RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH

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person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived “such requisition”, as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only “if he so requires”, upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act.

63Copy pinpoint63. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. We are of the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that “I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with Section 50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted Officer or Magistrate and I may be searched by the empowered officer.” This would lend more credence to the compliance of Section 50 of the NDPS Act. In other words, it would impart authenticity, transparency and credit worthiness to the entire proceedings. We clarify that this compliance shall henceforth apply prospectively.

64Copy pinpoint64. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:- (i) Section 50 provides both a right as well as an obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate

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if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect. (ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer. (iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate. (iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party. (v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50. (vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate. (vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any offence. (viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start

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applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted. (ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted. (x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings. Whether Section 50 is applicable while searching a bag of the accused?

65Copy pinpoint65. Baldev Singh (supra), discussed above, gave rise to a debate as to what would be included within “search of a person” as stipulated under Section 50. This Court started interpreting the expression giving a literal or strict interpretation of the word “person”, thereby distinguishing the search of a person from that of a bag or vehicle or premises. As a result, even if there was no compliance with Section 50 while searching the accused person’s bag, the evidence of recovery would still be deemed admissible. However, over a period of time, this Court started reading the word “person” in a slightly broader sense so as to mandate that Section 50 be complied with even while conducting a search of anything that is inextricably linked to the accused. As a result, a bag which was being carried by the accused was considered to be inextricably linked to the accused, and therefore, any recovery of a contraband from such a bag without complying with Section 50 would be inadmissible.

66Copy pinpoint66. We shall now look into the various decisions of this Court on the interpretation of Section 50. Section 50 does not cover a bag being carried by the accused

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67Copy pinpoint67. In Kalema Tumba v. State of Maharashtra reported in (1999) 8 SCC 257, 2 kgs of heroin was recovered from a bag belonging to the accused. It was argued that as the requirements under Section 50 were not complied with, the contraband recovered in the course of the search would be inadmissible. This Court, while rejecting such argument and relying upon Baldev Singh (supra), held that Section 50 would not apply to the search of a bag belonging to the accused. The relevant paragraph is as under:- “4. … As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh, wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in Baldev Singh’s case (supra). If a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his “person”. In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate.” (Emphasis supplied)

68Copy pinpoint68. In Sarjudas v. State of Gujarat reported in (1999) 8 SCC 508, the contraband was recovered from a bag which was hanging on the accused’s scooter, which he was riding. This Court while holding the bag not to be included in the “search of the person” held as under:- “4. What is contended by the learned Counsel for the appellant is that the appellants were not informed of their right under Section 50 of the NDPS Act that they were entitled to be examined in presence of a gazetted officer or a Magistrate and, therefore, the search of the appellants was illegal and the evidence regarding recovery of charas from their possession could not have been relied upon.

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5. We do not find any substance in this contention as the charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in State of Punjab v. Baldev Singh” (Emphasis supplied)

69Copy pinpoint69. In Birakishore Kar v. State of Orissa reported in (2000) 9 SCC 541, the contraband was recovered from a plastic bag on which the accused was sitting while travelling in a train. As the body of the accused was not searched, Section 50 was held to be inapplicable. This Court held as under:- “3. What is now contended by the learned counsel for the appellant is that the mandatory requirement of Section 50 of the NDPS Act, 1985, viz., that the person to be searched should be told about his right to be examined in the presence of a Magistrate or a gazetted officer was not complied with in this case. This contention is really misconceived. In this case it was not the person of the appellant which was searched. He was found sitting on a plastic bag which belonged to him and which contained poppy straw. As pointed out by this Court in State of Punjab v. Baldev Singh [(1999) 6 SCC 172], Section 50 would come into play only in the case of search of a person as distinguished from search of any premise etc. As we do not find any substance in this appeal, it is dismissed.” (Emphasis supplied)

70Copy pinpoint70. In Kanhaiya Lal v. State of M.P. reported in (2000) 10 SCC 380, opium was recovered from the bag which was being carried by the accused. Section 50 was not made applicable as it was held that the recovery was made from the bag and not the person, and it was held as under:- “2. The only point raised in this appeal is that the mandatory requirement of Section 50 of the Act was not complied with in this case and therefore the conviction of the appellant is illegal. In our opinion, there is no substance in this contention because 1 kg of opium was not found from the person of the appellant but it was found from a bag which was being carried by the appellant. Therefore, this cannot be said to be a case where on search of the person of the accused, a narcotic drug or psychotropic substance was found. In our opinion,

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the courts below have correctly held that the appellant is guilty of committing the said offence. The appeal is, therefore, dismissed.” (Emphasis supplied)

71Copy pinpoint71. Similarly, in Gurbax Singh v. State of Haryana reported in (2001) 3 SCC 28, the accused therein was apprehended while disembarking from a train carrying a gunny bag containing poppy straw weighing 7 kgs. The counsel for the State therein argued that the procedure under Section 50 was not required to be followed as nothing was recovered from the person. This Court while accepting the said argument and referring to Baldev Singh (supra) held that:- “8. In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right is extension of right conferred under Section 100(3) of the Criminal Procedure Code. Sub-Section (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. Sub- Section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is searched under sub-section (3) a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the NDPS Act would be applicable only in those cases where the search of the person is carried out.” (Emphasis supplied)

72Copy pinpoint72. In Beckodan Abdul Rahiman v. State of Kerala reported in (2002) 4 SCC 229, the contraband had been recovered from a polythene bag hidden in the folds of the dhoti, which the accused was wearing. The Court

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acquitted the accused as Section 50 was not complied with while searching the accused. It was held as under:- “3. … After referring to a host of judgments, the Constitution Bench of the Court held that the provisions of Sections 42 and 50 are mandatory and their non- compliance would render the investigation illegal. It was reiterated that severer the punishment, greater the care to be taken to see that all the safeguards provided in the statute are scrupulously followed. The safeguards mentioned in Section 50 are intended to serve a dual purpose ─ to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. If the empowered officer fails to comply with the requirements of the Section, the prosecution is to suffer for the consequences. The legitimacy of the judicial process may come under the cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. x x x x

5. … Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a gazetted officer or the Magistrate. The compliance of Section 50 is held to have been fulfilled on his (PW 1) asking the accused “whether I should search him in the presence of senior officers or gazetted officer”. The accused was required to be apprised of his right conferred under Section 50 giving him the option to search being made in presence of a gazetted officer or the Magistrate. The accused is not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate.

6. We are of the firm opinion that the provision of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution, which rendered the case as not established. In view of the violation of the mandatory provision of the Act, the appellant was entitled to be acquitted. …” (Emphasis supplied)

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73Copy pinpoint73. In Madan Lal v. State of Himachal Pradesh reported in (2003) 7 SCC 465, the recovery was effected from the search of a bag placed inside the accused person’s car. This Court, while differentiating between the search of a person and a vehicle in terms of the applicability of Section 50, held as under:- “16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (See Kalema Tumba vs. State of Maharashtra and Anr., State of Punjab vs. Baldev Singh, Gurbax Singh vs. State of Haryana). The language of section is implicitly clear that the search has to be in relation to a person as contrast to search of premises, vehicles, or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh’s case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance.” (Emphasis supplied)

74Copy pinpoint74. In State of Punjab v. Makhan Chand reported in (2004) 3 SCC 453, the accused was apprehended from a bus with a tin box in his hand from which the contraband was recovered. The High Court therein had acquitted the accused on the ground of non-compliance of Section 50. On the finding that Section 50 would apply to the case, the judgment of the High Court was reversed and the accused was convicted. It was held that:- “7. Apart from the aforesaid question, we are also of the view that Section 50 of the Act would not apply to a situation where the search undertaken is not of the person of the accused but of something carried in his hand. …” (Emphasis supplied)

75Copy pinpoint75. In another decision of this Court in Saikou Jabbi v. State of Maharashtra reported in (2004) 2 SCC 186, the contraband was recovered from the accused’s suitcase after its screening. This Court held that when the suitcase was searched during the screening, the same cannot be considered to be a personal search of the accused, and held as under:- “11. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. (See Kalema Tumba v. State of

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Maharashtra, State of Punjab v. Baldev Singh and Gurbax Singh v. State of Haryana). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance.

12. In the case at hand, the contraband articles were suspected to be hidden in the blue suitcase of the accused, and was not in his physical possession. The suitcase was put on the screening machine. This cannot be equated with a recovery made from the person of the accused by a personal search.” Test of item being inextricably linked to person

76Copy pinpoint76. This Court gave another interpretation, wherein it said that the items such as bags or containers which are “inextricably linked” to the person of the accused should be included within the ambit of Section 50. As a result, a wider meaning was given to the word “person”.

77Copy pinpoint77. In Namdi Francis Nwazor v. Union of India reported in (1998) 8 SCC 534, the luggage of a foreign national was searched on the basis of some information. Nothing incriminating was recovered from the hand bags, but narcotics were recovered from the check-in baggage. Accordingly, he was charged under the NDPS Act. The petitioner therein pleaded that there was non-compliance with Section 50 while searching his baggage. This Court while dismissing the appeal held that as the bag was not in the immediate possession of the accused, there was no requirement to comply with Section

50. However, this Court went on to elaborate that had the contraband been recovered from the handbags, which were on the person of the accused at the time of the search, Section 50 would have to be complied with. The relevant observations made by the three-Judge Bench are as under:- “3. On a plain reading of sub-section (1) of Section 50, it is obvious that it applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we

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refer to Sub-section (4) of Section 50 which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched, the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended. We must 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. So, on the facts of this case, it is difficult to hold that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case.” (Emphasis supplied)

78Copy pinpoint78. Thereafter, in Abdul Rashid Ibrahim Mansuri v. State of Gujarat reported in (2000) 2 SCC 513, this Court (a three-Judge Bench) adopted a similar approach. It is relevant to note that the Bench was presided over by Dr. A.S. Anand, CJ, who authored the Constitution Bench decision in Baldev Singh (supra). In the said matter, four gunny bags were found in an auto rickshaw, which the accused was driving and no other person was present. The argument based on non-compliance of Section 50 as explained in the case of Baldev Singh (supra) was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused. It was held that:- “12. In the present case, even the appellant has no case that he was searched by the police party. The place where the gunny bags were found stacked in the vehicle was not inextricably connected with the person of the appellant. Hence it is an idle exercise in this case, on

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the fact-situation, to consider whether there was non-compliance with the conditions stipulated in Section 50 of the Act.” (Emphasis supplied)

79Copy pinpoint79. Thereafter, in Yasihey Yobin. v. Department of Customs, Shillong reported in (2014) 13 SCC 344, the test of an item being “inextricably linked to the person” was laid down while relying upon Namdi (supra). This Court held that in cases where the line of separation between the search of a person and an artificial object is thin and fine, the test of inextricable connection should be applied and then conclusion should be reached whether the search was that of a person or not. It was held that:- “10. This position in law is settled by the Constitution Bench in the case of State of Punjab v. Baldev Singh, and in Megh Singh v. State of Punjab, (2003) 8 SCC 666, where application of Section 50 is only in case of search of a person as contrasted to search of premises, vehicles or articles. But in cases where the line of separation is thin and fine between search of a person and an artificial object, the test of inextricable connection is to be applied and then conclusion is to be reached as to whether the search was that of a person or not. The above test has been noticed in the case of Namdi Francis Nwazor v. Union of India and Anr. (1998) 8 SCC 534, wherein it is held that if the search is of a bag which is inextricably connected with the person, Section 50 of the Act will apply, and if it is not so connected, the provisions will not apply. It is when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that the bag was not found on the accused person.

11. In the instant case, the bag is brought by A-2 and the contents of the bag are taken out by him and given for search which is thereafter seized by the officials after having found contraband substance. In such a case the inextricable connection between the search of a person and the bag cannot be established but rather it is only the search of the bag and therefore the search and seizure conducted by the gazetted officer need not comply with the requirements under Section 50 of the Act.” (Emphasis supplied)

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80Copy pinpoint80. However, it is important to note that the law down in Yasihey (supra) is no longer a good law. A three-Judge Bench in State of H.P. v. Pawan Kumar reported in (2005) 4 SCC 350, distinguished Namdi (supra) and held that the observations relied upon in it were obiter on this point. It was held as under:- “16. … The Bench then finally concluded that on the facts of the case Section 50 was not attracted. The facts of the case clearly show that the bag from which incriminating article was recovered had already been checked in and was loaded in the aircraft. Therefore, it was not at all a search of a person to which Section 50 may be attracted. The observations, which was made in the later part of the judgment (reproduced above), are more in the nature of obiter as such a situation was not required to be considered for the decision of the case. No reasons have been given for 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, article or container, etc. being carried by him.” (Emphasis supplied) The term “person” ought to be construed strictly

81Copy pinpoint81. The decision of the larger Bench in Pawan Kumar (supra) came as a result of a reference by a Division Bench of this Court in State of H.P. v. Pawan Kumar reported in (2004) 7 SCC 735. In the said matter, opium was recovered from the accused’s bag upon a search conducted by a constable. The High Court acquitted the accused as during the search of the bag, Section 50 was not complied with. Justice Y.K. Sabharwal agreeing with the High Court’s order held that since the bag was inextricably linked to the accused, Section 50 ought to have been complied with. The finding recorded by Justice Sabharwal are reproduced hereunder:- “21. The case of the prosecution itself is that the accused was carrying a bag on his shoulder; opium like smell was coming from the bag; and the Head Constable informed the Deputy Superintendent of Police who

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came to the spot. Before search, the Deputy Superintendent of Police was informed of the suspected possession of the opium. The testimony of PW 7 is that the person of the accused was then searched by the Deputy Superintendent of Police and on search, bag containing opium was found. On this fact situation, it cannot be held that the search was not of a 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.”

82Copy pinpoint82. Justice Arijit Pasayat while relying upon Gurbax Singh (supra) differed from Justice Sabharwal and held that the non-compliance with Section 50 would not render the recovery as inadmissible as the recovery was from the bag and not from the person of the accused. Justice Pasayat held as under:- “24. Baldev Singh’s case (supra) made the position clear that the said provision has application in case of search of a person. The crucial question would be whether search of a bag carried on the shoulder or back of a person is covered by Section 50. I am of the view that it would not be so. There can be no basis for making a distinction between search of a bag found near a person and a bag carried by him. In Kanhaiya Lal v. State of M.P., (2000) 10 SCC 380, it was held that when a bag carried by the accused is searched, Section 50 has no application. In Gurbax Singh v. State of Haryana, (2001) 3 SCC 28, it was held that when a bag was being carried on the accused’s shoulder, Section 50 has no application.”

83Copy pinpoint83. Accordingly, the matter was referred to a larger bench and came to be decided in Pawan Kumar (supra) wherein the view taken by Justice Pasayat was affirmed. This Court held that the term “person” under Section 50 would mean a natural person or a living unit and not an artificial person i.e., a bag or a briefcase.

84Copy pinpoint84. The case of the prosecution in Pawan Kumar (supra) was that two head constables namely, Hukum Singh and Munshi Ram and some police personnel were checking buses at the bus - stand, Mandi in the night of 18.⁷.1994. While checking a bus at about 8.45 p.m., they noticed that the

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accused Pawan Kumar (respondent accused therein), who was carrying a bag, slipped out from the rear door of the bus and thereafter started running towards the Subzi Mandi side. The police personnel got suspicious and after a chase apprehended him near the gate of bus stand. They felt smell of opium emitting from the bag, and, therefore, telephonically informed Prem Thakur, Deputy S.P./S.H.O., P.S. Sadar, Mandi. Prem Thakur came to the spot and inquired from the accused whether he wanted to be searched by police or by a Magistrate. The accused disclosed his name and expressed his willingness to be searched by the police. A search of the accused and the bag being carried by him was then conducted and 360 gms. of opium wrapped in polythene was found inside the bag.

85Copy pinpoint85. This Court interpreted Section 50 strictly and stated that the cardinal rule of interpretation of statutes is to read the statute literally and give the words their grammatical and natural meaning. In this regard, it was held as under:- “8. One of the basic principles of interpretation of statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter - The Rule of Literal Construction -p. 78 – 9th Edn.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. Raw Cotton Co. Ltd.: (1955) 1 SCR 1369 , S.R. Das, J. said:-

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“The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation.” (Emphasis supplied)

86Copy pinpoint86. The larger Bench also considered the dictionary meanings of the word “person” and held that any article like a bag, briefcase or container cannot under any circumstance be considered as a person or a part thereof. This Court stated that one of the tests could be, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search. If that be so, then it will be search of a person. However, this Court was quick to clarify that a bag or briefcase or any such article cannot be interpreted to mean a person. It was held as under:- “10. We are not concerned here with the wide definition of the word “person”, which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word “person” appears to be – “the body of a human being as presented to public view usually with its appropriate coverings and clothings”. In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one’s home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the

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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 “person” would mean a human being with appropriate coverings and clothings and also footwear.

11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act.

12. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word “search of person”. One of the tests, which can be applied is, where in the process of search the human body comes 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.

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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.” (Emphasis supplied)

87Copy pinpoint87. The larger Bench also relied upon Baldev Singh (supra) while analysing the scope of Section 50 and held that:- “13. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh and para 12 of the reports is being reproduced below: “12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.” The Bench recorded its conclusion in para 57 of the reports and sub- paras (1), (2), (3) and (6) are being reproduced below : x x x x

14. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.” (Emphasis supplied)

88Copy pinpoint88. Accordingly, the Court held that the benefit of Section 50 of the NDPS Act cannot be extended to include bags or articles as the same may lead to an unworkable understanding of the provision. It was held as under:-

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“18. There is another aspect of the matter, which requires consideration. Criminal law should be absolutely certain and clear and there should be no ambiguity or confusion in its application. The same principle should apply in the case of search or seizure, which come in the domain of detection of crime. The position of such bags or articles is not static and the person carrying them often changes the manner in which they are carried. People waiting at a bus stand or railway platform sometimes keep their baggage on the ground and sometimes keep in 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 (3rd Edn.), para 313, the principle has been stated in the following manner : “The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong.” x x x x

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26. The Constitution Bench decision in Pooran Mal v. The Director of Inspection: (1974) 1 SCC 345, was considered in State of Punjab v. Baldev Singh, and having regard to the scheme of the Act and especially the provisions of Section 50 thereof it was held that it was not possible to hold that the judgment in the said case can be said to have laid down that the “recovered illicit article” can be used as “proof of unlawful possession” of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between recovery of illicit drugs, etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section

50. Having regard to the scheme and the language used a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word “person” occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him.” (Emphasis supplied)

89Copy pinpoint89. Thus, in Pawan Kumar (supra) the larger Bench while answering the reference in no uncertain terms stated that “a bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being.” The Court reasoned that a person of varying capacity can carry different items on his or her body but that does not make those items as a part of body. The Court observed, “Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc.” Therefore, Pawan Kumar (supra) concluded

RANJAN KUMAR CHADHA v. 351 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]

that an external article which does not form part of body is outside the ambit of the word “person” occurring in Section 50 of the NDPS Act.

90Copy pinpoint90. What is most important to note in Pawan Kumar (supra) is that the search was not only of the bag, but also of the person of the accused, however, the contraband was recovered only from the bag and not from the person of the accused therein. What we are trying to highlight is that although in Pawan Kumar (supra) the search was of the accused as well as the bag, yet since the recovery of the contraband was only from the bag, this Court took the view that Section 50 would have no application.

91Copy pinpoint91. In State of Rajasthan v. Daulat Ram reported in (2005) 7 SCC 36, opium was recovered from a bag being carried on the accused person’s head. This Court while relying upon Pawan Kumar (supra) held that the recovery made from the accused person’s bag would not constitute personal search of the accused and thus, would not attract Section 50. It was held as under:- “9. … In view of the principles laid down in the aforesaid judgment of this Court, there is no scope for the argument that in the facts and circumstances of this case, the provisions of Section 50 of the NDPS Act were attracted. The judgment and order of the High Court must, therefore, be set aside.”

92Copy pinpoint92. This Court in State of Haryana v. Mai Ram reported in (2008) 8 SCC 292, while examining the scope of Section 50 held as under:- “14. … A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra, State of Punjab v. Baldev Singh and Gurbax Singh v. State of Haryana).

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93Copy pinpoint93. In Balbir Kaur v. State of Punjab reported in (2009) 15 SCC 795, the contraband was recovered from two bags on which the accused was sitting but no personal search was conducted. This Court while holding that Section 50 would not be applicable held as under:- “22. It is also to be noted at this stage that the recovery of poppy husk was made from the bags carried by the appellant, so the submission that there was violation of the provisions of Section 50 is legally untenable.”

94Copy pinpoint94. The aforesaid view was affirmed in the case of Ajmer Singh v. State of Haryana reported in (2010) 3 SCC 746, wherein while searching the shoulder bag of the accused, some contraband was recovered. This Court held that compliance under Section 50 was not warranted and stated as under:- “15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, brief case etc., carried by the person and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or non-compliance of Section 50 of the NDPS Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, brief case, container, etc., does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the Section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res-integra in view of the observations made by this court in the case of Madan Lal vs. State of Himachal Pradesh (2003) 7 SCC 465.” (Emphasis supplied)

95Copy pinpoint95. Pawan Kumar (supra) was also relied upon in Jarnail Singh v. State of Punjab reported in (2011) 3 SCC 521. In the said case, opium was recovered from a bag which the accused was carrying. Section 50 was held to be not applicable as accused was not searched. It was held that:- “16. This apart, it is accepted that the narcotic/opium, i.e., 1 kg. and 750 grams was recovered from the bag (thaili) which was being carried by the appellant. In such circumstances, Section 50 would not be

RANJAN KUMAR CHADHA v. 353 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]

applicable. The aforesaid Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted.” (Emphasis supplied)

96Copy pinpoint96. In Suresh v. State of Madhya Pradesh reported in (2013) 1 SCC 550, illicit articles were recovered from the polythene bags placed in a vehicle found to be in the possession of the accused person upon their personal search. This Court held that though the requirement of Section 50 was not complied with qua the personal search of the accused, yet the provision was inapplicable qua the recovery made from the vehicle. Therefore, this Court gave a restricted interpretation to Section 50 and held as under:- “19. Though a portion of the contraband (opium) was recovered from the vehicle for which Section 50 is not applicable, if we exclude the quantity recovered from the vehicle, the remaining would not come within the mischief of “commercial quantity” for imposition of such conviction and sentence. Taking note of the length of period in prison and continuing as on date and in view of non-compliance with sub- section (1) of Section 50 in respect of recovery of contraband from the appellants, we set aside the conviction and sentence imposed on them by the trial court and confirmed by the High Court.” (Emphasis supplied)

97Copy pinpoint97. Accordingly, Section 50 was read to be understood as applicable only to the personal search of a person and that would not extend to search of a vehicle or a container or a bag. The language of Section 50 was interpreted to include search in relation to a person and not to a search of premises, vehicles or articles. Judgments taking the view that Section 50 must be complied with when search of a bag as well as that of a person is carried out

98Copy pinpoint98. However, in Dilip v. State of M.P. reported in (2007) 1 SCC 450, a contrary view was taken to that of Pawan Kumar (supra). In the said case, Section 50 was not complied with while conducting the search of the person and drugs were recovered from the accused’s scooter. This Court

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while acquitting the accused held that the recovery made from the scooter ought to be inadmissible. It is pertinent to note that in this case the judgement in Pawan Kumar (supra) was not looked into. The Court held as under:- “12. Before seizure of the contraband from the scooter, personal search of appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with. x x x x

15. Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case.

16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the persons of the appellants were also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.” (Emphasis supplied)

99Copy pinpoint99. The decision of Dilip (supra) was relied upon in Union of India v. Shah Alam reported in (2009) 16 SCC 644, wherein packets of heroin were recovered from the accused’s shoulder bag. This Court rejected the argument of the State that Section 50 was not applicable as no further recoveries were made from the person of the accused after the recovery from the bag. Accordingly, the recovery was held to be in violation of Section 50 and the accused’s acquittal was upheld. It was held that:- “15. The legal proposition advanced by Mr. Terdal, based on the distinction between search of someone’s person and the baggage carried by him/her is unexceptionable but his submission is not supported by the facts of this case. We have carefully gone through the records of this case. From the evidence of the complainant, PW 1 and the seizure memo (fard baramdegi) Ext Ka-2 it is evident that the two respondents were subjected to a body search in course of which packets of heroin were found in the shoulder bags carried by them and were recovered from there.

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16. The facts of the case in hand are very close to another decision of this Court in Dilip and Anr. v. State of M.P. where it was observed in paragraphs 12, 15 and 16 as under: …

17. On the facts of the case we find that the alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the Act.”

100Copy pinpoint100. A similar view was taken by a Division Bench of this Court in Parmanand (supra). This Court was called upon to consider whether Section 50 ought to apply when the search of the person and his bag is carried out. This Court held that if the bag is searched without searching the accused, then Section 50 would have no application. However, as a corollary it was held that if the bag carried by the accused is searched along with his search, then Section 50 would be applicable. The relevant portion is as under:- “15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.” (Emphasis supplied)

101Copy pinpoint101. Parmanand (supra) was relied upon by a three-Judge Bench in SK. Raju (supra). In the said case, the police received information that a drug dealer was likely to visit a park. The accused after being apprehended was searched and was found to be in possession of 1.⁵ kgs of charas, which was recovered from a jute bag he was carrying. This Court, while holding that the search was not vitiated as Section 50 was complied with, held that whenever a person and his or her bag is searched, irrespective from where the recovery is made, Section 50 must be complied with. It stated that:- “20. The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person.

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Further, if the first question is answered in the affirmative, whether the requirements of Section 50 were strictly complied with by PW 2 and PW 4.

21. … The appellant agreed to search PW 2 before the latter carried out his search. On conducting the search, only personal belongings of PW 2 were found by the Appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit-coloured jute bag was recovered from the Appellant, and Rs. 2400 cash in the denomination of 24 notes of Rs. 100 each was found in the left pocket of the Appellant’s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish/deep brown colour weighing 1.⁵ kilograms was recovered. The sheets were tested and were found to be charas.

22. PW 2 conducted a search of the bag of the appellant as well as of the appellant’s trousers. Therefore, the search conducted by PW 2 was not only of the bag which the appellant was carrying, but also of the appellant’s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW 2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW 2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. …” (Emphasis supplied)

102Copy pinpoint102. Thus, one view which originated from Dilip (supra) and relied upon in SK. Raju (supra) implied that if a person is searched and along with him or her, his or her bag is also searched, then the benefit of Section 50 should be extended while conducting the personal search of the accused.

103Copy pinpoint103. However, it is pertinent to note that although Pawan Kumar (supra) has been referred to and considered in SK. Raju (supra) yet, the Court in SK. Raju (supra) overlooked the fact that in Pawan Kumar (supra) also the search was not only of the person of the accused but also of his bag. Even in such circumstances, the larger Bench in Pawan Kumar (supra) took the view that Section 50 would not apply if nothing incriminating is

RANJAN KUMAR CHADHA v. 357 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]

recovered from the person of the accused. Thus, there is an apparent conflict between the two decisions. Section 50 not applicable when recovery made from bag, conveyance, etc.

104Copy pinpoint104. A three-Judge Bench in the State of Punjab v. Baljinder Singh reported in (2019) 10 SCC 473 considered the question:- “8. … If a person found to be in possession of a vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements under Section 50 of the Act; but the search of the vehicle results in recovery of contraband material, which stands proved independently; would the accused be entitled to benefit of acquittal on the ground of non-compliance of Section 50 of the Act even in respect of material found in the search of the vehicle?”

105Copy pinpoint105. In the aforesaid case, poppy husk was recovered from the accused’s vehicle. This Court, while explaining the object of Section 50 and relying on the Constitution Bench judgement in Vijaysinh Chandubha Jadeja (supra), held that:- “10. Section 50 of the Act affords protection to a person in matters concerning “personal search” and stipulates various safeguards. It is only upon fulfilment of and strict adherence to said requirements that the contraband recovered pursuant to “personal search” of a person can be relied upon as a circumstance against the person. x x x x

12. Subsequently, another Constitution Bench of this Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat, had an occasion to consider the case from the standpoint whether the person who is about to be searched ought to be informed of his right that he could be searched in the presence of a gazetted officer or a Magistrate. While considering the said question, this Court also dealt with the judgment rendered in Baldev Singh’s case and the discussion in paragraphs 24 and 29 was as under:

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“24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. x x x x

29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer

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under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” (Emphasis supplied)

106Copy pinpoint106. The Court went on to hold that Section 50 would be applicable only to the personal searches and not to the searches of vehicles or bags. This was in line with the ratio laid down in Pawan Kumar (supra) and Baldev Singh (supra). This Court held that:- “15. As regards applicability of the requirements under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to “personal search” and not to search of a vehicle or a container or premises.

16. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based “only” on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into.

17. In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as “personal search” was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.” (Emphasis supplied)

107Copy pinpoint107. It is pertinent to note here that in Baljinder Singh (supra) the decision of SK. Raju (supra) was not looked into, however, the decision

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in the case of Dilip (supra) was considered and held to be not laying down the correct law on the ground that it did not consider the decision of Baldev Singh (supra). This Court held that:- “18. The decision of this Court in Dilip’s case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in said judgment in Dilip’s case is not correct and is opposed to the law laid down by this Court in Baldev Singh and other judgments.” (Emphasis supplied) Settling the conflict between SK. Raju and Baljinder Singh

108Copy pinpoint108. The High Court of Delhi in Akhilesh Bharti v. State reported in 2020 SCC OnLine Del 306 : (2020) 266 DLT 689, had the occasion to look into the cleavage of opinion expressed in Baljinder Singh (supra) and SK. Raju (supra). The High Court therein, noted the thin line of distinction drawn by SK. Raju (supra) where the contraband is recovered from an object which is held by the accused in his hand. In such a situation the High Court held that even if nothing is recovered from the person, Section 50 ought to be complied with. The High Court held as under:- “26. It is essential to observe that vide the verdict of the Hon’ble three Judge Bench of the Hon’ble Supreme Court dated 05.09.2018 in “SK. Raju alias Abdul Haque alias Jagga Vs. State of West Bengal” (2018) 9 SCC 708, it has specifically been observed to the effect that where merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act, 1985 will have no application but if the personal search of the accused is also conducted, the provisions of Section 50 of the NDPS Act, 1985 would wholly apply. The verdict of the Hon’ble Supreme Court dated 15.10.2019 in “State of Punjab Vs. Baljinder Singh and Another” is also a verdict of the Hon’ble three Judge Bench of the Hon’ble Supreme Court in which the personal search of the accused did not result into recovery of any contraband but there was a recovery of contraband effected

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from the vehicle in which the accused persons were seated with one of them being the driver. Though, the Hon’ble Supreme Court in “State of Punjab Vs. Baljinder Singh and Another” (supra) has observed to the effect that the judgment of the Hon’ble Supreme Court in Dilip’s case is not correct and is opposed to the decision to the law laid down by the Hon’ble Supreme Court in Baldev Singh’s and other judgments, the observations in the verdict of the Hon’ble Supreme Court in “S.K. Raju alia Abdul Haque alias Jagga Vs. State of West Bengal” (supra) dated 05.09.2018 (which are not adverted to in “State of Punjab Vs. Baljinder Singh and Another” (supra) dated 15.10.2019) lay down a fine distinction and in these circumstances thus, where the contraband is recovered from an object which is held by an accused in his hand and the search of the person of such an accused is also conducted which lead to no recovery of any contraband, though, there are recoveries of other personal assets of a person from his personal search, in view of the judgments of the Hon’ble Supreme Court in “SK. Raju alia Abdul Haque alias Jagga Vs. State of West Bengal” (supra), the non compliance of Section 50 of the NDPS Act, 1985 would prima facie vitiate the recovery.” (Emphasis supplied)

109Copy pinpoint109. Akhilesh Bharti (supra) referred to above was considered by a co-ordinate Bench of the Delhi High Court in Kamruddin v. State (NCT of Delhi), 2022 SCC OnLine Del 3761, and held as under:- “23. In the decision of S.K. Raju (supra), the Hon’ble Supreme Court has clearly held that since the search of the person of the appellant therein was also involved, therefore, Section 50 of the NDPS Act would be attracted in that case and accordingly the requirement of Section 50(1) of the NDPS Act was insisted.

24. So far as the decision relied upon by learned APP for the state in the case of State of HP Vs. Pawan Kumar is concerned, it is to be stated that in paragraph No. 17 of the decision in the case of S.K. Raju (supra) the Hon’ble Supreme Court has taken note of the decision in the case of Pawan Kumar (supra). The distinction between the two situations has been considered and if a bag, article or container etc. being carried by an accused is subjected to search independently without there being any search of the person of the appellant, the decision in

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the case of Pawan Kumar (supra) would have application. However, in a case where the person of accused is subjected to search along with the search of bag, article or container which he holds in his hand, there is requirement of compliance of Section 50 of the NDPS Act.” (Emphasis supplied)

110Copy pinpoint110. It appears that the Delhi High Court laboured under an erroneous impression that in Pawan Kumar (supra) the search was only of the bag and not of the accused. However, at the cost of repetition, we state that in Pawan Kumar (supra) the search was of both the accused as well as the bag which he was carrying. This is evident from para 2 of the judgment in Pawan Kumar (supra) wherein it has been observed as under:- “2. … A search of the accused and the bag being carried by him was then conducted and 360 gm of opium wrapped in polythene was found inside the bag. …” (Emphasis supplied)

111Copy pinpoint111. In Than Kunwar v. State of Haryana reported in (2020) 5 SCC 260, this Court took a different view. In the said case, the personal search of the accused did not lead to any recovery. However, upon conducting the search of the bag, opium was recovered. This Court acknowledged the divergent views and noted that the decision of SK. Raju (supra) was not considered while deciding Baljinder Singh (supra). However, the latter was applied and was read to be in line with Baldev Singh (supra). It was held that:- “22. Having regard to the judgment by the three-Judge Bench, which directly dealt with this issue, viz., the correctness of the view in Dilip (supra) reliance placed by the appellant on para 16 may not be available. As already noticed, we are not oblivious of the observation which has been made in the other three-Judge Bench judgment of this Court in SK. Raju (supra), which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (supra). We notice however that the later decision draws inspiration from the Constitution Bench decision in Baldev Singh (supra). We also notice that this is not a case where anything was recovered on the alleged personal search. The recovery was effected from the bag

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for which it is settled law that compliance with Section 50 of the Act is not required.” (Emphasis supplied)

112Copy pinpoint112. Baljinder Singh (supra) was followed by this Court in Kallu Khan v. State of Rajasthan reported in 2021 SCC OnLine 1223, wherein the search and seizure was made from the accused’s motorcycle. This Court while holding that the search cannot be said to be vitiated on account of non-compliance of Section 50 as the same only applies to a search of a person, held as under:- “15. Simultaneously, the arguments advanced by the appellant regarding non-compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar (supra) and Baljinder Singh (supra). Considering the facts of this case, the argument of non-compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled.” (Emphasis supplied)

113Copy pinpoint113. Similarly, in a recent judgement, this Court in Dayalu Kashyap v. State of Chhattisgarh reported in (2022) 12 SCC 398, held that an extended view of Section 50 cannot be given to include a polythene bag containing narcotics being carried by the accused. This Court rejected the argument that as three options were given to the accused to get himself searched from the officer which was in violation of Section 50, the search conducted, even of the polythene bag, ought to be vitiated. It was held as under:- “4. The learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-section (1) of Section 50 of the Act is something which

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5. In the conspectus of the facts of the case, we find that the recovery was in a polythene bag which was being carried on a kanwad. The recovery was not in person. The learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by the learned counsel for the appellant.” (Emphasis supplied) FINAL ANALYSIS

114Copy pinpoint114. The only idea with which we have referred to the various decisions of this Court starting with Balbir Singh (supra) till Dayalu Kashyap (supra) is to highlight that Section 50 of the NDPS Act has been tried to be interpreted and understood in many ways. As noted earlier, in some of the decisions of this Court, the concept of “inextricably linked to person” was applied. In other words, if the bag, etc. is in immediate possession of the accused and the search is undertaken of such bag, etc., even then, according

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to those decisions, Section 50 would be applicable. It could legitimately be argued that the interpretation of Section 50 restricting its scope only to the search of a person of the accused would frustrate the object as the apprehension of the person concerned may continue to subsist that he may still be implicated by the police or any other person for more stringent punishment of carrying commercial quantity by getting rid of the rigor of the mandatory provision of Section 50 by implanting the contraband in a vehicle, bag, etc. accompanying the person. What we are trying to convey has been explained in the case of State v. Klein [See : John C. Derrnbachet. al., A Practical Guide to Legal Writing and Legal Method (1994)]. In the said case, the issue before the U.S. Court was that whether a person can be held guilty for the offence of burglary more particularly when such person did not enter the house per se but tried to steal the object with the help of tree snips. The statute clearly declared that for burglary to happen, the defendant should be physically present. In this case, although the defendant never entered the house, yet he did extend his tree snips through the window. The Court held that, “there is no meaningful difference between the snips and his arm because the penetration by the snips was merely an extension of Klein’s person.” Therefore, in the said case, the object which a person was carrying was held to be part of his body. A similar view could also have been adopted while interpreting the term “personal search”. However, in view of plain and unambiguous statutory provision, there is no scope of interpreting Section 50 in any other manner than the interpretation explained in Baldev Singh (supra) and Pawan Kumar (supra).

115Copy pinpoint115. It is a well-settled principle in law that the Court should not read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of the legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. Judge Learned Hand said, “Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them”. (See : Lehigh Valley Coal Co. v. Yensavage, 218 FR 547). The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama, (1990) 1 SCC 277.

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116Copy pinpoint116. In D.R. Venkatchalam v. Dy. Transport Commissioner, (1977) 2 SCC 273, it was observed that the Courts must avoid the danger of an a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp the legislative function under the disguise of interpretation.

117Copy pinpoint117. While interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See : Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5 SCC 515). The legislative casus omissus should not be supplied by judicial interpretative process. The language of Section 50 of the NDPS Act is plain and unambiguous. There is no scope of reading something into it as was done in many decisions of this Court which we have referred to in our judgment.

118Copy pinpoint118. Two principles of construction — one relating to casus omissus and the other in regard to reading the statute as a whole — appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. “An intention to produce an unreasonable result”, said Danckwerts, L.J., in Artemiou v. Procopiou, (1966) 1 QB 878 : (1965) 3 All ER 539 : (1965) 3 WLR 1011 (CA)] (at All ER p.544-I), “is not to be imputed to a statute if there is some other construction available”. Where to apply words literally would “defeat the obvious intention of the legislation and produce a wholly unreasonable result”, we must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC [1963 AC 557 : (1963) 1 All ER 655 : (1963) 2

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WLR 559 (HL)] where at AC p. 577 he also observed : (All ER p. 664-I) “This is not a new problem, though our standard of drafting is such that it rarely emerges.”] (See : Padma Sundara Rao (Dead) & Ors. v. State T.N. & Ors., (2002) 3 SCC 533)

119Copy pinpoint119. As such, there is no direct conflict between SK. Raju (supra) and Baljinder Singh (supra). It is pertinent to note that in SK. Raju (supra) the contraband was recovered from the bag which the accused was carrying, whereas in Baljinder Singh (supra) the contraband was recovered from the vehicle. This makes a lot of difference even while applying the concept of any object being “inextricably linked to the person”. Parmanand (supra) relied upon the judgment in Dilip (supra) while taking the view that if both, the person of the accused as well as the bag is searched and the contraband is ultimately recovered from the bag, then it is as good as the search of a person and, therefore, Section 50 would be applicable. However, it is pertinent to note that Dilip (supra) has not taken into consideration Pawan Kumar (supra) which is of a larger Bench. It is also pertinent to note that although in Parmanand (supra) the Court looked into Pawan Kumar (supra), yet ultimately it followed Dilip (supra) and took the view that if the bag carried by the accused is searched and his person is also searched, Section 50 of the NDPS Act will have application. This is something travelling beyond what has been stated by the large Bench in Pawan Kumar (supra). Baljinder Singh (supra), on the other hand, says that Dilip (supra) does not lay down a good law.

120Copy pinpoint120. In the facts of the present case, there is no scope of applying the ratio of Parmanand (supra) and SK. Raju (supra). At the cost of repetition, we may state that in the case on hand, there is nothing to indicate that the search of the person of the accused was also undertaken along with the bag which he was carrying on his shoulder.

121Copy pinpoint121. We do not propose to say anything further as regards SK. Raju (supra) as well as Baljinder Singh (supra). We adhere to the principles of law as explained by the Constitution Bench in Baldev Singh (supra) and the larger Bench answering the reference in Pawan Kumar (supra).

122Copy pinpoint122. It has been observed in Baldev Singh (supra) that drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but

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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 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.

123Copy pinpoint123. This matter reminds us of the observations made by a seven-Judge Bench of this Court in the case of Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay North, Ahmedabad, (1965) 2 SCR 908 : AIR 1965 SC 1636. We quote the relevant observations:- “23. In dealing with the question as to whether the earlier decisions of this Court in the New Jehangir Mills case, [1960] 1 S.C.R. 249, and the Petlad Co. Ltd. case, [1963] Supp, 1 S.C.R. 871, should be reconsidered and revised by us, we ought to be clear as to the approach which should be adopted in such cases. Mr. Palkhivala has not disputed the fact that in a proper case, this Court has inherent jurisdiction to reconsider and revise its earlier decisions, and so, the abstract question as to whether such a power vests in this Court or not need not detain us. In exercising this inherent power, however, this Court would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving questions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision making is often very difficult and delicate. When this Court hears appeals against decisions of the High Courts and is required to consider the propriety or correctness of the view taken by the High Courts on any point of law, it would be open to this Court to hold that though the view taken by the High Court is reasonably possible, the alternative view which is also reasonably possible is better and should

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be preferred. In such a case, the choice is between the view taken by the High Court whose judgment is under appeal, and the alternative view which appears to this Court to be more reasonable; and in accepting its own view in preference to that of the High Court, this Court would be discharging its duty as a court of appeal. But different considerations must inevitably arise where a previous decision of this Court has taken a particular view as to the construction of a statutory provision as, for instance, Section 66(4) of the Act. When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations:- What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly

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unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court.” (Emphasis supplied)

124Copy pinpoint124. The aforesaid observations made by the seven-Judge Bench of this Court, more particularly the last three lines referred to above, “These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court.” persuade us to say that we must adhere to the principle of law as explained by the Constitution Bench in Baldev Singh (supra) and the larger Bench in Pawan Kumar (supra).

125Copy pinpoint125. For all the foregoing reasons, we are of the view that the High Court was justified in holding the appellant guilty of the offence under the NDPS Act and at the same time, the High Court was also correct in saying that Section 50 of the NDPS Act was not required to be complied with as the recovery was from the bag.

126Copy pinpoint126. In the result, both the appeals fail and are hereby dismissed.

127Copy pinpoint127. Pending application, if any, also stands disposed of accordingly.

Headnotes prepared by: Appeals dismissed. Bibhuti Bhushan Bose Assisted by: Neha Sharma, LCRA