STATE OF RAJASTHAN versus DAULAT RAM

STATE OF RAJASTHAN

v. DAULAT RAM

AUGUST 23, 2005

[B.P. SINGH AND S.H. KAPADIA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50-Applicabiity of-Search of bag carried by person on his head-Held: Does not amount to personal search-Section 50 is not applicable.

Words and phrases-'Person' and 'Personal search '-Meaning of-Jn the context of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985.

The question which arose for consideration in the present appeal is whether search of bag carried by person on his head and found to contain contraband opium, would amount to personal search and would attract the provisions of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985.

Allowing the appeal, the Court

HELD : l. The High Court erred in holding that search of bag carried by person on his head would amount to personal search and would attract the provisions of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985. (883-E-F-G]

2.1. 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 of Criminal Procedure, however, does not def.11e 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 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. [884-C-D]

2.2. The most appropriate meaning of the word "person" appears to

be - "the body of human being as presented to public view usually with is appropriate coverings and clothing". In civilised 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 on~'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. bag, briefcase or any such article or container, etc., can, under no circumstances, be treated as body of human being. They are given separate name and are identifiable as such. Depending upon the physical capacity, person may carry any number of items like bag, briefcase, suitcase, tin box, thaila, jhola, gathri, holdall, carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would.be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in section 50 of the Act. [884-D-H; 885-A-B-C]

State of H.P. v. Pawan Kumar. [2005] 4 SCC 350, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1067 of 2005.

From the Judgment and Order dated 25.4.2003 of the Rajasthan High Court in S.B. Cr!. A. No. 261 of 2000.

Mrs. Madhurima Taria for Aruneshwar Gupta, Add!. Advocate General for State of Rajasthan and Naveen Kumar Singh for the Appellant.

C.L. Sahu and Ms. Hema Sahu for the Respondent.

The Judgment of the Court was delivered :

Heard counsel for the parties.

Delay condoned.

Special leave granted.

This appeal by special leave has been preferred by the State ofRajasthan against the judgment and order of the High Court of Judicature for Rajasthan at Jodhpur dated 25th April, 2003 in S.B.Criminal Appeal No.261 of 2000. The High Court by its judgment and order allowed the appeal preferred by the respondent and set aside the order of conviction and sentence passed by the Special Judge, NDPS Cases, Chittorgarh dated 5th May, 2000. The trial court had convicted the respondent of the offence under Section 8/18 of the NDPS Act and sentenced him to undergo 12 years rigorous imprisonment and to pay fine of rupees one lakh, in default of payment of fine, to further undergo one year's rigorous imprisonment.

The facts of the case are that Mangilal, SHO police station, Nimbahera received secret information at about 4.00 a.m. on 2nd July, 1997 from an informer to the effect thatthe respondent was carrying 16 kgs. of contraband opium and was likely to pass through Amoda Bandh with view to sell that opium. He recorded the information received in the Rojnamacha and sent copy thereof to the Superintendent of Police and the Deputy Superintendent of Police, Chittorgarh and the Circle Officer, Nimbahera through Ramdayal, Constable (PW-2). He himself proceeded towards the spot indicated by the informant along with PW3 Rais Mohd. Constable and other Constables. They proceeded in jeep which was driven by Shakir Hussain and on the way they picked up 2 panch witnesses, namely, Om Prakash PW-13 and Bherulal PWl. PW-16 Hari Singh, Dy. Superintendent of Police, Chittorgarh and Prithvi Singh, PW9, SHO, police station, Chanderiya had also been informed. When Mangilal, PW-8 reached the spot, he found person carrying bag on his head going towards Kal'J.la Ram Ji Ki Khedi. He was accosted by the police party in the presence of PW16, Dy.S.P. and PW9 S.H.O. Police Station, Chanderiya who had also reached that spot. That person disclosed his name as Daulat Ram (respondent herein). He was informed of the. fact that he was suspected of carrying contraband opium and that he was to be searched. He was also given an option under Section 50 of the NDPS Act and asked by

PW8 Mangilal as to whether he wanted to be searched before Magistrate or Gazetted officer or by PW8 Mangilal, SHO himself. The respondent agreed to be searched by PW8 Mangilal and did not opt to be searched before Gazetted officer or Magistrate. The respondent who was carrying the bag on his head was searched. The bag which he was having on his head was also opened and found to contain 2 polythene bags containing some substance, brown-black in colour. On being tested, it was found to be opium. The respondent had no valid license to possess opium. Thereafter, necessary steps were taken to prepare samples which were duly sealed and sent for chemical examination to the forensic laboratory, which submitted report adverse to the respondent to the following effect:

"On chemical and micro-chemical examination, each of the samples contained in packets marked 1 and B-1 gave positive test for the major chemical constituents of coagulated juice of opium poppy and the sample marked AI and B-1 were found to contain 5.32% and 5.26% morphine respectively."

The respondent was put up for trial before the Special Judge, NDPS Cases who found him guilty of the offence under Section 8/18 of the NDPS Act. The appeal preferred by the respondent, as noticed earlier, was allowed by the High Court and he was acquitted of the charges levelled against him.

The judgment of the High Court proceeds on the basis that if bag carried by person on his head is searched and found to contain contraband opium, it would amount to personal search, and, therefore, the provisions of Section 50 of the NDPS Act would be applicable.

Jn the instant case, the High Court held that the respondent was carrying bag on his head which was searched and found to contain contraband opium. According to the High Court this 1m1ounted to personal search of the respondent and, therefore, Section 50 of the NDPS Act was attracted. The High Court considered the evidence on record and came to the conclusion that the option given to the respondent under Section 50 of the NDPS Act was only partial option and, therefore, there was no proper or strict compliance of the mandatory provisions of Section 50 of the NDPS Act. Consequently, it found that the respondent was entitled to an acquittal.

of Section 50 of the NDPS Act came up for consideration by Bench of this Court in the case of State of H.P. v. Pawan Kumar, (2005] 4 SCC 350, wherein it has been held:

"The word "person" has not been defined in the A~t. 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 thern in that Code. The Code of Criminal Procedure, howt:ver, 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 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 "pe!"son" has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand. ......... Therefore, the most appropriate meaning of the word "person" appears to be - "the body of human being as presented to public view usually with its appropriate coverings and clothing". In civilised 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 human being with appropriate coverings and clothings and also footwear ....... bag, briefcase or any such article or container, etc., can, under no circumstances, be treated as body of human being. They are given separate name and an, identifiable as such. They cannot even remotely be treated to be part of the body of human being. Depending upon the physical capacity e;f person, he may carry anynumber of items like bag, briefcase, suitcase, tin box, thaila, jhola, gathri, holdall, carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They 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 saia that person is carrying particular article, specifying the r.ianner 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.

In view of the principles laid down in the aforesaid judgment of this Court,

there is no scope for the argutnent that in the facts and circumstances of this case, the provisions of Section 50 of the NDPS Act were attracted. The judgment and order of the High Court must, therefore, be set aside.

Counsel for the appellant submitted that person cannot be compelled to give evidence against himself. He submitted that once the police had accosted the respondent, who wa's suspe~ted of possessing contraband opium, he must be deemed to be under arrest, and if he was under arrest, any confession made by him cannot be used against him.

We do not find that in this case, the respondent was under arrest merely because he was questioned by the police on suspicion. Moreover, there is nothing on record to suggest that he was compelled to make cor.fession. The submission that compelling person to be searched amounts to confession must be rejected. We do not find any other reason to support the judgment of acquittal passed by the High Court.

We, therefore, set aside the impugned judgment and order of the High Court and restore the judgment and order of the Special Judge, NDPS Cases, Chittorgarh dated May 5, 2000.

The respondent shall be taken into custody forthwith to serve out the

remainder of the sentence. The appeal is accordingly allowed.