IMPORTANT POINT
Whether search of a bag carried by accused on his shoulder would attract Section 50 of NDPS Act? Matter referred to larger Bench.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 8/18-Conviction under recorded by trial Court set aside by High Court in appeal on ground that Chemical Analyst report has to be excluded from consideration since sample was not examined by Chemical Examiner as postulated by Rule 2(c) NDPS Rules-Appeal-No provision in the Act or Rules debarring chemical analysis of sample in any other laboratory which may be authorised-Acquittal on that ground could not be sustained.
       Held : The High Court has held that since the sample in question was not examined by the Chemical Examiner as postulated by Rule 2(c), the opinion (Exhibit PF) given by Chemical Examiner of Kandaghat laboratory cannot be taken into consideration and in absence thereof, it cannot be held that the material allegedly recovered from the respondent was opium. According to the High Court, the Chemical Examiner of Kandaghat Laboratory does not come within the definition of expression Chemical Examiner under Rule 2(c). For its view, the High Court has relied upon a Division Bench decision of the same High Court reported in State of H.P. v. Bikho Ram [ILR 1995 (2) HP (Vol. 24) 1645]. In the said decision, the opinion of the Chemical Examiner, Karnal was excluded from consideration since the said Chemical Examiner did not come within the purview of Rule 2(c). The Division Bench did not examine the scope and purport of Chapter III in general and that of Rules 17 and 22 of the NDPS Rules, in particular. The question whether there was any obligation to sent the illegally possessed opium to the Chemical Examiner within the meaning of Rule 2(c) was not considered. Rule 2(c) of the NDPS Rules has to be read in conjunction with Chapter III of the said Rules including Rules 17 and 22. These Rules show that when the opium is delivered by the cultivator to the District Opium Officer, if suspected of being adulterated with any foreign substance, it shall be forwarded to the Government Opium Factory. Chapter III relates to analysis of samples of lawfully cultivated and produced opium. Rule 22 provides for confiscation if opium on examination by the Chemical Examiner is found to be adulterated. There is no provision in the NDPS Act or Rules debarring chemical analysis of opium found to be in illegal possession of an accused contrary to the provisions of the Act and seized, in any other laboratory which may be authorized to analyse the sample. There is also no requirement that such opium must be examined by the Chemical Examiner within the meaning of Rule 2(c). (Paras 5 and 6)
       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50-Acquittal of accused by High Court in appeal on ground of non-compliance of the provision-Appeal-Non-compliance of Section 50 of the Act would arise if on facts and circumstances it was held that case related to search of "person"-Test of "inextricably connected"-If search is of a bag which was inextricably connected with person of accused, Section 50 would apply-Accused in the case in hand was carrying a bag on his shoulder and opium like smell was coming out when a Head Constable stopped him and then called Deputy Superintendent of Police-Dy. S.P. conducted search without complying provisions of Section 50 of the Act-High Court was right in acquittal accused.
       Held : The answer to the real question in cases where the line of separation is thin and fine can be obtained by applying the test of inextricable connection and then conclusion reached as to whether the search was that of a person or not. If the search is of a bag which is inextricably connected with the person of the accused, Section 50 of the NDPS Act will apply, and if it is not so connected, the provisions will not apply. The bag searched on facts that were under consideration in Kalema Tumba and other similar cases was not inextricably connected with the person if the accused and, therefore, had no application. There has to be inextricable connection between the person and the object to be searched for Section 50 to apply. (Para 17)
       The case of the prosecution itself is that the accused was carrying a bag on his shoulder; opium like smell was coming from the bag; and the Head Constable informed the Deputy Superintendent of Police who came to the spot. Before search, the Deputy Superintendent of Police was informed of the suspected possession of the opium. The testimony of PW 7 is that the person of the accused was then searched by the Deputy Superintendent of Police and on search, bag containing opium was found. On this fact situation, it cannot be held that the search was not of a person but was of a bag. Both are inextricably connected. It has to be held that the search was that of the respondent s person. Clearly, Section 50 of the NDPS Act was applicable but was not complied. Therefore, the conviction of the respondent could not be sustained and the High Court rightly held that Section 50 had been breached. (Para 21)
       As per Arijit Pasayat, J.
       Whether search of a bag carried on shoulder or back of a person is covered by Section 50 of the Act? No.
       Held : The crucial question would be whether search of a bag carried on the shoulder or back of a person is covered by Section 50. I am of the view that it would not be so. There can be no basis for making a distinction between search of a bag found near a person and a bag carried by him. In Kanhaiya Lal v. State of M.P. (2000(10) SCC 380) it was held that when a bag carried by the accused is searched, Section 50 has no application. In Gurbax Singh v. State of Haryana (2001(3) SCC 28) it was held that when a bag was being carried on the accused s shoulder, Section 50 has no application. (Para 24)
       Therefore, in my view there was no infraction of the requirements of Section 50 of NDPS. The High Court went wrong in holding otherwise. (Para 26)

ORDER

Y.K. Sabharwal, J.-The respondent was found guilty of offence under Section 18 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act ) by Sessions Judge and sentenced to undergo rigorous imprisonment for 10 years and fine in the sum of Rs. 1,00,000/- and in default of payment of fine to undergo further rigorous imprisonment for two years. The High Court, by the impugned judgment, has set aside the conviction of the respondent. The State is in appeal on grant of leave.

2. Briefly, the case of the prosecution is that the respondent was apprehended at a bus stand on 28th July, 1994 by PW-7 (Hukum Singh), Head Constable Munshi Ram and few others who suspected that he was carrying opium because of smell coming from his bag. Head Constable Munshi Ram telephonically informed PW8 (Prem Thakur), Deputy Superintendent of Police/SHO, Police Station Sadar Mandi about the apprehension of the accused. PW-8 went to the spot and inquired from the accused about his willingness to be searched by the Police or by a Magistrate. The accused showed his willingness to be searched by the police. PW-8 conducted the search of the accused and found opium which was being carried in a bag. On the recovery, opium was weighed and was found to be 360 gms. Two samples of the opium were separately made in two parcels. The remaining opium was put into the third parcel. All the three parcels were sealed. One of the samples were sent to the laboratory at Kandaghat for chemical analysis and the Assistant Chemical Examiner opined vide report (Exhibit PF) that the sample was that of opium.

3. The High Court has acquitted the respondent primarily on two grounds. One - the report (Exhibit PF) has to be excluded from consideration and in absence thereof, there is no other evidence to establish that the material recovered from the possession of the accused was opium. The second ground is non-compliance of Section 50 of the NDPS Act.

4. Opium is defined in Section 2(xv) of the NDPS Act. Section 8 of the Act, inter alia, prohibits the possession of any narcotic drug or psychotropic substances. Section 9 relates to the power of the Central Government to permit, control and regulate the cultivation, protection etc. of narcotic drugs and psychotropic substances subject to the provisions of Section 8. Section 10 relates to the power of the State Government to permit, control and regulate, subject to the provisions of Section 8, the possession, consumption and use of opium and other material mentioned therein. Section 76 is the rule making power of the Central Government for carrying out objects of the Act. Clause (df) of sub-section 2 of Section 76 relates to the power to make rules providing for the drawing of samples and testing and analysis of such samples.

5. In exercise of the powers conferred by Section 9 read with Section 76 of the NDPS Act, the Central Government has made the Narcotic Drugs and Psychotropic Substances Rules, 1985 (for short, the NDPS Rules ). Rule 2(c) defines the expression Chemical Examiner to mean the Chemical Examiner or Deputy Chief Chemist or Shift Chemist or Assistant Chemical Examiner, Government Opium & Alkaloid Works, Neemuch or, as the case may be Ghazipur. Chapter III of the NDPS Rules relates to opium, poppy cultivation and production of opium and poppy straw. Rules 5 to 34 are in Chapter III. Rule 17 provides the procedure for sending Opium suspected to be adulterated to the Government Opium Factory. It provides that when opium delivered by a cultivator to the District Opium Officer or any other officer authorized in this behalf, is suspected of being adulterated with any foreign substance, it shall be forwarded to the Government Opium Factory separately, after it is properly sealed in the presence of the cultivator and the concerned Lambardar. Rule 22 relates to confiscation of adulterated opium. It provides that all such opium received separately under Rule 17, if found to be adulterated on examina

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2004 Supreme(SC) 1183

IMPORTANT POINTWhether search of a bag carried by accused on his shoulder would attract Section 50 of NDPS Act? Matter referred to larger Bench.

Cases Referred (9)

IMPORTANT POINT
Whether search of a bag carried by accused on his shoulder would attract Section 50 of NDPS Act? Matter referred to larger Bench.