IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1158-1159 OF 2004

Union of India  … Appellant

Versus

Shah Alam & Anr. … Respondents

J U D G M E N T

AFTAB ALAM, J.

1. The two respondents Shah Alam and Mazzum Haq were held guilty of illegally possessing  

100 grams of heroin each and were accordingly convicted by the trial court under Section 8 read  

with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to  

undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each and in default to  

undergo rigorous imprisonment for a further period of six months.  They were acquitted of the  

other charge under Section 8 read with Section 29 of the Act.  In appeal, the Allahabad High  

Court, Lucknow Bench, set aside the judgment and order passed by the trial court and acquitted  

the respondents of the charge under Section 8/21 of the Act.

2. Against the judgment and order of acquittal passed by the Allahabad High Court the Union  

of India has come in appeal by special leave.

3. The recovery of heroin from the two respondents was made on August 5, 1994.  They were  

convicted and sentenced by the trial court by judgment and order dated May 11, 2000 and were

finally released on being acquitted by the High Court by its judgment and order dated November  

22, 2002. On inquiry from the court Mr. S. N. Terdal, learned counsel appearing for the appellant,  

Union of India, stated that the respondents were not on bail either during trial or after conviction  

during the pendency of their appeal.  This means that the respondents have already served 8 years  

and 3 months out  of the total  period of  sentence of  ten years  (plus the default  period of  six  

months).     

4. The law as it stands today is vastly different from what it was in 1994 when the occurrence  

took place. Now, 100 grams of heroin is an intermediate quantity between “small quantity” and  

“commercial quantity” (vide section 2 sub-clause (vii a) and (xxiii a) read with S. O. 1055(E)  

dated October 19, 2001 at serial no.56).  After the amendment of the Act with effect from October  

2, 2001 (vide Act 9 of 2001) the punishment for illegal possession of 100 grams of heroin is  

provided under Section 21 (b) of the Act which reads as under:-

“21.  Punishment  for  contravention  in  relation  to  manufactured  drugs  and  preparations. - Whoever, in contravention of any provision of this Act or any rule or  order made or condition of licence granted thereunder, manufactures, possesses, sells,  purchases,  transports,  imports  inter-State,  exports  inter-State  or  uses  any  manufactured drug or  any preparation containing any manufactured  drug shall  be  punishable,-  

(a)………………..

(b) where the contravention involves quantity, lesser than commercial quantity but  greater  than  small  quantity,  with  rigorous  imprisonment  for  a  term  which  may  extend to ten years and with fine which may extend to one lakh rupees;

(c)………..”

5. The position was quite different in 1994. At that time the possession of narcotic  drug  in  

excess  of small quantity for personal consumption       (5 milligrams, in case of heroin) attracted  

the punishment of rigorous imprisonment for a minimum period of ten years as well as fine of not  

less than rupees one lakh.  Section 21 of the Act, as it stood in 1994, is as under:-

“21.   Punishment  for  contravention  in  relation  to  manufactured  drugs  and  preparations.-  Whoever, in contravention of any provision of this Act or any rule or  order made or condition of licence granted thereunder manufactures, possesses, sells,  purchases,  transports,  imports  inter-State,  exports  inter-State  or  uses  any  manufactured  drug  or  any preparation  containing  any manufactured  drug shall  be  punishable with rigorous imprisonment for a term which shall  not be less than ten  years but which may extend to twenty years and shall also be liable to fine which

shall not be less than one lakh rupees but which may extend to two lakh rupees:  

Provided  that  the  court  may,  for  reasons  to  be  recorded  in  the  judgment,  impose a fine exceeding two lakh rupees.”  

6. It is, thus, to be seen that the sentence of rigorous imprisonment for ten years and fine of  

rupees one lakh that was the minimum punishment for illegal possession of 100 grams of heroin  

has now become the maximum permissible punishment as the law stands today.   Having regard  

to the way the Act has been amended by the Legislature and the graded form it  has come to  

assume both in regard to the quantities of narcotics and the punishments it would not have been  

wrong for this court to decline to interfere in this matter on the ground that the respondents have  

already served 4/5th of the (now) maximum permissible punishment for the offence. Nevertheless,  

we have examined the case on its merits and we are satisfied that the judgment of the High Court  

does not suffer from any infirmity and it does not call for any interference.  

7. According to the prosecution case, on receipt of confidential information from an informer  

on August 5, 1994 a team of officers of the Central Bureau of Narcotics laid a vigil at Charbagh  

bus stand from 11.00 in the morning. At about 5 in the afternoon the informer gave the signal  

indicating the five suspects, including the two respondents, from each of whom the search party  

was able to recover 100 grams of heroin in presence of two independent witnesses, namely, Munni  

Lal and Salig Ram. The two respondents were tried before the Special Judge (E.C.A.), Lucknow  

(the other three suspects managed to abscond) who convicted and sentenced them as noted above.  

In appeal, however, the High Court set-aside the judgment of the Trial Court and acquitted the  

respondents. The High Court set-aside the Trial Court judgment mainly on two grounds; one,  

recovery of heroin was made from the respondents without observing the conditions laid down in  

Section  50  of  the  Act  in  regard  to  search  and  the  other,  the  non-  examination  of  the  two  

independent witnesses in whose presence the recovery and seizures were made.

8. Mr. Terdal, learned counsel appearing in support of the appeal submitted that the High  

Court  had  misled  itself  into  error  by  overlooking  the  difference  between  the  person  of  the  

respondents and the baggage carried by them. In this case the recovery of the heroin was made  

from the bags being carried by the respondents and not from their persons. Section 50 of the Act

laid down the conditions for search of the person and not for any bag or brief case etc. being  

carried by him/her and hence, the provisions of section 50 had no application in the facts of this  

case. Learned Counsel further submitted that as a matter of fact heroin was first recovered from  

the bags being carried by the respondents and then they were also subjected to a search of their  

persons but the personal search did not lead to any further recoveries and, therefore, there was no  

question of any violation of Section 50 of the Act. In support of the submission he relied upon a  

three-judge Bench decision of this Court in State of H.P. vs.  Pawan Kumar  (2005) 4 SCC 350.  

In paragraphs 10 and 11 of the decision it was observed as under:

“10. We are not concerned here with the wide definition of the word “person”, which  in  the  legal  world  includes  corporations,  associations  or  body  of  individuals  as  factually in these type of cases search of their premises can be done and not of their  person.  Having regard to the scheme of the Act and the context in which it has been  used in the section it naturally means a human being or a living individual unit and  not an artificial person.  The word has to be understood in a broad common-sense  manner and, therefore, not a naked or nude body of a human being but the manner in  which a normal human being will move about in a civilized society.  Therefore, the  most appropriate meaning of the word “person” appears to be – “the body of a human  being  as  presented  to  public  view  usually  with  its  appropriate  coverings  and  clothing”.  In a civilized society appropriate coverings and clothings are considered  absolutely essential and no sane human being comes in the gaze of others without  appropriate coverings and clothings.  The appropriate coverings will include footwear  also as normally it is considered an essential article to be worn while moving outside  one’s home.  Such appropriate coverings or clothings or footwear, after being worn,  move along with the human body without any appreciable or extra effort.  Once worn,  they would not normally get detached from the body of the human being unless some  specific effort in that direction is made.  For interpreting the provision, rare cases of  some religious monks and sages, who, according to the tenets of their religious belief  do not cover their body with clothings, are not be taken notice of.  Therefore, the  word “person” would mean a human being with appropriate coverings and clothings  and also footwear.”             

“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.”

                                      9.   The legal  proposition advance by Mr. Terdal,  based on the distinction between search of

someone’s person and the baggage carried by him/her is unexceptionable but his submission is not  

supported by the facts of this case. We have carefully gone through the records of this case. From  

the evidence of the complainant, PW1 and the seizure memo (Fard Baramdegi) Ext Ka 2 it is  

evident that the two respondents were subjected to a body search in course of which packets of  

heroin were found in the shoulder bags carried by them and were recovered from there. The facts  

of the case in hand are very close to another decision of this Court in Dilip and Another V. State  

of M.P.  (2007) 1 SCC 450 where it was observed in paragraphs 12, 15 and 16 as under.

“12.  Before  seizure  of  the  contraband  from  the  scooter,  personal  search  of  the  appellants had been carried out and, admittedly, even at that time the provisions of  Section 50 of the Act, although required in law, had not been complied with.”  

“15. Indisputably, however, effect of a search carried out in violation of the provisions  of law would have a bearing on the credibility of the evidence of the official witnesses,  which would of course be considered on the facts and circumstances of each case.”  

“16.  In this case,  the provisions of Section 50 might not  have been required to be  complied with so far as the search of scooter is concerned, but, keeping in view the fact  that the person of the appellants was also searched, it was obligatory on the part of PW  10 to comply with the said provisions.  It was not done.”                                         

10.        On the facts of the case we find that the alleged recovery of heroin from the respondents  

was made in complete violation of the provisions of Section 50 of the Act. Apart from this the  

non-examination of the two independent witnesses of the search and recovery was another grave  

omission by the prosecution. It is significant to note here that a formal petition for discharge of the  

two witnesses was filed by the prosecution before the trial court and it is not that they were simply  

not produced before the court.   

11.        We are, therefore, satisfied that the High Court took the correct view of the matter and the  

judgment coming under appeal does not suffer from any infirmity.   We find no merit in these  

appeals  and those are accordingly dismissed.   The respondents are discharged from their bail  

bonds.   

           ……………………………………J   (B. SUDERSHAN REDDY)

            ………………………………….J   (AFTAB ALAM)  

New Delhi.  June  11, 2009