2006 (4) TMI 496 - SC - Indian Laws

Whetehr Section 50 of the Narcotic Drugs and Psychotropic Substances Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying?

Summary

Issues:
- Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act
- Applicability of Section 50 in cases of personal search versus search of articles

Compliance with Section 50 of the Act:
The case involved an appeal by the State of Haryana against a judgment allowing the respondent's appeal from a conviction under the Narcotic Drugs and Psychotropic Substances Act. The respondent was found in possession of contraband during a search conducted by the police. The High Court held that the notice given to the respondent did not comply with Section 50 of the Act, which is mandatory in character. The notice only informed the respondent of the option to be searched in the presence of a gazetted police officer or a magistrate but did not explicitly state his right to be searched by a magistrate or a gazetted officer as mentioned in Section 42 of the Act. The High Court concluded that the failure to comply with Section 50 vitiated the judgment of conviction and sentence.

Applicability of Section 50 in cases of personal search vs. search of articles:
The Supreme Court analyzed the conflicting opinions on the applicability of Section 50 of the Act in cases of personal search versus search of articles like bags or containers carried by the accused. Referring to previous judgments, the Court clarified that Section 50 applies only to personal searches of the accused and not when the search is conducted on articles not carried by the accused at the time of apprehension. The Court distinguished a case where the accused was carrying a handbag containing incriminating articles, stating that it would still be considered a search of the person of the accused requiring compliance with Section 50. However, when an article is found elsewhere and not on the person of the accused, Section 50 does not apply. The Court emphasized that compliance with Section 50 is necessary only in cases of personal searches of the accused and not for searches of articles not on the person of the accused at the time of search.

In conclusion, the Supreme Court allowed the appeal, setting aside the High Court's judgment, and restored the conviction and sentence imposed by the Sessions Judge. The Court held that the observations in a previous case regarding Section 50 were obiter dicta and not binding, reaffirming that Section 50 applies only to personal searches of the accused and not to searches of articles not carried by the accused at the time of apprehension.