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CASE NO.: Appeal (crl.)  1067 of 2005

PETITIONER: STATE OF RAJASTHAN                                            

RESPONDENT: DAULAT RAM       

DATE OF JUDGMENT: 23/08/2005

BENCH: B.P. SINGH & S.H. KAPADIA     

JUDGMENT: J U D G M E N T [Arising out of SLP(Crl.)No.1114 of 2004]

       Heard counsel for the parties.         Delay condoned.         Special leave granted.            This appeal by special leave has been preferred by the State of Rajasthan against  the judgment and order of the High Court of Judicature for Rajasthan at Jodhpur dated 25th  April, 2003 in S.B.Criminal Appeal No.261 of 2000.    The High Court by its judgment and  order allowed the appeal preferred by the respondent and set aside  the order of conviction  and sentence passed by the Special Judge, NDPS Cases, Chittorgarh dated 5th May, 2000.    The trial court had convicted the respondent of the offence under Section 8/18 of the NDPS  Act and sentenced him to undergo 12 years rigorous imprisonment and to pay a fine of rupees  one lakh, in default of payment of fine, to further undergo one year’s rigorous imprisonment .         The facts of the case are that Mangilal, SHO police station, Nimbahera received a  secret information at about 4.00 a.m. on 2nd July, 1997 from an informer to the effect that  the  respondent was carrying 16 kgs. of contraband opium and was likely to pass through Arnoda  Bandh with a view to sell that opium.   He recorded the information received in the  Rojnamacha and sent copy thereof to the Superintendent of Police and the Deputy  Superintendent of Police, Chittorgarh and the Circle Officer, Nimbahera through Ramdayal,  Constable(PW-2).  He himself proceeded towards the spot indicated by the informant along  with PW3 Rais Mohd. Constable and other Constables.   They proceeded in a jeep which was  driven by Shakir Hussain and on the way they picked up 2 panch witnesses, namely, Om  Prakash PW-13 and Bherulal PW1.   PW-16 Hari Singh, Dy. Superintendent of Police,  Chittorgarh and Prithvi Singh, PW9, SHO, police station, Chanderiya had also been  informed.   When Mangilal, PW-8 reached the spot, he found a person carrying a bag on his  head going towards Karpa Ram Ji Ki Khedi.  He was accosted by the police party in the  presence of PW16, Dy.S.P. and PW9 S.H.O. Police Station, Chanderiya who had also reached  that spot.   That person disclosed his name as Daulat Ram (respondent herein).   He was  informed of the fact that he was suspected of carrying contraband opium and that he was to  be searched.    He was also given an option under Section 50 of the NDPS Act and asked by  PW8 Mangilal as to whether he wanted to be searched before a Magistrate or a Gazetted  officer or by PW8 Mangilal, SHO himself.   The respondent agreed to be searched by PW8  Mangilal and did not opt to be searched before a Gazetted officer or a Magistrate.   The  respondent who was carrying the bag on his head was searched.   The bag which he was  having on his head was  also opened and  found to contain 2 polythene bags containing some  substance, brown-black in colour.   On being tested, it was found to be opium.   The  respondent had no valid license to possess opium.   Thereafter, necessary steps were taken t o  prepare samples which were duly sealed and sent for chemical examination to the forensic  laboratory, which submitted a report adverse to the respondent to the following effect:            "On chemical and micro-chemical examination, each of  the samples contained in packets marked A1 and B-1    gave positive test  for  the major   chemical  constituents  of coagulated juice of opium poppy and the sample  marked A1 and B-1        were found to contain 5.32% and

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5.26% morphine respectively."        

       The respondent was put up for trial before the Special Judge, NDPS Cases who  found him guilty of the offence under Section 8/18 of the NDPS Act.  The appeal preferred by   the respondent, as noticed earlier, was allowed by the High Court and he was acquitted of th e  charges levelled against him.         The judgment of the High Court proceeds on the basis that if a bag carried by a  person on his head is searched and found to contain contraband opium,  it would amount to a  personal search, and, therefore, the provisions of Section 50 of the NDPS Act would  be  applicable.         In the instant case, the High Court held that the respondent was carrying a bag  on his head which was searched and found to contain contraband opium.   According to the  High Court this amounted to a personal search of the respondent and, therefore, Section 50 o f  the NDPS Act was attracted.    The High Court  considered the evidence on record and came  to the conclusion that the option given to the respondent under Section 50 of the NDPS Act  was only a partial option and, therefore, there was no proper or strict compliance of the  mandatory provisions of Section 50 of the NDPS Act. Consequently, it found that the  respondent was entitled to an acquittal.         The question as to what constitutes personal search within the meaning of Section  50 of the NDPS Act came up for consideration by a  Bench of this Court in the case of  State   of H.P. Vs. Pawan Kumar [2005 (4) SCC 350], wherein it has been held: "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. .........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 civilised 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 "person" would  mean a human being with appropriate coverings and clothings and  also footwear. ......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

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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.  

In view of the principles laid down in the aforesaid judgment of this Court, there is no sco pe  for the argument that  in the facts and circumstances of this case, the provisions of Sectio n 50  of the NDPS Act were  attracted.  The judgment and order of the High Court must, therefore,  be set aside.         Counsel for the appellant submitted that a person cannot be compelled to give  evidence  against himself.   He submitted that once the police had accosted the respondent,  who was suspected of possessing contraband opium, he must be deemed to be under arrest,  and if he was under arrest, any confession made by him cannot be used against him. We do not find that in this case, the respondent was under arrest merely because he was  questioned by the police on suspicion.  Moreover, there is nothing on record to suggest that  he  was compelled to make a confession.    The submission that compelling a person to be  searched amounts to confession must be rejected.   We do not find any other reason to  support the judgment of acquittal passed by the High Court.         We, therefore, set aside the impugned judgment and order  of the High Court  and restore the judgment and order of the Special Judge, NDPS Cases, Chittorgarh dated  May 5, 2000.         The appellant shall be taken into custody forthwith to serve out the remainder of  the sentence.   The appeal is accordingly allowed.