VERY IMPORTANT POINT
Under Section 50 of NDPS Act, requirement of informing an accused about his right to be searched in the presence of a Magistrate or a Gazetted Officer would arise only when a person of an accused is to be searched then he is required to be informed about his right to be examined in presence of a Gazetted Officer or a Magistrate.

JUDGMENT

Nanavati, J.-The appellant, a Zaire National, arrived at the Sahar Airport (Bombay) by Ethiopian Airlines flight on 22.11.90. Mr. Anil Menon, Intelligence Officer in Narcotic Control Bureau had received information that one Zaire National, Kalema Tumba (the appellant), was to arrive by that flight and was likely to carry sizeable quantity of heroin. That information was reduced into writing and a watch was kept at the airport by him and other officers. After the flight had arrived and the appellant had reported at the customs checking counter, Mr. Dange who had accompanied Mr. Menon and Mr. Rohtagi, Asst. Director, questioned the appellant and after satisfying themselves that he was the same person in respect of whom they had earlier received the information, asked him to identify his baggage. The appellant identified his black colour rexine bag with brown strips. It was found locked. Baggage tag fixed on it tallied with the claim tag affixed on his Air-ticket. The appellant then opened the bag after taking out a key from his pocket. On examination packets containing brownish powder were found from it. The test revealed that the said powder was heroin. The total quantity thus found from the possession of the appellant was 2 Kgs. The customs officers thereafter completed all the formalities in presence of two panch witnesses and then took him to the office of the Narcotic Control Bureau. There his statement under Section 108 of the Customs Act was recorded and on the same day in the evening at about 9.00 p.m. he was arrested. After obtaining the report of the Chemical Analyser he was charge-sheeted and prosecuted in the Court of the Special Judge (NDPS) for Greater Bombay in NDPS Case No. 84 of 1991 for commission of offences under the NDPS Act and the Customs Act.

2. The learned Judge relying upon the evidence of P.W. 1 - Mr. Menon, P.W. 2 Mr. Rohtagi, P.W. 5 - Mr. Dange and the evidence of Panch witness held that the appellant had brought 2 Kgs. heroin with him and was in possession thereof. He, therefore, convicted the appellant for the offences punishable under Section 21 read with Section 8(c) and Section 23 read with Section 28 and 8(c) of the NDPS Act. He also convicted him under Section 135(i)(a) read with Section 135(i)(ii) of the Customs Act, 1962.

3. The appellant challenged his conviction before the High Court. His appeal (Criminal Appeal No. 401 of 1994) was partly allowed by the High Court. His conviction was confirmed but the sentence awarded in default of payment of fine was reduced.

4. Ms. M. Qamaruddin, learned counsel for the appellant, submitted that the mandatory requirement of Section 50 of the NDPS Act was not complied with and therefore the evidence regarding recovery and seizure of heroin should be regarded as illegal. She further submitted that the appellant could not have been convicted on the basis of that evidence. It was submitted by her that the appellant was not told, before the search by the officers of the Narcotic Control Bureau that he had a right to be searched in presence of a Gazetted Officer or a Magistrate. This contention deserves to be rejected because only when a person of an accused is to be searched then he is required to be informed about his right to be examined in presence of a Gazetted Officer or a Magistrate. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh1 this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh & Ors.2 , wherein it was held that though poppy Straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in Baldev Singh s case (su