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CASE NO.:

Appeal (crl.) 222 of 1997

PETITIONER:

State of Himachal Pradesh

RESPONDENT:

Pawan Kumar

DATE OF JUDGMENT: 08/04/2005

BENCH:

CJI R.C. Lahoti, G. P. Mathur & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NO.375 OF 2003

State of Rajasthan .. Appellant

-vs-

Bhanwar Lal .. Respondent

G.P. MATHUR, J.

Criminal Appeal No. 222 of 1997

1. In view of difference of opinion between two learned Judges who

heard the appeal, the matter has been placed before this larger bench and the

question for consideration is whether the safeguards provided by Section 50

of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the

NDPS Act' or 'the Act') regarding search of any "person" would also apply

to any bag, briefcase or any such article or container etc., which is being

carried by him.

2. The essential facts of the case, which are necessary for decision of the

appeal, may be stated in brief. According to the case of the prosecution,

Hukum Singh and Munshi Ram, Head Constables and some police personnel

were checking buses at the bus stand, Mandi in the night of 18.7.1994.

While checking a bus at about 8.45 p.m., they noticed that the accused

Pawan Kumar (respondent herein), who was carrying a bag, Ex.P3, slipped

out from the rear door of the bus and thereafter started running towards

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. Two samples of the recovered opium,

each weighing 20 gms. were taken and were sealed separately and a seizure

memo was prepared. On the basis of the Ruka Ex.P8, an FIR was lodged at

the Police Station and thereafter usual investigation followed which

culminated in filing of a charge-sheet against the accused. The leaned

Sessions Judge, Mandi, by the judgment and order dated 26.11.1994

convicted the respondent (accused) under Section 18 of the NDPS Act and

sentenced him to undergo rigorous imprisonment for 10 years and to pay a

fine of Rs.1 lakh. The respondent preferred an appeal against his conviction

and sentence before the High Court of Himachal Pradesh. The High Court

held that the opinion given by the Chemical Examiner regarding the

substance recovered from the bag of the accused could not be treated to be

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opinion of the Chemical Examiner as defined under the Act and the Rules

and, therefore, the same had to be excluded from consideration. It was

further held that the provisions of Section 50 of NDPS Act had not been

complied with while conducting the search of the bag and, therefore,

recovery of opium from the possession of the accused was not established.

On these findings, the appeal was allowed by the judgment and order dated

26.8.1996 and the conviction of the respondent was set aside.

3. The State of Himachal Pradesh preferred the present appeal by special

leave challenging the judgment of acquittal passed by the High Court. The

appeal was initially heard by a Bench of two learned Judges. Hon'ble Y.K.

Sabharwal, J. held that the view taken by the High Court that the report of

the Chemical Examiner could not be taken into consideration was not

correct. The finding recorded by the High Court that the prosecution had

failed to prove that any incriminating substance had been recovered from the

possession of the accused was accordingly reversed. Regarding the

applicability of Section 50 of the NDPS Act, after referring to Namdi

Francis Nwazor v. Union of India & Anr. 1998 (8) SCC 534, His Lordship

held as under :

"The answer to the real question in cases where the

line of separation is thin and fine can be obtained by

applying the test of inextricable connection and then

conclusion reached as to whether the search was that

of a 'person' or not. If the search is of a bag which is

inextricably connected with the person of the accused,

Section 50 of the NDPS Act will apply, and if it is not

so connected, the provisions will not apply .................

..........\005\005\005\005\005\005\005............. The offending article

was found in the bag which accused/respondent was

carrying. The test of inextricable connection between

the person searched and the object recovered is

demonstrably applicable. It cannot be held that

Section 50 has no application merely because the

offending article was in the bag which the accused

was carrying with him."

Finally it was held as under :

"On this fact situation, it cannot be held that the

search was not of a 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."

Hon'ble Arijit Pasayat, J. expressed agreement with the view that the

report of the Chemical Examiner could not be excluded but on the question

of applicability of Section 50 of NDPS Act held that the said provision was

applicable only in the case of a search of a person and not when search of a

bag which is being carried by a person on his shoulder or back is conducted.

His Lordship accordingly held that having regard to the purport and object

of the NDPS Act, the language of Section 50 cannot be given any strained

meaning so as to frustrate the legislative purpose. It was thus held that there

was no infraction of the requirement of Section 50 and the finding to the

contrary recorded by the High Court was clearly wrong. In view of this

difference of opinion, the appeal has been placed before the present Bench.

4. The controversy turns round Section 50 of the NDPS Act and the

same (at the relevant time) read as under :

"50. Conditions under which search of persons

shall be conducted \026 (1) When any officer duly

authorized under section 42 is about to search any

person under the provisions of Section 41, Section 42

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or Section 43, he shall, if such person so requires, take

such person without unnecessary delay to the nearest

Gazetted Officer of any of the departments mentioned

in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may

detain the person until he can bring him before the

Gazetted Officer or the Magistrate referred to in sub-

section (1)

(3) The Gazetted Officer or the Magistrate before

whom any such person is brought shall, if he sees no

reasonable ground for 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. The question, which requires consideration, is what is the meaning of

the words "search any person" occurring in sub-Section (1) of Section 50 of

the Act. Learned counsel for the accused has submitted that the word

"person" occurring in Section 50 would also include within its ambit any

bag, briefcase or any such article or container, etc., being carried by such

person and the provisions of Section 50 have to be strictly complied with

while conducting search of such bag, briefcase, article or container, etc.

Learned counsel for the State has, on the other hand, submitted that there is

no warrant for giving such an extended meaning and the word "person"

would mean only the person himself and not any bag, briefcase, article or

container, etc., being carried by him.

6. The word "person" has not been defined in the Act. Section 2(xxix)

of the Act says that the words and expressions used herein and not defined

but defined in the Code of Criminal Procedure have the meanings

respectively assigned to them in that Code. The Code of Criminal

Procedure, however, does not define the word "person". Section 2(y) of the

Code says that the words and expressions used therein and not defined but

defined in the Indian Penal Code have the meanings respectively assigned to

them in that Code. Section 11 of the Indian Penal Code says that the word

"person" includes any Company or Association or body of persons whether

incorporated or not. Similar definition of the word "person" has been given

in Section 3(42) of the General Clauses Act. Therefore, these definitions

render no assistance for resolving the controversy in hand.

7. 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 \026 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 \026 The Rule of Literal Construction \026

page 78 \026 Ninth ed.). This Court has also followed this principle right from

the beginning. In Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd. AIR 1955

SC 376, S.R. Das, J. said: \026

"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

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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."

A catena of subsequent decisions have followed the same line. It,

therefore, becomes necessary to look to dictionaries to ascertain the correct

meaning of the word "person".

8. The dictionary meaning of the word "person" is as under :

Chambers's Dictionary : An individual; a living soul; a human

being;

b: the outward appearance, & c :

bodily form; a distinction in

form; according as the subject of the

verb is the person speaking, spoken to

or spoken of.

Webster's Third New : An individual human being; a human

International Dictionary body as distinguished from an animal

or thing; an individual having a

specified kind of bodily appearance;

the body of a human being as

presented to public view normally

with its appropriate coverings and

clothings; a living individual unit; a

being possessing or forming the

subject of personality.

Black's Law Dictionary : In general usage, a human being (i.e.

natural person), though by statute

term may include labour

organizations, partnerships,

associations, corporations.

Law Lexicon : The expression 'person' is a noun

by P. Ramanatha Aiyar according to grammar and it means a

character represented as on the stage,

a human being; a self-conscious

personality.

9. 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 commonsense

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 \026 "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

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

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"person" would mean a human being with appropriate coverings and

clothings and also footwear.

10. 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.

11. 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 into 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 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.

12. 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 1999 (6) SCC 172 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 :

57. On the basis of the reasoning and discussion

above, the following conclusions arise:

(1) That when an empowered officer or a duly

authorized officer acting on prior information is

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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.

(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 Section50 of the Act.

\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005...

...................\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

(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 person concerned 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."

13. 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.

14. Learned counsel for the State has referred to large number of

decisions of this Court wherein Section 50 was held inapplicable in the case

of search of some baggage or article etc., which was in immediate

possession or was being carried by the accused. We do not consider it

necessary to burden this judgment by referring to all the authorities cited but

would only give a gist of some of the cases which is as under :

I. Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 (2) SCC 513

\026 This is a decision by a Three Judge Bench presided over by Dr. A.S.

Anand, C.J., who wrote the opinion of the Court in the Constitution

Bench decision in State of Punjab v. Baldev Singh. In this case four

gunny bags were found in an auto rickshaw which the accused was

driving and there was no other person present. The argument based

on non-compliance of Section 50 as explained in the case of Baldev

Singh was rejected on the ground that the gunny bags were not

inextricably connected with the person of the accused.

II. Madan Lal v. State of H.P. 2003 (7) SCC 465 (para 16) \026 It was held

that Section 50 would apply in the case of search of a persona as

contrasted to search of vehicles, premises or articles.

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III. Gurbax Singh v. State of Haryana 2001 (3) SCC 28 \026 Accused got

down from a train carrying a Katta (gunny bag) on his shoulder.

Held that Section 50 was not applicable.

IV. State of Punjab v. Makhan Singh 2004 (3) SCC 453 \026 The accused

was apprehended while alighting from a bus with a tin box in his hand

in which contraband was found. The High Court acquitted the

accused on account of non-compliance of Section 50. On the finding

that Section will not apply, the judgment of the High Court was

reversed and the accused was convicted.

V. Kanhaiya Lal v. State of M.P. 2000 (10) SCC 380 \026 One kg. of opium

was found in a bag which was being carried by the accused. The

argument based on Section 50 was rejected on the ground that it was

not a case of search of the person of the accused.

VI. Birakishore Kar v. State of Orissa 2000 (9) SCC 541 \026 Accused was

found lying on a plastic bag in a train compartment. Argument based

on Section 50 was rejected on the ground that the accused was sitting

on the plastic bag and it was not a case of the search of the person of

the accused.

VII. Krishna Kanwar v. State of Rajasthan 2004 (2) SCC 608 (para 19) \026

Held, Section 50 applies where search has to be in relation to a person

as contrasted to search of premises, vehicles, articles or bag.

VIII. Sarjudas v. State of Gujarat 1999 (8) SCC 508 \026 The accused were

riding a scooter on which a bag was hanging in which charas was

found \026 Section 50 was held not applicable as it was not a case where

the person of the accused was searched.

IX. Saikou Jabbi v. State of Maharahstra JT 2003 (9) SC 609 \026 Heroine

was found in a bag. It was held that Section 50 was not applicable as

it applies to search of a person.

15. Learned counsel for the respondent has placed strong reliance on

Namdi Francis Nwazor v. Union of India & Anr. 1998 (8) SCC 534 which is

a decision by a Bench of three learned Judges. In this case, the accused had

checked in at the Indira Gandhi International Airport for taking the flight

from Delhi to Lagos. A team of the Narcotics Control Bureau, on

suspicion, decided to check his baggage. At the point of time when the

actual search took place, he was carrying two handbags but nothing

incriminating was found therefrom. He had booked one bag which had

already been checked in and was loaded in the aircraft by which he was

supposed to travel. The bag was brought to the customs counter and on

checking 180 gms. of heroine was found therein. The Bench held that on a

plain reading of Sub-section (1) of Section 50, it applies to cases of search of

a person and not to search of any article in the sense that the article is at a

distant place from where the offender is actually searched. After arriving at

the above finding, the Bench also observed - "We must hasten to clarify that

if that person is carrying a handbag or the like and the incriminating article

is found therefrom, it would still be a search of the person of the accused

requiring compliance with Section 50 of the Act. However, when an article

is lying elsewhere and is not on the person of the accused and is brought to a

place where the accused is found, and on search, incriminating articles are

found therefrom it cannot attract the requirements of Section 50 of the Act

for the simple reason that it was not found on the accused person." 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 been given for arriving at the conclusion that

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search of a handbag being carried by a person would 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.

Another judgment relied upon by the learned counsel for the accused

is Beckodan Abdul Rahiman v. State of Kerala JT 2002 (3) Cri.L.J. 2529

(SC). Here 11 gms of opium was found in a polythene bag which had

been concealed in the fold of dhoti which the accused was wearing. This

was clearly a case of search of a persons, as explained above, and Section 50

was rightly held applicable.

16. There is another aspect of the matter, which requires consideration.

Criminal law should be absolutely certain and clear and there should be no

ambiguity or confusion in its application. The same principle should apply

in the case of search or seizure, which come in the domain of detection of

crime. The position of such bags or articles is not static and the person

carrying them often changes the manner in which they are carried. People

waiting at a bus stand or railway platform sometimes keep their baggage on

the ground and sometimes keep in their hand, shoulder or back. The change

of position from ground to hand or shoulder will take a fraction of a second

but on the argument advanced by learned counsel for the accused that search

of bag so carried would be search of a person, it will make a sharp 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 (Third ed.) 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

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."

The learned author has referred to Sheffield City Council v. Yorkshire

Water Services Ltd. (1991) 1 WLR 58 at 71, where it was held as under :

"Parliament is taken not to intend the carrying out of

its enactments to be unworkable or impracticable, so

the court will be slow to find in favour of a

construction that leads to these consequences. This

follows the path taken by judges in developing the

common law. '\005 the common law of England has not

always developed on strictly logical lines, and where

the logic leads down a path that is beset with practical

difficulties the courts have not been frightened to turn

aside and seek the pragmatic solution that will best

serve the needs of society."

While interpreting a provision in the Finance Act , 1972, Lord

Denning in S.J. Grange Ltd. v. Customs and Excise Commissioners (1979) 2

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All ER 91, observed that if the literal construction leads to impracticable

results, it would be necessary to do little adjustment so as to make the

section workable.

17. As pointed out in State of Punjab v. Baldev Singh, drug abuse is a

social malady. While drug addiction eats into the vitals of the society, drug

trafficking not only eats into the vitals of the economy of a country, but

illicit money generated by drug trafficking is often used for illicit activities

including encouragement of terrorism. It has acquired the dimensions of an

epidemic, affects the economic policies of the State, corrupts the system and

is detrimental to the future of a country. Reference in the said decision has

also been made to some United Nation Conventions against illicit trafficking

in narcotic drugs, 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.

18. It will be useful here to take note of the general law regarding search

and seizure and the effect of any illegality committed during the course of

search on the seizure or recovery made of any incriminating article. In State

of Maharashtra v. Natwarlal Damodardas Soni AIR 1980 SC 593, the Anti-

Corruption Bureau had recovered 100 gold bars each weighing 10 tolas

having foreign markings from the residential premises of the accused,

consequent upon which the custom authorities initiated proceedings in which

he was convicted. The contention raised was that the search and seizure of

the gold by the police was illegal. It was held that the police had powers

under the Code of Criminal Procedure to search and seize the gold if they

had reason to believe that a cognizable offence had been committed in

respect thereof. Assuming arguendo that the search was illegal, then also,

it will not affect the validity of the seizure and further investigation by the

custom authorities or the validity of the trial which followed on the

complaint of the Assistant Collector of Customs.

19. In Radha Kishan v. State of U.P. AIR 1963 SC 822, the recovery of

certain articles was challenged on the ground that the search was made in

contravention of Sections 103 and 165 Cr.P.C. The contention was repelled

thus -

"So far as the alleged illegality of the search is

concerned it is sufficient to say that even assuming

that the search was illegal the seizure of the articles is

not vitiated. It may be that where the provision of Ss.

103 and 165, Code of Criminal Procedure, are

contravened the search could be resisted by the person

whose premises are sought to be searched. It may

also be that because of the illegality of the search the

Court may be inclined to examine carefully the

evidence regarding the seizure. But beyond these

two consequences no further consequence ensues."

20. Again in Shyam Lal v. State of M.P. AIR 1972 SC 886, it was held

that even if the search is illegal being in contravention with the requirement

of Section 165 Cr.P.C. that provision ceases to have any application to the

subsequent steps in the investigation. This question has recently been

examined by a Three Judge Bench of this Court in State v. N.M.T. Joy

Immaculate 2004 (5) SCC 729 and the relevant portion of paragraph 14 and

15.1 are being reproduced below :

"\005\005\005\005.The admissibility or otherwise of a piece

of evidence has to be judged having regard to the

provisions of the Evidence Act. The Evidence Act

or the Code of Criminal Procedure or for that matter

any other law in India does not exclude relevant

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evidence on the ground that it was obtained under an

illegal search and seizure. Challenge to a search and

seizure made under the Criminal Procedure Code on

the ground of violation of fundamental rights under

Article 20(3) of the Constitution was examined in

M.P. Sharma v. Satish Chandra AIR 1954 SC 300 by

a Bench of 8 Judges of this Court. The challenge was

repelled and it was held as under :

"A power of search and seizure is in any system

of jurisprudence an over-riding power of the

State for the protection of social security and

that power is necessarily regulated by law.

When the Constitution makers have thought fit

not to subject such regulation to constitutional

limitations by recognition of a fundamental

right to privacy, analogous to the American

Fourth Amendment, we have no justification to

import it, into a totally different fundamental

right, by some process of strained construction.

Nor is it legitimate to assume that the

constitutional protection under Article 20(3)

would be defeated by the statutory provisions

for searches."

15. The law of evidence in our country is modeled

on the rules of evidence which prevailed in English

Law. In Kuruma v. The Queen 1955 AC 197 an

accused was found in unlawful possession of some

ammunition in a search conducted by two police

officers who were not authorised under the law to

carry out the search. The question was whether the

evidence with regard to the unlawful possession of

ammunition could be excluded on the ground that the

evidence had been obtained on an unlawful search.

The Privy Council stated the principle as under :

"The test to be applied, both in civil and in

criminal cases, in considering whether evidence

is admissible is whether it is relevant to the

matters in issue. If it is, it is admissible and the

Court is not concerned with how it was

obtained".

15.1 This question has been examined threadbare

by a Constitution Bench in Pooran Mal v. Director of

Inspection 1974(1) SCC 345 and the principle

enunciated therein is as under :

"If the Evidence Act, 1872 permits relevancy as

the only test of admissibility of evidence, and,

secondly, that Act or any other similar law in

force does not exclude relevant evidence on the

ground that it was obtained under an illegal

search or seizure, it will be wrong to invoke the

supposed spirit of our Constitution for

excluding such evidence. Nor is it open to us to

strain the language of the Constitution, because

some American Judges of the American

Supreme Court have spelt out certain

constitutional protections from the provisions

of the American Constitution. So, neither by

invoking the spirit of our Constitution nor by a

strained construction of any of the fundamental

rights can we spell out the exclusion of

evidence obtained on an illegal search.

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So far as India is concerned its law of

evidence is modeled on the rules of evidence

which prevailed in English Law, and Courts in

India and in England have consistently refused

to exclude relevant evidence merely on the

ground that it is obtained by illegal search or

seizure. Where the test of admissibility of

evidence lies in relevancy, unless there is an

express or necessarily implied prohibition in the

Constitution or other law evidence obtained as

a result of illegal search or seizure is not liable

to be shut out."

21. In the United States the law regarding illegally obtained evidence has

been stated as under in 29 American Jurisprudence 2d (para 408) :

"408. Generally

In criminal prosecutions, in particular, evidence

is frequently obtained by methods that are morally

reprehensible and offensive to fair dealing, under

circumstances which meet with disapprobation of the

courts, and in many instances, by means that are

illegal. However, it is a rule of the common law that

the admissibility of evidence is not affected by the

illegality of the means by which it is obtained, and if

evidence offered in support of a fact in issue is

relevant and otherwise competent, it is generally

admissible, though it may have been obtained

unethically, wrongfully, or unlawfully, unless its

admission will violate a constitutional guaranty of the

person against whom its admission is sought, or is in

contravention of a statutory enactment of the

jurisdiction. Accordingly, the exclusion of evidence

logically relevant in a criminal prosecution can be

justified only by an overriding public policy expressed

in the Constitution or the law of the land. The

underlying principle admitting evidence wrongfully or

illegally obtained is that the objection to an offer of

proof made upon the trial raises no question other than

competency, relevancy, and materiality, and the court

cannot enter upon the trial of collateral issues as to the

source from which the evidence was obtained. It has

also been said that a far-reaching miscarriage of

justice would result if the public were to be denied the

right to use convincing evidence of a defendant's guilt

because it had been brought to light through the

excessive zeal of an individual, whether an officer or

not, whose misconduct must be deemed his own act

and not that of the state. \005\005\005.."

The Fourth Amendment of American Constitution guarantees the

"right of the people to be secure in their persons, houses, papers and effects

and against unreasonable searches and seizures." On the basis of the

aforesaid Constitutional provision, the United States Supreme Court in some

earlier decisions laid down the rule that evidence obtained by means of an

unlawful search and seizure by federal officers is not admissible against an

accused in a criminal prosecution in a federal court where timely objection

to the use of such evidence has been made. However, in Stone v. Powell

428 US 465 the aforesaid view was reversed and it was held that the

application of the rule deflects the truthfinding process and often frees the

guilty. The disparity in particular cases between the error committed by the

police officer and the windfall afforded to a guilty defendant by application

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of the rule is contrary to the idea of proportionality that is essential to the

concept of justice. It was observed that although the rule is thought to deter

unlawful police activity in part through the nurturing of respect for Fourth

Amendment values, if applied indiscriminately it may well have the opposite

effect of generating disrespect for the law and administration of justice.

The Court quoted with approval the following point highlighted by Justice

Black, in his dissenting opinion in an earlier decision rendered in Kaufman

v. United States 394 US 237:

"A claim of illegal search and seizure under the

Fourth Amendment is crucially different from many

other constitutional rights; ordinarily the evidence

seized can in no way have been rendered

untrustworthy by the means of its seizure and indeed

often this evidence alone establishes beyond virtually

any shadow of a doubt that the defendant is guilty."

22. 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 1999 (6) SCC 172 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.

23. Coming to the merits of the appeal, the High Court allowed the appeal

on the finding that the report of the Chemical Examiner had to be excluded

and that there was non compliance of Section 50 of the Act. The learned

Judges of this Court, who heard the appeal earlier, have recorded a

unanimous opinion that the report of the Chemical Examiner was admissible

in evidence and could not be excluded. In view of the discussion made

earlier, Section 50 of the Act can have no application on the facts and

circumstances of the present case as opium was allegedly recovered from the

bag, which was being carried by the accused. The High Court did not

examine the testimony of the witnesses and other evidence on merits.

Accordingly, the matter has to be remitted back to the High Court for a fresh

hearing of the appeal.

24. In the result, the appeal is allowed. The judgment and order dated

26.8.1996 of the High Court is set aside. The appeal preferred by the

respondent Pawan Kumar shall be heard afresh by the High Court in the

light of the findings recorded by this Court and in accordance with law.

Criminal Appeal No. 375 of 2003

According to the case of the prosecution, Ram Niwas, SHO Police

Station Pilibanga received information that the accused who was indulged in

smuggling of opium was standing at the bus stand. A police party reached

the main bus stand at about 7.10 p.m. and found the accused standing with

an attachi in his hand. A written notice was then given to the accused that

his attachi-case will be searched as information has been received that the

same contains opium. He was also asked whether he would like the search

to be conducted before a Magistrate or a Gazetted Officer. This fact was

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also mentioned in the notice. The accused said that he did not want to be

searched before any Magistrate or Gazetted Officer and the SHO could carry

on the search. This statement of the accused was signed by him. The

search of the attachi revealed 5 kgs. of opium. After conducting other

formalities and investigation of the case, the accused was put up for trial.

The learned Sessions Judge convicted the accused under Section 8/18 of the

NDPS Act and sentenced him to 10 years RI and a fine of Rs.1 lakh. The

High Court by a very cryptic judgment held that the provisions of Section 50

of the NDPS Act were not complied with as the accused was not informed of

his right to be searched in presence of a Magistrate or a Gazetted Officer and

accordingly allowed the appeal and set aside the conviction and sentence of

the accused.

For the reasons discussed earlier, the view taken by the High Court

cannot be sustained as it was a case of search of an attachi which was

carried by the accused. The appeal is accordingly allowed and the judgment

and order dated 5.10.2001 of the High Court is set aside. The matter is

remitted back to the High Court for a fresh consideration of the appeal on

merits and in accordance with law.