Page 1

Crl. A. No. 1563 of 2010

NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1563 OF 2010

Krishan Kumar …..  Appellant  (s)

Versus

State of Haryana …..  Respondent (s)

J U D G M E N T

A.K. SIKRI, J.

1.That  the  present  statutory  appeal  is  directed  against  the  

impugned order dated 23.3.2010 whereby the High Court has  

convicted the appellant by reversing the judgment of the Trial  

Court, which had acquitted the appellant of the charges under  

Section 18 of the Narcotic Drugs and Psychotropic Substances  

Act, 1985 (hereinafter referred to as the 'Act').

2.As per the case of the prosecution, on 15.9.1992 the appellant  

1

Page 2

Crl. A. No. 1563 of 2010

was  spotted  by  the  police  party  headed  by  Sub-Inspector,  

Mohinder  Singh  at  Bus  Stand  Ratta  Khera.  At  that  time,  the  

appellant was having a plastic bag in his hand. On seeing the  

police  party,  appellant  had  tried  to  conceal  his  presence  by  

sitting near the water tank on the pretext of passing urine. The  

appellant was apprehended on suspicion and notice (Ext. P-A)  

under Section 50 of the Act was served upon him seeking his  

consent as to whether he wanted his search to be made in the  

presence of a Gazetted Officer or a Magistrate. The reply of the  

appellant to the notice is Ex. P-A/1 whereby he desired that the  

plastic bag, which he was carrying, be searched in the presence  

of  a  Magistrate.  Thereupon  Chet  Ram,  Tehsildar  (PW-2)  was  

summoned to  the  place of  recovery and in  his  presence the  

search  of  the  bag  of  the  appellant  was  conducted.  Opium  

weighing 5 Kgs. was found in the bag which was in possession  

of the appellant. After separating a sample weighing 50 grams,  

the sample and the remaining opium were separately sealed  

with the seal bearing impression 'MS'., which was entrusted to  

Khema Ram, Chaukidar, who had joined in the police party from  

2

Page 3

Crl. A. No. 1563 of 2010

Bus Stand, Ratta, Khera.  

3.After  the  trial,  the  appellant  was  convicted  of  the  charge  

under  Section  18  of  the  Act  vide  judgment  dated  08.6.1995  

passed by the Trial Court.  

4.The appellant appealed against his conviction. The appeal was  

decided on 29.1.1999 by the High Court. The conviction was set  

aside on a technical ground and the matter was remitted back  

to the Trial Court. It will be pertinent to mention here that the  

said appeal was allowed primarily on the ground that it was not  

clear as to whether Chet Ram, Tehsildar in whose presence the  

search  of  the  bag  of  the  appellant  was  conducted,  was  

discharging the duties of a Magistrate as well or not. As pointed  

out above,  when the appellant  was served with notice under  

Section 50 of the Act seeking his consent about his search he  

had desired that he be searched in the presence of a Magistrate.  

It is on this request that Chet Ram, Tehsildar was summoned.  

The contention of the appellant before the High Court was that  

Chet Ram was not discharging the duties of a Magistrate and,  

3

Page 4

Crl. A. No. 1563 of 2010

therefore, there was violation of Section 50 of the Act. Since this  

aspect was not examined while convicting the appellant of the  

aforesaid offence, the appeal was allowed and the matter was  

remitted back. This is clear from the following order passed by  

the High Court:

“Resultantly,  the  appeal  is  allowed.  The  judgment  and  order  of  the  Trial  Court  stand  set  aside  and  directions are given to the Trial Court to recall Chet  Ram and get an elucidation from him as to whether  he was discharging the duties of a Magistrate on the  date of the recovery of opium or not. Prosecution will  also be at liberty to lead such evidence in support of  their  case  in  order  to  show  that  Chet  Ram  was  bestowed  with  powers  of  Magistracy.  The  accused  will  also have the liberty to lead such evidence to  rebut the case of the prosecution.”

5.After  the  remand,  the  statement  of  Chet  Ram  (PW-2)  was  

recorded afresh by the Trial Court. The opportunity was given to  

the prosecution as well as the appellant to produce additional  

evidence. In support of its case that Chet Ram was conferred  

with  the  duties  of  an  Executive  Magistrate  as  well,  the  

prosecution  produced  photostat  copy  of  the  Haryana  

Government Notification No. 21/39/78-JJ(4) Part II published on  

4

Page 5

Crl. A. No. 1563 of 2010

16.6.1982 (Ex. P-X) whereby all  the Tehsildars in the State of  

Haryana were appointed as Executive Magistrates and affidavit  

of  Chet  Ram,  Tehsildar-cum-Executive  Magistrate  dated  

25.6.1999 was placed on record.  

6.The  Trial  Court  after  recording  the  additional  evidence  as  

aforesaid, considered the matter again and this time it passed  

judgment  dated  14.12.1999  acquitting  the  appellant.  The  

reason for acquittal was that the prosecution could not prove  

that Chet Ram was discharging the duties as a Magistrate on  

the  date  of  recovery  of  opium.  The  photocopy  of  Gazette  

Notification dated 16.6.1982 (Ex. P-X) was not acted upon by  

the Trial Court on the ground that the original Notification was  

not produced for perusal.  

7.The State filed an appeal against the aforesaid judgment. The  

High Court vide impugned judgment has rejected the contention  

of  the  appellant  and  reversed  the  finding  of  the  Trial  Court,  

holding that it was not right for the Trial Court to discard the  

said  Notification  only  on  the  ground  that  original  was  not  

5

Page 6

Crl. A. No. 1563 of 2010

produced, when there was no reason for the Trial Court to doubt  

the authenticity of the said Notification. It was, more so, when  

Chet Ram had even filed his affidavit dated 25.6.1999 stating  

that he had been promoted from the post of Naib Tehsildar to  

the post of Tehsildar in May, 1983.  

8.In  the  aforesaid  backdrop,  the  High  Court  analysed  the  

testimony  of  Chet  Ram and  other  witnesses  to  come to  the  

conclusion that recovery of the contraband from the bag of the  

appellant  was  proved  by  the  prosecution.  This  analysis  is  

summed up by the High Court in the following manner:-

“In  this  case,  Assistant  Sub-Inspector  Guriya  Ram  (PW1),  Chet  Ram,  Tehsildar-cum-Executive  Magistrate (PW2) and Sub-Inspector Mohinder Singh  (PW3)  had appeared in  support  of  the prosecution  case. No ill will or animosity is attributed on the part  of  any  of  the  three  witnesses  examined  by  the  prosecution  qua  the  accused.  The  recovery  was  effected  by  the  police  officials  in  the  discharge  of  their  official  duties  and  they  had  no  axe  to  grind  against  the  accused.  There  was no reason for  the  police to plant 5 Kgs.  of  opium upon the accused.  Under  the  circumstances,  the  non-examination  of  Chaukidar Khema Ram, who had joined in the police  party,  does  not  in  any  manner  render  the  prosecution case unworthy of credit. The statements  of the official  witnesses cannot be rejected merely  

6

Page 7

Crl. A. No. 1563 of 2010

because  of  their  official  status.  In  fact,  no  discrepancy  worth  the  name  was  noticed  in  the  statements  of  Assistant  Sub-Inspector  Guriya  Ram  (PW1), Tehsildar-cum-Executive Magistrate Chet Ram  (PW2) and Sub Inspector Mohinder Singh (PW3).”

9.Resultantly,  the High Court allowed the appeal of the State  

and  convicted  the  appellant  under  Section  18  of  the  Act,  

sentencing him to undergo rigorous imprisonment of 10 years  

and to pay fine of Rs. 1 lakh. It is also directed that in default of  

payment  of  fine,  the appellant  shall  undergo further  rigorous  

imprisonment for 1 year.  

10.Mr. Tripurari Rai, learned Counsel appearing for the appellant  

tried to persuade us to restore the findings of the Trial  Court  

holding that the prosecution could not prove that Chet Ram was  

discharging the duties of Executive Magistrate as well. Referring  

to the provisions of Section 50 of the Act his submission was  

that these provisions were mandatory in nature. In the instant  

case, when the appellant had specifically chosen to get himself  

searched in the presence of the Magistrate and the search was  

not  conducted  in  the  presence  of  the  Magistrate,  mandatory  

7

Page 8

Crl. A. No. 1563 of 2010

requirement of Section 50 of the Act had been violated and it  

should have resulted in the acquittal of the appellant.  

11.We are of the opinion that entire argument is misdirected. In  

fact, the exercise undertaken by the Courts below viz. whether  

Chet Ram was discharging the duties of Executive Magistrate or  

not  was  totally  irrelevant  as  Section  50  of  the  Act  has  no  

application in the present case. Section 50 of the Act, which is  

the sheet anchor of the appellant's defence reads as under:

“50. Conditions under which search of persons shall  be conducted.

(1) When  any  officer  duly  authorised  under  Section  42  is  about  to  search  any  person  under  the  provisions  of  Section  41,  Section  42  or  Section  43,  he  shall,  if  such  person so requires, take such person without  unnecessary  delay  to  the  nearest  Gazetted  Officer of any of the departments mentioned  in Section 42 or to the nearest Magistrate.  

(2) If such requisition is made, the officer  may detain the person until he can bring him  before the Gazetted Officer or the Magistrate  referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate  before  whom  any  such  person  is  brought  shall,  if  he  sees  no  reasonable  ground  for  

8

Page 9

Crl. A. No. 1563 of 2010

search,  forthwith  discharge  the  person  but  otherwise shall direct the search be made.  

(4) No female shall be searched by anyone  except a female.

(5) When an officer duly authorised under  Section 42 has reason to believe that it is not  possible to take the person to be searched to  the  nearest  Gazetted  Officer  or  Magistrate  without  the  possibility  of  the  person  to  be  searched  parting  with  possession  of  any  narcotic  drug  or  psychotropic  substance,  or  controlled substance or article or document,  he may, instead of taking such person to the  nearest  Gazetted  Officer  or  Magistrate,  proceed  to  search  the  person  as  provided  under  Section  100  of  the  Code  of  Criminal  Procedure, 1973 (2 of 1974).

6.After  a  search  is  conducted  under  sub- section  (5),  the  officer  shall  record  the  reasons  for  such  belief  which  necessitated  such  search  and  within  seventy  two  hours  send a copy thereof to his immediate official  superior.”

12.It is clear from the reading of the aforesaid provision that it is  

applicable only where search of a person is involved. It is not  

made applicable in those cases where no search of a person is  

to be conducted. In the instant case the appellant was carrying  

a bag which was to be searched and on his request Chet Ram  

9

Page 10

Crl. A. No. 1563 of 2010

was summoned in whose presence search was conducted which  

pertained to a bag. In Ajmer Singh v. State of Haryana; (2010)  

3 SCC 746 this aspect is specifically considered and dealt with.  

Following earlier Constitution Bench judgment, the Court held  

that when search and recovery from a bag, brief case, container  

etc. is to be made, provisions of Section 50 of the Act are not  

attracted. It is so stated in the following manner:

“14. The object, purpose and scope of Section 50  of the Act was the subject-matter of discussion in a  number of decisions of this Court. The Constitution  Bench of five Judges of this Court in State of Punjab  v.  Baldev  Singh;   (1999)  6  SCC  172 after  exhaustive  consideration  of  the  decisions  of  this  Court in Ali Mustaffa Abdul Rahman Moosa v. State  of Kerala; (1994) 6 SCC 569 and Pooran Mal v.  Director  of  Inspection  (Investigation); (1974)  1  SCC 345 have concluded in para 57:  

(I)  When  search  and  seizure  is  to  be  conducted under the provisions of the Act, it is  imperative  for  him  to  inform  the  person  concerned of his right of being taken to the  nearest  gazetted  officer  or  the  nearest  Magistrate for making search.

(II) Failure to inform the accused of such right  would cause prejudice to an accused.

(III)  That  a  search  made  by  an  empowered  officer, on prior information, without informing  

10

Page 11

Crl. A. No. 1563 of 2010

the accused of  such a  right  may not  vitiate  trial,  but  would  render  the  recovery  of  the  illicit article suspect and vitiate the conviction  and  sentence  of  an  accused,  where  the  conviction is solely based on the possession of  the  illicit  article  recovered  from  his  person,  during such search.

(IV) The investigating agency must follow the  procedure  as  envisaged  by  the  statute  scrupulously and failure to do so would lead to  unfair trial contrary to the concept of justice.

(V)  That  the  question  as  to  whether  the  safeguards provided in Section 50 of the Act  have been duly  observed would  have to  be  determined by the court on the basis of the  evidence  at  the  trial  and  without  giving  an  opportunity to the prosecution to establish the  compliance of Section 50 of the Act would not  be permissible as it would cut short a criminal  trial.

(VI) That the non-compliance of the procedure  i.e. informing the accused of the right under  sub-section (1) of Section 50 may render the  recovery of contraband suspect and conviction  and  sentence  of  an  accused  bad  and  unsustainable in law.

(VII) The illicit article seized from the person of  an accused during search conducted without  complying with  the procedure under  Section  50,  cannot  be  relied  upon  as  evidence  for  proving  the  unlawful  possession  of  the  contraband.

15. The  learned  counsel  for  the  appellant  

11

Page 12

Crl. A. No. 1563 of 2010

contended that the provision of Section 50 of the  Act  would  also  apply,  while  searching  the  bag,  briefcase,  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  with  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, briefcase, 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 Madan Lal v.  State of  H.P.;  (2003) 7 SCC 465.  The Court  has  observed:  

“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  v.  State of Maharashtra;  (1999) 8 SCC 257, State of Punjab v. Baldev  Singh; (1999) 6 SCC 172 and  Gurbax Singh  v.  State of Haryana; (2001) 3 SCC 28.  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  

12

Page 13

Crl. A. No. 1563 of 2010

Section  50  of  the  Act  is  also  without  any  substance.”

16. In State of H.P. v. Pawan Kumar; (2005) 4 SCC  350 this Court has stated:

“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.”

(emphasis in original)

17. After  discussion  on  the  interpretation  of  the  word “person”, this Court concluded:  

“14.  … that the provisions of Section 50 will  come into play only in  the case of  personal  search  of  the  accused  and  not  of  some  

13

Page 14

Crl. A. No. 1563 of 2010

baggage like a bag, article or container, etc.  which [the accused] may be carrying.”

The Court further observed:  

“27. … In view of the discussion made earlier,  Section 50 of the Act can have no application  on the facts and circumstances of the present  case as opium was allegedly recovered from  the  bag  which  was  being  carried  by  the  accused.”

13.Moreover, even if we proceed on the basis that Section 50  

applies, we find that the requirement of Section 50 is the search  

by Gazetted Officer or nearest Magistrate. It was not disputed  

by  the  learned  Counsel  for  the  appellant,  at  the  time  of  

arguments,  that Chet Ram was a Gazetted Officer.  Therefore,  

even otherwise we find that the requirement of Section 50 was  

fulfilled.  

14.Half hearted attempt was made by Mr. Rai to dig loopholes in  

the  prosecution  story.  He  argued that  though Chaukidar  was  

also present at the time of search, he was not produced as a  

witness; the prosecution did not join any independent witness at  

the  time  of  seizure  of  opium from the  appellant  even  when  

14

Page 15

Crl. A. No. 1563 of 2010

witnesses were present near the spot; and that there was an  

inordinate  delay  in  sending  the  sample  to  Forensic  Science  

Laboratory. After going through the record, we find that there is  

no  merit  in  any  of  these  submissions  which  are  adequately  

taken care of by the Courts below. We may re-emphasise that  

the  appellant  was  convicted  by  the  Trial  Court  in  the  first  

instance. However, the matter was remanded back by the High  

Court to the Trial Court only to find out as to whether Chet Ram  

was Executive Magistrate or not. Therefore, this was the limited  

inquiry which was to be conducted. On that aspect,  we have  

already straightened the legal position which goes against the  

appellant.  On  merits,  we  find  that  the  prosecution  has  

established  the  guilt  of  the  appellant  by  leading  cogent  

evidence  and  the  guilt  is  proved  beyond  reasonable  doubt.  

There is no scope of interference with the said findings.   

15.We thus, do not find any merit in this appeal. The appeal is  

hereby dismissed.  

15

Page 16

Crl. A. No. 1563 of 2010

….............................J. [B.S. CHAUHAN]

…............................J. [A.K. SIKRI]

New Delhi May 23, 2014

16