2005 Supreme(SC) 343

2005(2) Supreme 354
Supreme Court of India
(From Punjab and Haryana High Court)
B.P. Singh & Arun Kumar, JJ.
State of Punjab —Appellant
versus
Balwant Rai —Respondent
Criminal Appeal No. 1240 of 1999
Decided on 24-2-2005
Counsel for the Parties :
For the Appellant : R.K. Rathore, Addl. Advocate General for State, A.K. Sinha, S. Krishnaraj and Bimal Roy Jad, Advocates.
For the Respondent : Rana Ranjit Singh, Advocate­ (A.C.).

Important point
Where Poppyhusk in 15 bags was ­recovered in a circumstance that bags were lying by road side and accused was sitting on bags, Section 50 NDPS Act would not be attracted.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1986—Section 50—Recovery of Poppyhusk in 15 bags each containing 37 kg. lying by road side and respondent accused was sitting on bags—High Court acquitted ­accused setting aside conviction holding that word “person” in Section 50 of the Act had to be given its widest import other­wise provision will be rendered nugatory and provision was not complied with—Appeal—Question whether search of bags would amount to search of the person of respondent?

       Held : It has been brought to our notice that recently this Court on a difference of opinion has referred to a larger Bench the question as to whether search of the bag carried by the accused on his shoulder attracts Section 50 of the Act, and whether failure to give to the accused the necessary option ­contemplated by Section 50 before search­ing his bag would be in violation of the provisions of Section 50. [(2004) 7 SCC 735] Some earlier judgments of this Court do take the view that search of a person does not extend to search of a vehicle, container, bag or premises. Since the matter has been referred to a larger Bench, we need not express any opinion on that question. The facts of this case are entirely different. We are not concerned with a case of the nature referred to a larger Bench of this Court. In the instant case 15 bags of poppyhusk were found by the side of the road, and the petitioner was found sitting on them. On search of the re­spondent, nothing incriminating was found and only a sum of Rs. 200/- was recovered, but on search of the bags it was found to contain poppyhusk. The question is whether in the facts and circumstance of this case, search of the bags would amount to search of the person of the respondent. In our view this is clearly not a case of personal search and, therefore, requirements of Section 50 will not be attract­ed. The High Court was clearly in error in holding that the provisions of Section 50 of the N.D.P.S. Act apply to a case with such facts. (Para 6)

       (ii) Narcotic Drugs and Psycho­tropic Substances Act, 1986—Section 15—Recovery of Poppyhusk in 15 bags each containing 37 kg. of contra­band—Bags were lying by road side and ­accused was sitting on bags—Defence plea of false implication at instance of one S.I. who earlier in a case was ­penalised by High Court by fine of Rs. 5000/- for illegally detaining respondent accused—High Court acquitted ­accused by setting aside conviction—Appeal—It did not appear to be a case of false implication particularly in view of large quantity of contraband—Earlier incident of wrongful detention of accused was in 1990 and incident of present case was of 1994—Superintendent of Police had been joined in the recovery—Defence that accused was falsely implicated could not be ­accepted—Conviction recorded by trial Court was liable to be restored.

       Held : The fact is that apart from these officers, the Superintendent of Police was also associated with the search, though the respondent has gone to the extent of denying his presence. It would be too much to suspect merely on the basis of such allegations that the respondent was false­ly implicated. Moreover, if such a plea of the respondent were to be accepted, in no case can the respondent be prosecuted because if prosecuted, his plea would be that the police was inimically disposed towards him, and therefore, falsely implicated him. We have examined the evidence on record and from the facts of this case, it does not appear to be a case of implanted evidence. The police had prior information of the fact that poppyhusk contained in several bags had been unloaded at the point where they were ultimately found. Intimation of this fact had been given to the Superintendent of Police who reached the place where the bags were unloaded. The re­spondent was found present there. The quantity is so large that the ­question of implanting does not arise. No other explanation has been offered by the respondent. Given these facts and circumstance, we are of the view that the defence of the respondent, that he was falsely implicated, cannot be accepted. (Paras 7 to 9)