2005 Supreme(SC) 604

2005(3) Supreme 321
Supreme Court of India
(From Himachal Pradesh High Court)
R.C. Lahoti, CJI, G.P. Mathur and P.K. Balasubramanyan, JJ.
State of Himachal Pradesh —Appellant
versus
Pawan Kumar —Respondent
Criminal Appeal No. 222 of 1997
With
Criminal Appeal No. 375 of 2003
Decided on 8-4-2005
Counsel for the Parties :
For the Appellant In Crl.A.No. 222/97 : J.S. Attri, Addl. Advo­cate General for State of Himachal Pradesh, L.R. Rath, Advocate.
For the Appellant in Crl.A.No. 375/2003 : Aruneshwar Gupta, Addl., Advocate General for State of Rajasthan, Naveen Kumar Singh and Ms. Shivangi, Advocates.
For the Respondent in Crl.A.No. 222/97 : Ms. Nanita Sharma, Vivek Sharma and Janesh Singh, Advocates.
For the Respondent in Crl.A. No. 375/2003 : Ms. Madhurima Tatia and Indra Makwana, Advocates.

Important Point
Provisions of Section 50 NDPS Act will come into play only in case of personal search of accused and not of some baggage like a bag, article or container etc. which he may be carrying.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 50—Whether safeguards provided by Section 50 of the Act regard­ing search of any “person” would also apply to any bag, brief case or any such article or container etc. which was being carried by accused? No—Meaning of words “search any person”—Word “person” would mean a human being with appropriate coverings and clothings and also footwear—Test which could be applied was where in the process of search the human body came into contact or shall have to be touched by the person carrying out the search—Respondent-accused was apprehended while carrying a bag and 360 grams of opium rapped in polythene was found in the bag—High Court set aside conviction holding that provisions of Section 50 of the Act were not complied with during the search—Appeal—Section 50 of the Act had no application on the facts and circumstances of the case—High Court had not examined testimony of witnesses on merits and matter needed to be remanded for a fresh hearing.

       Held : We are not concerned here with the wide definition of the word “person”, which in the legal world includes corporations, asso­ciations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word “person” appears to be - “the body of a human being as presented to public view usually with its appropriate coverings and clothings”. In a civilized society ­appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one’s home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word “person” would mean a human being with appropriate coverings and clothings and also footwear. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. The would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free. (Paras 9 to 11)

       (ii) Interpretation of Statute—Statute to be construed according to plain, literal and grammatical meaning of words—Onus of showing that words do not mean what they say lies heavily on party who alleges it.

       Held : One of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any ex­press intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repug­nant to the intention of the Act or lead to some manifest ab­surdity (See Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentenc­es are construed ­according to their grammatical meaning, ­unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary. (Para 7)