REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.211 OF 2001

State of Haryana …Appellant

Vs.

Mai Ram son of Mam Chand …Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the learned

Single Judge of the Punjab and Haryana High Court, directing

acquittal  of  the  respondent  (hereinafter  referred  to  as  the

‘accused’).  The  respondent  was  found  guilty  of  offence

punishable  under  Section  17  of  the  Narcotic  Drugs

Psychotropic  Substance  Act,  1985  (in  short  ‘NDPS  Act’)  by

learned Additional  Sessions Judge III,  Hissar.  He found the

1

accused guilty of the offence punishable under Section 17 of

the Act and was sentenced to undergo imprisonment for 10

years       

2. Background facts giving rise to the trial are as follows:

On 3.1.1988, Ishwar Singh, Sub Inspector along with ASI

Ram Kishan and 3 Constables was present at platform No.3

near Railway bridge.  At about 8.30 p.m. one train came from

the  side  of  Sadalpur,  Chandgi  Ram PW was  also  with  the

police party at that time.  Accused Mai Ram alighted from that

train  and  started  walking  towards  the  engine.   He  was

carrying one bag (Ex.P1) in his right hand.  On suspicion, he

was stopped. First of all, the Sub Inspector served him with a

notice Ex. PA and told him that he (S.I.)  suspected that he

(accused)  was  carrying  some  contraband  article  like  opium

and  Ganja  etc.  and  if  he  (accused)  wanted  he  could  be

searched before the Magistrate or the Gazetted Officer. But the

accused gave in writing that he (S.I.) could search him himself

and the accused also made an endorsement Ex.PA/1 to this

2

effect.  Then the Sub Inspector gave his search to the accused

and there after searched bag (Ex.P1) carried by the accused

which contained 1-1/2 kgs. of opium, without any licence or

permit.  The S.I. took 25 grams of opium as a sample out of

the recovered opium and put the remaining opium in tin box

(Ex.P.2).  He then sealed the sample and tin-box (Ex.P2) with

the seal of IS and the seal after use was given to Chandi Ram

PW. The articles were taken into possession vide memo Ex.P.3

attested by the PWs.  Thereafter, the personal search of the

accused was effected and a ticket Ex.P3 and a cash amount of

Rs.45/- were also recovered from his possession which were

taken into possession vide the recovery memo Ex.PC attested

by the PWs and thumb marked by the accused.  The accused

was arrested  after  telling  him the  grounds of  arrest.   Ruea

Ex.PD was sent to the Police  Station on the basis of which

formal F.I.R/ Ex. PD/1 was recorded. Rough site plan Ex.PE

with  correct  marginal  notes  was  prepared.  Statement  of

witnesses was recorded.  After returning to the Police Station,

the case property was deposited with the MMC with the seals

intact.  The  S.I.  also  telephonically  informed  the  Dy.  S.P.

3

regarding  seizure  of  opium.   After  the  investigation,  the

accused was challaned by the Sub Inspector Ishwar Singh.

3. Learned  Trial  Judge  found  that  the  prosecution

established its  case  and accordingly  convicted  and imposed

sentence as aforesaid.

4. An appeal was filed before the Punjab and Haryana High

Court.  Learned Single Judge allowed the appeal holding that

there was violation of the provisions of Section 50 of the Act.

It was noted that elaborate reasons were not recorded about

the suspicion about the accused being in possession of opium.

It  was  also  noted  that  the  recovery  was said  to  have  been

effected  at  the  railway  station  and  many  independent

witnesses would have been available.  But only police officials

were examined as PWs.1 and 2.  There was no evidence  to

show that the seals were intact.   

5. Learned counsel  for the appellant-State submitted that

Section 50 has no application because there was no question

4

of  personal  search  and  the  search  was  of  bag  which  was

carried  by  the  accused.  Additionally,  there  was  no

requirement  in law to record  the reasons for the suspicion.

Further, the accused was apprehended when he got down at

the railway station about 8.30 p.m.  PWs 1 and 2 categorically

stated in their evidence that no other person was willing to be

a  witness.  Merely  because  the  officials  witnesses  were

examined, that cannot be a ground to suspect the prosecution

version.   There  was  not  even  a  suggestion  during  the

examination of the witnesses that the seals were not intact.

Therefore, the High Court’s reasoning and conclusions are not

sustainable.                   

6. Leaned counsel for the respondent-accused on the other

hand  submitted  that  the  respondent  is  presently  about  70

years old.  The quantity stated to have been recovered is about

1.5 kilos.  Subsequently, there has been amendment and by

notification dated  2.10.2001 the commercial  quantity  is  2.5

kg.

5

7. It  is submitted that after 20 years, and having already

suffered  some  year  of  custody,  respondent  should  not  be

asked to surrender to custody.     

8. The  Trial  Court  record  categorical  finding  that  the

requisite  procedure  was  followed  and  even  if  there  was  no

requirement for giving a notice in terms of Section 50 of the

Act  as  no  personal  search  was  made,  requisite  procedures

were followed.  There is nothing in law that elaborate reasons

for  entertaining  a  suspicion  about  an  accused,  carrying

contraband articles should be recorded. The High Court was

clearly in error in holding that the reason for the suspicion

was not recorded.  So far as the examination of only official

witness  is  concerned,  it  is  to  be  noted  that  the  only

independent witness who was examined to speak about the

seizure did not support the prosecution version.  No material

was brought on record by the defence to discredit the evidence

of the official witnesses. The ultimate question is whether the

evidence of the official witness suffers from any infirmity.  In

6

the instant case nothing of the nature could be pointed out.

Further PWs 1 and 2 categorically stated that no other person

was willing to depose as witness.  Therefore, the High Court

was clearly  in error  in holding that the prosecution version

became vulnerable for non-examination of persons who were

not official witnesses.         

9. It  is to be  noted that Trial  Court  found that the seals

were  intact  as deposed  by the official  witnesses.   The  High

Court  came  to  an  abrupt  conclusion  that  there  was  no

evidence to show that the seals were intact.   

10. As rightly submitted by learned counsel for the State no

such question was raised and on the contrary the Trial Court

found that the evidence of official witnesses clearly establish

that the seals were intact.  

7

11. So far as the applicability of Section 50 is concerned, the

High Court’s view is clearly indefensible.  Section 50 reads as

follows:

“50.  Conditions  under  which  search  of persons shall be conducted. -  

(1)  When any  officer  duly  authorised  under Section  42  is  about  to  search  any  person under the provisions of Section 41, Section 42 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.”  

8

12. 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),  State of Punjab v.  Baldev Singh (1999 (6) SCC 172)

and 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).  A similar question was examined in  Madan Lal and

Anr. v. State of Himachal Pradesh (2003 (6) Supreme 382).   

13 Above  being  the  position,  the  finding  regarding  non-

compliance  of  Section  50  of  the  Act  is  also  without  any

substance.  

14. Looked from any angle the judgment of the High Court is

clearly indefensible and is set aside.

9

15. Respondent shall surrender to custody forthwith to serve

the remainder of sentence.

……….……………………….….J. (Dr. ARIJIT PASAYAT)

       ……..…………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, July 31, 2008  

10