Judgment: Dr. Arijit Pasayat, J
1. Challenge in this appeal is to
the judgment rendered by a learned Single Judge of the Rajasthan High
Court at Jodhpur allowing the appeal filed by the respondent
(hereinafter referred to as the 'accused'). Before the High Court the
challenge was to the order dated 31.8.1987 passed by the learned
Sessions Judge, Balotra, in Sessions Case No.10/86 by which while
acquitting the accused for offence punishable under Section 18 of the
Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred
to as the 'Act'), convicted him for offence punishable under Section 17
of the Act and sentenced him to undergo RI for 10 years and to pay a
fine of rupees one lakh with default stipulation.
2. The High Court directed acquittal
on the ground that there was non-compliance of mandatory requirement of
Section 50 of the Act. Before the High Court though many points were
urged, the primary stand was non-compliance of Section 50 of the Act.
The High Court accepted that there was non-compliance as alleged.
Accordingly, the respondent was acquitted by setting aside the
conviction and consequential sentence.
3. In support of the appeal, learned
counsel for the appellant-State submitted that search was not of person
of the accused and of bag which was with accused and, therefore, the
High Court erroneously held that the requirements of Section 50 of the
Act were required to be complied with.
4. The controversy turns round
Section 50 of the Act and the same (at the relevant time) reads as
"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."
5. 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 the word "person" occurring in
Section 50 would also include within its ambit any bag, briefcase or any
such article or container, etc., being carried by such person and the
provisions of Section 50 have to be strictly complied with while
conducting, search of such bag, briefcase, article or container, etc.
Learned counsel for the State has, on the other hand, submitted that
there is no warrant for giving such an extended meaning and the word
"person" would mean only the person himself and not any bag, briefcase,
article or container, etc., being carried by him.
6. 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, however, 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, 1860 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.
7. One of the basic principles of
interpretation of Statutes is to construe them according to plain,
literal and grammatical meaning of the words. If that is contrary to, or
inconsistent with, any express intention or declared purpose of the
Statute, or if it would involve any absurdity, repugnancy or
inconsistency, the grammatical sense must then be modified, extended or
abridged, so far as to avoid such an inconvenience, but no further. The
onus of showing that the words do not mean what they say lies heavily on
the party who alleges it. He must advance something which clearly shows
that the grammatical construction would be repugnant to the intention of
the Act or lead to some manifest absurdity (See Craies on Statute Law,
Seventh ed. page 83-85). In the well known treatise - Principles of
Statutory Interpretation by Justice G.P. Singh, the learned author has
enunciated the same principle that the words of the Statute are first
understood in their natural, ordinary or popular sense and phrases and
sentences are construed according to their grammatical meaning, unless
that leads to some absurdity or unless there is something in the context
or in the object of the Statute to suggest the contrary (See the Chapter
- The Rule of Literal Construction -page 78 - Ninth ed.). This Court has
also followed this principle right from the beginning. In
Jugalkishore Saraf v. Raw Cotton Co. Ltd.
AIR 1955 SC 376, S.R. Das, J. said: -
"The cardinal rule of construction
of statutes is to read the statute literally, that is, by giving to the
words used by the legislature their ordinary, natural and grammatical
meaning. If, however, such a reading leads to absurdity and the words
are susceptible of another meaning the Court may adopt the same. But if
no such alternative construction is possible, the Court must adopt the
ordinary rule of literal interpretation."
8. A catena of subsequent decisions
have followed the same line. It, therefore, becomes necessary to look to
dictionaries to ascertain the correct meaning of the word "person".
9. A bag, briefcase or any such
article or container, etc. can, under no circumstances, be treated as
body of a human being. They are given a separate name and are
identifiable as such. They cannot even remotely be treated to be part of
the body of a human being. Depending upon the physical capacity of a
person, he may carry any number of items like a bag, a briefcase, a
suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a 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 said that
a person is carrying a particular article, specifying the manner 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.
10. The scope and ambit of Section
50 of the Act was examined in considerable detail by a Constitution
Bench in State of Punjab v. Baldev Singh
(1999 (6) SCC 172)and para 12 of the reports is being reproduced below :
"12. On its plain reading, Section
50 would come into play only in the case of a search of a person as
distinguished from search of any premises etc. However, if the empowered
officer, without any prior information as contemplated by Section 42 of
the Act makes a search or causes arrest of a person during the normal
course of investigation into an offence or suspected offence and on
completion of that search, a contraband under the NDPS Act is also
recovered, the requirements of Section 50 of the Act are not attracted."
11. The Bench recorded its
conclusion in para 57 of the reports and sub-paras (1), (2), (3) and (6)
are being reproduced below :
"57. On the basis of the reasoning and discussion above, the following
(1) That when an empowered officer
or a duly authorized officer acting on prior information is about to
search a person, it is imperative for him to inform the person concerned
of his right under Sub-section (1) of Section 50 of being taken to the
nearest gazetted officer or the nearest Magistrate for making the
search. However, such information may not necessarily be in writing.
(2) That failure to inform the
person concerned about the existence of his right to be searched before
a gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an
empowered officer, on prior information, without informing the person of
his right that if he so requires, he shall be taken before a gazetted
officer or a Magistrate for search and in case he so opts, failure to
conduct his search before a gazetted officer or a Magistrate may not
vitiate the trial but would render the recovery of the illicit article
suspect and vitiate the conviction and sentence of an accused, where the
conviction has been recorded only on the basis of the possession of the
illicit article, recovered from his person, during a search conducted in
violation of the provisions of Section 50 of the Act.
xx xx xx
(6) That in the context in which the protection has been incorporated in
Section 50 for the benefit of the person intended to be searched, we do
not express any opinion whether the provisions of Section 50 are
mandatory or directory, but hold that failure to inform the person
concerned of his right as emanating from Sub-section (1) of Section 50,
may render the recovery of the contraband suspect and the conviction and
sentence of an accused bad and unsustainable in law."
12. These aspects were highlighted
in State of H.P. v. Pawan Kumar (2005 (4)
13. In view of the aforesaid
judgment by a three Judge Bench of this Court, the acquittal, as
directed by the High Court, is clearly unsustainable. However, we find
that other points were urged in support of the appeal before the High
Court, but the High Court allowed the appeal filed by the accused only
on the ground of non-compliance of Section 50 of the Act. It did not
examine the other grounds of challenge. We, therefore, remit the matter
to the High Court to hear the appeal afresh on grounds other than that
of alleged non-compliance with Section 50 of the Act, which, as noted
above, has no application to the facts of the case. 14. The appeal is
allowed to the aforesaid extent.
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