IMPORTANT POINT
Provisions of Section 50 N.D.P.S. Act apply in case of personal search of a person and does not extend to search of a vehicle or container or bag or premises.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50-Recovery of about one kg. of heroine from baggage of appellant concealed in a suitcase-Conviction challenged on plea of non-compliance of provisions of Section 50 of the Act-Section 50 applies in case of personal search of a person and does not extend to search of a bag, vehicle, container or premises -High Court was justified in holding that Section 50 had no application.
       Held : 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 (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 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. (Paras 10 to 12)
       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 42 (2)-Recovery of heroine from baggage of appellant-Prior secret information was with PW.1 Intelligence Officer N.C.B. before search and seizure-Statement of PW.1 that he had informed his superior remained unshaken -Information reduced in writing was placed before immediate superior who perused it had put his signatures-It was due compliance of Section 42(2) of the Act.

JUDGMENT

Arijit Pasayat, J.-The appellant, a Gambian national, was apprehended around mid-night of 17-9-1993 at the Sahara Airport Bombay for carrying heroin in his baggage in ET Flight No. 661. Ashok Thaker, (PW-1) an intelligence officer attached to the Narcotic Bureau screened the baggage and seizure was made of the heroine weighing about 1 kg. which was concealed in a suitcase. After recording the statement accused was taken for alleged contravention of various provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act ) and also under the Customs Act, 1962 (in short the Customs Act ). He was charged for offence punishable under Sections 21, 23, 28 and 29 of the Act and also Sections 135(1)(a)(ii) of the Customs Act. Accused pleaded innocence. He was tried in the Court of Special Judge for Greater Bombay who found that there was non-compliance with the requirement of Section 50 of the Act as he was not made aware of his right to be searched before a gazetted officer or a Magistrate before the search was conducted. It was also held that the requirement of Section 42(2) to submit the gist of information to higher officer immediately was also not established. The accused was acquitted of all the charges. The prosecuting agency filed an appeal before the Bombay High Court which by the impugned judgment held the accused guilty for offences punishable under Section 8(c) read with Section 21 of the Act for which custodial sentence of 10 years imprisonment and fine of Rs. 1 lakh for default stipulation was awarded. Further for offence relatable to Sections 28 read with Section 23 of the Act a similar sentence was awarded. Though he was convicted under Section 135(1)(a)(ii) of the Customs Act, but no separate sentence was awarded. The High Court held that Section 50 was not attracted to the facts of the case. Similarly, it was held that there was compliance of requirements of Section 42(2) of the Act.

2. Said judgment of the High Court is under challenge in this appeal.

3. In support of the appeal, learned counsel appearing for the appellant submitted that the trial Court was justified in holding that the accusations were not established against the appellant. Unfortunately, the High Court had on an erroneous reading of Sections 42 and 50 came to hold that there was compliance with the requirements of the said provisions. The seized articles were sent for chemical examination on 23-9-1993. This was in violation of Section 55 of the Act.

4. Learned counsel for the respondent-State submitted that the High Court was justified in its conclusion and correct interpretation of the relevant provisions of the Act have been made. Further, the plea that there was any prejudice to the accused on account of delayed dispatch was not taken before the courts below. In any event, the investigating officer categorically stated that the seized articles were kept in safe custody. There was not even any material brought on record to doubt the statement.

5. Before dealing with rival submissions, it is appropriate to take note of the factual background noticed by the trial Court and the High Court.

During the night between 17-9-1993 and 18-9-1993 PW-1 attached to Narcotic Control Bureau (in short NCB ) Office, received information that the accused, a Gambian national, was likely to smuggle heroin in his baggage by ET flight 661, scheduled to arrive at 0645 hours that night. He received the information when he was at the airport. He reduced the same to writing (Exh. 16-A) and placed it before his immediate superior Assistant Director, Mr. S.C. Rohatgi, who was present at the Airport. Mr. Rohatgi perused it and put his signature and asked the officer to act upon the said information. At the Airport, he called two panchas and kept a watch at the X-ray machine counter. One Mr. Karanjla, who was a security officer, was Screen Machine Operator at the relevant time. When the accused placed three baggages for screening, the security

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2003 Supreme(SC) 1222

IMPORTANT POINTProvisions of Section 50 N.D.P.S. Act apply in case of personal search of a person and does not extend to search of a vehicle or container or bag or premises.

Cases Referred (3)

IMPORTANT POINT
Provisions of Section 50 N.D.P.S. Act apply in case of personal search of a person and does not extend to search of a vehicle or container or bag or premises.