Important Point
It is not possible to include things like bag, briefcase etc. within the ambit of the word “person” occurring in Section 50 of NDPS Act.

Judgment

Dr. ARIJIT PASAYAT, J.—

1.Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur allowing the appeal filed by the respondent (hereinafter referred to as the ‘accused’). Before the High Court the challenge was to the order dated 31.8.1987 passed by the learned Sessions Judge, Balotra, in Sessions Case No.10/86 by which while acquitting the accused for offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as the ‘Act’), convicted him for offence punishable under Section 17 of the Act and sentenced him to undergo RI for 10 years and to pay a fine of rupees one lakh with default stipulation.

2.The High Court directed acquittal on the ground that there was non-compliance of mandatory requirement of Section 50 of the Act. Before the High Court though many points were urged, the primary stand was non-compliance of Section 50 of the Act. The High Court accepted that there was non-compliance as alleged. Accordingly, the respondent was acquitted by setting aside the conviction and consequential sentence.

3.In support of the appeal, learned counsel for the appellant-State submitted that search was not of person of the accused and of bag which was with accused and, therefore, the High Court erroneously held that the requirements of Section 50 of the Act were required to be complied with.

4.The controversy turns round Section 50 of the Act and the same (at the relevant time) reads as under :

“Conditions under which search of persons shall be conducted:

(1)When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3)The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4)No female shall be searched by anyone excepting a female.”

5.The question, which requires consideration, is what is the meaning of the words “search any person” occurring in Sub-section (1) of Section 50 of the Act. Learned counsel for the accused has submitted that the word “person” occurring in Section 50 would also include within its ambit any bag, briefcase or any such article or container, etc., being carried by such person and the provisions of Section 50 have to be strictly complied with while conducting, search of such bag, briefcase, article or container, etc. Learned counsel for the State has, on the other hand, submitted that there is no warrant for giving such an extended meaning and the word “person” would mean only the person himself and not any bag, briefcase, article or container, etc., being carried by him.

6.The word “person” has not been defined in the Act. Section 2(xxix) of the Act says that the words and expressions used herein and not defined but defined in the Code of Criminal Procedure have the meanings respectively assigned to them in that Code. The Code, however, does not define the word “person”. Section 2(y) of the Code says that the words and expressions used therein and not defined but defined in the Indian Penal Code, 1860 have the meanings respectively assigned to them in that Code. Section 11 of the Indian Penal Code says that the word “person” includes any Company or Association or body of persons whether incorporated or not. Similar definition of the word “person” has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand.

7.One of the basic p