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CASE NO.: Appeal (crl.)  650 of 1999

PETITIONER: State of Haryana

RESPONDENT: Ranbir alias Rana

DATE OF JUDGMENT: 05/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T  

S.B. SINHA, J :         The State of  Haryana is in appeal before us from a judgment and  order dated 19.08.1998 of  the High Court of Punjab and Haryana in  Criminal Appeal No.715 of 1996 allowing the appeal preferred by the  respondent herein from a judgment of conviction and sentence dated  05.08.1996 passed by the learned Additional and Sessions Judge in Sessions  Case No.37 and Sessions Trial No.118 of 1994 under Sections 20 of the  Narcotic Drugs and Psychotropic Substances Act (for short, ’the Act’).

       The prosecution case against the respondent was as under :                  On 15.11.1993 when a police party, comprising of Sub-Inspector  Dunger Singh, Constable Randhir Singh, Head Constable Omkar, Constable  Umed Singh and Head Constable Om Prakash, were proceeding from Bamla  to CIA staff Bhiwani and reached the point on Rohtak-Bhiwani Road near  Sanjeev M. College, the respondent was seen coming from the opposite  direction, i.e., from the side of Bhiwani on foot, holding a plastic bag of  white colour.  Having seen them, the respondent allegedly turned towards  his left side on the road as a result whereof a suspicion as regard his conduct  arose in their mind.  The respondent was, thereafter, taken into custody.  A  notice was allegedly served on the respondent by the Sub Inspector to the  effect "you (accused) have some contraband in your possession and your  search is to be effected in the presence of a gazetted police officer or a  magistrate", if he so desired.   The respondent is said to have had no  objection  if the search was conducted in presence of a gazetted officer or a  magistrate available at the spot.  An intimation was thereafter  sent to the  DSP, Headquarters, Bhiwani who reached the spot along with his staff.   The  respondent was allegedly searched in his presence and on a search of the  plastic bag, which the respondent was carrying, a ’pipi’ containing ’charas’  weighing 2 kg. was found.  The incharge of the police party separated 50  grams of ’charas’ by way of sample of the seized contraband and made a  sealed parcel thereof.   Remaining  amount of the seized article  was said to  have been separately sealed and the entire property was taken into  possession wherefor a  recovery  memo. was prepared.  The respondent  accused could not produce any licence or permit for possession of the said  contraband articles.  Therefore a ’ruqa’ was sent to the police station for  registration of the case and a formal First Information Report was lodged.          On charged of possession of the said contraband article, the  respondent was put on trial.

       The learned Sessions Judge found the appellant to be guilty of the said  offence  and sentenced him to undergo rigorous imprisonment for a period  of 10 years and pay a fine of Rs.1,00,000/-.  The respondent filed an appeal  thereagainst before the High Court.

       Before the High Court only contention which was raised was that the

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mandatory provision of Section 50 of the Act had not been complied with.   According to the respondent although the article in question was found from  a bag, it was obligatory on the part of the Dy. S.P. to bring it to his  notice  that he had a right to be searched by a magistrate or a gazetted officer and he  having not been informed of his right, the judgment of conviction and  sentence was vitiated in law.   

       The High Court in its judgment proceeded on the basis that Section 50  of the Act is mandatory in character.  It was held :          "Reverting  to the facts in hand, the notice,  Ex.PW-4/A, is very material.  A close reading of this  notice only indicates that SI Dungar Singh had given the  option to the appellant by informing him that his search  was to be conducted in the presence of a gazetted police  officer or a magistrate.  Beyond that, he notice, Ex.PW- 4/A is silent.  SI Dungar Singh never apprised the  appellant that he had the right to be searched in the  presence of a Magistrate or a gazetted officer as  mentioned in Section 42 of the Act.  Even the reply,  Ex.PW-4/B, given by the appellant is not in consonance  with the provisions of section 50 of the Act.  The reply  simply states that the appellant was ready to give the  search in the presence of a Magistrate or a gazetted  police officer at the spot.  Further, the accused has stated  vide Ex.PW-4/B that he had full confidence in the I.O.  Strange enough, the reply of the appellant has not been  attested by HC Randhir Singh or HC Om Kar who, of  course, have attested the notice, Ex.PW-4/A, allegedly  given by SI Dungar Singh.  This indicates that PW-4/A,  and PW-4/B have been prepared at a different state and,  unfortunately, and for the benefit of the appellant\005"

       The question as regards applicability of Section 50 of the Act need not  detain us for long.  We may notice that in view of conflict in the opinions of  different benches as also difference of opinion between two judges of this  Court in State of Himachal Pradesh v. Pawan Kumar [(2004) 7 SCC 735] the  question  was referred to a larger Bench.  A three-Judge Bench of this Court  in State of Himachal Pradesh etc. v. Pawan Kumar  [(2005) 4 SCC 350]  relying on or on the basis of a large number of decisions and in particular the  decision of the Constitution Bench of this Court in State of  Punjab v.  Baldev Singh [(1999) 6 SCC 172] clearly held that Section 50 of the Act  would be applicable only in a case of personal search of the accused and not  when it is made in respect of some baggage like a bag, article or container  etc. which the accused at the relevant time was carrying.   

       Before us, however,  the learned counsel appearing on behalf of the  respondent placed strong reliance on another three-Judge Bench of this  Court in Namdi Frnacis Nwazor v. Union of India and Another [(1998) 8  SCC 534], wherein the following observations were made :

"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  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

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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."

       It was urged that this Court in Pawan Kumar (supra) wrongly  distinguished Namdi Francis Nwazor (supra) stating that the observations  made therein (underlined by us) were obiter and did not lay down a law.  

       We may at once notice the observations made in Pawan Kumar  (supra) as regards Namdi Francis Nwazor (supra) which is in the following  terms :  

"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 were 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."

       We do not agree with the contention of the learned counsel for the  respondent that in Namdi Francis Nwazor (supra),  the observation of this  Court constituted a dicta and not an obiter.  The appellant therein was  apprehended at the International Airport, New Delhi.  He had already  checked in his baggage.  The said baggage was cleared but later on, the same  was called to the customs counter at the airport and upon examination  thereof, it was found to be containing 153 cartons of tetanus vaccine, which  having been opened, found to be containing 152 cartons of ampoules  whereas the remaining one carton carried a polythene packet containing  brown-coloured powder packet with black adhesive tape, which was  suspected to be heroin and which was then seized.   

       It is in that context the court clearly came to the opinion that the  provisions of sub-section (1) of Section 50 was not required to be complied  with.  The said conclusion was arrived at, inter alia, upon noticing the  provision of sub-section (4) of Section 50 of the Act.  It was, therefore, not  necessary for the Bench, with utmost respect,  to make any further  observation.   It was not warranted in the fact of the said case.  A decision, it

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is well-settled, is an authority for what it decides and not what can logically  be deduced therefrom.   The distinction between a dicta and obiter is well  known.  Obiter dicta is more or less presumably unnecessary to the decision.   It may be an expression of a view point or sentiments which has no binding  effect.  See Additional District Magistrate, Jabalpur etc. v. Shivakant Shukla  etc. (1976) 2 SCC 521]. It is also well-settled that the statements which are  not part of the ratio decidendi constitute obiter dicta and are not  authoritative. [See Division Controller, KSRTC v. Mahadeva Shetty and  Another [(2003) 7 SCC 197]         In Director of Settlements, A.P. and Others v. M.R. Apparao and  Another [(2002) 4 SCC 638], it was held : "\005An obiter dictum as distinguished from ratio  decidendi is an observation of the court on a legal  question suggested  in a case before it but not arising in  such manner as to require a decision.  Such a obiter may  not have binding precedent but it cannot be denied that it  is of considerable weight\005."  

       We may usefully refer to an observation of Delvin J. made in Behrens  v. Pertraman Mills, (1957) 2 QB 25], which is in the following terms : "\005if the Judge gives two reasons for his decisions, both  are binding.  It is not permissible to pick out one as being  supposedly the better reason and ignore the other one;  nor does it matter for this purpose which comes first and  which comes second.  But the practice of making judicial  observation obiter is also well established.  A judge may  often give additional reasons for his decision without  wishing to make them part of the ratio decidendi; he may  not be sufficiently convinced of their cogency as to want  them to have the full authority of the precedent, and yet  may wish to state them so that those who later may have  the duty of investigating the same point will start with  some guidance.  This is the matter which judge himself is  alone capable of deciding, and any judge who comes  after him must ascertain which course he has adopted fro  the language used and not by consulting his own  preference."

       Although the said observation of Delvin J. has been subjected to some  criticism, it throws some light on the subject;  but  may not be treated to be  an authority.         We are satisfied that the observations made in Namdi Francis Nwazor  (supra) is merely an obiter and does not constitute a ratio decidendi.  The  three-judge Bench of this Court in Pawan Kumar (supra), therefore,   correctly distinguished the same.  It was, thus, not necessary for the Bench  to follow the judgment of a coordinate bench in Pawan Kumar (supra) as  was argued by the learned counsel.         For the reasons aforementioned, the impugned judgment cannot be  sustained.  The judgment of the High Court is, therefore, set aside and that of  the learned Sessions Judge is restored.  The appeal is accordingly allowed.