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CASE NO.: Appeal (crl.)  222 of 1997

PETITIONER: State of Himachal Pradesh

RESPONDENT: Pawan Kumar

DATE OF JUDGMENT: 08/04/2005

BENCH: CJI R.C. Lahoti, G. P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

WITH

CRIMINAL APPEAL NO.375 OF 2003

State of Rajasthan                              ..              Appellant -vs- Bhanwar Lal                             ..              Respondent

G.P. MATHUR, J.

Criminal Appeal No. 222 of 1997

1.      In view of difference of opinion between two learned Judges who  heard the appeal, the matter has been placed before this larger bench and  the  question for consideration is whether the safeguards provided by Section 50  of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ’the  NDPS Act’ or ’the Act’) regarding search of any "person" would also apply  to any bag, briefcase or any such article or container etc., which is being  carried by him.    

2.      The essential facts of the case, which are necessary for decision of the  appeal, may be stated in brief.   According to the case of the prosecution,  Hukum Singh and Munshi Ram, Head Constables and some police personnel  were checking buses at the bus stand, Mandi in the night of 18.7.1994.    While checking a bus at about 8.45 p.m., they noticed that the accused  Pawan Kumar (respondent herein), who was carrying a bag, Ex.P3, slipped  out from the rear door of the bus and thereafter started running towards  Subzi Mandi side.   The police personnel got suspicious and after a chase  apprehended him near the gate of bus stand.   They felt smell of opium  emitting from the bag and, therefore, telephonically informed Prem Thakur,  Deputy S.P./S.H.O., P.S. Sadar, Mandi.   Prem Thakur came to the spot and  inquired from the accused whether he wanted to be searched by police or by  a Magistrate.   The accused disclosed his name and expressed his willingness  to be searched by the police.   A search of the accused and  the bag being  carried by him was then conducted and 360 gms. of opium wrapped in  polythene was found inside the bag.   Two samples of the recovered opium,  each weighing 20 gms. were taken and were sealed separately and a seizure  memo was prepared.   On the basis of the Ruka Ex.P8, an FIR was lodged at  the Police Station and thereafter usual investigation followed which  culminated in filing of a charge-sheet against the accused.   The leaned  Sessions Judge, Mandi, by the judgment and order dated 26.11.1994  convicted the respondent (accused) under Section 18 of the NDPS Act and  sentenced him to undergo rigorous imprisonment for 10 years and to pay a  fine of Rs.1 lakh.   The respondent preferred an appeal against his conviction  and sentence before the High Court of Himachal Pradesh.   The High Court  held that the opinion given by the Chemical Examiner regarding the  substance recovered from the bag of the accused could not be treated to be

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opinion of the Chemical Examiner as defined under the Act and the Rules  and, therefore, the same had to be excluded from consideration.  It was  further held that the provisions of Section 50 of NDPS Act had not been  complied with while conducting the search of the bag and, therefore,  recovery of opium from the possession of the accused was not established.    On these findings, the appeal was allowed by the judgment and order dated  26.8.1996 and the conviction of the respondent was set aside.

3.      The State of Himachal Pradesh preferred the present appeal by special  leave challenging the judgment of acquittal passed by the High Court.  The  appeal was initially heard by a Bench of two learned Judges.   Hon’ble Y.K.  Sabharwal, J. held that the view taken by the High Court that the report of  the Chemical Examiner could not be taken into consideration was not  correct.  The finding recorded by the High Court that the prosecution had  failed to prove that any incriminating substance had been recovered from the  possession of the accused was accordingly reversed.   Regarding the  applicability of Section 50 of the NDPS Act, after referring to Namdi  Francis Nwazor v. Union of India & Anr. 1998 (8) SCC 534, His Lordship  held as under : "The answer to the real question in cases where the  line of separation is thin and fine can be obtained by  applying the test of inextricable connection and then  conclusion reached as to whether the search was that  of a ’person’ or not.   If the search is of a bag which is  inextricably connected with the person of the accused,  Section 50 of the NDPS Act will apply, and if it is not  so connected, the provisions will not apply .................  ..........\005\005\005\005\005\005\005.............  The offending article  was found in the bag which accused/respondent was  carrying.   The test of inextricable connection between  the person searched and the object recovered is  demonstrably applicable.   It cannot be held that  Section 50 has no application merely because the  offending article was in the bag which the accused  was carrying with him."  

Finally it was held as under :

"On this fact situation, it cannot be held that the  search was not of a person but was of a bag.   Both are  inextricably connected.  It has to be held that the  search was that of the respondent’s person.   Clearly,  Section 50 of the NDPS Act was applicable but was  not complied.   Therefore, the conviction of the  respondent could not be sustained and the High Court  rightly held that Section 50 had been breached."

       Hon’ble Arijit Pasayat, J. expressed agreement with the view that the  report of the Chemical Examiner could not be excluded but on the question  of applicability of Section 50 of NDPS Act held that the said provision was  applicable only in the case of a search of a person and not when search of a  bag which is being carried by a person on his shoulder or back is conducted.    His Lordship accordingly held that having regard to the purport and object  of the NDPS Act, the language of Section 50 cannot be given any strained  meaning so as to frustrate the legislative purpose.   It was thus held that there  was no infraction of the requirement of Section 50 and the finding to the  contrary recorded by the High Court was clearly wrong.   In view of this  difference of opinion, the appeal has been placed before the present Bench.

4.      The controversy turns round Section 50 of the NDPS Act and the  same (at the relevant time) read as under : "50.    Conditions under which search of persons  shall be conducted \026 (1) When any officer duly  authorized under section 42 is about to search any  person under the provisions of Section 41, Section 42

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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 search, forthwith discharge the  person but otherwise shall direct that search be made. (4)     No female shall be searched by anyone  excepting a female."

5.      The question, which requires consideration, is what is the meaning of  the words "search any person" occurring in sub-Section (1) of Section 50 of  the Act.  Learned counsel for the accused has submitted that the word  "person" occurring in Section 50 would also include within its ambit any  bag, briefcase or any such article or container, etc., being carried by such  person and the provisions of Section 50 have to be strictly complied with  while conducting search of such bag, briefcase, article or container, etc.   Learned counsel for the State has, on the other hand, submitted that there is  no warrant for giving such an extended meaning and the word "person"  would mean only the person himself and not any bag, briefcase, article or  container, etc., being carried by him.

6.      The word "person" has not been defined in the Act.   Section 2(xxix)  of the Act says that the words and expressions used herein and not defined  but defined in the Code of Criminal Procedure have the meanings  respectively assigned to them in that Code.   The Code of Criminal  Procedure, however, does not define the word "person".   Section 2(y) of the  Code says that the words and expressions used therein and not defined but  defined in the Indian Penal Code have the meanings respectively assigned to  them in that Code.    Section 11 of the Indian Penal Code says that the word  "person" includes any Company or Association or body of persons whether  incorporated or not.   Similar definition of the word "person" has been given  in Section 3(42) of the General Clauses Act.   Therefore, these definitions  render no assistance for resolving the controversy in hand.    

7.      One of the basic principles of interpretation of Statutes is to construe  them according to plain, literal and grammatical meaning of the words.   If  that is contrary to, or inconsistent with, any express intention or declared  purpose of the Statute, or if it would involve any absurdity, repugnancy or  inconsistency, the grammatical sense must then be modified, extended or  abridged, so far as to avoid such an inconvenience, but no further.   The onus  of showing that the words do not mean what they say lies heavily on the  party who alleges it.   He must advance something which clearly shows that  the grammatical construction would be repugnant to the intention of the Act  or lead to some manifest absurdity (See Craies on Statute Law, Seventh ed.  page 83-85).   In the well known treatise \026 Principles of Statutory  Interpretation by Justice G.P. Singh, the learned author has enunciated the  same principle that the words of the Statute are first understood in their  natural, ordinary or popular sense and phrases and sentences are construed  according to their grammatical meaning, unless that leads to some absurdity  or unless there is something in the context or in the object of the Statute to  suggest the contrary (See the Chapter \026 The Rule of Literal Construction \026   page 78 \026 Ninth ed.).  This Court has also followed this principle right from  the beginning.  In Jugalkishore Saraf  v. M/s Raw Cotton Co. Ltd. AIR 1955  SC 376, S.R. Das, J. said: \026 "The cardinal rule of construction of statutes is to read  the statute literally, that is, by giving to the words  used by the legislature their ordinary, natural and  grammatical meaning.  If, however, such a reading  leads to absurdity and the words are susceptible of

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another meaning the Court may adopt the same.   But  if no such alternative construction is possible, the  Court must adopt the ordinary rule of literal  interpretation."  

       A catena of subsequent decisions have followed the same line.  It,  therefore, becomes necessary to look to dictionaries to ascertain the correct  meaning of the word "person".

8.      The dictionary meaning of the word "person" is as under :  Chambers’s Dictionary     :     An individual; a living soul; a human  being;  

       b: the outward appearance, & c :  bodily form;    a distinction in  form; according as the subject of the  verb is the person speaking, spoken to  or spoken of.  

Webster’s Third New   :         An individual human being; a human  International Dictionary        body as  distinguished from an animal  or thing; an individual having a  specified kind of bodily appearance;  the body of a human being as  presented to public view normally  with its appropriate coverings and  clothings; a living individual unit; a  being possessing or forming the  subject of personality.

Black’s Law Dictionary   :      In general usage, a human being (i.e.  natural person), though by statute  term may include labour  organizations, partnerships,  associations, corporations.      Law Lexicon                  :          The   expression   ’person’  is  a  noun  by P. Ramanatha Aiyar           according to grammar and it means a  character represented  as on the stage,  a human being; a self-conscious  personality.  

9.      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 commonsense  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 \026 "the body of a human being as presented to public view  usually with its appropriate coverings and clothings".   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 to be taken notice of.  Therefore, the word

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"person" would mean a human being with appropriate coverings and  clothings and also footwear.

10.   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.    

11.     An incriminating article can be kept concealed in the body or   clothings or coverings in different manner or in the footwear.   While  making a search of such type of articles, which have been kept so concealed,  it will certainly come within the ambit of the word "search of person".   One  of the tests, which can be applied is, where in the process of search the  human body comes into contact or shall have to be touched by the person  carrying out the search, it will be search of a person.   Some indication of  this is provided by Sub-section (4) of Section 50 of the Act, which provides  that no female shall be searched by anyone excepting a female.  The  legislature has consciously made this provision as while conducting search  of a female, her body may come in contact or may need to be touched and,  therefore, it should be done only by a female.   In the case of a bag, briefcase  or any such article or container, etc., they 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.  They can be easily and in no time placed away  from the body of the carrier.   In order to make a search of such type of  objects, the body of the carrier will not come in contact of the person  conducting the search.   Such objects cannot be said to be inextricably  connected with the person, namely, the body of the human being.     Inextricable means incapable of being disentangled or untied or forming a  maze or tangle from which it is impossible to get free.  

12.     The scope and ambit of Section 50 of the Act was examined in  considerable detail by a Constitution Bench in State of Punjab v. Baldev  Singh 1999 (6) SCC 172 and para 12 of the reports is being reproduced  below : "12.    On its plain reading, Section 50 would come  into play only in the case of a search of a person as  distinguished from search of any premises etc.   However, if the empowered officer, without any prior  information as contemplated by Section 42 of the Act  makes a search or causes arrest of a person during the  normal course of investigation into an offence or  suspected offence and on completion of that search, a  contraband under the NDPS Act is also recovered, the  requirements of Section 50 of the Act are not  attracted."

       The Bench recorded its conclusion in para 57 of the reports and sub- paras (1), (2), (3) and (6) are being reproduced below : 57.       On the basis of the reasoning and discussion  above, the following conclusions arise:

(1)     That when an empowered officer or a duly  authorized officer acting on prior information is

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about to search a person, it is imperative for him to  inform the person concerned of his right under  sub-section (1) of Section 50 of being taken to the  nearest gazetted officer or the nearest Magistrate  for making the search.  However, such information  may not necessarily be in writing.

(2)     That failure to inform the person concerned about  the existence of his right to be searched before a  gazetted officer or a Magistrate would cause  prejudice to an accused.

(3)     That a search made by an empowered officer, on  prior information, without informing the person of  his right that if he so requires, he shall be taken  before a gazetted officer or a Magistrate for search  and in case he so opts, failure to conduct his search  before a gazetted officer or a Magistrate  may not  vitiate the trial but would render the recovery of  the illicit article suspect and vitiate the conviction  and sentence of an accused, where the conviction  has been recorded only on the basis of the  possession of the illicit article, recovered from his  person, during a search conducted in violation of  the provisions of Section50 of the Act. \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005... ...................\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

(6) That in the context in which the protection has  been incorporated in Section 50 for the benefit of  the person intended to be searched, we do not  express any opinion whether the provisions of  Section 50 are mandatory or directory, but hold  that failure to inform the person concerned of his  right as emanating from sub-section (1) of Section  50, may render the recovery of the contraband  suspect and the conviction and sentence of an  accused  bad and unsustainable in law."

13.     The above quoted dictum of the Constitution Bench shows that the  provisions of Section 50 will come into play only in the case of personal  search of the accused and not of some baggage like a bag, article or  container, etc. which he may be carrying.    

14.     Learned counsel for the State has referred to large number of  decisions of this Court wherein Section 50 was held inapplicable in the case  of search of some baggage or article etc., which was in immediate  possession or was being carried by the accused.   We do not consider it  necessary to burden this judgment by referring to all the authorities cited but  would only give a gist of some of the cases which is as under :

I.      Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 (2) SCC 513  \026 This is a decision by a Three Judge Bench presided over by Dr. A.S.  Anand, C.J., who wrote the opinion of the Court in the Constitution  Bench decision in State of Punjab v. Baldev Singh.   In this case four  gunny bags were found in an auto rickshaw which the accused was  driving and there was no other person present.   The argument based  on non-compliance of Section 50 as explained in the case of Baldev  Singh was rejected on the ground that the gunny bags were not  inextricably connected with the person of the accused.   

II.     Madan Lal v. State of H.P. 2003 (7) SCC 465 (para 16) \026 It was held  that Section 50 would apply in the case of search of a persona as  contrasted to search of  vehicles, premises or articles.

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III.    Gurbax Singh v. State of Haryana 2001 (3) SCC 28 \026 Accused got  down from a train carrying a Katta (gunny bag) on his shoulder.    Held that Section 50 was not applicable.    

IV.     State of Punjab v. Makhan Singh 2004 (3) SCC 453 \026 The accused  was apprehended while alighting from a bus with a tin box in his hand  in which contraband was found.   The High Court acquitted the  accused on account of non-compliance of Section 50.   On the finding  that Section will not apply, the judgment of the High Court was  reversed and the accused was convicted.    

V.      Kanhaiya Lal v. State of M.P. 2000 (10) SCC 380 \026 One kg. of opium  was found in a bag which was being carried by the accused.   The  argument based on Section 50 was rejected on the ground that it was  not a case of search of the person of the accused.  

VI.     Birakishore Kar v. State of Orissa 2000 (9) SCC 541 \026 Accused was  found lying on a plastic bag in a train compartment.  Argument based  on Section 50 was rejected on the ground that the accused was sitting  on the plastic bag and it was not a case of the search of the person of  the accused.  

VII.    Krishna Kanwar v. State of Rajasthan 2004 (2) SCC 608 (para 19) \026  Held, Section 50 applies where search has to be in relation to a person  as contrasted to search of premises, vehicles, articles or bag.

VIII.     Sarjudas v. State of Gujarat 1999 (8) SCC 508 \026 The accused were  riding a scooter on which a bag was hanging in which charas was  found \026 Section 50 was held not applicable as it was not a case where  the person of the accused was searched.    

IX.     Saikou Jabbi v. State of Maharahstra JT 2003 (9) SC 609 \026 Heroine  was found in a bag.   It was held that Section 50 was not applicable as  it applies to search of a person.  

15.     Learned counsel for the respondent has placed strong reliance on  Namdi Francis Nwazor v. Union of India & Anr. 1998 (8) SCC 534 which is  a decision by a Bench of three learned  Judges.   In this case, the accused had  checked in at the Indira Gandhi International Airport for taking the flight  from Delhi to Lagos.   A team of the Narcotics Control Bureau, on  suspicion, decided to check his baggage.  At the point of time when the  actual search took place, he was carrying two handbags but nothing  incriminating was found therefrom.   He had booked one bag which had  already been checked in and was loaded in the aircraft by which he was  supposed to travel.   The bag was brought to the customs counter and on  checking 180 gms. of heroine was found therein.   The Bench held that on a  plain reading of Sub-section (1) of Section 50, it applies to cases of search of  a person and not to search of any article in the sense that the article is at a  distant place from where the offender is actually searched.   After arriving at  the above finding, the Bench also observed  - "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."   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 was 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

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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.            Another judgment relied upon by the learned counsel for the accused  is Beckodan Abdul Rahiman v. State of Kerala JT 2002 (3) Cri.L.J. 2529  (SC).     Here 11 gms of opium was found in a polythene bag which had  been concealed in the fold of dhoti which the accused was wearing.   This  was clearly a case of search of a persons, as explained above, and Section 50  was rightly held applicable.  

16.     There is another aspect of the matter, which requires consideration.    Criminal law should be absolutely certain and clear and there should be no  ambiguity or confusion in its application.   The same principle should apply  in the case of search or seizure, which come in the domain of detection of  crime.   The position of such bags or articles is not static and the person  carrying them often changes the manner in which they are carried.   People  waiting at a bus stand or railway platform sometimes keep their baggage on  the ground and sometimes keep in their hand, shoulder or back.   The change  of position from ground to hand or shoulder will take a fraction of a second  but on the argument advanced by learned counsel for the accused that search  of bag so carried would be search of a person, it will make a sharp difference  in the applicability of Section 50 of the Act.  After receiving information, an  officer empowered under Section 42 of the Act, may proceed to search this  kind of baggage of a person which may have been placed on the ground, but  if at that very moment when he may be about to open it, the person lifts the  bag or keeps it on his shoulder or some other place on his body, Section 50  may get attracted.   The same baggage often keeps changing hands if more  than one person are moving together in a group.  Such transfer of baggage at  the nick of time when it is about to be searched would again create practical  problem.  Who in such a case would be informed of the right that he is  entitled in law to be searched before a Magistrate or a Gazetted Officer?   This may lead to many practical difficulties.  A statute should be so  interpreted as to avoid unworkable or impracticable results.  In Statutory  Interpretation by Francis Bennion (Third ed.) para 313, the principle has  been stated in the following manner : "The court seeks to avoid a construction of an  enactment that produces an unworkable or  impracticable result, since this is unlikely to have  been intended by Parliament.  Sometimes however,  there are overriding reasons for applying such a  construction, for example where it appears that  Parliament really intended it or the literal meaning is  too strong."

       The learned author has referred to Sheffield City Council v. Yorkshire  Water Services Ltd. (1991) 1 WLR 58 at 71, where it was held as under :

"Parliament is taken not to intend the carrying out of  its enactments to be unworkable or impracticable, so  the court will be slow to find in favour of a  construction that leads to these consequences.   This  follows the path taken by judges in developing the  common law. ’\005 the common law of England has not  always developed on strictly logical lines, and where  the logic leads down a path that is beset with practical  difficulties the courts have not been frightened to turn  aside and seek the pragmatic solution that will best  serve the needs of society."

       While interpreting a provision in the Finance Act , 1972, Lord  Denning in S.J. Grange Ltd. v. Customs and Excise Commissioners (1979) 2

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All ER 91, observed that if the literal construction leads to impracticable  results, it would be necessary to do little adjustment so as to make the  section workable.

17.     As pointed out in State of Punjab v. Baldev Singh, drug abuse is a  social malady.  While drug addiction eats into the vitals of the society, drug  trafficking not only eats into the vitals of the economy of a country, but  illicit money generated by drug trafficking is often used for illicit activities  including encouragement of terrorism.   It has acquired the dimensions of an  epidemic, affects the economic policies of the State, corrupts the system and  is detrimental to the future of a country.   Reference in the said decision has  also been made to some United Nation Conventions against illicit trafficking  in narcotic drugs, which the Government of India has ratified.   It is,  therefore, absolutely imperative that those who indulge in this kind of  nefarious activities should not go scot-free on technical pleas which come  handy to their advantage in a fraction of second by slight movement of the  baggage, being placed to any part of their body, which baggage may contain  the incriminating article.

18.     It will be useful here to take note of the general law regarding search  and seizure and the effect of any illegality committed during the course of  search on the seizure or recovery made of any incriminating article.   In State  of Maharashtra v. Natwarlal Damodardas Soni AIR 1980 SC 593, the Anti- Corruption Bureau had recovered 100 gold bars each weighing 10 tolas  having foreign markings from the residential premises of the accused,  consequent upon which the custom authorities initiated proceedings in which  he was convicted.  The contention raised was that the search and seizure of  the gold by the police was illegal.   It was held that the police had powers  under the Code of Criminal Procedure to search and seize the gold if they  had reason to believe that a cognizable offence had been committed in  respect thereof.    Assuming arguendo that the search was illegal, then also,  it will not affect the validity of the seizure and further investigation by the  custom authorities or the validity of the trial which followed on the  complaint of the Assistant Collector of Customs.

19.     In Radha Kishan v. State of U.P. AIR 1963 SC 822,  the recovery of  certain articles was challenged on the ground that the search was made in  contravention of Sections 103 and 165 Cr.P.C.   The contention was repelled  thus -  "So far as the alleged illegality of the search is  concerned it is sufficient to say that even assuming  that the search was illegal the seizure of the articles is  not vitiated.   It may be that where the provision of Ss.  103 and 165, Code of Criminal Procedure, are  contravened the search could be resisted by the person  whose premises are sought to be searched.  It may  also be that because of the illegality of the search the  Court may be inclined to examine carefully the  evidence regarding the seizure.   But beyond these  two consequences no further consequence ensues."   

20.     Again in Shyam Lal v. State of M.P. AIR 1972 SC 886, it was held  that even if the search is illegal being in contravention with the requirement  of Section 165 Cr.P.C. that provision ceases to have any application to the  subsequent steps in the investigation.   This question has recently been  examined by a Three Judge Bench of this Court in State v. N.M.T. Joy  Immaculate 2004 (5) SCC 729 and the relevant portion of paragraph 14 and  15.1 are being reproduced below :

"\005\005\005\005.The admissibility or otherwise of a piece  of evidence has to be judged having regard to the  provisions of the Evidence Act.    The Evidence Act  or the Code of Criminal Procedure or for that matter  any other law in India does not exclude relevant

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evidence on the ground that it was obtained under an  illegal search and seizure.   Challenge to a search and  seizure made under the Criminal Procedure Code on  the ground of violation of fundamental rights under  Article 20(3) of the Constitution was examined in  M.P. Sharma v. Satish Chandra AIR 1954 SC 300 by  a Bench of 8 Judges of this Court.  The challenge was  repelled and it was held as under :

"A power of search and seizure is in any system  of jurisprudence an over-riding power of the  State for the protection of social security and  that power is necessarily regulated by law.   When the Constitution makers have thought fit  not to subject such regulation to constitutional  limitations by recognition of a fundamental  right to privacy, analogous to the American  Fourth Amendment, we have no justification to  import it, into a totally different fundamental  right, by some process of strained construction.   Nor is it legitimate to assume that the  constitutional protection under Article 20(3)  would be defeated by the statutory provisions  for searches."  

15.     The law of evidence in our country is modeled  on the rules of evidence which prevailed in English  Law.   In Kuruma v. The Queen 1955 AC 197 an  accused was found in unlawful possession of some  ammunition in a search conducted by two police  officers who were not authorised under the law to  carry out the search.   The question was whether the  evidence with regard to the unlawful possession of  ammunition could be excluded on the ground that the  evidence had been obtained on an unlawful search.    The Privy Council stated the principle as under :

"The test to be applied, both in civil and in  criminal cases, in considering whether evidence  is admissible is whether it is relevant to the  matters in issue.  If it is, it is admissible and the  Court is not concerned with how it was  obtained". 15.1       This question has been examined threadbare  by a Constitution Bench in Pooran Mal v. Director of  Inspection 1974(1) SCC 345 and the principle  enunciated therein is as under :

"If the Evidence Act, 1872 permits relevancy as  the only test of admissibility of evidence, and,  secondly, that Act or any other similar law in  force does not exclude relevant evidence on the  ground that it was obtained under an illegal  search or seizure, it will be wrong to invoke the  supposed spirit of our Constitution for  excluding such evidence.  Nor is it open to us to  strain the language of the Constitution, because  some American Judges of the American  Supreme Court have spelt out certain  constitutional protections from the provisions  of the American Constitution.  So, neither by  invoking the spirit of our Constitution nor by a  strained construction of any of the fundamental  rights can we spell out the exclusion of  evidence obtained on an illegal search.

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       So far as India is concerned its law of  evidence is modeled on the rules of evidence  which prevailed in English Law, and Courts in  India and in England have consistently refused  to exclude relevant evidence merely on the  ground that it is obtained by illegal search or  seizure.  Where the test of admissibility of  evidence lies in relevancy, unless there is an  express or necessarily implied prohibition in the  Constitution or other law evidence obtained as  a result of illegal search or seizure is not liable  to be shut out."   

21.     In the United States the law regarding illegally obtained evidence has  been stated as under in 29 American Jurisprudence 2d (para 408) : "408.   Generally

       In criminal prosecutions, in particular, evidence  is frequently obtained by methods that are morally  reprehensible and offensive to fair dealing, under  circumstances which meet with disapprobation of the  courts, and in many instances, by means that are  illegal.  However, it is a rule of the common law that  the admissibility of evidence is not affected by the  illegality of the means by which it is obtained, and if  evidence offered in support of a fact in issue is  relevant and otherwise competent, it is generally  admissible, though it may have been obtained  unethically, wrongfully, or unlawfully, unless its  admission will violate a constitutional guaranty of the  person against whom its admission is sought, or is in  contravention of a statutory enactment of the  jurisdiction.   Accordingly, the exclusion of evidence  logically relevant in a criminal prosecution can be  justified only by an overriding public policy expressed  in the Constitution or the law of the land.  The  underlying principle admitting evidence wrongfully or  illegally obtained is that the objection to an offer of  proof made upon the trial raises no question other than  competency, relevancy, and materiality, and the court  cannot enter upon the trial of collateral issues as to the  source from which the evidence was obtained.   It has  also been said that a far-reaching miscarriage of  justice would result if the public were to be denied the  right to use convincing evidence of a defendant’s guilt  because it had been brought to light through the  excessive zeal of an individual, whether an officer or  not, whose misconduct must be deemed his own act  and not that of the state. \005\005\005.."

       The Fourth Amendment of American Constitution guarantees the  "right of the people to be secure in their persons, houses, papers and effects  and against unreasonable searches and seizures." On the basis of the  aforesaid Constitutional provision, the United States Supreme Court in some  earlier decisions laid down the rule that evidence obtained by means of an  unlawful search and seizure by federal officers is not admissible against an  accused in a criminal prosecution in a federal court where timely objection  to the use of such evidence has been made.  However, in Stone v. Powell  428 US 465 the aforesaid view was reversed and it was held that the  application of the rule deflects the truthfinding process and often frees the  guilty.   The disparity in particular cases between the error committed by the  police officer and the windfall afforded to a guilty defendant by application

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of the rule is contrary to the idea of proportionality that is essential to the  concept of justice.  It was observed that although the rule is thought to deter  unlawful police activity in part through the nurturing of respect for Fourth  Amendment values, if applied indiscriminately it may well have the opposite  effect of generating disrespect for the law and administration of justice.    The Court quoted with approval the following point highlighted by Justice  Black, in his dissenting opinion in an earlier decision rendered in Kaufman  v. United States 394 US 237: "A claim of illegal search and seizure under the  Fourth Amendment is crucially different from many  other constitutional rights; ordinarily the evidence  seized can in no way have been rendered  untrustworthy by the means of its seizure and indeed  often this evidence alone establishes beyond virtually  any shadow of a doubt that the defendant is guilty."

22.     The Constitution Bench decision in Pooran Mal v. The Director of  Inspection 1974 (1) SCC 345 was considered in State of Punjab v. Baldev  Singh 1999 (6) SCC 172 and having regard to the scheme of the Act and  especially the provisions of Section 50 thereof, it was held that it was not  possible to hold that the judgment in the said case can be said to have laid  down that the "recovered illicit article" can be used as "proof of unlawful  possession" of the contraband seized from the suspect as a result of illegal  search and seizure.   Otherwise, there would be no distinction between  recovery of illicit drugs, etc. seized during a search conducted after  following the provisions of Section 50 of the Act and a seizure made during  a search conducted in breach of the provisions of Section 50.   Having regard  to the scheme and the language used, a very strict view of Section 50 of the  Act was taken and it was held that failure to inform the person concerned of  his right as emanating from sub-Section (1) of Section 50 may render the  recovery of the contraband suspect and sentence of an accused bad and  unsustainable in law. As a corollary, there is no warrant or justification for  giving an extended meaning to the word "person" occurring in the same  provision so as to include even some bag, article or container or some other  baggage being carried by him.   

23.     Coming to the merits of the appeal, the High Court allowed the appeal  on the finding that the report of the Chemical Examiner had to be excluded  and that there was non compliance of Section 50 of the Act.   The learned  Judges of this Court, who heard the appeal earlier, have recorded a  unanimous opinion that the report of the Chemical Examiner was admissible  in evidence and could not be excluded.   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.   The High Court did not  examine the testimony of the witnesses and other evidence on merits.    Accordingly, the matter has to be remitted back to the High Court for a fresh  hearing of the appeal.

24.     In the result, the appeal is allowed.   The judgment and order dated  26.8.1996 of the High Court is set aside.   The appeal preferred by the  respondent Pawan Kumar shall be heard afresh by the High Court in the  light of the findings recorded by this Court and in accordance with law.         

Criminal Appeal No. 375 of 2003

       According to the case of the prosecution, Ram Niwas, SHO Police  Station Pilibanga received information that the accused who was indulged in  smuggling of opium was standing at the bus stand.   A police party reached  the main bus stand at about 7.10 p.m. and found the accused standing with  an attachi in his hand.   A written notice was then given to the accused that  his attachi-case will be searched as information has been received that the  same contains opium.   He was also asked whether he would like the search  to be conducted before a Magistrate or a Gazetted Officer.   This fact was

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also mentioned in the notice.   The accused said that he did not want to be  searched before any Magistrate or Gazetted Officer and the SHO could carry  on the search.   This statement of the accused was signed by him.   The  search of the attachi revealed 5 kgs. of opium.   After conducting other  formalities and investigation of the case, the accused was put up for trial.    The learned Sessions Judge convicted the accused under Section 8/18 of the  NDPS Act and sentenced him to 10 years RI and a fine of Rs.1 lakh.   The  High Court by a very cryptic judgment held that the provisions of Section 50  of the NDPS Act were not complied with as the accused was not informed of  his right to be searched in presence of a Magistrate or a Gazetted Officer and  accordingly allowed the appeal and set aside the conviction and sentence of  the accused.            For the reasons discussed earlier, the view taken by the High Court  cannot be sustained as it was a case of search of an attachi which was  carried by the accused.   The appeal is accordingly allowed and the judgment  and order dated 5.10.2001 of the High Court is set aside.   The matter is  remitted back to the High Court for a fresh consideration of the appeal on  merits and in accordance with law.