IMPORTANT POINTS
(1) Provisions of Section 50 of NDPS Act will come into play only in case of personal search of accused - Section 50 does not cover a bag being carried by accused.
(2) Search of person of accused - Where a police officer in normal course of investigation of an offence or suspected offences as provided under provisions of Cr.P.C. and in course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, question of invoking Section 50 would not arise.
(3) Interpretation of Statute - Legislative casus omissus should not be supplied by judicial interpretative process.

Headnote:
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Criminal Procedure Code, 1973 - Section 100(3) - Search of person of accused - Main object of Section 50 of NDPS Act is to avoid allegation of planting something or fabricating evidence by prosecution or authorized officer - To search any person would mean only search of body or wearing apparels of such person and in that case procedure which is required to be followed would be one prescribed under Section 50 of NDPS Act - In contrast, if search of any building, conveyance or place, including a public place, is to be carried out, then there is no question of following procedure prescribed under Section 50 - However, when a suspected or arrested person is to be searched, then procedure prescribed under Section 50 comes into operation and procedure thereunder is required to be followed - If such person is a woman, search shall be made by another woman with strict regard to decency - Concealment which is suspected is on the person or about his person - Where a police officer in normal course of investigation of an offence or suspected offences as provided under provisions of Cr.P.C. and in course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, question of invoking Section 50 would not arise. (Paras 33, 36, 38 and 42)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search of person of accused - Although non-compliance of Section 50 may not vitiate trial yet would render recovery of contraband doubtful and may vitiate conviction of accused - Provisions of Section 50 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 - Person to be searched is to be specifically informed that he has a right to be searched in presence of a Gazetted Officer or Magistrate - In case of multiple persons, each of them must be individually communicated of their right and must exercise or waive the same in their own individual capacity - Obligation under Section 50 is mandatory and failure to comply with same would render recovery of illicit article suspicious and vitiate conviction. (Paras 49, 53, 56 and 57)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search of person of accused - Section 50 of NDPS Act only goes so far as to prescribe an obligation onto police officer to inform suspect of his right to have his search conducted either in presence of a Gazetted Officer or Magistrate - Whether or not search should be conducted in presence of a Gazetted Officer or Magistrate ultimately depends on exercise of such right as provided under Section 50 - In the event suspect declines this right, there is no further obligation to have his search conducted in presence of a Gazetted Officer or Magistrate and in such a situation empowered police officer can proceed to conduct search of person himself - To read Section 50 otherwise would render very purpose of informing suspect of his right a redundant exercise - Any incriminating contraband possession of which is punishable under NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in trial by prosecution, however, it will not vitiate trial in respect of same - Any other article that has been recovered may be relied upon in any other independent proceedings. (Paras 60, 62, 63 and 64)
(D) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search of bag carried by accused - Section 50 does not cover a bag being carried by accused - Benefit of Section 50 of NDPS Act cannot be extended to include bags or articles as same may lead to an unworkable understanding of provision - They are given a separate name and are identifiable as such - They cannot even remotely be treated to be part of body of a human being. (Paras 88, 89 and 114)
(E) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20 and 50 - Recovery of Charas - Reversal of acquittal by High Court - It is only bag which was searched which led to recovery of contraband - High Court was justified in holding appellant guilty of offence under NDPS Act - High Court was also correct in saying that Section 50 of NDPS Act was not required to be complied with as recovery was from bag - Appeal dismissed. (Paras 125 and 126)
(F) Interpretation of Statute - Parameters - Court should not read anything into a statutory provision which is plain and unambiguous - A statute is an edict of Legislature - Language employed in a statute is determinative factor of legislative intent - First and primary rule of construction is that intention of legislation must be found in words used by Legislature itself - While interpreting a provision, Court only interprets law and cannot legislate it - If a provision of law is misused and subjected to abuse of process of law, it is for Legislature to amend, modify or repeal it, if deemed necessary - Legislative casus omissus should not be supplied by judicial interpretative process. (Paras 115 and 117)
Facts of the case:
Captioned appeals are at instance of convict accused of offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985. High Court allowed appeal filed by State of Himachal Pradesh and thereby set aside judgment and order of acquittal passed by Trial Court. High Court vide order dated 16.09.2010 sentenced appellant herein to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 50,000/- in default of payment of fine to undergo further rigorous imprisonment for six months.
Findings of Court:
High Court was justified in holding appellant guilty of offence under NDPS Act and at the same time, High Court was also correct in saying that Section 50 of NDPS Act was not required to be complied with as recovery was from bag.
Result : Appeals dismissed.

Judgement Key Points

Paragraph 114 clarifies that the provisions of Section 50 of the NDPS Act do not extend to the search of a bag being carried by the accused. It emphasizes that the benefit of Section 50 cannot be applied to such bags or articles because they are distinct from the body of a human being and are identifiable as separate entities. The paragraph underscores that these bags or articles are not part of the person and are therefore not covered under the scope of "search of a person" as mandated by Section 50. This interpretation helps maintain a clear distinction between the search of the person and the search of articles or belongings, ensuring that the procedural safeguards under Section 50 are only invoked when the search pertains to the person’s body or clothing, and not to external articles like bags or containers carried by the accused.

JUDGMENT :

J.B. PARDIWALA, J.

1. The captioned appeals are at the instance of a convict accused of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) and are directed against the judgment and order of conviction dated 20.08.2010 and the order of sentence dated 16.09.2010 resply passed by the High Court of Himachal Pradesh in the Criminal Appeal No. 356 of 1999 by which the High Court allowed the appeal filed by the State of Himachal Pradesh and thereby set aside the judgment and order of acquittal passed by the Sessions Judge, Kullu dated 31.03.1999 in the Sessions Trial No. 44 of 1998. With the High Court allowing the State’s acquittal appeal, the appellant herein stood convicted of the offence punishable under Section 20 of the NDPS Act.

2. The appellant was heard on the point of sentence and ultimately, the High Court vide order dated 16.09.2010 sentenced the appellant herein to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 50,000/- (Rupees Fifty Thousand Only) and in default of payment of fine to undergo further rigorous imprisonment for six months.

CASE OF THE PROSECUTION

3. On 23.08.1998 ASI Lal Singh (PW-14) was on patrolling duty along with Head Constable Mohan Lal (PW-12), Constable Sant Ram (PW-13) and Constable Baldev Dass (PW-6). At about 6.30 pm while they all were at Dhalpur, the ASI Lal Singh (PW-14) received a secret information that one well built person wearing a white T-shirt and green trouser was standing at the Sarwari bus stand and was ready to board a bus bound for Delhi. The information was that the said person at the bus stand had in his possession contraband in the form of charas. The secret information was recorded by the PW-14 and forwarded to the Superintendent of Police, Kullu through the Constable Baldev Dass (PW-6). The ASI Lal Singh (PW-14), HC Mohan Lal (PW-12) and Constable Sant Ram (PW-13) accordingly left for Sarwari bus stand and reached there at about 6.45 pm. The officers were able to locate and identify the said person at the bus stand carrying a bag on his shoulder. In the presence of two independent witnesses, the said person was asked to disclose his identity. The person standing at the bus stand disclosed his identity as Ranjan Kumar Chadha son of Shri Ved Parkash Chadha resident of New Delhi. As the police officials suspected that he may be carrying charas, they gave him the option of being searched before the police or before a Gazetted Officer or Magistrate. The person concerned consented to be searched before the police. Before the search of the person of the accused was undertaken, the police officials got themselves searched before the witnesses. The bag which the accused was carrying along with him was also searched. The search of the bag resulted in recovery of three polythene bags containing charas. Many other articles like the driving licence, etc. were also recovered from his bag. On being weighed, the charas was found to be 1 kg. 250 gms.

4. Two samples of 25 grams each were drawn from the polythene bags containing charas and the remaining charas was sealed with seal “H.” Seal impression was also taken on the NCB form and seal was handed over to the PW-9 Surinder Kumar. The charas was taken into possession vide recovery memo Ext. PK which was signed by the witnesses PW-9 Surinder Kumar, PW-10 Karam Singh and PW-12 Mohan Lal resply. The accused was informed of the grounds of his arrest, etc. vide memo Ext. PL. Ruqua Ext. PG was prepared and sent to the police station through the Constable Sant Ram. The site plan Ext. PP was prepared on the spot. The statements of the witnesses were recorded. Thereafter, PW-14 came to the Police Station along with the accused and deposited the case property including the samples and the NCB form before the SHO who resealed the case property and samples with seal-X. One of the samples was sent for chemical examination to the CIL, Kandagh