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: Y.K. Sabharwal

JUDGMENT: J U D G M E N T

O R D E R

Y.K. Sabharwal, J.

       The respondent was found guilty of offence under Section 18 of The  Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ’the NDPS  Act’) by Sessions Judge and sentenced to undergo rigorous imprisonment for 10  years and fine in the sum of Rs.1,00,000/- and in default of payment of fine to  undergo further rigorous imprisonment for two years.  The High Court, by the  impugned judgment, has set aside the conviction of the respondent.  The State is in  appeal on grant of leave.   Briefly, the case of the prosecution is that the respondent was apprehended  at a bus stand on 28th July, 1994 by PW-7 (Hukam Singh), Head Constable  Munshi Ram and few others who suspected that he was carrying opium because of  smell coming from his bag.  Head Constable Munshi Ram telephonically informed  PW8 (Prem Thakur), Deputy Superintendent of Police /SHO, Police Station Sadar  Mandi about the apprehension of the accused.  PW-8 went to the spot and inquired  from the accused about his willingness to be searched by the Police or by a  Magistrate.  The accused showed his willingness to be searched by the police.   PW-8 conducted the search of the accused and found opium which was being  carried in a bag.  On the recovery, opium was weighed and was found to be 360  gms.  Two samples of the opium were separately made in two parcels.  The  remaining opium was put into the third parcel.  All the three parcels were sealed.   One of the samples was sent to the laboratory at Kandaghat for chemical analysis  and the Assistant Chemical Examiner opined vide report (Exhibit PF) that the  sample was that of opium.         The High Court has acquitted the respondent primarily on two grounds.   One \026 the report (Exhibit PF) has to be excluded from consideration and in  absence thereof, there is no other evidence to establish that the material recovered  from the possession of the accused was opium.  The second ground is non- compliance of Section 50 of the NDPS Act.         ’Opium’ is defined in Section 2(xv) of the NDPS Act.  Section 8 of the Act,  inter alia, prohibits the possession of any narcotic drug or psychotropic substances.   Section 9 relates to the power of the Central Government to permit, control and  regulate the cultivation, protection etc. of narcotic drugs and psychotropic  substances subject to the provisions of Section 8.  Section 10 relates to the power  of the State Government to permit, control and regulate, subject to the provisions  of  Section 8, the possession, consumption and use of opium and other material  mentioned therein.  Section 76 is the rule making power of the Central  Government for carrying out objects of the Act.  Clause (df) of sub-section 2 of  Section 76 relates to the power to make rules providing for the drawing of samples  and testing and analysis of such samples.         In exercise of the powers conferred by Section 9 read with Section 76 of the  NDPS Act, the Central Government has made the Narcotic Drugs and  Psychotropic Substances Rules, 1985 (for short, ’the NDPS Rules’).  Rule 2(c)  defines the expression ’Chemical Examiner’ to mean the Chemical Examiner or

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Deputy Chief Chemist or Shift Chemist or Assistant Chemical Examiner,  Government Opium & Alkaloid Works, Neemuch or, as the case may be  Ghazipur.  Chapter III of the NDPS Rules relates to opium, poppy cultivation and  production of opium and poppy straw.  Rules 5 to 34 are in Chapter III.  Rule 17  provides the procedure for sending Opium suspected to be adulterated to the  Government Opium Factory.  It provides that when opium delivered by a  cultivator to the District Opium Officer or any other officer authorized in this  behalf, is suspected of being adulterated with any foreign substance, it shall be  forwarded to the Government Opium Factory separately, after it is properly sealed  in the presence of the cultivator and the concerned Lambardar.  Rule 22 relates to  confiscation of adulterated opium.  It provides that all such opium received  separately under Rule 17, if found to be adulterated on examination by the  Chemical Examiner in the Government Opium Factory may be liable to  confiscation by the General Manager.  The High Court has held that since the  sample in question was not examined by the Chemical Examiner as postulated by  Rule 2(c), the opinion (Exhibit PF) given by Chemical Examiner of Kandaghat  laboratory cannot be taken into consideration and in absence thereof, it cannot be  held that the material allegedly recovered from the respondent was opium.   According to the High Court, the Chemical Examiner of Kandaghat Laboratory  does not come within the definition of expression ’Chemical Examiner’ under  Rule 2(c).  For its view, the High Court has relied upon a Division Bench decision  of the same High Court reported in State of H.P. v. Bikho Ram [ILR 1995 (2) HP  (Vol.24) 1645].  In the said decision, the opinion of the Chemical Examiner,  Karnal was excluded from consideration since the said Chemical Examiner did not  come within the purview of Rule 2(c).  The Division Bench did not examine the  scope and purport of Chapter III in general and that of Rules 17 and 22 of the  NDPS Rules, in particular.  The question whether there was any obligation to send  the illegally possessed opium to the Chemical Examiner within the meaning of  Rule 2(c) was not considered.           Rule 2(c) of the NDPS Rules has to be read in conjunction with Chapter III  of the said Rules including Rules 17 and 22.  These Rules show that when the  opium is delivered by the cultivator to the District Opium Officer, if suspected of  being adulterated with any foreign substance, it shall be forwarded to the  Government Opium Factory.  Chapter III relates to analysis of samples of lawfully  cultivated and produced opium.  Rule 22 provides for confiscation if opium on  examination by the Chemical Examiner is found to be adulterated.  There is no  provision in the NDPS Act or Rules debarring chemical analysis of opium found  to be in illegal possession of an accused contrary to the provisions of the Act and  seized, in any other laboratory which may be authorized to analyse the sample.   There is also no requirement that such opium must be examined by the Chemical  Examiner within the meaning of Rule 2(c).         In the present case, two notifications \026 one dated 14th April, 1982 and the  other dated 9th April, 1984 issued by Government of Himachal Pradesh have been  extracted in the impugned judgment.  By notification dated 14th April, 1982 issued  in the name of the Governor, Himachal Pradesh, the public analyst, Himachal  Pradesh Food and Drugs Laboratory Kandaghat, District Solan was appointed as  Chemical Examiner for the whole State of Himachal Pradesh with immediate  effect in public interest.  By notification dated 9th April, 1984, the setting up of  composite testing laboratory at Kandaghat, District Solan, Himachal Pradesh for  analysing/testing samples taken from various departments mentioned in the  notification under various Acts/Rules was ordered with immediate effect.  The  Police department is one of the departments mentioned therein.  The notification,  inter alia, provides that functions of the laboratory is testing of samples, sent by  various departments, Police being one of it.         The High Court, with reference to the above notifications, has noticed that  the NDPS Act was enforced subsequent to the issue of notifications and the  notifications would not cover the cases under the said Act.  I   am  unable to  sustain this view.  The notification dated 9th April, 1984 is not restricted to the  testing of samples sent under any particular Act/Rule.  It is a notification which  empowers the laboratory at Kandaghat to analyse and test the samples sent by  Police department under various Acts/Rules without mentioning name of any  Act/Rule.  The notification would not exclude samples sent for testing under the  NDPS Act.  The notification is not restricted to only those Acts and Rules which  were in existence when the notification was issued.  Clearly, it would include the  testing of samples sent by the Police department under any Act or Rule which may

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even come into operation after the issue of the notification.  In our view, the Full  Bench of Madhya Pradesh High Court in Ram Dayal v. Central Narcotic Bureau  [1993 Cri.L.J. 1443] on analysis of Sections 9 and 76 of the NDPS Act and Rule  2(c) rightly came to the conclusion that there is no provision in the Act and the  Rules debarring chemical analysis  of unlawfully possessed opium seized in  connection with an offence, elsewhere at any other laboratory.  The High Court  fell into an error in excluding from consideration the opinion of Chemical  Examiner, Kandaghat laboratory (Exhibit PF).  Therefore, the conclusion of the  High Court that the prosecution has failed to prove that the incriminating material  recovered from the possession of the respondent was opium, could not be  sustained.         Regarding the other ground, the question of non-compliance of Section 50  of the NDPS Act would arise if on the facts and circumstances of the case, it is  held that the case in hand relates to search of a ’person’.         Section 50, on its plain reading, applies to search of ’any person’.  When  any duly authorized officer is about to search any person, he is required to comply  with conditions stipulated in Section 50.  In State of Punjab v. Baldev Singh  [(1999) 6 SCC 172], a Constitution Bench has held that Section 50 would come  into play only in case of search of person as distinguished from search of any  premises etc.  Clearly, there is a distinction between search of a person and search  of any premises, place, vehicle etc.  In later case for search, Section 50 will have  no applicability, search being not of any person.   In Madan Lal & Anr. v. State of H.P. [(2003) 7 SCC 465], on personal  search of the accused, nothing incriminating was found but when the car was  searched, the contraband was found and, under these circumstances, it was held  that Section 50 does not extend to search of a vehicle or container or bag or  premises.           In Bharatbhai Bhagwanjibhai v. State of Gujarat [(2002) 8 SCC 327],  Section 50 was held not applicable as it was found that at the time of effecting  search, the Inspector had no knowledge that an offence under Chapter IV of the  NDPS Act has been committed by the accused.  If the officer conducting search  has no information, knowledge or belief in respect of commission of offence under  the NDPS Act, the question of complying with Section 50 of the said Act at the  time of such a search would not arise.         In Kalema Tumba v. State of Maharashtra & Anr. [(1999) 8 SCC 257], a  decision rendered by a Two Judge Bench, observations were made to the effect  that if a person is carrying a bag or some other article with him and a narcotic drug  or psychotropic substance is found from it, it cannot be said that it was found from  his ’person’.  The observations have to be seen in the context of the facts of the  case.  It was a case where a passenger had arrived at the airport from a foreign  country.  The Intelligence Officer in Narcotic Control Bureau had information that  the concerned person was likely to carry sizeable quantity of heroin.  After the  arrival of the flight, the person was questioned and asked to identify his baggage.   The heroin was found in the baggage that was opened on the identification of the  accused.  Clearly, there was no search of the person.  It was the search of luggage  identified by him.  The observations made in the decision have to be understood in  the context of these facts.  Similarly, the observations made in Sarjudas & Anr. v.  State of Gujarat [(1999) 8 SCC 508] and Birakishore Kar v. State of Orissa  [(2000) 9 SCC 541] have to be considered in the light of the facts and  circumstances of the facts of the said cases.         Many a times, there may be a thin and fine line separating the question of  the search of a ’person’ in contradistinction to bag, vehicle or the premises.  The  analysis of facts and circumstances of each case would provide an answer.   It has, however, to be borne in view that the conditions of Sections 50 have  to be strictly complied having regard to stringent punishment provisions of the  NDPS Act.   In Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513],  a three Judge Bench, noticing Baldev Singh, Sarjudas and Kalema Tumba held  that where not a person of the driver, but the vehicle driven by him was searched  and was found to contain gunny bags containing Charas, the question of  complying with the requirements of Section 50 of the NDPS Act does not arise as  the place in the vehicle where the gunny bags were stacked was not inextricably  connected with the person of the driver.  However, on the fact situation, it was  held that Section 50 was not applicable.   The answer to the real question in cases where the line of separation is thin

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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.  The bag searched on facts that were under consideration in  Kalema Tumba and other similar cases was not inextricably connected with the  person of the accused and, therefore, had no application.  There has to be  inextricable connection between the person and the object to be searched for  Section 50 to apply.         Learned counsel for the appellant has also placed reliance on Gurbax  Singh v. State of Haryana [(2001) 3 SCC 28].  In that case, on checking by the  staff of a second class compartment of a train, the appellant, who was sitting in the  compartment being checked became panicky and left the train carrying a katta  (gunny bag) on his left shoulder.  A Sub-Inspector who was present on platform  for checking smuggling and other antisocial elements, on suspicion, nabbed him  and found that he was carrying poppy straw weighing 7 kgs. in the bag.  The panic  reaction of the appellant created suspicion.  The Police Officer had neither  information, nor knowledge nor reason to believe that the offence under the NDPS  Act had been committed and it is in this light that the question of the applicability  of Section 50 on the search of the person was examined and observations made  that the said provision would be applicable only in those cases where the search of  the person is carried out.         Lastly, reference may be made to Namdi Francis Nwazor v. Union of  India & Anr. [(1998) 8 SCC 534], a three Judge Bench decision.  The facts were  that the accused/petitioner, a Nigerian national, who was leaving India for Lagos  was first asked at the airport if he was carrying any narcotics or other contraband  goods and on his refusal, his luggage was checked. Nothing incriminating was  found from the two handbags which the accused was carrying.  He had, however,  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 called back.  The contraband  articles were recovered from the said bag.  It was held that 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.  Under these circumstances, it was  held that Section 50 of the NDPS Act has no applicability, but while so holding  the clarification that was given in that case is very relevant here.  It was clarified  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 NDPS Act’.  In the fact situation of the present  case, the principles laid in this decision are clearly attracted.  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.         The rationale behind Section 50, the effect of conducting a search without  intimating to the suspect that he has a right to be searched before a Gazetted  Officer or a Magistrate ? that right being a part of a reasonable, fair and just  procedure and the dual purpose intended to be served by the said provision ? to  protect a person against false acquisition and frivolous charges as also to lend  credibility to the search and seizure conducted by the empowered officer, has been  emphasized in Baldev Singh’s case (supra) in the following words: "To be searched before a gazetted officer or a  Magistrate, if the suspect so requires, is an extremely  valuable right which the legislature has given to the  person concerned having regard to the grave  consequences that may entail the possession of illicit  articles under the NDPS Act. It appears to have been  incorporated in the Act keeping in view the severity of  the punishment. The rationale behind the provision is  even otherwise manifest. The search before a gazetted  officer or a Magistrate would impart much more  authenticity and creditworthiness to the search and  seizure proceeding. It would also verily strengthen the  prosecution case.

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       The safeguard or protection to be searched in the  presence of a gazetted officer or a Magistrate has been  incorporated in Section 50 to ensure that persons are  only searched with a good cause and also with a view to  maintain the veracity of evidence derived from such  search. We have already noticed that severe punishments  have been provided under the Act for mere possession of  illicit drugs and narcotic substances. Personal search,  more particularly for offences under the NDPS Act, are  critical means of obtaining evidence of possession and it  is, therefore, necessary that the safeguards provided in  Section 50 of the Act are observed scrupulously. The  duty to inform the suspect of his right to be searched in  the presence of a gazetted officer or a Magistrate is a  necessary sequence for enabling the person concerned to  exercise that right under Section 50 because after  Maneka Gandhi v. Union of India ((1978) 1 SCC 248) it  is no longer permissible to contend that the right to  personal liberty can be curtailed even temporarily, by a  procedure which is not ’reasonable, fair and just’ and  when a statute itself provides for a ’just’ procedure, it  must be honoured. Conducting a search under Section  50, without intimating to the suspect that he has a right  to be searched before a gazetted officer or a Magistrate,  would be violative of the ’reasonable, fair and just  procedure’ and the safeguard contained in Section 50  would be rendered illusory, otiose and meaningless.  Procedure based on systematic and unconscionable  violation of law by the officials responsible for the  enforcement of law, cannot be considered to be a ’fair’,  just or reasonable procedure. We are not persuaded to  agree that reading into Section 50, the existence of a  duty on the part of the empowered officer, to intimate to  the suspect, about the existence of his right to be  searched in the presence of a gazetted officer or a  Magistrate, if he so requires, would place any premium  on ignorance of the law. The argument loses sight of a  clear distinction between ignorance of the law and  ignorance of the right to a ’reasonable, fair and just  procedure’.         This Court cannot overlook the context in which the  NDPS Act operates and particularly the factor of  widespread illiteracy among persons subject to  investigation for drug offences. It must be borne in mind  that severer the punishment, greater has to be the care  taken to see that all the safeguards provided in a statute  are scrupulously followed. We are not able to find any  reason as to why the empowered officer should shirk  from affording a real opportunity to the suspect, by  intimating to him that he has a right ’that if he requires’  to be searched in the presence of a gazetted officer or a  Magistrate, he shall be searched only in that manner. As  already observed the compliance with the procedural  safeguards contained in Section 50 are intended to serve  a dual purpose - to protect a person against false  accusation and frivolous charges as also to lend  creditability to the search and seizure conducted by the  empowered officer. The argument that keeping in view  the growing drug menace, an insistence on compliance  with all the safeguards contained in Section 50 may  result in more acquittals does not appeal to us. If the  empowered officer fails to comply with the requirements  of Section 50 and an order or acquittal is recorded on  that ground, the prosecution must thank itself for its  lapses. Indeed in every case the end result is important

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but the means to achieve it must remain above board.  The remedy cannot be worse than the disease itself. The  legitimacy of the judicial process may come under a  cloud if the court is seen to condone acts of lawlessness  conducted by the investigating agency during search  operations and may also undermine respect for the law  and may have the effect of unconscionably  compromising the administration of justice. That cannot  be permitted."

       The case of the prosecution itself is that the accused was carrying a bag on  his shoulder; opium like smell was coming from the bag; and the Head Constable  informed the Deputy Superintendent of Police who came to the spot.  Before  search, the Deputy Superintendent of Police was informed of the suspected  possession of the opium.  The testimony of PW7 is that the person of the accused  was then searched by the Deputy Superintendent of Police and on search, bag  containing opium was found.  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.         The judgment of the High Court does not warrant any interference.  The  appeal is, accordingly, dismissed.