Supreme Court of India
STATE OF HIMACHAL PRADESHversusPAWAN KUMAR
- Citation
- 2005 INSC 193
- Decided
- 8 April 2005
- Disposal
- Appeal(s) allowed
- Bench
- R C LAHOTI
Holding
Section 50 of the NDPS Act is limited to a personal search of the accused and does not apply to the search of bags or other articles carried, so its non‑compliance does not invalidate the conviction.
Summary
The State of Himachal Pradesh appealed against the acquittals of Pawan Kumar in two criminal appeals, challenging the High Courts' findings that Section 50 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act was not complied with during the search of a bag carried by the accused. The Supreme Court examined whether the term "search of person" in Section 50 extends to bags, briefcases or other articles carried by a person. Relying on literal construction and the principle of avoiding impracticable results, the Court held that Section 50 applies only to a personal search of the human body and not to the search of articles that are not inextricably connected with the body. Consequently, the failure to observe Section 50 did not vitiate the recovery of opium or the conviction. The Court also affirmed the admissibility of the chemical examiner's report. Both appeals were allowed, the High Court judgments set aside, and the matters remitted for fresh consideration.
Issues considered
- The scope of Section 50 of the NDPS Act: does "search of person" include search of bags or articles carried by the accused?
- Whether non‑compliance with Section 50 vitiates the seizure of contraband and the conviction.
- The admissibility of the chemical examiner's report in the evidence.
Legislation cited
- Code of Criminal Procedures. 103, s. 165
- General Clauses Acts. 3(42)
- Indian Evidence Act, 1872
- Indian Penal Code, 1860s. 11
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 41, s. 42, s. 43, s. 50
Subjects
NDPS ActSection 50search of personstatutory interpretationliteral constructioninextricable connectionillegal searchevidence admissibilitycontraband seizure
Judgment
STATE OF HIMACHAL PRADESH A
v.
PAWAN KUMAR
APRIL 8, 2005
-· [R.C. LAHOTI, CJ., G.P. MATHUR AND
P.K. BALASUBRAMANY AN, JJ.]
B
Narcotic Drugs and Psychotropic Substances Act, 1985-Se9tion 50-
Applicability of-Held: The provision is applicable only in the case ofpersonal C
search of the accused and not of any bag, briefcase, article or container; etc.,
being carried by him-Contra interpretation would lead to many practical
difficulties-A statute should be so interpreted as to avoid unworkable or
impracticable results.
Interpretation of Statutes-Literal construction-Held: Statutes should D
be construed according to plain, literal and grammatical meaning of the
words-Onus of showing that the words do not mean what they say lies
heavily on the party who alleges it. ·
Words and Phrases :
"Search of person" and "person "-Meaning of -In context to Section E
S.50(/) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
"lnextricable"-Meaning of
The question for consideration in the present appeals is as to whether
the safeguards provided by Section 50 of the Narcotic Drugs and F
Psychotropic Substances Act, 1985 (the NDPS 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.
Allowing the appeals and remitting back the same to High Court,
the Court
G
HELD : 1. 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. (428-G)
State of Punjab v. Baldev Singh, (1999) 6 SCC 172, followed.
417
H
418 SUPREME COURT REPORTS [2005] 3 S.C.R.
A Namdi Francis Nwazor v. Union of India and Anr., 11998) 8 SCC 534
and Beckodan Abdul Rahiman v. State of Kera/a, JT (2002) 3 Cri. L.J. 2529
SC, distinguished
Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 1200012SCC513;
Madan Lal v. State of H.P., 12003) 7 SCC 465; Gurbax Singh v, State of
B Haryana, {2001) 3 SCC 28; State of Punjab v. Makhan Singh, [2004) 3 sec
453; Kanhaiya Lal v. State of MP., [2000) 10 SCC 380; Birakishore Kar v.
. I ,
State ofOrissa, [2000) 9 SCC 541; Krishna Kanwar v. State of Rajasthan,
12004) 2 SCC 608; Sarjudas v. State of Gujarat, [1999] 8 SCC 508 and
Saikou Jabbi v. State of Maharahstra~ JT (2003) 9 SC 609, referred to.
c • 2.1. 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
D inodified, 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 ~n 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 le.ad to some manifest absurdity.
[424-E, F]
E
· Jugalkishore Sarafv. Mis Raw Cotton Co. Ltd., AIR (1955) SC 376,
relied on.
Principles ofStatutory Interpretation by Justice G.P. Singh; Craies on
F Statute Law, Seventh ed. pages 83-85; Chambers's Dictionary; Webster's
Third New International Dictiona1y; Black's Law Dictionary and Law Lexicon
by P. Ramanatha Aiyar, referred to.
2.2. Having regard to the scheme of the NDPS Act and the context
in which the word "person" has been used in the Section it naturally means
G 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 word "person" would mean a human bting with
H appropriate coverings and cloth.ings and also footwear. [426-B-C-E)
STATE OF HIMACHAL PRADESH v. PAW AN KUMAR 419
3. A bag, briefcase or any such article or container, etc. can, under A
no circumstances, be treated as body of a human being. It is not possible
to include these articles within the ambit of the word "person" occurring
in Section 50 of the Act. [426-F-Hl
4. An incriminating article can be kept concealed in the body or
clothings or.coverings in different manner or in the footwear. While B
---...
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 C
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 D
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 E
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.
[427-A-D]
F
5.1. Moreover, 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 onarticles 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 G
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 advan.ced
by 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 H
420 SUPREME COURT REPORTS [2005] 3 S.C.R.
A Act. (431-D-El
5.2. After receiving information, an officer empowered under Section
42 of the Act, may proceed to search the kind of baggage of a person which
may have been placed on the ground, but ifat that very moment when he
may be about to open it, the person lifts the bag or keeps it on his shoulder
B 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. The question
as to who in such a case would be informed of the right that he is entitled
C in law to be searched before a Magistrate or a Gazetted Officer may lead
to many practical difficulties. A statute should be so interpreted as to avoid
unworkable or impracticable results. (431-F-H)
State of Maharashtra v. Natwarlal Damodardas Soni, AIR (1980) SC
593; Radha Kishan v. State of UP., AIR (1963) SC 822; Shyam Lal v. State
D of MP., AIR (1972) SC 886; State v. N.MT. Joy Immaculate, (2004) 5 SCC
729 and Pooran Mal v. The Director of Inspection, [1974) l SCC 345,
referred to.
Sheffield City Council v. Yorkshire Water Services Ltd., (1991).l WLR
58; SJ. Grange Ltd v. Customs and Excise Commissioners, (1979) 2 All ER
E 91 and Kaufman v. United States, 394 US 237, referred to.
Statutory Interpretation by Francis Bennion (Third ed) para 3 I 3,
referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 222
p of 1997.
.From the Judgment and Order dated 26.8.96 of the. Himachal Pradesh
High Court at Assam in Cr!. A. No. 2 of 1995.
WITH
Cr!. A. No. 375 of 2003.
G
J.S. Attri, Addi. Advocate General for State of HimachalPradesh, L.R.
Rath for the Appellant in Crl. A. No. 222/97.
Aruneshwar Gupta, Addi. Advocate General for State of Rajasthan,
Naveen Kumar Singh and Ms. Shivangi for the Appellant in Crl. A. No. 375/
H 2003.
STATEOFHIMACHALPRADESH v. PAW AN KUMAR [G.P. MATHUR, J] 421
Ms. Nanita Shanna, Vivek Sharma and Janesh Singh for the Respondent A
in Crl.A. No. 222/97.
Ms. Madhurima Tatia and Indra Makwana for the Respondent in Crl.A.
No. 375/2003.
The Judgment of the Court was delivered by B
- G.P. MATHUR, J. Criminal Appeal No. 222 of 1997
I. 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 C
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 D
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 E
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 F
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 G
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
I 0 years and to pay a fine of Rs. l lakh. The respondent preferred an appeal H
422 SUPREME COURT REPORTS (2005] 3 S.C.R.
A against his conviction and sentence before the High Court ofHimachal 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
B 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.
C 3. The State ofHimachal 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
D 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 and Anr., [1998] 8 SCC 534, His Lordship held as under :
"The answer to the real question in cases where the line of separation
E 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 ofa 'person' or not. If the search is ofa bag which is in~xtricably
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
F apply ........................................ The offending article was found in
the bag which accused/respondent was carrying. The test of inextricable
c<;mnection between the pcrrson 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.''
G
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,
H Section 50 of the NDPS Act was applicable but was not complied.
STATE OF HIMACHAL PRADESH v. PAW AN KUMAR [G.P. MA THUR, J.] 423
Therefore, the· conviction of the respondent could not be sustained A
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 B
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 C
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 ofpersons shall be conducted-
D
(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. E
(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 (I)
(3) The Gazetted Officer or the Magistrate before whom any such
·
person is brought shall, if he sees no reasonable ground for search,
F
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 G
of the words "search any person" occurring in sub-Section (I) 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 H
424 SUPREME COURT REPORTS (2005] 3 S.C.R.
A 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~
B 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 I'
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
C 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
D resoiving 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
E
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
F 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
G something in the context or in the object of the Statute to suggest the contrary
(See the Chapter - The Rule of Literal Construction-page 78 - Ninth ed.).
This Court has also followed this principle right from the beginning. In
Jugalkishore Saraf v. Mis Raw Cotton Co. Ltd., AIR (1955) SC 376, S.R.
Das, J. said :
H
STATEOFHIMACHALPRADESH v. PAW AN KUMAR[G.P. MATHUR,J.] 425
"The cardinal rule of construction of statutes is to read the statute A
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 B
- interpretation."
A catena of subsequent decisions have followed the same line; It,
therefore, becomes necessary to look to. dictionaries to asc.;ertain the correct
meaning of the word "person".
8. The dictionary meaning of the word "person" is as under : c
Chambers's Dictionary An individual; a living soul; a human
being;
b: the outward appearance, & c : bodily D
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 E
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 F
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. G
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. H
426 SUPREME COURT REPORTS [2005] 3 S.C.R.
A 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 fontext in whic~ it has been .used in the Section it naturally means
a huma~ being _or a living individual unit and not an artificial person. The
B 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 "the body of
a human being as presented to public view usually with its appropriate
C coverings and. clothings". In a civillzed 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 footwe;lr also as normally it is considered
an essential article to be worn while moving outside one's home. Such
appropriate coverings or cl!)things or footwear, after being worn, move along
D 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
E not to be taken notice of. Therefore, the word "person" would mean a human
being with appropriate coverings and clothings and also footwear.
IO. 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
F 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 req~ired. They would have
G 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.
H
STATEOFHIMACHALPRADESH v. PAWANKUMAR[G.P. MATHUR,].) 427
11. An incriminating article can be kept concealed in the body or A
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 t~e
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 B
...,.- 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 C
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 D
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 E
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 p
premises etc. However, if the empowered officer, without any prior
information as contemplated by Section 42 of the Act makes a ~~arch
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." G
- The Bench recorded its conclusion in para 57 of the reports and sub-
paras (l), (2), (3) and (6) are being reproduced below :
57. On the basis of the reasoning and discussion above, the following
conclusions arise : H
428 SUPREME COURT REPORTS [2005] 3 S.C.R.
A (1) That when an empowered officer or a duly authorized 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 ( l) of Section 50 of bei11g taken to the nearest
gazetted officer or the nearest Magistrate for making the search.
However, such information may not necessarily be in writing.
B
(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
c 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,
D where the conviction has be~n 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.
E
(6) That in the context in which the protection has been incorporated
in Section 50 for the benefit of the person intended to be searchf:d,
we do not express any opinion whether the provisions of Section
50 are mandatory or directory, but hold that failure to inform the
F person concerned of his right as emanating from sub-section ( l)
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
G 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
H decisions of this Court wherein Section 50 was held inapplicable in the case
STATE OF HIMACHALPRADESH v. PAW AN KUMAR[G.P. MATHUR,J] 429
of search of some baggage or article etc., which was in immediate possession A
" 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 - This is a decision by a Three Judge Bench presided B
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 C
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) - 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.
Q
III. Gurbax Singh v. State of Haryana, (2001] 3 SCC 28 Accused
~
got down from a train carrying a Katta (gunny bag) on his
1 shoulder. Held that Section 50 was not applicable.
---
IV. State of Punjab v. Makhan Singh, [2004] 3 SCC 453 - The E
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.
F
v. Kanhaiya Lal v. State of MP., [2000] IO SCC 380 - 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 - 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
G
of the person of the accused.
VII. Krishna Kanwar v. State of Rajasthan, [2004] 2 SCC 608 (para H
.430 SUPREME COURT REPORTS [2005] 3 S.C.R.
A 19) - 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 - The accused
were riding a scooter on which a bag was hanging in which
B charas was found 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 -
Heroine was found in a bag. It was held that Section 50 was not
applicable as it applies to search of a person.
c 15. Learned counsel for the respondent has placed strong reliance on
Namdi FrancisNwazor v. Union of India and 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,
D 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
E 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 ifthat person is carrying a handbag
or the like and the incriminating article is found therefrom, it would still be
F 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
G 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
H more in the nature of obiter as such a situation was not required to be
STATEOFHIMACHALPRADESH '" PAWANKUMAR[G.P.MATHUR,J.] 43]
considered for the decision of the case. No reasons have been given for A
arriving at the conclusion that 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, B
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 ofKera/a, 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 C
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. D
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 o:r railway platform sometimes keep their baggage on
the ground and sometimes keep in their hand, shoulder or back. The change E
of position from ground to hand or shoulder wiH 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 ofa person, it will make a sharp difference
in the applicability of Section 50 of the Act. After receiving infonnation, 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 F
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, Sect~on 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 G
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 : H
..
r
432 SUPREME COURT REPORTS [2005] 3 S.C.R.
r
A "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 Pariiament really intended it or the literal meaning is too strong."
B 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
C· follows the path taken by judges in developing the common law. '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."
n·
While interpreting a pr_ovision in the Finance Act , 1972, Lord Denning
in S.J. Grange Ltd. v. Customs and Excise Commissioners, (1979] 2 All ER ,I
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. c'-
~-r
E 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
F 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
G 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
•
-4
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.
H In State of Maharashtra v. Natwarlal Damodardas Soni, AIR (1980) SC 593,
~
STATEOFHIMACHAL PRADESH v. PAWANKUMAR[G.P. MATHUR, J.] 433
the Anti-Corruption Bureau had recovered 100 gold bars each weighing 10 A
to las 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 B
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 UP., AIR (1963) SC 822, the recovery
c
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 D
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. I 03
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 E
the seizure. But beyond these two consequences no further
consequence ensues."
20. Again in Shyam Lal v. State of MP., AIR (1972) SC 886, it was
held that even if the search is illegal being in contravention with the F
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 1S.1 are being reproduced· below :
G
" ......... The admissibility or otherwise of a piece of evidence has to be
-· judged having regard to the provisions of the Evidence Act. cThe
Evidence Act or the Code of Criminal Procedure or for that matter
any other law in India does not exclude relevant 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 H
434 SUPREME COURT REPORTS · [2005) 3 S.C.R. _,
A Code on the ground of violation offundamental tights under Article
20(3) of the Constitution was examined in MP. 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
B an over-riding power of the State for the protection of social
security and that power is necessarily regulated by Jaw. 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 I:
11
Amendment, we have no justification to import it, into a totally
c different fundamental right, by some proce.ss of strained
construction. Nor is it legitimate to assume that the constitutional L
protection under Article 20(3) would be defeated by the statutory Il
provisions for searches." ..
15. The law of evidence in our country is modeled on the rules of
D evidence which prevailed in English Law. In Kuruma v. The Queen,
(1955) AC 197 an accused was found in unlawful possession of some
. I-
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
E ammunition could be excluded on the ground ~at the evidence had
been obtained on an unlawful search. The Privy Council stated tlle
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
F relevant to the matters in issue. If it is, it is admissible and the
Court is not concerned with how it was obtained".
15. This question has been examined threadbare by a Constitution
Bench in Pooran Mal v. Director of InspectiiJn, [1974) 1 SCC 345
and the principle enunciated therein is as under :
G "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
H for excluding such evidence. Nor is it open to us to strain the
STATEOFH1MACHALPRADESH v. PAW AN KUMAR[G.P. MATHUR,J.] 435
language of the Constitution, because some American Judges of A
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. B
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 relev~nt 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
C
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 . D
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 E
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 F
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 G
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 H
436 SUPREME COURT REPORTS [2005) 3 S.C.R.
A 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 th~ excessive zeal
of an individual, whether an officer or not, whose misconduct must
be deemed his own act and not that of the state ... "
B 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
C 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 ofthe 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
D windfall afforded to a guilty defendant by application 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 --.
E 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
F
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
G Inspection, [1974] l 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
H search and seizure. Otherwise, there would be no distinction between recovery
STATE OF H!rviACHAL PRADESH v. PAW AN KUMAR [G.P. MATHUR, J.) 437
of illicit drugs, etc. seized during a search conducted after following the A
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 infonn the person concerned of his
right as emanating from sub-Section (I) of Section 50 may render the recovery B
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
c
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 D
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 E
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 tile
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. p
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 G
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 also
H
438 SUPREME COURT REPORTS [2005] 3 S.C.R.
A 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
B sentenced him to 10 years RI and a fine of Rs. 1 !akh. 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. i
c 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
D in accordance with law.
B.B.B. Appeals allowed.
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