Holding

Section 50 of the NDPS Act is applicable only to a personal search of the accused and not to the search of baggage or containers, so its non‑compliance does not invalidate the conviction.

Summary

The accused, Ranbir, was seized with a plastic bag containing 2 kg of charas after a police search of the bag he was carrying. He was convicted under Section 20 of the NDPS Act, but the High Court set aside the conviction on the ground that Section 50, which mandates a search in the presence of a magistrate or gazetted officer, was not complied with. The Supreme Court held that Section 50 applies only to a personal search of the accused and not to the search of baggage or containers carried by him, thereby rendering the High Court's decision untenable. The Court also clarified that the observations in Nandi Francis Nwazor v. Union of India were obiter dicta and not binding ratio decidendi. Consequently, the conviction was restored and the appeal by the State was allowed.

Issues considered

Whether Section 50 of the NDPS Act is mandatory for searches of baggage carried by an accused.
Whether non‑compliance with Section 50 vitiates a conviction under Section 20 of the NDPS Act.
Whether the observations in Nandi Francis Nwazor v. Union of India constitute ratio decidendi or obiter dicta.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 20, s. 42, s. 50

Subjects

NDPS ActSection 50search of accusedbaggage searchobiter dictaratio decidendimandatory provisiondrug possession

Judgment

A STATE OF HARYANA

RANBIR @ RANA

APRIL 5, 2006

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50--
Applicability of-Held, the requirement under the provision would be
C upp/icable only in a case of personal search of the accused and not in
respect of baggage carried by the accused.

'Obiter dicta' and' Ratio decidende' --Distinction between.

Words and Phrases:

D 'Obiter dicta' and 'decision'--1Heaning of

Respondent-accused was taken into custody by a police party on
suspicion that the plastic bag which he was holding, contained contraband
article. The plastic bag was searched in the presence of Dy. S.P. and a 'pipi'
E containing 'charas' was fonud. Trial court held the accused guilty and
convicted him under Section 20 of Narcotic Drugs and Psychotropic
Substances Act, 1985. High Court allowed the appeal of the accused on the
ground of non compliance of mandatory provision of Section 50 of the Act.

In appeal to this Court respondent-accused contended that in Nandi
F Francis Nwazor case it was held that incriminating article found in the
handbag carried by a person, would still be search of a person attracting
mandatory compliance of Section 50 of the Act; and that in Pawan Kumar's
case it was "\\rongly stated that the above mentioned observations in Nandi
Francis Nwazor case were obiter dicta.

G
-
Allowing the appeal, the Court

HELD : I Section 50 of Narcotic Drugs and Psychotropic Substances
Act, 1985 would be applicable only in a case of personal search of the accused
and not wh1:n it is made in respect of some baggage like a bag, article or

H 864
STA TE OF HARY ANA v. RANBIR@RANA [S.B. SINHA, J.] 865
-- container etc. which the accused at the relevant time was carrying. (868-Al A
State of Punjab v. Baldev Singh, 119991 6 SCC 172, followed.

Himachal Pradesh etc. v. Pawan Kimar, (2005) 4 SCC 250, relied on.

Namdi Francis Nwazor v. Union of India and Anr., (199818SCC,534 B
referred to.

2.1. The observations made in Nandi Francis Nwazor is merely an obiter
and does not constitute a ratio decidendi. The three-judge Bench of this Court
in Pawan Kumar therefore, correctly distinguished the same. (870-H)

2.2. A decision is an authority for what it decides and not what can
c
logically be deduced therefrom. The distinction between a dicta and obiter is
well known. Obiter dicta is more or less presumably unnecessary to the
decision. It may be an expression of a view point or sentiments which has no
binding effect. The statements which are not part of the ratio decidendi
constitute obiter dicta and are not authoritative. (869-G-H; 870-A( D
Additional District Magistrate Jabalpur etc. v. Shivakant Shukla etc.,
(1976] 2 SCC 521; Division Controller, KSRTC v. Mahadeva Shetty and Anr..
'
(2003] 7 SCC 197 and Director ofSe1tlements, A.P. and Ors. v. MR. Apparao
and Anr., (20021 4 SCC 638, relied on.
E
Behrens v. Pertraman Mi/fs, (1957) 2 QB 25, referred to.

CRIMINAL ORIGINAL JURISDICTION : Criminal Appeal No. 650 of
1999.

From the Judgment and Order dated 15.12.1997 of the High Court of F
Punjab and Haryana at Chandigarh in Cr!. No. 715/96.

Rajeev Gaur 'Naseem' and T.V. George for the Appellant

Rishi Malhotra and Prem Malhotra for Kishan Datta for the Respondent.
G

-·-
The Judgment of the Court was delivered by

S.B. SINHA, J. The State of Haryana is in appeal before us from a
judgment and order dated 19.08.1998 of the High Court of Punjab and
Haryana in Criminal Appeal No.715of1996 allowing the appeal preferred by
H
866 SUPREME COURT REPORTS [2006) 3 S.C.R.

A the respondent herein from a judgment of conviction and sentence dated
05.08.1996 passed by the learned Additional and Sessions Judge in Sessions
Case No.37 and Sessions Trial No.118 of 1994 under Sections 20 of the
Narcotic Drugs and Psychotropic Substances Act (for short 'the Act').

The prosecution case against the respondent was as under : .
B
On 15.11.1993 when a police party, comprising of Sub-Inspector Dunger
Singh, Constable Randhir Singh, Head Constable Omkar, Constable Urned
Singh and Head Constable Om Prakash, were proceeding from Bamla to CIA
staff Bhiwani and reached the point on Rohtak-Bhiwani Road near Sanjeev
M. College, the respondent was seen coming from the opposite direction, i.e.,
C from the side of Bhiwani on foot, holding a plastic bag of white colour.
Having seen them, the respondent allegedly turned towards his left side on
the road as a result whereof a suspicion as regard his conduct arose in their
mind. The respondent was, thereafter, taken into custody. A notice was
allegedly served on the respondent by the Sub Inspector to the effect "you
D (accused) have some contraband in your possession and your search is to
be effected in the presence of a gazetted police officer or a magistrate", if he
so desired. The respondent is said to have had no objection if the search
was conducted in presence of a gazetted officer or a magistrate available at
the spot. An intimation was thereafter sent to the DSP, Headquarters,
Bhiwani who reached the spot along with his staff. The respondent was
E allegedly searched in his presence and on a search of the plastic bag, which
the respondent was carrying, a 'pipi' containing 'charas' weighing 2 kg. was
found. The in charge of the police party separated 50 grams of 'charas' by
way of sample of the seized contraband and made a sealed parcel thereof.
Remaining amount of the seized article was said to have been separately
F sealed and the entire property was taken into possession wherefor a recovery
memo. was prepared. The respondent accused could not produce any licence
or permit for possession of the said contraband articles. Therefore a ·ruqa'
was sent to the police station for registration of the case and a formal First
Information Report was lodged.

G On charged of possession of the said contraband article, the respondent
was put on trial.

The learned Sessions Judge found the appellant to be guilty of the said
-
offence and sentenced him to undergo rigorous imprisonment for a period

H
of I 0 years and pay a fine of Rs. 1,00,000. The respondent filed an appeal
-
STATEOFHARYANAv. RANBIR@RANA [S.B. S!NHA,J.) 867
thereagainst before the High Court. A
Before the High Court only contention which was raised was that the
mandatory provision of Section 50 of the Act had not been complied with.
According to the respondent although the article in question was found from
a bag, it was obligatory on the part of the Dy. S.P. to bring it to his notice
that he had a right to be searched by a magistrate or a gazetted officer and B
he having not been informed of his right, the judgment of conviction and
sentence was vitiated in law.

The High Court in its judgment proceeded on the basis that Section 50
of the Act is mandatory in character. It was held :
c
"Reverting to the facts in hand, the notice, Ex.PW-4/A, is very
material. A close reading of this notice only indicates that SI Dungar
Singh had given the option to the appellant by informing him that his
search was to be conducted in the presence of a gazetted police
officer or a magistrate. Beyond that, he notice, Ex.PW-4/A is silent. D
SI Dungar Singh never apprised the appellant that he had the right
to be searched in the presence of a Magistrate or a gazetted officer
as mentioned in Section 42 of the Act. Even the reply, Ex.PW-4/B,
given by the appellant is not in consonance with the provisions of
section 50 of the Act. The reply simply states that the appellant was
ready to give the search in the presence of a Magistrate or a gazetted E
police officer at the spot. Further, the accused has stated vide Ex.PW-
4/B that he had full confidence in the 1.0. Strange enough, the reply
of the appellant has not been attested by HC Randhir Singh or HC
Om Kar who, of course, have attested the notice, Ex.PW-4/A, allegedly
given by SI Dungar Singh. This indicates that PW-4/A, and PW-4/ F
B have been prepared at a different state and, unfortunately, and for
the benefit of the appellant... .. "

The question as regards applicability of Section 50 of the Act need not
detain us for long. We may notice that in view of conflict in the opinions
of different benches as also difference of opinion between two judges of this G
Court in State of Himachal Pradesh v. Pawan Kumar. (2004] 7 SCC 735 the
question was referred to a larger Bench. A three-Judge Bench of this Court
in State of Himachal Pradesh etc. V, Pawan Kumar, (2005] 4 sec 350 relying
on or on the basis of a large number of decisions and in particular the
..- decision of the Constitution Bench of this Court in State of Pwyab v. Baldev
H
868 SUPREME COURT REPORTS [2006] 3 S.C.R.

A Singh, [ 1999] 6 SCC 172 clearly held that Section 50 of the Act would be
applicable only in a case of personal search of the accused and not when it
is made in respect of some baggage like a bag, article or container etc. which
the accused at the relevant time was carrying.

Before us, however, the learned counsel appearing on behalf of the
B respondent placed strong reliance on another three-Judge Bench of this Court
in Namdi Francis Nwa::or v. Union of India and Anr., [1998] 8 SCC 534,
wherein the following observations were made :

"3. On a plain reading of sub-section (I) of Section 50, 1t 1s
obvious that it applies to cases of search of any person and not
c search of any article in the sense that the article 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
D being searched, the law requires that if that person happens to be a
female, the search shall be carried out only by a temale. 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
E position in law that the said artick was not being carried by the
accused on his or her person when apprehended. We must hasten lo
clarifY thal if !hat person is carrying a handbag or !he like and !he
incriminaling article is found there/fom. it would still be a search
of the person of the accused requiring compliance wilh Sec/ion 50
F of !he Ac/. 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 requin:ments 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
G attracted and non-compliance with that provision was fatal to the
prosecution case."

It was urged that this Court in Pawan Kumar (supra) wrongly
distinguished Namdi Francis Nwazor (supra) stating that the observations

H
made therein (underlined by us) were obiter and did not lay down a law.
--
STA TE OF HAR YANA v. RANBlR@RANA [S.B. SINHA, J.] 869
We may at once notice the observations made in Pawan Kumar (supra) A
as regards Namdi Francis Nwazor (supra) which is in the following terms :

."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 B
at all a search of a person to which Section 50 may be attracted. The
observations, which were 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 search of C
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." D
We do not agree with the contention of the learned counsel for the
respondent that in Namdi Francis Nwazor (supra), the observation of this
Court constituted a dicta and not an obiter. The appellant therein was
apprehended at the International Airport, New Delhi. He had already checked
in his baggage. The said baggage was cleared but later on, the same was E
called to the customs counter at the airport and upon examination thereof, it
was found to be containing 153 cartons of tetanus vaccine, which having
been opened, found to be containing 152 cartons of ampoules whereas the
remaining one carton carried a polythene packet containing brown-coloured
powder packet with black adhesive tape, which was suspected to be heroin F
and which was then seized.

It is in that context the court clearly came to the opinion that the
provisions of sub-section (I) of Section 50 was not required to be complied
with. The said conclusion was arrived at, inter alia, upon noticing the
provision of sub-section (4) of Section 50 of the Act. It was, therefore, not G
necessary for the Bench, with utmost respect, to make any further observation.
It was not warranted in the fact of the said case. A decision, it is well-settled,
is an authority for what it decides and not what can logically be deduced
therefrom. The distinction between a dicta and obiter is well known. Obiter
dicta is more or less presumably unnecessary to the decision. It may be an
H
870 SUPREME COURT REPORTS (2006] 3 S.C.R.

A expression of a view point or sentiments which has no binding effect. See
Additivnal District Magistrate, Jabalpur etc. v. Shivakant Shukla etc., [1976)
2 SCC 521. It is also well-settled that the statements which are not part of the
ratio decidendi constitute obiter dicta and are not authoritative. [See Division
Controller. KSRTC v. Mahadern Shetty and Anr., [2003] 7 SCC 197.

B In Director of Settlements, A.P. and Ors .. v. MR. Apparuo and Anr.,
[2002] 4 sec 638, it was held .

" ...... An obiter dictum as distinguished from ratio decidendi is an
observation of the court on a legal question suggested in a case
before it but not arising in such manner as to require a decision. Such ..
c a obiter may not have binding precedent but it cannot be denied that
it is of considerable weight... .."

We may usefully refer to an observation of Delvin J. made in Behrens
v. Pertramun Mills, (1957) 2 QB 25, which is in the following terms:

D ·· .... if the Judge gives two reasons for his decisions, both are binding.
It is not permissible to pick out one as being.supposedly the better
reason and ignore the other one; nor does it matter for this purpose
which comes first and which comes second. But the practice of
making judicial observation obiter is also well established. A judge
E may often give additional reasons for his decision without wishing to
make them part of the ratio decidendi; he may not be sufficiently
convinced of their cogency as to want them to have the full authority
of the precedent, and yet may wish to state them so that those who
later may have the duty of investigating the same point will start with
some guidance. This is the matter which judge himself is alone
F capable of deciding, and any judge who comes after him must ascertain
which course he has adopted from the language used and not by
consulting his own preference."

Although the said observation of Delvin J. has been subjected to some
criticism, it throws some light on the subject; but may not be treated to be
G an authority.
We are satisfied that the observations made in Namdi Francis Nwuzor
(supra) is merely an obiter and does not constitute a ratio decidendi. The
three-judge Bench of this Court in Puwan Kumar (supra), therefore, correctly
H distinguished the same. It was, thus, not necessary for the Bench to follow
r/

STATE OF HAR YANA v. RANBJR@RANA [S.B. SINHA, J.) 871
the judgment of a coordinate bench in Pawan Kumar (supra) as was argued A
by the learned counsel.
'
For the reasons aforementioned, the impugned judgment cannot be
sustained. The judgment of the High Court is, therefore, set aside and that
of the learned Sessions Judge is restored. The appeal is accordingly allowed.

K.K.T. Appeal allowed.