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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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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.