Case: State of Himachal Pradesh &amp; Another Vs. Pawan Kumar &amp; Another

Criminal Appeal No.375 of 200325. 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 attache in his hand. A written notice was then given to the accused that his attache-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 r a Gazetted Officer. This fact was 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 attache 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.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. Sardar, 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 lodged at the Police Station and thereafter usual investigation followed which culminated in filing of a charge-sheet against the accused. The learned 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 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.e 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. Sardar, 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 lodged at the Police Station and thereafter usual investigation followed which culminated in filing of a charge-sheet against the accused. The learned 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 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 setit was held asthis 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 respondents 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 reachedArijit 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 asConditions under which search of persons shall be conducted - (1) When any officer duly authorized under section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.(4) No female shall be searched by anyone excepting a female."

Reasoning: 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.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 vs. 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 t 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, them 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.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 cases 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.