2005 (4) TMI 549 - SC - Companies Law

Whether the safeguards provided by Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 regarding search of any person would also apply to any bag, briefcase or any such article or container etc., which is being carried by him? Held that - As the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non-compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal. For Criminal Appeal No. 375 of 2003 the search of the attachi revealed 5 kgs. of opium. After conducting other formalities and investigation of the case, the accused was put up for trial. The learned Sessions Judge convicted the accused under Section 8/18 of the NDPS Act and sentenced him to 10 years RI and a fine of Rs.1 lakh. The High Court by a very cryptic judgment held that the provisions of Section 50 of the NDPS Act were not complied with as the accused was not informed of his right to be searched in presence of a Magistrate or a Gazetted Officer and accordingly allowed the appeal and set aside the conviction and sentence of the accused. Thus the view taken by the High Court cannot be sustained as it was a case of search of an attachi which was carried by the accused. The appeal is accordingly allowed and the judgment and order dated 5.10.2001 of the High Court is set aside. The matter is remitted back to the High Court for a fresh consideration.

Issues Involved:
1. Applicability of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) to the search of bags, briefcases, or containers carried by a person.
2. Admissibility of the Chemical Examiner's report.
3. Interpretation of the term "person" under Section 50 of the NDPS Act.
4. Legal implications of non-compliance with Section 50 of the NDPS Act.
5. Impact of illegal search on the admissibility of evidence.

Detailed Analysis:

1. Applicability of Section 50 of the NDPS Act to the Search of Bags, Briefcases, or Containers:
The primary issue was whether the safeguards provided by Section 50 of the NDPS Act regarding the search of any "person" also apply to any bag, briefcase, or similar article or container being carried by the person. The High Court had held that Section 50 was applicable to the search of the bag carried by the accused, thereby setting aside the conviction due to non-compliance with Section 50.

The Supreme Court, however, clarified that Section 50 applies only to the search of a person and not to the search of bags or other articles carried by the person. The Court emphasized that the word "person" should be understood in its natural, ordinary sense, meaning the human body with its appropriate coverings and clothing. Articles like bags or briefcases require extra effort to carry and are not inextricably connected to the body of the person. Therefore, the search of such items does not fall under the purview of Section 50.

2. Admissibility of the Chemical Examiner's Report:
The High Court had excluded the Chemical Examiner's report, which identified the substance recovered from the accused's bag as opium, from consideration. The Supreme Court found this exclusion incorrect. The Court held that the Chemical Examiner's report was admissible and should be considered as valid evidence.

3. Interpretation of the Term "Person" under Section 50 of the NDPS Act:
The Court examined the meaning of the term "person" as used in Section 50 of the NDPS Act. It concluded that the term refers to the human body and its coverings, not to items like bags or containers carried by the person. This interpretation was supported by dictionary definitions and principles of statutory interpretation, which advocate for the plain, literal, and grammatical meaning of the words used in a statute unless such interpretation leads to absurdity or inconsistency with the statute's purpose.

4. Legal Implications of Non-Compliance with Section 50 of the NDPS Act:
The Court reiterated that non-compliance with Section 50, which mandates that the person being searched must be informed of their right to be searched in the presence of a Magistrate or a Gazetted Officer, would render the recovery of the illicit article suspect and could vitiate the conviction. However, since Section 50 does not apply to the search of bags or similar articles, non-compliance with this section was not relevant to the case at hand.

5. Impact of Illegal Search on the Admissibility of Evidence:
The Court discussed the general principle that evidence obtained from an illegal search is not necessarily inadmissible. It cited previous rulings that even if a search is conducted illegally, the evidence obtained can still be used in court, provided it is relevant and material to the case. The Court referred to several judgments, both Indian and international, to support this view, emphasizing that the legality of the search does not affect the admissibility of the evidence obtained.

Conclusion:
The Supreme Court set aside the High Court's judgment, which had acquitted the accused based on non-compliance with Section 50 and the exclusion of the Chemical Examiner's report. The case was remitted back to the High Court for a fresh hearing, with instructions to consider the admissibility of the Chemical Examiner's report and to apply the correct interpretation of Section 50 as discussed in the judgment. The Court also addressed the practical difficulties and potential absurdities that could arise from an extended interpretation of the term "person" to include bags or other articles carried by an individual.

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