IMPORTANT POINT
Section 50 NDPS Act would not apply to a situation where search undertaken is not of the person of accused but of something carried in his hand.

JUDGMENT

Srikrishna, J.-This appeal by the State of Punjab is directed against a judgment of the High Court of Punjab & Haryana acquitting the respondent of the charge framed against him under Section 18 r/w Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ).

2. The relevant facts necessary for disposal of this appeal are as under:-

On 28th July 1993, S.I. Karam Chand (PW-2), who was working as the Station House Officer, Police Station Kotwali, Barnala along with A.S.I. Bhupinder Singh, Head Constable Nishan Singh and some other police officers was carrying out patrolling near the bus stand, Barnala. When the police party came near the bye-pass of the Chowk Bajakhana, they saw the respondent-accused alighting from a bus with a tin box in his hand. The movements of the accused aroused the suspicion of the police party who then apprehended the respondent-accused. They told him that they suspected him of committing an offence under the Act and told him that if he so desired, the search would be carried out in the presence of a Gazetted Officer or Magistrate. The respondent-accused, however, declined the offer, as a result of which, the tin box carried by him was searched by the police party. The search yielded a plastic envelope containing brown coloured tablets and one plastic box containing some inscriptions. In all, there were 37,000 such tablets recovered. Two samples of 500 tablets each, were separated and sealed according to the procedure. The remaining bulk of 36,000 tablets along with the plastic box were also sealed by following the due procedure. The sample tablets were forwarded to the Office of the Chemical Examiner, Chandigarh, who opined that the tablets contained Meconic Acid and Morphine to the extent of 1.08%. The respondent-accused was charged with the contravention of Sections 18 and 21 of the Act was put up for trial. The Addl. Sessions Judge, Barnala convicted him of the charges levelled against him.

3. The respondent-accused carried an appeal to the High Court against his conviction. The first question urged before the High Court was whether there was a contravention of Section 50 of the Act inasmuch as the offer made to the accused for searching his person in the presence of a Magistrate or a Gazetted Officer and his declining the offer of the same, was not corroborated by any independent witnesses. The High Court was of the view that, since the respondent-accused was apprehended in a public place, there was no dearth of witness as available at the time and place where the search was made. It is an admitted fact that no independent witnesses were joined in this case and also that there was nothing in the statements of PW-1 and PW-2 suggesting that there was any difficulty in joining independent witnesses. Hence, the High Court came to the conclusion that non-joining of independent witnesses would indicate a contravention of Section 50. On this reasoning, the High Court set aside the judgment of the Addl. Sessions Judge and acquitted the respondent. Being aggrieved, the State is in appeal.

4. It appears to us that, the only question which appealed to the High Court, has been wrongly decided. As to the circumstances when the provisions of Section 50 of the Act would apply, the issue is no longer res integra. A Constitution Bench of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 at p. 190 [para 12] says this:-

"12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."

5. Following th