Baldev Singh (supra). It appears that the attention

of the learned Judges while rendering the decision of Arif Khan

(supra) was seemingly not invited to the words “if the person to

be searched so requires” used in section 50.

60. Section 50 of the NDPS Act only goes so far as to prescribe

an obligation onto the police officer to inform the suspect of his

right to have his search conducted either in the presence of a

Gazetted Officer or Magistrate. Whether or not the search should

be conducted in the presence of a Gazetted Officer or Magistrate

ultimately depends on the exercise of such right as provided

under Section 50. In the event the suspect declines this right,

there is no further obligation to have his search conducted in

the presence of a Gazetted Officer or Magistrate, and in such a

situation the empowered police officer can proceed to conduct

the search of the person himself. To read Section 50 otherwise

would render the very purpose of informing the suspect of his

right a redundant exercise. 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.

61. A plain reading of the extracted paragraphs of Arif Khan

(supra) referred to above would indicate that this Court while

following the ratio of the decision of the Constitution Bench in

Vijaysinh Chandubha Jadeja (supra) held that the same has

settled the position of law in this behalf to the effect that, whilst

it 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

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. 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 of

sub-Section (2) of Section 50 of the NDPS Act. 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.

63. However, we propose to put an end to all speculations

and debate on this issue of the suspect being apprised by the

empowered officer of his right under Section 50 of the NDPS Act

to be searched before a Gazetted Officer or Magistrate. We are of

the view that even in cases wherein the suspect waives such

right by electing to be searched by the empowered officer, such

waiver on the part of the suspect should be reduced into writing

50

by the empowered officer. To put it in other words, even if the

suspect says that he would not like to be searched before a

Gazetted Officer or Magistrate and he would be fine if his search

is undertaken by the empowered officer, the matter should not

rest with just an oral statement of the suspect. 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. In other words, it

would impart authenticity, transparency and credit worthiness

to the entire proceedings. We clarify that this compliance shall

henceforth apply prospectively.

64. From the aforesaid discussion, the requirements

envisaged by Section 50 can be summarised as follows:-

(i) Section 50 provides both a right as well as an obligation.

The person about to be searched has the right to have his

search conducted in the presence of a Gazetted Officer or

51

Magistrate if he so desires, and it is the obligation of the

police officer to inform such person of this 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

52

capacity. Any joint or common communication of this

right would be in violation of Section 50.

(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.

(vii) Section 50 is applicable only in case of search of person

of the suspect under the provisions of the NDPS Act, and

would have no application where a search was conducted

under any other statute in respect of any offence.

(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.

(ix) The burden is on the prosecution to establish that the

obligation imposed by Section 50 was duly complied with

before the search was conducted.

(x) Any incriminating contraband, possession of which is

punishable under the NDPS Act and recovered in

violation of Section 50 would be inadmissible and cannot

53

be relied upon in the trial by the prosecution, however, it

will not vitiate the trial in respect of the same. Any other

article that has been recovered may be relied upon in any

other independent proceedings.

Whether Section 50 is applicable while searching a bag of

the accused?

65. Baldev Singh (supra), discussed above, gave rise to a

debate as to what would be included within “search of a person”

as stipulated under Section 50. This Court started interpreting

the expression giving a literal or strict interpretation of the word

“person”, thereby distinguishing the search of a person from

that of a bag or vehicle or premises. As a result, even if there

was no compliance with Section 50 while searching the accused

person’s bag, the evidence of recovery would still be deemed

admissible. 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. As a result, a bag which was being carried by the

accused was considered to be inextricably linked to the accused,

and therefore, any recovery of a contraband from such a bag

without complying with Section 50 would be inadmissible.

54

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 the bags of the accused, yet he

was required to be informed about his right to be

searched in presence of a Gazetted Officer or a

Magistrate, now stands overruled by the decision in

Baldev Singh's case (supra). If a person is carrying a bag

or some other article with him and narcotic drug or the

psychotropic substance is found from it, it cannot be said

that it was found from his “person”. 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. In Sarjudas v. State of Gujarat reported in (1999) 8

SCC 508, the contraband was recovered from a bag which was

hanging on the accused’s scooter, which he was riding. This

Court while holding the bag not to be included in the “search of

the person” held as under:-

“4. What is contended by the learned Counsel for the

appellant is that the appellants were not informed of their

right under Section 50 of the NDPS Act that they were

entitled to be examined in presence of a gazetted officer

or a Magistrate and, therefore, the search of the

appellants was illegal and the evidence regarding

recovery of charas from their possession could not have

been relied upon.

5. 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. Therefore, this was not

a case where the person of the accused was searched

and from his person narcotic drug or psychotropic

substance was found. The correct position of the law on

this point has been stated by this Court in State of Punjab

v. Baldev Singh” (Emphasis supplied)

69. In Birakishore Kar v. State of Orissa reported in (2000)

9 SCC 541, the contraband was recovered from a plastic bag on

which the accused was sitting while travelling in a train. As the

body of the accused was not searched, Section 50 was held to

be inapplicable. This Court held as under:-

56

“3. 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 a gazetted officer was not

complied with in this case. 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 said to be a case

where on search of the person of the accused, a narcotic

drug or psychotropic substance was found. In our opinion,

the courts below have correctly held that the appellant is

guilty of committing the said offence. The appeal is,

therefore, dismissed.” (Emphasis supplied)

71. Similarly, in Gurbax Singh v. State of Haryana

reported in (2001) 3 SCC 28, the accused therein was

57

apprehended while disembarking from a train carrying a gunny

bag containing poppy straw weighing 7 kgs. The counsel for the

State therein argued that the procedure under Section 50 was

not required to be followed as nothing was recovered from the

person. This Court while accepting the said argument and

referring to Baldev Singh (supra) held that:-

“8. In view of the aforesaid decision of the Constitutional

Bench, in our view, no further discussion is required on

this aspect. However, we may mention that this right is

extension of right conferred under Section 100(3) of the

Criminal Procedure Code. 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. Sub-section (7) of Section

100 further provides that when any person is searched

under sub-section (3) a list of all things taken possession

of shall be prepared and a copy thereof shall be delivered

to such person. This would also be clear if we refer to

search and seizure, procedure provided under Sections

42 and 43 of the building, conveyance or place. Hence, in

our view, Section 50 of the NDPS Act would be applicable

only in those cases where the search of the person is

carried out.” (Emphasis supplied)

72. In Beckodan Abdul Rahiman v. State of Keral a

reported in (2002) 4 SCC 229, the contraband had been recovered

from a polythene bag hidden in the folds of the dhoti, which the

58

accused was wearing. The 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 non -

compliance 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. … Similarly the provisions of Section 50 have not been

complied with as the accused has not been given any

option as to whether he wanted to be searched in

presence of a gazetted officer or the Magistrate. The

compliance of Section 50 is held to have been fulfilled on

his (PW 1) asking the accused “whether I should search

him in the presence of senior officers or gazetted 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. The accused is not shown to have been

apprised of his right nor any option offered to him for

search being conducted in the presence of the Magistrate.

59

6. We are of the firm opinion that the provision of sub-

section (2) of Section 42 and the mandate of Section 50

were not complied with by the prosecution, which

rendered the case as not established. In view of the

violation of the mandatory provision of the Act, the

appellant was entitled to be acquitted. …”

(Emphasis supplied)

73. In Madan Lal v. State of Himachal Pradesh reported

in (2003) 7 SCC 465, the recovery was effected from the search

of a bag placed inside the accused person’s car. This Court,

while differentiating between the search of a person and a

vehicle in terms of the applicability of Section 50, held as under:-

“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 vs. State of Maharashtra

and Anr., State of Punjab vs. Baldev Singh, Gurbax Singh

vs. State of Haryana). The language of section is implicitly

clear that the search has to be in relation to a person as

contrast to search of premises, vehicles, or articles. This

position was settled beyond doubt by the Constitution

Bench in Baldev Singh's case (supra). Above being the

position, the contention regarding non-compliance of

Section 50 of the Act is also without any substance.”

(Emphasis supplied)

74. In State of Punjab v. Makhan Chand reported in (2004)

3 SCC 453, the accused was apprehended from a bus with a tin

box in his hand from which the contraband was recovered. The

High Court therein had acquitted the accused on the ground of

non-compliance of Section 50. On the finding that Section 50

60

would apply to the case, the 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 Constitution Bench in Baldev Singh

case. Above being the position, the contention regarding

non-compliance with Section 50 of the Act is also without

any substance.

12. In the case at hand, the contraband articles were

suspected to be hidden in the blue suitcase of the

accused, and was not in his physical possession. The

suitcase was put on the screening machine. This cannot

be equated with a recovery made from the person of the

accused by a personal search.”

61

Test of item being inextricably linked to person

76. This Court gave another interpretation, wherein it said

that the items such as bags or containers which are

“inextricably linked” to the person of the accused should be

included within the ambit of Section 50. As a result, a wider

meaning was given to the word “person”.

77. In Namdi Francis Nwazor v. Union of India reported

in (1998) 8 SCC 534, the luggage of a foreign national was

searched on the basis of some information. Nothing

incriminating was recovered from the hand bags, but narcotics

were recovered from the check-in baggage. Accordingly, he was

charged under the NDPS Act. The petitioner therein pleaded that

there was non-compliance with Section 50 while searching his

baggage. This Court while dismissing the appeal held that as the

bag was not in the immediate possession of the accused, there

was no requirement to comply with Section 50. 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. The relevant observations made by the three-

Judge Bench are as under:-

“3. 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. This position becomes clear when we refer to

Sub-section (4) of Section 50 which in terms says that no

female shall be searched by anyone excepting a female.

This would, in effect, mean that when the person of the

accused is being searched, the law requires that if that

person happens to be a female, the search shall be

carried out only by a female. Such a restriction would not

be necessary for searching the goods of a female which

are lying at a distant place at the 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 has ten 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 non-

compliance 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 is relevant to note

that the Bench was presided over by Dr. A.S. Anand, CJ, who

authored the Constitution Bench decision in Baldev Singh

(supra). In the said matter, four gunny bags were found in an

auto rickshaw, which the accused was driving and no other

person was present. 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. It was held that:-

“12. In the present case, even the appellant has no case

that he was searched by the police party. The place

where the gunny bags were found stacked in the vehicle

was not inextricably connected with the person of the

appellant. Hence it is an idle exercise in this case, on the

fact-situation, to consider whether there was non -

compliance with the conditions stipulated in Section 50 of

the Act.” (Emphasis supplied)

79. Thereafter, in Yasihey Yobin. v. Department of

Customs, Shillong reported in (2014) 13 SCC 344, the test of

an item being “inextricably linked to the person” was laid down

while relying upon Namdi (supra). This Court held that in cases

where the line of separation between the search of a person and

an artificial object is thin and fine, the test of inextricable

connection should be applied and then conclusion should be

reached whether the search was that of a person or not. It was

held that:-

“10. This position in law is settled by the Constitution

Bench in the case of State of Punjab v. Baldev Singh, and

in Megh Singh v. State of Punjab, (2003) 8 SCC 666,

where application of Section 50 is only in case of search

of a person as contrasted to search of premises, vehicles

or articles. 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. The above test has

64

been noticed in the case of Namdi Francis Nwazor v.

Union of India and Anr. (1998) 8 SCC 534, wherein it is

held that if the search is of a bag which is inextricably

connected with the person, Section 50 of the Act will

apply, and if it is not so connected, the provisions will not

apply. It is 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 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 show that the bag from which incriminating

article was recovered had already been checked in and

was loaded in the aircraft. Therefore, it was not at all a

search of a person to which Section 50 may be attracted.

The observations, which was made in the later part of the

judgment (reproduced above), are more in the nature of

obiter as such a situation was not required to be

considered for the decision of the case. No reasons have

65

been given for arriving at the conclusion that search of a

handbag being carried by a person wo uld amount to

search of a person. It may be noted that this case was

decided prior to the Constitution Bench decision in State

of Punjab v. Baldev Singh. After the decision in Baldev

Singh, this Court has consistently held that Section 50

would only apply to search of a person and not to any

bag, article or container, etc. being carried by him.”

(Emphasis supplied)

The term “person” ought to be construed strictly

81. The decision of the larger Bench in Pawan Kumar

(supra) came as a result of a reference by a Division Bench of

this Court in State of H.P. v. Pawan Kumar reported in (2004)

7 SCC 735. In the said matter, opium was recovered from the

accused’s bag upon a search conducted by a constable. The

High Court acquitted the accused as during the search of the

bag, Section 50 was not complied with. Justice Y.K. 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 finding recorded by Justice Sabharwal

are reproduced hereunder:-

“21. The case of the prosecution itself is that the accused

was carrying a bag on his shoulder; opium like smell was

coming from the bag; and the Head Constable informed

the Deputy Superintendent of Police who came to the spot.

Before search, the Deputy Superintendent of Police was

informed of the suspected possession of the opium. 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. On this fact

situation, it cannot be held that the search was not of a

66

person but was of a bag. Both are inextricably connected.

It has to be held that the search was that of the

respondent's person. Clearly, Section 50 of the NDPS Act

was applicable but was not complied. Therefore, the

conviction 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 non-

compliance 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 bench

and came to be decided in Pawan Kumar (supra) wherein the

view taken by Justice Pasayat was affirmed. This Court held that

the term “person” under Section 50 would mean a natural

person or a living unit and not an artificial person i.e., a bag or

a briefcase.

67

84. The case of the prosecution in Pawan Kumar (supra)

was that two head constables namely, Hukum Singh and

Munshi Ram and some police personnel were checking buses at

the bus - stand, Mandi in the night of 18.07.1994. 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. The police

personnel got suspicious and after a chase apprehended him

near the gate of bus stand. They felt smell of opium emitting

from the bag, and, therefore, telephonically informed Prem

Thakur, Deputy S.P./S.H.O., P.S. Sadar, Mandi. Prem Thakur

came to the spot and inquired from the accused whether he

wanted to be searched by police or by a Magistrate. The accused

disclosed his name and expressed his willingness to be searched

by the police. A search of the accused and the bag being carried

by him was then conducted and 360 gms. of opium wrapped in

polythene was found inside the bag.

85. This Court interpreted Section 50 strictly and stated that

the cardinal rule of interpretation of statutes is to read the

statute literally and give the words their grammatical and

natural meaning. In this regard, it was held as under:-

68

“8. One of the basic principles of interpretation of statutes

is to construe them according to plain, literal and

grammatical meaning of the words. If that is contrary to,

or inconsistent with, any express intention or declared

purpose of the Statute, or if it would involve any

absurdity, repugnancy or inconsistency, the grammatical

sense must then be modified, extended or abridged, so

far as to avoid such an inconvenience, but no further. The

onus of showing that the words do not mean what they

say lies heavily on the party who alleges it. 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. page 83-85). In

the well known treatise - Principles of Statutory

Interpretation 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 – 9

th 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, briefcase or container cannot under any circumstance be

69

considered as a person or a part thereof. This Court stated that

one of the tests could be, where in the process of search the

human body comes into contact or shall have to be touched by

the person carrying out the search. If that be so, then it will be

search of a person. However, this Court was quick to clarify that

a bag or briefcase or any such article cannot be interpreted to

mean a person. It was held as under:-

“10. We are not concerned here with the wide definition

of the word “person”, which in the legal world includes

corporations, associations or body of individuals as

factually in these type of cases search of their premises

can be done and not of their person. Having regard to the

scheme of the Act and the context in which it has been

used in the Section it naturally means a human being or

a living individual unit and not an artificial person. The

word has to be understood in a broad common sense

manner and, therefore, not a naked or nude body of a

human being but the manner in which a normal human

being will move about in a civilized society. Therefore, the

most appropriate meaning of the word “person” appears

to be – “the body of a human being as presented to public

view usually with its appropriate coverings and

clothings”. 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. The appropriate

coverings will include footwear also as normally it is

considered an essential article to be worn while moving

outside one's home. Such appropriate coverings or

clothings or footwear, after being worn, move along with

the human body without any appreciable or extra effort.

Once worn, they would not normally get detached from

the body of the human being unless some specific effort

in that direction is made. For interpreting the provision,

rare cases of some religious monks and sages, who,

according to the tenets of their religious belief do not cover

70

their body with clothings, are not to be taken notice of.

Therefore, the word “person” would mean a human being

with appropriate coverings and clothings and also

footwear.

11. A bag, briefcase or any such article or container, etc.

can, under no circumstances, be treated as body of a

human being. They are given a separate name and are

identifiable as such. They cannot even remotely be

treated to be part of the body of a human being.

Depending upon the physical capacity of a person, he

may carry any number of items like a bag, a briefcase, a

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

carton, etc. of varying size, dimension or weight.

However, while carrying or moving along 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 the process of search the human body comes int o

contact or shall have to be touched by the person carrying

out the search, it will be search of a person. Some

indication of this is provided by Sub-section (4) of Section

50 of the Act, which provides that no female shall be

searched by anyone excepting a female. The legislature

has consciously made this provision as while conducting

search of a female, her body may come in contact or may

need to be touched and, therefore, it should be done only

by a female. In the case of a bag, briefcase or any such

article or container, etc., they would not normally move

along with the body of the human being unless some

extra or special effort is made. Either they have to be

carried in hand or hung on the shoulder or back or placed

71

on the head. They can be easily and in no time placed

away from the body of the carrier. 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.

Such objects cannot be said to be inextricably connected

with the person, namely, the body of the human being.

Inextricable means incapable of being disentangled or

untied or forming a maze or tangle from which it is

impossible to get free.” (Emphasis supplied)

87. The larger Bench also relied upon Baldev Singh (supra)

while analysing the scope of Section 50 and held that:-

“13. The scope and ambit of Section 50 of the Act was

examined in considerable detail by a Constitution Bench

in State of Punjab v. Baldev Singh and para 12 of the

reports is being reproduced below:

“12. On its plain reading, Section 50 would come into

play only in the case of a search of a person as

distinguished from search of any premises etc.

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. which he may be carrying.” (Emphasis supplied)

72

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 the ir 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 sha rp difference in the

applicability of Section 50 of the Act. 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. The

same baggage often keeps changing hands if more than

one person are moving together in a group. Such transfer

of baggage at the nick of time when it is about to be

searched would again create practical problem. Who in

such a case would be informed of the right that he is

entitled in law to be searched before a Magistrate or a

gazetted officer? This may lead to many practical

difficulties. A statute should be so interpreted as to avoid

unworkable or impracticable results. In Statutory

Interpretation by Francis Bennion (3

rd Edn.), 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. Sometimes however,

there are overriding reasons for applying such a

construction, for example where it appears that

Parliament really intended it or the literal meaning is

too strong.”

x x x x

26. The Constitution Bench decision in Pooran Mal v. The

Director of Inspection: (1974) 1 SCC 345, was considered

in State of Punjab v. Baldev Singh, and having regard to

the scheme of the Act and especially the provisions of

Section 50 thereof it was held that it was not possible to

hold that the judgment in the said case can be said to

have laid down that the “recovered illicit article” can be

used as “proof of unlawful possession” of the contraband

seized from the suspect as a result of illegal search and

seizure. Otherwise, there would be no distinction between

recovery of illicit drugs, etc. seized during a search

conducted after following the provisions of Section 50 of

the Act and a seizure made during a search conducted in

breach of the provisions of Section 50. 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. 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.”

74

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

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, 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.

90. What is most important to note in Pawan Kumar (supra)

is that the search was not only of the bag, but also of the person

of the accused, however, the contraband was recovered only

from the bag and not from the person of the accused therein.

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.

91. In State of Rajasthan v. Daulat Ram reported in (2005)

7 SCC 36, opium was recovered from a bag being carried on the

accused person’s head. This Court while relying upon Pawan

Kumar (supra) held that the recovery made from the accused

person’s bag would not constitute personal search of the

accused and thus, would not attract Section 50. It was held as

under:-

“9. … In view of the principles laid down in the aforesaid

judgment of this Court, there is no scope for the argument

that in the facts and circumstances of this case, the

provisions of Section 50 of the NDPS Act were attracted.

The judgment and order of the High Court must, therefore,

be set aside."

92. This Court in State of Haryana v. Mai Ram reported in

(2008) 8 SCC 292, while examining the scope of Section 50 held

as under:-

“14. … 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).

15. The language of Section 50 is implicitly (sic explicitly)

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 [(1999) 6 SCC 172]. A similar

76

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. It requires to be

noticed that the question of compliance or non-compliance

of 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, 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. 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 the case of Madan Lal vs. State of Himachal Pradesh

(2003) 7 SCC 465.” (Emphasis supplied)

95. Pawan Kumar (supra) was also relied upon in Jarnail

Singh v. State of Punjab reported in (2011) 3 SCC 521. In the

said case, opium was recovered from a bag which the accused

was carrying. Section 50 was held to be not applicable as

accused was not searched. It was held that:-

“16. This apart, it is accepted that the narcotic/opium, i.e.,

1 kg. and 750 grams was recovered from the bag (thaili)

which was being carried by the appellant. In such

circumstances, Section 50 would not be applicable. The

aforesaid Section can be invoked only in cases where the

drug/narcotic/NDPS substance is recovered as a

consequence of the body search of the accused. In case,

the recovery of the narcotic is made from a container being

carried by the individual, the provisions of Section 50

would not be attracted.” (Emphasis supplied)

96. In Suresh v. State of Madhya Pradesh reported in

(2013) 1 SCC 550, illicit articles were recovered from the

polythene bags placed in a vehicle found to be in the possession

of the accused person upon their personal search. 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. Therefore, this Court gave a restricted interpretation to

Section 50 and held as under:-

“19. Though a portion of the contraband (opium) was

recovered from the vehicle for which Section 50 is not

applicable, if we exclude the quantity recovered from the

vehicle, the remaining would not come within the mischief

of “commercial quantity” 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 the scooter ought to

79

be inadmissible. It is pertinent to note that in this case the

judgement in Pawan Kumar (supra) was not looked into. The

Court held as under:-

“12. Before seizure of the contraband from the scooter,

personal search of appellants had been carried out and,

admittedly, even at that time the provisions of Section 50

of the Act, although required in law, had not been

complied with.

x x x x

15. Indisputably, however, effect of a search carried out

in violation of the provisions of law would have a bearing

on the credibility of the evidence of the official witnesses,

which would of course be considered on the facts and

circumstances of each case.

16. In this case, the provisions of Section 50 might not

have been required to be complied with so far as the

search of scooter is concerned, but, keeping in view the

fact that the persons of the appellants were also

searched, it was obligatory on the part of PW 10 to comply

with the said provisions. It was not done.”

(Emphasis supplied)

99. The decision of Dilip (supra) was relied upon in Union of

India v. 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. Accordingly, the recovery was held to be in violation of

Section 50 and the accused’s acquittal was upheld. It was held

that:-

80

“15. The legal proposition advanced by Mr. Terdal, based

on the distinction between search of someone's person

and the baggage carried by him/her is unexceptionable

but his submission is not supported by the facts of this

case. We have carefully gone through the records of this

case. From the evidence of the complainant, PW 1 and the

seizure memo (fard baramdegi) Ext Ka-2 it is evident that

the two respondents were subjected to a body search in

course of which packets of heroin were found in the

shoulder bags carried by them and were recovered from

there.

16. The facts of the case in hand are very close to

another decision of this Court in Dilip and Anr. v. State of

M.P. where it was observed in paragraphs 12, 15 and 16

as under: …

17. On the facts of the case we find that the alleged

recovery of heroin from the respondents was made in

complete violation of the provisions of Section 50 of the

Act.”

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

81

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 application.” (Emphasis supplied)

101. Parmanand (supra) was relied upon by a three-Judge

Bench in SK. Raju (supra). In the said case, the police received

information that a drug dealer was likely to visit a park. The

accused after being apprehended was searched and was found

to be in possession of 1.5 kgs of charas, which was recovered

from a jute bag he was carrying. 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. It stated that:-

“20. 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. Further, if the

first question is answered in the affirmative, whether the

requirements of Section 50 were strictly complied with by

PW 2 and PW 4.

21. … The appellant agreed to search PW 2 before the

latter carried out his search. On conducting the search,

only personal belongings of PW 2 were found by the

Appellant. On the search of the appellant in the presence

of the gazetted officer, a biscuit-coloured jute bag was

recovered from the Appellant, and Rs. 2400 cash in the

denomination of 24 notes of Rs. 100 each was found in

82

the left pocket of the Appellant's trouser. When the bag

was opened, a black polythene cover containing nineteen

rectangular broken sheets of a blackish/deep brown

colour weighing 1.5 kilograms was recovered. The sheets

were tested and were found to be charas.

22. PW 2 conducted a search of the bag of the appellant

as well as of the appellant's trousers. 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. Since the search of the person of the appellant

was also involved, Section 50 would be attracted in this

case. Accordingly, PW 2 was required to comply with the

requirements of Section 50(1). As soon as the search of a

person takes place, the requirement of mandatory

compliance with Section 50 is attracted, irrespective of

whether contraband is recovered from the person of the

detainee or not. It was, therefore, imperative for PW 2 to

inform the appellant of his legal right to be searched

in the presence of either a 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

83

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 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. In the aforesaid case, poppy husk was recovered from

the accused’s vehicle. This Court, while explaining the object of

Section 50 and relying on the Constitution Bench judgement in

Vijaysinh Chandubha Jadeja (supra), held that:-

“10. Section 50 of the Act affords protection to a person in

matters concerning “personal search” and stipulates

various safeguards. It is only upon fulfilment of and strict

adherence to said requirements that the contraband

recovered pursuant to “personal search” of a person can

be relied upon as a circumstance against the person.

x x x x

84

12. Subsequently, another Constitution Bench of this

Court in Vijaysinh Chandubha Jadeja vs. State of

Gujarat, had an occasion to consider the case from the

standpoint whether the person who is about to be

searched ought to be informed of his right that he could

be searched in the presence of a gazetted officer or a

Magistrate. While considering the said question, this

Court also dealt with the judgment rendered in Baldev

Singh’s case and the discussion in paragraphs 24 and 29

was as under:

“24. 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 a n

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. 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

85

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 that insofar as the obligation of

the authorised officer under sub-section (1) of Section

50 of the NDPS Act is concerned, it is mandatory and

requires strict compliance. Failure to comply with the

provision would render the recovery of the illicit

article suspect and vitiate the conviction if the same

is recorded only on the basis of the recovery of the

illicit article from the person of the accused during

such search. Thereafter, the suspect may or may not

choose to exercise the right provided to him under the

said provision.” (Emphasis supplied)

106. The Court went on to hold that Section 50 would be

applicable only to the personal searches and not to the

searches of vehicles or bags. This was in line with the ratio laid

down in Pawan Kumar (supra) and Baldev Singh (supra).

This Court held that:-

“15. 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.

16. The conclusion (3) as recorded by the Constitution

Bench in Para 57 of its judgment in Baldev Singh clearly

states that the conviction may not be based “only” on the

basis of possession of an illicit article recovered from

personal search in violation of the requirements under

Section 50 of the Act but if there be other evidence on

record, such material can certainly be looked into.

86

17. In the instant case, the personal search of the accused

did not result in recovery of any contraband. Even if there

was any such recovery, the same could not be relied upon

for want of compliance of the requirements of Section 50

of the Act. 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. Any such idea would be

directly in the teeth of conclusion (3) as aforesaid.”

(Emphasis supplied)

107. It is pertinent to note here that in Baljinder Singh

(supra) the decision of SK. 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).

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,

87

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 with. The High Court

held as under:-

“26. It is essential to observe that vide the verdict of the

Hon'ble three Judge Bench of the Hon’ble Supreme Court

dated 05.09.2018 in “SK. Raju alias Abdul Haque alias

Jagga Vs. State of West Bengal” (2018) 9 SCC 708, it has

specifically been observed to the effect that where merely

a bag carried by a person is searched without there being

any search of his person, Section 50 of the NDPS Act,

1985 will have no application but if the personal search

of the accused is also conducted, the provisions of Section

50 of the NDPS Act, 1985 would wholly apply. The verdict

of the Hon'ble Supreme Court dated 15.10.2019 in “State

of Punjab Vs. 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. Though, the Hon'ble

Supreme Court in “State of Punjab Vs. 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 alia Abdul Haque

alias Jagga Vs. State of West Bengal” (supra) dated

05.09.2018 (which are not adverted to in “State of Punjab

Vs. Baljinder Singh and Another ” (supra) dated

15.10.2019) lay down a fine distinction and in these

88

circumstances thus, where the contraband is recovered

from an object which is held by an accused in his hand

and the search of the person of such an accused is also

conducted which lead to no recovery of any contraband,

though, there are recoveries of other personal assets of a

person from his personal search, in view of the judgments

of the Hon'ble Supreme Court in “SK. Raju alia Abdul

Haque alias Jagga Vs. State of West Bengal” (supra), the

non compliance of Section 50 of the NDPS Act, 1985 would

prima facie vitiate the recovery.” (Emphasis supplied)

109. Akhilesh Bharti (supra) referred to above was

considered by a co-ordinate Bench of the Delhi High Court in

Kamruddin v. State (NCT of Delhi) , 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 the NDPS Act.”

(Emphasis supplied)

89

110. It appears that the Delhi High Court laboured under an

erroneous impression that in Pawan Kumar (supra) the search

was only of the bag and not of the accused. However, at the cost

of repetition, we state that in Pawan Kumar (supra) the search

was of both the accused as well as the bag which he was

carrying. This is evident from para 2 of the judgment in Pawan

Kumar (supra) wherein it has been observed as under:-

“2. … A search of the accused and the bag being carried

by him was then conducted and 360 gm of opium

wrapped in polythene was found inside the bag. …”

(Emphasis supplied)

111. In Than Kunwar v. State of Haryana reported in (2020)

5 SCC 260, this Court took a different view. In the said case, the

personal search of the accused did not lead to any recovery.

However, upon conducting the search of the bag, opium was

recovered. This Court acknowledged the divergent views and

noted that the decision of SK. Raju (supra) was not considered

while deciding Baljinder Singh (supra). However, the latter was

applied and was read to be in line with Baldev Singh (supra). It

was held that:-

“22. 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. As

already noticed, we are not oblivious of the observation

which has been made in the other three-Judge Bench

judgment of this Court in SK. Raju (supra), which it

90

appears, was not brought to the notice to the Bench

which decided the case later in Baljinder Singh (supra).

We notice however that the later decision draws

inspiration from the Constitution Bench decision in

Baldev Singh (supra). We also notice that this is not a

case where anything was recovered on the alleged

personal search. The recovery was effected from the

bag for which it is settled law that compliance with

Section 50 of the Act is not required.”

(Emphasis supplied)

112. Baljinder Singh (supra) was followed by this Court in

Kallu Khan v. State of Rajasthan reported in 2021 SCC

OnLine 1223, wherein the search and seizure was made from

the accused’s motorcycle. This Court while holding that the

search cannot be said to be vitiated on account of non -

compliance of Section 50 as the same only applies to a search of

a person, 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)

91

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 containing narcotics being carried by

the accused. This Court rejected the argument that as three

options were given to the accused to get himself searched from

the officer which was in violation of Section 50, the search

conducted, even of the polythene bag, ought to be vitiated. It was

held as under:-

“4. The learned counsel submits that the option given to

the appellant to take a third choice other than what is

prescribed as the two choices under sub-section (1) of

Section 50 of the Act is something which goes contrary to

the mandate of the law and in a way affects the

protection provided by the said section to the accused. To

support his contention, he has relied upon the judgment

of State of Rajasthan v. Parmanand [State of

Rajasthan v. Parmanand, (2014) 5 SCC 345], more

specifically, SCC para 19. The judgment in turn, relied

upon a Constitution Bench judgment of this Court in State

of Punjab v. Baldev Singh [State of Punjab v. 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. The third option stated to be given to the accused

to get himself searched from the Officer concerned not

being part of the statute, the same could not have been

offered to the appellant and thus, the recovery from him

is vitiated.

92

5. In the conspectus of the facts of the case, we find that

the recovery was in a polythene bag which was being

carried on a kanwad. The recovery was not in person. The

learned counsel seeks to expand the scope of the

observations made by seeking to contend that if the

personal search is vitiated by violation of Section 50 of

the NDPS Act, the recovery made otherwise also would

stand vitiated and thus, cannot be relied upon. We cannot

give such an extended view as is sought to be contended

by the learned counsel for the appellant.”

(Emphasis supplied)

FINAL ANALYSIS

114. The only idea with which we have referred to the various

decisions of this Court starting with 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

93

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. Court

was that whether a person can be held guilty for the offence of

burglary more particularly when such person did not enter the

house per se but tried to steal the object with the help of tree

snips. 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

“personal search”. However, in view of plain and unambiguous

statutory provision, there is no scope of interpreting Section 50

in any other manner than the interpretation explained in Baldev

Singh (supra) and Pawan Kumar (supra).

94

115. It is a well-settled principle in law that the Court should

not read anything into a statutory provision which is plain and

unambiguous. A statute is an edict of the legislature. The

language employed in a statute is the determinative factor of the

legislative intent. The first and primary rule of construction is

that the intention of the legislation must be found in the words

used by the legislature itself. The question is not what may be

supposed and has been intended but what has been said. Judge

Learned Hand said, “Statutes should be construed, not as

theorems of Euclid, but with some imagination of the purposes

which lie behind them ”. (See : Lehigh Valley Coal

Co. v. Yensavage, 218 FR 547). The view was reiterated

in Union of India v. Filip Tiago De Gama of Vedem Vasco De

Gama, (1990) 1 SCC 277.

116. In D.R. Venkatchalam v. Dy. Transport

Commissioner, (1977) 2 SCC 273, it was observed that the

Courts must avoid the danger of an a priori determination of the

meaning of a provision based on their own preconceived notions

of ideological structure or scheme into which the provision to be

interpreted is somewhat fitted. They are not entitled to usurp

the legislative function under the disguise of interpretation.

95

117. While interpreting a provision, the Court only interprets

the law and cannot legislate it. If a provision of law is misused

and subjected to the abuse of process 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 more so if literal construction

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of a particular clause leads to manifestly absurd or anomalous

results which could not have been intended by the legislature.

“An intention to produce an unreasonable result” , said

Danckwerts, L.J., in Artemiou v. Procopiou, (1966) 1 QB 878 :

(1965) 3 All ER 539 : (1965) 3 WLR 1011 (CA)] (at All ER p.

544-I), “is not to be imputed to a statute if there is some other

construction available”. Where to apply words literally would

“defeat the obvious intention of the legislation and produce a

wholly unreasonable result”, we must “do some violence to the

words” and so achieve that obvious intention and produce a

rational construction. [Per Lord Reid in Luke v. IRC [1963 AC

557 : (1963) 1 All ER 655 : (1963) 2 WLR 559 (HL)] where at AC

p. 577 he also observed : (All ER p. 664-I) “This is not a new

problem, though our standard of drafting is such that it rarely

emerges.”] (See : Padma Sundara Ra o (Dead) & Ors. v. State

T.N. & Ors., (2002) 3 SCC 533)

119. As such, there is no direct conflict between SK. Raju

(supra) and Baljinder Singh (supra). It is pertinent to note that

in SK. Raju (supra) the contraband was recovered from the bag

which the accused was carrying, whereas in Baljinder Singh

(supra) the contraband was recovered from the vehicle. This

makes a lot of difference even while applying the concept of any

object being “inextricably linked to the person”. Parmanand

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(supra) relied upon the judgment in Dilip (supra) while taking

the view that if both, the person of the accused as well as the

bag is searched and the contraband is ultimately recovered from

the bag, then it is as good as the search of a person and,

therefore, Section 50 would be applicable. However, it is

pertinent to note that Dilip (supra) has not taken into

consideration Pawan Kumar (supra) which is of a larger Bench.

It is also pertinent to note that although in Parmanand (supra)

the Court looked into Pawan Kumar (supra), yet ultimately it

followed Dilip (supra) and took the view that if the bag carried

by the accused is searched and his person is also searched,

Section 50 of the NDPS Act will have application. This is

something travelling beyond what has been stated by the large

Bench in Pawan Kumar (supra). Baljinder Singh (supra), on

the other hand, says that Dilip (supra) does not lay down a

good law.

120. In the facts of the present case, there is no 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.

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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 act ivities 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

ratified. It is, therefore, absolutely imperative that those who

indulge in this kind of nefarious activities should not go scot-

free 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.

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123. This matter reminds us of the observations made by a

seven-Judge Bench of this Court in the case of Keshav Mills

Co. Ltd. v. Commissioner of Income Tax, Bombay North,

Ahmedabad, (1965) 2 SCR 908 : AIR 1965 SC 1636. We quote

the relevant observations:-

“23. In dealing with the question as to whether the earlier

decisions of this Court in the New Jehangir Mills case,

[1960] 1 S.C.R. 249, and the Petlad Co. Ltd. case, [1963] Supp,

1 S.C.R. 871, should be reconsidered and revised by us, we

ought to be clear as to the approach which should be

adopted in such cases. Mr. Palkhivala has not disputed

the fact that in a proper case, this Court has inherent

jurisdiction to reconsider and revise its earlier decisions,

and so, the abstract question as to whether such a power

vests in this Court or not need not detain us. In exercising

this inherent power, however, this Court would naturally

like to impose certain reasonable limitations and would

be reluctant to entertain pleas for the reconsideration and

revision of its earlier decisions, unless it is satisfied that

there are compelling and substantial reasons to do so. It

is general judicial experience that in matters of law

involving questions of construing statutory or

constitutional provisions, two views are often reasonably

possible and when judicial approach has to make a

choice between the two reasonably possible views, the

process of decision making is often very difficult and

delicate. When this Court hears appeals against

decisions of the High Courts and is required to consider

the propriety or correctness of the view taken by the High

Courts on any point of law, it would be open to this Court

to hold that though the view taken by the High Court is

reasonably possible, the alternative view which is also

reasonably possible is better and should be preferred. In

such a case, the choice is between the view taken by the

High Court whose judgment is under appeal, and the

alternative view which appears to this Court to be more

reasonable; and in accepting its own view in preference

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

100

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 its power to review its earlier decisions on

the ground that the view pressed before it later appears

to the Court to be more reasonable, may incidentally tend

to make law uncertain and introduce confusion which

must be consistently avoided. That is not to say that if on

a subsequent occasion, the Court is satisfied that its

earlier decision was clearly erroneous, it should hesitate

to correct the error; but before a previous decision is

pronounced to be plainly erroneous, the Court must be

satisfied with a fair amount of unanimity amongst its

members that a revision of the said view is fully justified.

It is not possible or desirable, and in any case it would be

inexpedient to lay down any principles which should

govern the approach of the Court in dealing with the

question of reviewing and revising its earlier decisions. It

would always depend upon several relevant

considerations:- What is the nature of the infirmity or error

on which a plea for a review and revision of the earlier

view is based? On the earlier occasion, did some patent

aspects of the question remain unnoticed, or was the

attention of the Court not drawn to any relevant and

material statutory provision, or was any previous

decision of this Court bearing on the point not noticed? Is

the Court hearing such plea fairly unanimous that there

is such an error in the earlier view? What would be the

impact of the error on the general administration of law or

on public good? Has the earlier decision been followed on

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subsequent occasions either by this Court or by the High

Courts? And, would the reversal of the earlier decision

lead to public inconvenience, hardship or mischief? These

and other relevant considerations must be carefully borne

in mind whenever this Court is called upon to exercise its

jurisdiction to review and revise its earlier decisions.

These considerations become still more significant when

the earlier decision happens to be a unanimous decision

of a Bench of five learned Judges of this Court.”

(Emphasis supplied)

124. The aforesaid observations made by the seven-Judge

Bench of this Court, more particularly the last three lines

referred to above, “These considerations become still more

significant when the earlier decision happens to be a unanimous

decision of a Bench of five learned Judges of this Court .”

persuade us to say that we must adhere to the principle of law

as explained by the Constitution Bench in Baldev Singh (supra)

and the larger Bench in Pawan Kumar (supra).

125. For all the foregoing reasons, we are of the view that 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.

126. In the result, both the appeals fail and are hereby

dismissed.

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127. Pending application, if any, also stands disposed of

accordingly.

………………………………..J.

( M.M. SUNDRESH )

………………………………..J.

(J.B. PARDIWALA)

NEW DELHI;

OCTOBER 06, 2023