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TMI Blog2013 (2) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Custom NER, Shillong, PW 11, received information from the Special Operation Team of Meghalaya Police that Yasihey Yobin - A1 has stored huge quantity of heroin in his residence. On receipt of such information, PW4- Inspector of customs PW2- Inspector and PW7- Superintendent of Police conducted search of the premises of A1 in the presence of two other independent witnesses. In the course of search, the heroin though not recovered from A1 but was recovered from accused No. 2- Lisihey Ngwazah(A2) at the instance of A1, when A1 instructed his wife to contact A2 asking him to get the bag containing heroine. It is when A2 turned up with the bag that the said bag containing contraband heroin was searched and seized from A2 by the Custom Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of contraband substance by the Customs Officer and, therefore, the judgment and order passed by the Trial Court and so confirmed by the High Court requires to be taken exception to by this Court and in aid of his submission has also taken us through some of the decisions of this Court. 6. Per Contra, Shri P.P.Malhotra, learned Additional Solicitor General ably supports the judgment and order passed by the Trial Court and confirmed by the High Court. 7. At this stage, we intend to clarify that certain observations made by the High Court is not the correct legal position but that will not impair the complexion of this appeal. 8. Shri Altaf Ahmad, would submit that there was no recovery of the contraband goods by the Customs Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r they have to be carried in hand or hung on the shoulder or back or placed on the head. In common parlance it could be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. but it is not possible to include these articles within the ambit of the word person defined in Section 50 of the Act. 10. This position in law is settled by the Constitution Bench in the case of State of Punjab v Baldev singh, AIR 1999 SC 2378 and in Megh Singh v State of Punjab, 2003 8 SCC 666, where application of Section 50 is only in case of search of a person as contrasted to search of premises, vehicles or articles. But in cases where the line of separation is thin and fine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied with the requirements of Section 42 of the Act. 12. The first impression of ours was that Shri Altaf Ahmad may be justified in canvassing the above proposition. But, on a deeper consideration and after looking into the decision of this Court in the case of Union of India v. Satrohan, (2008) 8 SCC 313, we see no merit in the contention canvassed. In the aforesaid decision it is stated as under : It can, thus, be seen that Sections 42 and 43 do not require an officer to be a gazetted officer whereas Section 41(2) requires an officer to be so. A gazetted officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2003) 8 SCC 449 and in Mohd. Hussain Farah v. Union of India Anr.,2001 1 SCC 329, wherein it is observed that a gazetted officer is an empowered officer and so when a search is carried out in his presence and under his supervision, the provision of Section 42 has no application. 14. In view of the observation and the law laid down by this court, since the search is conducted and the contraband is seized by a gazetted officer from the residential premises of A1, the proviso to Section 42(1) of the Act is not attracted. 15. Before concluding, Shri Altaf Ahmad, would submit that there are serious discrepancies in the investigation done by the Customs Officers while conducting the search and seizure of the contraband from the possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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