YASIHEY YOBIN Vs DEPT.OF CUS.,SHILLONG
Bench: H.L. DATTU,DIPAK MISRA
Case number: Crl.A. No.-001199-001199 / 2010
Diary number: 26270 / 2009
Advocates: ANU GUPTA Vs
B. KRISHNA PRASAD
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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1199 OF 2010
YASIHEY YOBIN & ANR. ... APPELLANTS
VERSUS
THE DEPARTMENT OF CUSTOMS, SHILLONG ... RESPONDENT
O R D E R
1. This appeal is directed against the judgment and order
passed by the High Court of Judicature of Guwahati at Shillong Bench
in Criminal Appeal No. 5 (SH) of 2006, dated 06.09.2007. By the
impugned judgment and order, the High Court has affirmed the
judgment and order passed by the Special Court (NDPS) in Criminal
(NDPS) No.26 of 2003.
2. The factual matrix of the case in brief is :
The Inspector of Customs working in the office of the
Commissioner of Custom NER, Shillong, PW 11, received information
from the Special Operation Team of Meghalaya Police that Yasihey
Yobin - A1 has stored huge quantity of heroin in his residence. On
receipt of such information, PW4- Inspector of customs PW2-
Inspector and PW7- Superintendent of Police conducted search of the
premises of A1 in the presence of two other independent witnesses.
In the course of search, the heroin though not recovered from A1 but
was recovered from accused No. 2- Lisihey Ngwazah(A2) at the
instance of A1, when A1 instructed his wife to contact A2 asking him
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to get the bag containing heroine. It is when A2 turned up with the
bag that the said bag containing contraband heroin was searched and
seized from A2 by the Custom Officials. Thereafter, necessary steps
were taken to send the duly sealed samples for chemical examination
to the Forensic Science Laboratory and the reports tested positive
for heroin.
3. The appellants were thereafter put to trial before the Special
Court, NDPS. The Trial Court after appreciating the evidence on
record has come to the conclusion that both the accused persons were
in conscious possession of the said contraband substance and
therefore convicted the appellants under Sections 8(C) and 21(C) of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the Act’
for short). Accordingly, Appellant No. 1 was convicted with rigorous
imprisonment of 13 years along with a fine of Rs.1 lakh and in
default, to undergo further imprisonment. The Appellant No. 2 was
convicted with rigorous imprisonment of 10 years along with a fine
of Rs.1 lakh and in default, to undergo further imprisonment.
4. Being aggrieved by the judgment and order passed by the
Trial Court, the appellants had filed appeals before the High Court.
The High Court vide its impugned judgment and order affirmed the
conviction and sentence so passed by the Trial Court. It is the
correctness or otherwise of the judgment and order passed by the
High Court is called in question by the appellants in this appeal.
5. Shri Altaf Ahmad, learned senior counsel appearing for the
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accused Nos.1 and 2 would strenuously contend that there is breach
of Sections 50 and 42 of the Act while search and seizure of
contraband substance by the Customs Officer and, therefore, the
judgment and order passed by the Trial Court and so confirmed by the
High Court requires to be taken exception to by this Court and in
aid of his submission has also taken us through some of the
decisions of this Court.
6. Per Contra, Shri P.P.Malhotra, learned Additional
Solicitor General ably supports the judgment and order passed by the
Trial Court and confirmed by the High Court.
7. At this stage, we intend to clarify that certain
observations made by the High Court is not the correct legal
position but that will not impair the complexion of this appeal.
8. Shri Altaf Ahmad, would submit that there was no recovery
of the contraband goods by the Customs Officer from the possession
of the accused no.1 and secondly, that when accused no.2 was
searched the officers of the department had not complied with the
provisions of Section 50 of the Act.
9. The Trial Court and the High Court while answering the
aforesaid issues have concurrently come to the conclusion that
accused No.2 was not searched by the custom officers but it was only
the bag in possession of A2 containing contraband which was searched
and seized. The language employed “any person” under Section 50 of
the Act would naturally mean a human being or a living individual
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unit and not an artificial person. It would not bring within its
ambit any non-living creature viz.; bags, containers, briefcase or
any such other article. They are given a separate name and are
identifiable as such. They cannot even remotely be treated to be a
part of the body of a human being. The scope and ambit of Section
50 was examined in considerable detail in the case of State of
Haryana v. Suresh, AIR 2007 SC 2245 and in a three judges bench
decision in State of Himachal Pradesh v. Pawan Kumar, 2005 4 SCC
350, wherein it is observed that when a person is not searched, only
the bag, container or the suitcase is searched, the provisions of
Section 50, cannot be pressed into service. The items like bag,
briefcase, or any such article or container, etc. are not a part of
a human being as it would not normally move along with the body of
the human being unless some extra or special effort is made. Either
they have to be carried in hand or hung on the shoulder or back or
placed on the head. In common parlance it could 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. but it
is not possible to include these articles within the ambit of the
word "person" defined in Section 50 of the Act.
10. This position in law is settled by the Constitution Bench
in the case of State of Punjab v Baldev singh, AIR 1999 SC 2378 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
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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. In the instant case, the bag is brought by A2 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.
11. Shri Altaf Ahmad, would further contend that when the
Custom Officers had searched and seized the contraband in the
residence of the accused no.1, the Officers had not complied with
the requirements of Section 42 of the Act.
12. The first impression of ours was that Shri Altaf Ahmad may
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be justified in canvassing the above proposition. But, on a deeper
consideration and after looking into the decision of this Court in
the case of Union of India v. Satrohan, (2008) 8 SCC 313, we see no
merit in the contention canvassed. In the aforesaid decision it is
stated as under :
“It can, thus, be seen that Sections 42 and 43 do not require an officer to be a gazetted officer whereas Section 41(2) requires an officer to be so. A gazetted officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a gazetted officer. The High Court is, thus, right in coming to the conclusion that since the gazetted officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decision in State of Punjab V. Balbir Singh (1994)3 SCC 299, Abdul Rashid Ibrahim Mansure Vs. State of Gujarat (2000) 2 SCC 513 and Beckodan Abdul Rahiman Vs. State of Kerala (2002) 4 SCC 299 on the aspect under consideration or neither relevant nor applicable.”
13. A perusal of Section 42 contemplates two situations. It
contemplates entry into and search of any building, conveyance or
enclosed place in anytime between sunrise and sunset by an officer
authorized under the Act with a reason to believe that any narcotic
substance or any other controlled substance is kept or concealed in
such premises and secondly, if the search is made between the sun-
set and sunrise, the requirement of the proviso to Section 42 is to
be complied with under which the officer authorized under the Act is
to record the grounds of his belief. But if the search is made by an
officer authorized under Section 41(2) of the Act then the said of-
ficer is said to be acting under Section 41(2) and therefore compli-
ance under Section 42 is not necessary at all. This principle is re-
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iterated in the case of M. Prabhulal v. The Assistant Director, Di-
rectorate of Revenue Intelligence, (2003) 8 SCC 449 and in Mohd.
Hussain Farah v. Union of India & Anr.,2001 1 SCC 329, wherein it is
observed that a gazetted officer is an empowered officer and so when
a search is carried out in his presence and under his supervision,
the provision of Section 42 has no application.
14. In view of the observation and the law laid down by this
court, since the search is conducted and the contraband is seized by
a gazetted officer from the residential premises of A1, the proviso
to Section 42(1) of the Act is not attracted.
15. Before concluding, Shri Altaf Ahmad, would submit that
there are serious discrepancies in the investigation done by the
Customs Officers while conducting the search and seizure of the
contraband from the possession of the Accused no.2 in the house of
Accused No.1. In our opinion, the so-called contradictions pointed
out by the learned senior counsel are not fatal to the proceedings.
16. Shri Altaf Ahmad, would submit that the Trial Court in
course of its order has observed that Accused No. 1 is old and is
suffering from several ailments and therefore requests for
modification of the sentence ordered by the Trial Court and so
confirmed by the High Court. We see merit in the submission made by
the learned senior counsel. Keeping this aspect in view, we modify
the sentence of Accused No.1 from 13 years to 10 years. However,
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insofar as the conviction of Accused No.2 is concerned, we are not
inclined to grant any remission and accordingly confirm the judgment
and order passed by the Trial Court and so confirmed by the High
Court and maintain the fine imposed on him. We further direct that
the appellants will surrender after six weeks to serve out the
remaining period of sentence. Their bail bonds stands cancelled.
17. The Criminal Appeal is disposed of accordingly.
Ordered accordingly.
....................J. (H.L. DATTU)
....................J. (DIPAK MISRA)
NEW DELHI; FEBRUARY 20, 2013.