IMPORTANT POINT
Section 50 of NDPS Act would be applicable only in a case of personal search of accused and not when it is made in respect of some baggage like a bag, article or container etc. which accused was carrying.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 20 and 50—Recovery of 2 kg of charas in a plastic bag which accused was carrying in his hand—Conviction by trial Court and sentence of 10 years imprisonment and fine of Rs. 1,00,000/- —Conviction was set aside in appeal by High Court holding that it was obligatory on part of police to bring to notice of accused that he had a right to be searched by a Magistrate or a gazetted officer and having not been informed conviction vitiated—Appeal—Section 50 of the Act would be applicable only in a case of personal search of accused and not when it is made in respect of some baggage like a bag, article or container which accused was carrying—Impugned judgment could not be sustained and conviction was liable to be restored.
       Held : The question as regards applicability of Section 50 of the Act need not detain us for long. We may notice that in view of conflict in the opinions of different benches as also difference of opinion between two judges of this Court in State of Himachal Pradesh v. Pawan Kumar [(2004) 7 SCC 735] the question was referred to a larger Bench. A three-Judge Bench of this Court in State of Himachal Pradesh etc. v. Pawan Kumar [(2005) 4 SCC 350] relying on or on the basis of a large number of decisions and in particular the decision of the Constitution Bench of this Court in State of Punjab v. Baldev Singh [(1990) 6 SCC 172] clearly held that Section 50 of the Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying.(Para 7)
       We are satisfied that the observations made in Namdi Francis Nwazor (supra) is merely an obiter and does not constitute a ratio decidendi. The three-judge Bench of this Court in Pawan Kumar (supra), therefore, correctly distinguished the same. It was, thus, not necessary for the Bench to follow the judgment of a coordinate bench in Pawan Kumar (supra) as was argued by the learned counsel. For the reasons aforementioned, the impugned judgment cannot be sustained. The judgment of the High Court is, therefore, set aside and that of the learned Sessions Judge is restored.(Paras 16 & 17)
       (ii) WORDS AND PHRASES—Distinction between a dicta and obiter—Obiter dicta is more or less presumably unnecessary to the decision—Statements which are not part of ratio decidendi constitute obiter dicta and are not authoritative.
       Held : It is in that context the court clearly came to the opinion that the provisions of sub-section (1) of Section 50 was not required to be complied with. The said conclusion was arrived at, inter alia, upon noticing the provision of sub-section (4) of Section 50 of the Act. It was, therefore, not necessary for the Bench, with utmost respect, to make any further observation. It was not warranted in the fact of the said case. A decision, it is well-settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a view point or sentiments which has no binding effect. See Additional District Magistrate, Jabalpur etc. v. Shivakant Shukla etc. (1976) 2 SCC 521]. It is also well-settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative.(Para 12)

JUDGMENT

S.B. Sinha, J.—The State of Haryana is in appeal before us from a judgment and order dated 19.08.1998 of the High Court of Punjab and Haryana in Criminal Appeal No. 715 of 1996 allowing the appeal preferred by the respondent herein from a judgment of conviction and sentence dated 05.08.1996 passed by the learned Additional and Sessions Judge in Sessions Case No.37 and Sessions Trial No. 118 of 1994 under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act (for short, ‘the Act’).

2. The prosecution case against the respondent was as under :

On 15.11.1993 when a police party, comprising of Sub-Inspector Dunger Singh, Constable Randhir Singh, Head Constable Omkar, Constable Umed Singh and Head Constable Om Prakash, were proceeding from Bamla to CIA staff Bhiwani and reached the point on Rohtak-Bhiwani Road near Sanjeev M. College, the respondent was seen coming from the opposite direction, i.e., from the side of Bhiwani on foot, holding a plastic bag of white colour. Having seen them, the respondent allegedly turned towards his left side on the road as a result whereof a suspicion as regard his conduct arose in their mind. The respondent was, thereafter, taken into custody. A notice was allegedly served on the respondent by the Sub Inspector to the effect “you (accused) have some contraband in your possession and your search is to be effected in the presence of a gazetted police officer or a magistrate”, if he so desired. The respondent is said to have had no objection if the search was conducted in presence of a gazetted officer or a magistrate available at the spot. An intimation was thereafter sent to the DSP, Headquarters, Bhiwani who reached the spot along with his staff. The respondent was allegedly searched in his presence and on a search of the plastic bag, which the respondent was carrying, a `pipi’ containing `charas’ weighing 2 kg. was found. The incharge of the police party separated 50 grams of `charas’ by way of sample of the seized contraband and made a sealed parcel thereof. Remaining amount of the seized article was said to have been separately sealed and the entire property was taken into possession wherefor a recovery memo was prepared. The respondent accused could not produce any licence or permit for possession of the said contraband articles. Therefore a `ruqa’ was sent to the police station for registration of the case and a formal First Information Report was lodged.

3. On charged of possession of the said contraband article, the respondent was put on trial.

4. The learned Sessions Judge found the appellant to be guilty of the said offence and sentenced him to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs. 1,00,000/-. The respondent filed an appeal thereagainst before the High Court.

5. Before the High Court only contention which was raised was that the mandatory provision of Section 50 of the Act had not been complied with. According to the respondent although the article in question was found from a bag, it was obligatory on the part of the Dy. S.P. to bring it to his notice that he had a right to be searched by a magistrate or a gazetted officer and he having not been informed of his right, the judgment of conviction and sentence was vitiated in law.

6. The High Court in its judgment proceeded on the basis that Section 50 of the Act is mandatory in character. It was held :

“Reverting to the facts in hand, the notice, Ex.PW-4/A, is very material. A close reading of this notice only indicates that SI Dungar Singh had given the option to the appellant by informing him that his search was to be conducted in the presence of a gazetted police officer or a magistrate. Beyond that, he notice, Ex.PW-4/A is silent. SI Dungar Singh never apprised the appellant that he had the right to be searched in the presence of a Magistrate or a gazetted officer as mentioned in Section 42 of the Act. Even the reply, Ex.PW-4/B, given by the appellant is not in consonance with the pro

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2006 Supreme(SC) 323

IMPORTANT POINTSection 50 of NDPS Act would be applicable only in a case of personal search of accused and not when it is made in respect of some baggage like a bag, article or container etc. which accused was carrying.

Cases Referred (6)

IMPORTANT POINT
Section 50 of NDPS Act would be applicable only in a case of personal search of accused and not when it is made in respect of some baggage like a bag, article or container etc. which accused was carrying.