Important Point
The word “person” occurring in section 50 of the NDPS Act does not include bag, brief case etc.

Judgment

Dr. ARIJIT PASAYAT, J.—

1.Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court allowing the Criminal Appeal filed by the respondent, who was found guilty of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act,1985 (in short the ‘Act’) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,00/- with default stipulations.

2.The High Court directed acquittal on the ground that there was non-compliance with the mandatory requirements of Section 50 of the Act.

3.Background facts in a nutshell are as follows.

The case of the prosecution is that on 01.04.1987, the patrolling party consisting of the sub-inspector and two assistant sub-inspectors and four constables were present at Rohtak. At about 5.10 a.m. a bus of Haryana Roadways came from Delhi and the same was stopped by patrolling party. The accused-respondent, Suresh was also one of the passengers travelling in the bus with an attachi-case. The Sub-Inspector of Police searched the attache case by taking the same from the hands of the accused. When the attachi case was searched, a false bottom made of ply-wood was broken and below it there was a plastic bag containing opium and the same was recovered by the police. Out of it 10 grams of opium was separated as sample and parcels of the same and the remaining bulk were prepared and were sealed with seal bearing inscription RK and a ruqa was sent to the police station for registration of the case and on the basis of the same, investigation was taken up and after completion of the investigation a charge-sheet was filed.

4.In order to prove the guilt of the accused, the prosecution examined five witnesses.

5.After closure of the evidence of the prosecution, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (in short the ‘Code’), and in defence the accused did not examine any witnesses though he pleaded innocence and false implication.

6.On consideration of the evidence on record, learned Additional Sessions Judge convicted the accused for the offence under Section 18 of the Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two years. Accused filed an appeal before the High Court which as noted above was allowed and conviction was set aside.

7.In support of the appeal, learned counsel for the appellant-State submitted that the High Court’s judgment is unsustainable in view of several decisions of this Court taking the view that Section 50 of the Act relates only to a personal search and not of bags or containers carried by the accused.

8.There is no appearance on behalf of the respondent.

9.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.”

10.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 th