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Issues for consideration:The contention raised was that the High Court erred in holdingthe appellant guilty of offence punishable under Section 20 of theNarcotic Drugs and Psychotropic Substances Act, 1985 (NDPSAct) as Section 50 of the NDPS Act was not complied with. It wascontended that the High Court committed error in recording thefinding that Section 50 of the NDPS Act was not applicable in thepresent case as the recovery of the contraband substance wasnot made as a result of the personal search of the accused buton account of the search of his bag.The issue was whether Section 50 of the NDPS Act was at allapplicable to the present case. The question, therefore, that requiredconsideration was what meaning should be assigned to the phrase“to search any person” occurring in Section 50 of the NDPS Act.Whether the phrase “to search any person” means (a) search ofarticles on the person or body of the person; (b) would includesearch of articles in immediate possession as such bag or otherluggage carried by him or in physical possession of the person tobe searched; (c) would include search of bag or luggage which ispresumed to be in possession of the person even though it maybe lying in a house or railway compartment or at the airport; or(d) whether application of Section 50 could be extended to a caseof search of a place, a conveyance or a house if the accused isphysically present at the time of the search.Narcotic Drugs and Psychotropic Substances Act, 1985 –Search in bag of accused – Applicability of s.50 – What wouldbe included within “search of a person” as stipulated u/s.50 –Term “person” – How to be construed – Whether a bag carriedby the accused can be considered to be inextricably linked tothe accused, and therefore, any recovery of a contraband fromsuch a bag without complying with s.50 would be inadmissible– Interpretation of Statutes.Held: According to Constitution Bench in Baldev Singh case, theprovisions of s.50 will come into play only in the case of personalsearch of the accused and not of some baggage like a bag, articleor container, etc. which he may be carrying – In the three Judgebench decision in Pawan Kumar case, it was held that the term“person” under s.50 would mean a natural person or a living unitand not an artificial person i.e., a bag or a briefcase – The threeJudge Bench in Pawan Kumar case concluded that an externalarticle which does not form part of body is outside the ambit ofthe word “person” occurring in s.50 of the NDPS Act – In view ofplain and unambiguous statutory provision, there is no scope ofinterpreting section 50 in any other manner than the interpretationexplained in Baldev Singh and Pawan Kumar – One must adhereto the principle of law as explained by the Constitution Bench inBaldev Singh and the three Judge Bench in Pawan Kumar – In thefacts and circumstances of the case, the High Court was justifiedin holding the appellant guilty of the offence under the NDPS Actand at the same time, the High Court was also correct in sayingthat s.50 of the NDPS Act was not required to be complied with asthe recovery was from the bag. [Paras 49, 83, 114, 124 and 125]Narcotic Drugs and Psychotropic Substances Act, 1985 –s.50 – Object of:Held: The main object of Section 50 of the NDPS Act is to avoidthe allegation of planting something or fabricating evidence by theprosecution or the authorized officer. [Para 33]Narcotic Drugs and Psychotropic Substances Act, 1985 – s.50– Phrase “to search any person” occurring in s.50 – Meaningof – Code of Criminal Procedure, 1973 – s.100(3).Held : The phrase “to search any person” would mean onlysearch of the body or wearing apparels of such person and inthat case the procedure which is required to be followed wouldbe the one prescribed under Section 50 of the NDPS Act – Incontrast, if search of any building, conveyance or place, includinga public place, is to be carried out, then there is no question offollowing the procedure prescribed under Section 50 – However,when a suspected or arrested person is to be searched, thenthe procedure prescribed under Section 50 comes into operationand the procedure thereunder is required to be followed – Thiscan be seen by referring to Section 100(3) of the CrPC 1973which provides that where any person is reasonably suspected ofconcealing about his person any article for which search shouldbe made, such person may be searched and if such person is awoman, the search shall be made by another woman with strictregard to decency– The concealment which is suspected is on theperson or about his person. [Para 36]Narcotic Drugs and Psychotropic Substances Act, 1985 – s.50– When applicable and when not:Held : Where a police officer is in the normal course of investigationof an offence or suspected offences as provided under theprovisions of CrPC 1973 and in the course of such investigationwhen a search is completed and in that process happens to stumbleupon possession of a narcotic drug or psychotropic substance, thequestion of invoking Section 50 would not arise – One can easilyunderstand that without any prior information as to possessionof any narcotic drug and psychotropic substance, a police officermight have held a search in the course of discharge of his dutiesas contemplated under the provisions of CrPC 1973 and, therefore,it would be well-neigh impossible to state that even under such asituation, the application of Section 50 would get attracted – s.50is applicable only in case of search of person of the suspect underthe provisions of the NDPS Act, and would have no applicationwhere a search was conducted under any other statute in respectof any offence. [Paras 42 and 64]Narcotic Drugs and Psychotropic Substances Act, 1985 –s.50 – Rights of the accused – Right to be informed aboutthe search to be conducted in presence of Gazetted Officeror Magistrate.Held : The person intended to be searched under Section 50 mustbe told in clear and unambiguous words that he has a right to havethe search conducted in presence of either a Gazetted Officer orMagistrate – The person concerned must be made aware of hisright and must be given only two options that have been providedunder the section. [Para 56]Narcotic Drugs and Psychotropic Substances Act, 1985 –s.50 – Accused waiving right to be searched in presenceof Gazetted Officer or Magistrate – Effect of – Whether it isstill mandatory that his search be conducted only before aGazetted Officer or Magistrate:Held : There is no requirement to conduct the search of theperson, suspected to be in possession of a narcotic drug or apsychotropic substance, only in the presence of a Gazetted Officeror Magistrate, if the person proposed to be searched, after beingapprised by the empowered officer of his right under Section 50 ofthe NDPS Act to be searched before a Gazetted Officer or Magistatecategorically waives such right by electing to be searched by theempowered officer – The words “if such person so requires”, asused in Section 50(1) of the NDPS Act would be rendered otiose,if the person proposed to be searched would still be required tobe searched only before a Gazetted Officer or Magistrate, despitehaving expressly waived “such requisition”, as mentioned in theopening sentence of sub-Section (2) of Section 50 of the NDPSAct – In other words, the person to be searched is mandatorilyrequired to be taken by the empowered officer, for the conduct ofthe proposed search before a Gazetted Officer or Magistrate, only“if he so requires”, upon being informed of the existence of his rightto be searched before a Gazetted Officer or Magistrate and notif he waives his right to be so searched voluntarily, and choosesnot to exercise the right provided to him under Section 50 of theNDPS Act – However, even when the suspect being apprised bythe empowered officer of his right under Section 50 of the NDPSAct to be searched before a Gazetted Officer or Magistrate waivessuch right by electing to be searched by the empowered officer,such waiver on the part of the suspect should be reduced intowriting by the empowered officer – To put it in other words, evenif the suspect says that he would not like to be searched before aGazetted Officer or Magistrate and he would be fine if his searchis undertaken by the empowered officer, the matter should not restwith just an oral statement of the suspect – The suspect shouldbe asked to give it in writing duly signed by him in presence ofthe empowered officer as well as the other officials of the squad– This would lend more credence to the compliance of Section50 of the NDPS Act – In other words, it would impart authenticity,transparency and credit worthiness to the entire proceedings. It isclarified that this compliance shall henceforth apply prospectively.[Paras 62, 63]Narcotic Drugs and Psychotropic Substances Act, 1985 –s.50 – Rights of the accused – Right to be informed aboutthe search to be conducted in presence of Gazetted Officeror Magistrate – Manner of communication of such right whenmultiple persons are to be searched.Held: In case of multiple persons to be searched, each of themhas to be individually communicated of their right, and each mustexercise or waive the same in their own capacity – Any joint orcommon communication of this right would be in violation ofSection 50. [Para 64]Narcotic Drugs and Psychotropic Substances Act, 1985 – s.50– Recovery of contraband under NDPS Act during search understatute other than NDPS Act – Whether provisions relating toNDPS Act would apply.Held: Where during a search under any statute other than theNDPS Act, a contraband under the NDPS Act also happens to berecovered, the provisions relating to the NDPS Act shall forthwithstart applying, although in such a situation Section 50 may not berequired to be complied for the reason that search had alreadybeen conducted. [Para 64]Narcotic Drugs and Psychotropic Substances Act, 1985 – s.50– Burden of proof – Defined.Held: The burden is on the prosecution to establish that theobligation imposed by Section 50 was duly complied with beforethe search was conducted. [Para 64]Narcotic Drugs and Psychotropic Substances Act, 1985 –Recovery in violation of s.50 – Consequences of – Whethernon-compliance of s.50 would vitiate the trial.Held: Any incriminating contraband, possession of which ispunishable under the NDPS Act and recovered in violation ofSection 50 would be inadmissible and cannot be relied upon inthe trial by the prosecution, however, it will not vitiate the trial inrespect of the same – Any other article that has been recoveredmay be relied upon in any other independent proceedings. [Para 64]Interpretation of Statutes – Literal rule of interpretation –Explained.Held: It is a well-settled principle in law that the Court shouldnot read anything into a statutory provision which is plain andunambiguous – A statute is an edict of the legislature – Thelanguage employed in a statute is the determinative factor of thelegislative intent – The first and primary rule of construction is thatthe intention of the legislation must be found in the words used bythe legislature itself – The question is not of what may be supposedand has been intended but what has been said. [Para 115]Interpretation of Statutes – Principle of Construction – Casusomissus.Held: A casus omissus cannot be supplied by the Court exceptin the case of clear necessity and when reason for it is found inthe four corners of the statute itself but at the same time a casusomissus should not be readily inferred and for that purpose allthe parts of a statute or section must be construed together andevery clause of a section should be construed with reference tothe context and other clauses thereof so that the construction tobe put on a particular provision makes a consistent enactment ofthe whole statute – This would be more so if literal construction ofa particular clause leads to manifestly absurd or anomalous resultswhich could not have been intended by the legislature.[Para 118] |
