27 September 2004
Supreme Court
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STATE OF H.P. Vs PAWAN KUMAR

Case number: Crl.A. No.-000222-000222 / 1997
Diary number: 239 / 1997
Advocates: Vs NANITA SHARMA


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CASE NO.: Appeal (crl.)  222 of 1997

PETITIONER: State of Himachal Pradesh

RESPONDENT: Pawan Kumar

DATE OF JUDGMENT: 27/09/2004

BENCH: ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

I am in respectful agreement with the view expressed by my  learned and respected Brother that the opinion of Chemical  Examiner, Kandaghat Laboratory was not to be excluded.  However,  I am unable to agree with the views as regards Section 50 of the  NDPS Act.

Baldev Singh’s case (supra) made the position clear that  the said provision has application in case of search of a person.   The crucial question would be whether search of a bag carried on  the shoulder or back of a person is covered by Section 50.  I am  of the view that it would not be so.  There can be no basis for  making a distinction between search of a bag found near a person  and a bag carried by him.  In Kanhaiya Lal v. State of M.P. (2000  (10) SCC 380) it was held that when a bag carried by the accused  is searched, Section 50 has no application.  In Gurbax Singh v.  State of Haryana (2001 (3) SCC 28) it was held that when a bag  was being carried on the accused’s shoulder, Section 50 has no  application.   

In Saikou Jabbi v. State of Maharashtra (2003 (9) JT 609)  it was held as follows:

"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 and  Anr. (JT 1999 (8) SC 293), The State of Punjab  v. Baldev Singh (JT 1999 (4) SC 595), 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’s case (supra). Above being the  position, the contention regarding non- compliance of Section 50 of the Act is also  without any substance. In the case at hand the  contraband articles were suspected to be hidden  in the blue suitcase of the accused, and was  not in his physical possession. The suitcase  was put on the screening machine.  This cannot  be equated to be a recovery made from the

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person of the accused by a personal search. In    Birakishore Kar v. State of Orissa (2001 (9)  SCC 541) it was held that when there was a  recovery from a plastic bag belonging to the  accused on which he was found sitting on  railway compartment, Section 50 was not  applicable.  Baldev’s case (supra) was referred  to hold that Section 50 in case of search comes  into play only in case of search by a person as  distinguished from search from any premises  etc.  The position was also highlighted  recently in Madan LaL & Anr. v. State of  Himachal Pradesh (2003 AIR SCW 3969). Above  being the position the High Court was justified  in holding that Section 50 had no application."

Therefore, in my view there was no infraction of the  requirements of Section 50 of NDPS. The High Court went wrong in  holding otherwise.  

In a case of this nature, having regard to the purport and  object of the Act, the language cannot be any strained meaning so  as to frustrate the legislative purpose.