# CASE DETAILS RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH

- **Citation:** 2023 INSC 878
- **Court:** Supreme Court of India
- **Decided:** 2023-10-06
- **Case number:** Criminal Appeal Nos. 2239-2240 of 2011
- **Bench:** M.M. Sundresh, J.B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-ranjan-kumar-chadha-v-state-of-himachal-pradesh-36633
- **Pages:** 82

## Headnote

Issues for consideration : The contention raised was that the High
Court erred in holding the appellant guilty of off ence punishable under
Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act) as Section 50 of the NDPS Act was not complied with. It was
contended that the High Court committed error in recording the fi nding that
Section 50 of the NDPS Act was not applicable in the present case as the
recovery of the contraband substance was not made as a result of the personal
search of the accused but on account of the search of his bag.
The issue was whether Section 50 of the NDPS Act was at all applicable
to the present case. The question, therefore, that required consideration
was what meaning should be assigned to the phrase "to search any person"
occurring in Section 50 of the NDPS Act. Whether the phrase "to search any
person" means (a) search of articles on the person or body of the person;
(b) would include search of articles in immediate possession as such bag
or other luggage carried by him or in physical possession of the person to
be searched; (c) would include search of bag or luggage which is presumed
to be in possession of the person even though it may be lying in a house or
railway compartment or at the airport; or (d) whether application of Section
50 could be extended to a case of search of a place, a conveyance or a house
if the accused is physically present at the time of the search.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Search in
bag of accused - Applicability of s.50 - What would be included within
"search of a person" as stipulated u/s.50 - Term "person" - How to be
construed - Whether a bag carried by the accused can be considered
SUPREME COURT REPORTS
[2023] 13 S.C.R.
290
to be inextricably linked to the accused, and therefore, any recovery of
a contraband from such a bag without complying with s.50 would be
inadmissible - Interpretation of Statutes.
Held: According to Constitution Bench in Baldev Singh case, the
provisions of s.50 will come into play only in the case of personal search
of the accused and not of some baggage like a bag, article or container, etc.
which he may be carrying - In the three Judge bench decision in Pawan
Kumar case, it was held that the term "person" under s.50 would mean a
natural person or a living unit and not an artifi cial person i.e., a bag or a
briefcase - The three Judge Bench in Pawan Kumar case concluded that
an external article which does not form part of body is outside the ambit of
the word "person" occurring in s.50 of the NDPS Act - In view of plain and
unambiguous statutory provision, there is no scope of interpreting section
50 in any other manner than the interpretation explained in Baldev Singh
and Pawan Kumar - One must adhere to the principle of law as explained
by the Constitution Bench in Baldev Singh and the three Judge Bench in
Pawan Kumar - In the facts and circumstances of the case, the High Court
was justifi ed in holding the appellant guilty of the off ence under the NDPS
Act and at the same time, the High Court was also correct in saying that
s.50 of the NDPS Act was not required to be complied with as the recovery
was from the bag. [Paras 49, 83, 114, 124 and 125]
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
Object of:
Held: The main object of Section 50 of the NDPS Act is to avoid the
allegation of planting something or fabricating evidence by the prosecution
or the authorized offi cer. [Para 33]
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
Phrase "to search any person" occurring in s.50 - Meaning of - Code
of Criminal Procedure, 1973 - s.100(3).
Held : The phrase "to search any person" would mean only search of
the body or wearing apparels of such person and in that case the procedure
which is required to be followed would be the one prescribed under Section
50 of the NDPS Act - In contrast, if search of any building, conveyance or
291
place, including a pub

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[2023] 13 S.C.R. 289 : 2023 INSC 878
289
CASE DETAILS
RANJAN KUMAR CHADHA
v.
STATE OF HIMACHAL PRADESH
(Criminal Appeal Nos. 2239-2240 of 2011)
OCTOBER 06, 2023
[M.M. SUNDRESH AND J.B. PARDIWALA, JJ.]
HEADNOTES
Issues for consideration : The contention raised was that the High
Court erred in holding the appellant guilty of off ence punishable under
Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act) as Section 50 of the NDPS Act was not complied with. It was
contended that the High Court committed error in recording the fi nding that
Section 50 of the NDPS Act was not applicable in the present case as the
recovery of the contraband substance was not made as a result of the personal
search of the accused but on account of the search of his bag.
The issue was whether Section 50 of the NDPS Act was at all applicable
to the present case. The question, therefore, that required consideration
was what meaning should be assigned to the phrase "to search any person"
occurring in Section 50 of the NDPS Act. Whether the phrase "to search any
person" means (a) search of articles on the person or body of the person;
(b) would include search of articles in immediate possession as such bag
or other luggage carried by him or in physical possession of the person to
be searched; (c) would include search of bag or luggage which is presumed
to be in possession of the person even though it may be lying in a house or
railway compartment or at the airport; or (d) whether application of Section
50 could be extended to a case of search of a place, a conveyance or a house
if the accused is physically present at the time of the search.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Search in
bag of accused - Applicability of s.50 - What would be included within
"search of a person" as stipulated u/s.50 - Term "person" - How to be
construed - Whether a bag carried by the accused can be considered
SUPREME COURT REPORTS
[2023] 13 S.C.R.
290
to be inextricably linked to the accused, and therefore, any recovery of
a contraband from such a bag without complying with s.50 would be
inadmissible - Interpretation of Statutes.
Held: According to Constitution Bench in Baldev Singh case, the
provisions of s.50 will come into play only in the case of personal search
of the accused and not of some baggage like a bag, article or container, etc.
which he may be carrying - In the three Judge bench decision in Pawan
Kumar case, it was held that the term "person" under s.50 would mean a
natural person or a living unit and not an artifi cial person i.e., a bag or a
briefcase - The three Judge Bench in Pawan Kumar case concluded that
an external article which does not form part of body is outside the ambit of
the word "person" occurring in s.50 of the NDPS Act - In view of plain and
unambiguous statutory provision, there is no scope of interpreting section
50 in any other manner than the interpretation explained in Baldev Singh
and Pawan Kumar - One must adhere to the principle of law as explained
by the Constitution Bench in Baldev Singh and the three Judge Bench in
Pawan Kumar - In the facts and circumstances of the case, the High Court
was justifi ed in holding the appellant guilty of the off ence under the NDPS
Act and at the same time, the High Court was also correct in saying that
s.50 of the NDPS Act was not required to be complied with as the recovery
was from the bag. [Paras 49, 83, 114, 124 and 125]
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
Object of:
Held: The main object of Section 50 of the NDPS Act is to avoid the
allegation of planting something or fabricating evidence by the prosecution
or the authorized offi cer. [Para 33]
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
Phrase "to search any person" occurring in s.50 - Meaning of - Code
of Criminal Procedure, 1973 - s.100(3).
Held : The phrase "to search any person" would mean only search of
the body or wearing apparels of such person and in that case the procedure
which is required to be followed would be the one prescribed under Section
50 of the NDPS Act - In contrast, if search of any building, conveyance or
291
place, including a public place, is to be carried out, then there is no question
of following the procedure prescribed under Section 50 - However, when a
suspected or arrested person is to be searched, then the procedure prescribed
under Section 50 comes into operation and the procedure thereunder is
required to be followed - This can be seen by referring to Section 100(3) of
the CrPC 1973 which provides that where any person is reasonably suspected
of concealing about his person any article for which search should be made,
such person may be searched and if such person is a woman, the search shall
be made by another woman with strict regard to decency- The concealment
which is suspected is on the person or about his person. [Para 36]
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
When applicable and when not:
Held : Where a police offi cer is in the normal course of investigation of
an off ence or suspected off ences as provided under the provisions of CrPC
1973 and in the course of such investigation when a search is completed
and in that process happens to stumble upon possession of a narcotic drug
or psychotropic substance, the question of invoking Section 50 would not
arise - One can easily understand that without any prior information as
to possession of any narcotic drug and psychotropic substance, a police
offi cer might have held a search in the course of discharge of his duties as
contemplated under the provisions of CrPC 1973 and, therefore, it would
be well-neigh impossible to state that even under such a situation, the
application of Section 50 would get attracted - s.50 is applicable only in
case of search of person of the suspect under the provisions of the NDPS
Act, and would have no application where a search was conducted under
any other statute in respect of any off ence. [Paras 42 and 64]
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
Rights of the accused - Right to be informed about the search to be
conducted in presence of Gazetted Offi cer or Magistrate.
Held : The person intended to be searched under Section 50 must be
told in clear and unambiguous words that he has a right to have the search
conducted in presence of either a Gazetted Offi cer or Magistrate - The
person concerned must be made aware of his right and must be given only
two options that have been provided under the section. [Para 56]
RANJAN KUMAR CHADHA v.
STATE OF HIMACHAL PRADESH
SUPREME COURT REPORTS
[2023] 13 S.C.R.
292
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
Accused waiving right to be searched in presence of Gazetted Offi cer
or Magistrate - Eff ect of - Whether it is still mandatory that his search
be conducted only before a Gazetted Offi cer or Magistrate:
Held : There is no requirement to conduct the search of the person,
suspected to be in possession of a narcotic drug or a psychotropic substance,
only in the presence of a Gazetted Offi cer or Magistrate, if the person
proposed to be searched, after being apprised by the empowered offi cer
of his right under Section 50 of the NDPS Act to be searched before a
Gazetted Offi cer or Magistate categorically waives such right by electing
to be searched by the empowered offi cer - The words "if such person so
requires", as used in Section 50(1) of the NDPS Act would be rendered
otiose, if the person proposed to be searched would still be required to
be searched only before a Gazetted Offi cer or Magistrate, despite having
expressly waived "such requisition", as mentioned in the opening sentence
of sub-Section (2) of Section 50 of the NDPS Act - In other words, the
person to be searched is mandatorily required to be taken by the empowered
offi cer, for the conduct of the proposed search before a Gazetted Offi cer or
Magistrate, only "if he so requires", upon being informed of the existence
of his right to be searched before a Gazetted Offi cer or Magistrate and not if
he waives his right to be so searched voluntarily, and chooses not to exercise
the right provided to him under Section 50 of the NDPS Act - However,
even when the suspect being apprised by the empowered offi cer of his right
under Section 50 of the NDPS Act to be searched before a Gazetted Offi cer
or Magistrate waives such right by electing to be searched by the empowered
offi cer, such waiver on the part of the suspect should be reduced into writing
by the empowered offi cer - To put it in other words, even if the suspect says
that he would not like to be searched before a Gazetted Offi cer or Magistrate
and he would be fi ne if his search is undertaken by the empowered offi cer,
the matter should not rest with just an oral statement of the suspect - The
suspect should be asked to give it in writing duly signed by him in presence
of the empowered offi cer as well as the other offi cials of the squad - This
would lend more credence to the compliance of Section 50 of the NDPS
Act - In other words, it would impart authenticity, transparency and credit
worthiness to the entire proceedings. It is clarifi ed that this compliance shall
henceforth apply prospectively. [Paras 62, 63]
293
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
Rights of the accused - Right to be informed about the search to be
conducted in presence of Gazetted Offi cer or Magistrate - Manner of
communication of such right when multiple persons are to be searched.
Held: In case of multiple persons to be searched, each of them has to
be individually communicated of their right, and each must exercise or waive
the same in their own capacity - Any joint or common communication of
this right would be in violation of Section 50. [Para 64]
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
Recovery of contraband under NDPS Act during search under statute
other than NDPS Act - Whether provisions relating to NDPS Act would
apply.
Held: Where during a search under any statute other than the NDPS
Act, a contraband under the NDPS Act also happens to be recovered, the
provisions relating to the NDPS Act shall forthwith start applying, although
in such a situation Section 50 may not be required to be complied for the
reason that search had already been conducted. [Para 64]
Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50 -
Burden of proof - Defi ned.
Held: The burden is on the prosecution to establish that the obligation
imposed by Section 50 was duly complied with before the search was
conducted. [Para 64]
Narcotic Drugs and Psychotropic Substances Act, 1985 - Recovery
in violation of s.50 - Consequences of - Whether non-compliance of
s.50 would vitiate the trial.
Held: Any incriminating contraband, possession of which is punishable
under the NDPS Act and recovered in violation of Section 50 would be
inadmissible and cannot be relied upon in the trial by the prosecution,
however, it will not vitiate the trial in respect of the same - Any other
article that has been recovered may be relied upon in any other independent
proceedings. [Para 64]
Interpretation of Statutes - Literal rule of interpretation -
Explained.
RANJAN KUMAR CHADHA v.
STATE OF HIMACHAL PRADESH
SUPREME COURT REPORTS
[2023] 13 S.C.R.
294
Held: It is a well-settled principle in law that the Court should not
read anything into a statutory provision which is plain and unambiguous -
A statute is an edict of the legislature - The language employed in a statute
is the determinative factor of the legislative intent - The fi rst and primary
rule of construction is that the intention of the legislation must be found in
the words used by the legislature itself - The question is not of what may
be supposed and has been intended but what has been said. [Para 115]
Interpretation of Statutes - Principle of Construction - Casus
omissus.
Held: A casus omissus cannot be supplied by the Court except in the
case of clear necessity and when reason for it is found in the four corners of
the statute itself but at the same time a casus omissus should not be readily
inferred and for that purpose all the parts of a statute or section must be
construed together and every clause of a section should be construed with
reference to the context and other clauses thereof so that the construction to
be put on a particular provision makes a consistent enactment of the whole
statute - This would be more so if literal construction of a particular clause
leads to manifestly absurd or anomalous results which could not have been
intended by the legislature.[Para 118]
LIST OF CITATIONS AND OTHER REFERENCES
State of Punjab v. Baldev Singh (1999) 6 SCC 172 : [1999] 3 SCR 977
and Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay North,
Ahmedabad [1965] 2 SCR 908 - followed.
State of H.P. v. Pawan Kumar (2005) 4 SCC 350 : [2005] 3 SCR 417
- relied on.
SK. Raju alias Abdul Haque alias Jagga v. State of West Bengal (2018)
9 SCC 708 : [2018] 10 SCR 731 and State of Rajasthan v. Parmanand and
Another (2014) 5 SCC 345 : [2014] 3 SCR 522 - held not applicable.
Yasihey Yobin. v. Department of Customs, Shillong (2014) 13 SCC
344 - held not good law.
Arif Khan alias Agha Khan v. State of Uttarakhand (2018) 18 SCC 380
: [2018] 6 SCR 787; State of Punjab v. Baljinder Singh (2019) 10 SCC 473 :
295
[2019] 13 SCR 520; State of Punjab v. Balbir Singh (1994) 3 SCC 299 : [1994]
2 SCR 208; Gurjant Singh v. State of Punjab (2014) 13 SCC 603 : [2013] 12
SCR180; Ali Mustaff a Abdul Rahman Moosa v. State of Kerala (1994) 6 SCC
569 : [1994] 4 Suppl. SCR 52; Saiyad Mohd. Saiyad Umar Saiyad and Ors. v.
State of Gujarat (1995) 3 SCC 610 : [1995] 3 SCR 117; Manohar Lal v. State
of Rajasthan (1996) 11 SCC 391 : [1996] 1 SCR 837; Joseph Fernandez v.
State of Goa (2001) 1 SCC 707; Prabha Shankar Dubey v. State of M.P. (2004)
2 SCC 56 : [2003] 6 Suppl. SCR 444; Vijaysinh Chandubha Jadeja v. State
of Gujarat (2011) 1 SCC 609 : [2010] 13 SCR 255; Kalema Tumba v. State
of Maharashtra (1999) 8 SCC 257 : [1999] 2 Suppl. SCR 670; Sarjudas v.
State of Gujarat (1999) 8 SCC 508; Birakishore Kar v. State of Orissa (2000)
9 SCC 541; Kanhaiya Lal v. State of M.P. (2000) 10 SCC 380: Gurbax Singh
v. State of Haryana (2001) 3 SCC 28 : [2001] 1 SCR 882; Beckodan Abdul
Rahiman v. State of Kerala (2002) 4 SCC 229 : [2002] 3 SCR 53; Madan
Lal v. State of Himachal Pradesh (2003) 7 SCC 465 : [2003] 2 Suppl. SCR
716; State of Punjab v. Makhan Chand (2004) 3 SCC 453; Saikou Jabbi v.
State of Maharashtra (2004) 2 SCC 186 : [2003] 6 Suppl. SCR 456; Namdi
Francis Nwazor v. Union of India (1998) 8 SCC 534; Abdul Rashid Ibrahim
Mansuri v. State of Gujarat (2000) 2 SCC 513 : [2000] 1 SCR 542; State of
Rajasthan v. Daulat Ram (2005) 7 SCC 36 : [2005] 2 Suppl. SCR 880; State
of Haryana v. Mai Ram (2008) 8 SCC 292 : [2008] 11 SCR 586; Balbir Kaur
v. State of Punjab (2009) 15 SCC 795 : [2009] 10 SCR 29; Ajmer Singh v.
State of Haryana (2010) 3 SCC 746 : [2010] 2 SCR 785; Jarnail Singh v. State
of Punjab (2011) 3 SCC 521 : [2011] 2 SCR 888; Suresh v. State of Madhya
Pradesh (2013) 1 SCC 550 : [2012] 10 SCR 1157; Union of India v. Shah
Alam (2009) 16 SCC 644 : [2009] 9 SCR 1118; Dayalu Kashyap v. State of
Chhattisgarh (2022) 12 SCC 398; Union of India v. Filip Tiago De Gama of
Vedem Vasco De Gama (1990) 1 SCC 277 : [1989] 2 Suppl. SCR 336; D.R.
Venkatchalam v. Dy. Transport Commissioner (1977) 2 SCC 273 : [1977] 2
SCR 392; Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. (2000)
5 SCC 515 : [2000] 1 Suppl. SCR 38; Padma Sundara Rao (Dead) & Ors. v.
State T.N. & Ors. (2002) 3 SCC 533 : [2002] 2 SCR 383 and State of H.P. v.
Pawan Kumar (2004) 7 SCC 735 - referred to.
Lehigh Valley Coal Co. v. Yensavage, 218 FR 547; Artemiou v. Procopiou
(1966) 1 QB 878; Luke v. IRC [1963] AC 557 : (1963) 1 All ER 655 - referred
to.
RANJAN KUMAR CHADHA v.
STATE OF HIMACHAL PRADESH
SUPREME COURT REPORTS
[2023] 13 S.C.R.
296
John C. Derrnbachet.al., A Practical Guide to Legal Writing and Legal
Method (1994) - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
2239-2240 Of 2011.
From the Judgment and Order dated 20.08.2010 and 16.09.2010 of
the High Court of Himachal Pradesh at Shimla in CRLA No. 356 of 1999.
Appearances:
Mrs. Pragya Baghel, Adv. for the Appellant.
Anil Nag, Adv. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
J. B. PARDIWALA, J.
1. The captioned appeals are at the instance of a convict accused
of the off ence punishable under Section 20 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, "the NDPS Act") and are
directed against the judgment and order of conviction dated 20.08.2010
and the order of sentence dated 16.09.2010 resply passed by the High
Court of Himachal Pradesh in the Criminal Appeal No. 356 of 1999 by
which the High Court allowed the appeal fi led by the State of Himachal
Pradesh and thereby set aside the judgment and order of acquittal passed
by the Sessions Judge, Kullu dated 31.03.1999 in the Sessions Trial No.
44 of 1998. With the High Court allowing the State's acquittal appeal, the
appellant herein stood convicted of the off ence punishable under Section
20 of the NDPS Act.
2. The appellant was heard on the point of sentence and ultimately,
the High Court vide order dated 16.09.2010 sentenced the appellant herein
to undergo rigorous imprisonment for a period of two years and to pay fi ne
of Rs. 50,000/- (Rupees Fifty Thousand Only), and in default of payment
of fi ne to undergo further rigorous imprisonment for six months.
297
CASE OF THE PROSECUTION
3. On 23.08.1998 ASI Lal Singh (PW 14) was on patrolling duty along
with Head Constable Mohan Lal (PW 12), Constable Sant Ram (PW 13)
and Constable Baldev Dass (PW 6). At about 6.30 pm while they all were
at Dhalpur, the ASI Lal Singh (PW 14) received a secret information that
one well built person wearing a white T-shirt and green trouser was standing
at the Sarwari bus stand and was ready to board a bus bound for Delhi. The
information was that the said person at the bus stand had in his possession
contraband in the form of charas. The secret information was recorded by
the PW 14 and forwarded to the Superintendent of Police, Kullu through the
Constable Baldev Dass (PW 6). The ASI Lal Singh (PW 14), HC Mohan Lal
(PW 12) and Constable Sant Ram (PW 13) accordingly left for Sarwari bus
stand and reached there at about 6.45 pm. The offi cers were able to locate
and identify the said person at the bus stand carrying a bag on his shoulder.
In the presence of two independent witnesses, the said person was asked
to disclose his identity. The person standing at the bus stand disclosed his
identity as Ranjan Kumar Chadha son of Shri Ved Parkash Chadha resident
of New Delhi. As the police offi cials suspected that he may be carrying
charas, they gave him the option of being searched before the police or
before a Gazetted Offi cer or Magistrate. The person concerned consented
to be searched before the police. Before the search of the person of the
accused was undertaken, the police offi cials got themselves searched before
the witnesses. The bag which the accused was carrying along with him was
also searched. The search of the bag resulted in recovery of three polythene
bags containing charas. Many other articles like the driving licence, etc.
were also recovered from his bag. On being weighed, the charas was found
to be 1 kg. 250 gms.
4. Two samples of 25 grams each were drawn from the polythene
bags containing charas and the remaining charas was sealed with seal "H".
Seal impression was also taken on the NCB form and seal was handed over
to the PW 9 Surinder Kumar. The charas was taken into possession vide
recovery memo Ext. PK which was signed by the witnesses PW 9 Surinder
Kumar, PW 10 Karam Singh and PW 12 Mohan Lal resply. The accused was
informed of the grounds of his arrest, etc. vide memo Ext. PL. Ruqua Ext.
PG was prepared and sent to the police station through the Constable Sant
RANJAN KUMAR CHADHA v.
STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
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Ram. The site plan Ext. PP was prepared on the spot. The statements of the
witnesses were recorded. Thereafter, PW 14 came to the Police Station along
with the accused and deposited the case property including the samples and
the NCB form before the SHO who resealed the case property and samples
with seal-X. One of the samples was sent for chemical examination to the
CIL, Kandaghat and vide report Ext. PO the samples were found to be of
charas having resin content of 33.58%. On this basis the accused was charge
sheeted with having committed an off ence as aforesaid.
5. The accused pleaded not guilty before the Trial Court and claimed
to be tried. The defence of the accused was that when the bus was about
to leave for Delhi and while the accused was sitting in the bus with some
other passengers, one unclaimed bag was found and the accused was
wrongly stated to be the owner of the said bag. In short, the case of the
accused before the Trial Court was that he was falsely implicated in the
case.
6. The Trial Court upon appreciation of the oral as well as documentary
evidence came to the conclusion that the prosecution had failed to prove
its case against the accused beyond a reasonable doubt and accordingly,
acquitted the accused.
7. The State of Himachal Pradesh, being dissatisfi ed with the judgment
and order of acquittal passed by the Trial Court, went in appeal before the
High Court. The appeal came to be allowed by the High Court and the
appellant herein stood convicted for the off ence under Section 20 of the
NDPS Act.
8. In such circumstances referred to above, the appellant is here before
this Court with the present appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANT
9. Mrs. Pragya Baghel, the learned counsel appearing for the appellant,
vehemently submitted that the High Court committed a serious error in
holding the appellant guilty of the off ence under the NDPS Act. She would
submit that the High Court should not have disturbed a well reasoned
judgment of acquittal passed by the Trial Court. The learned counsel
submitted that the High Court committed a serious error in recording the
299
fi nding that Section 50 of the NDPS Act is not applicable in the present case
as the recovery of the contraband substance was not made as a result of the
personal search of the accused but on account of the search of his bag.
10. It was argued that the expression "to search any person" occurring
in Section 50 of the NDPS Act means search of articles on the person
or body of the person to be searched as well as the search of articles in
immediate possession like bag and other luggage carried by him or in
physical possession of the person to be searched.
11. The learned counsel argued that Section 50 of the NDPS Act was not
complied with in its letter and spirit as although the case of the prosecution
is that the appellant was given the option to be searched before the police
or a Gazetted Offi cer or Magistrate, yet the appellant accused was not told
that it is his right to be searched in the presence of a Magistrate or Gazetted
Offi cer. The learned counsel argued that the fact that the accused was also
given a third option of being searched before the police offi cer itself violated
Section 50 of the NDPS Act. She would argue that Section 50 of the NDPS
Act is mandatory and the Trial Court rightly held that Section 50 of the
NDPS Act was not complied with.
12. In the last, the learned counsel argued that in case of search of
person of the accused as well as the luggage which is in his immediate
possession, then even in such circumstances Section 50 of the NDPS Act
will apply and would have to be complied with. She would argue that in
the case on hand not only the search of the person of the accused was
undertaken but the search of the bag was also undertaken. To fortify this
submission, the learned counsel relied on the decision of this Court in the
case of SK. Raju alias Abdul Haque alias Jagga v. State of West Bengal
reported in (2018) 9 SCC 708. According to the learned counsel, the ratio
of the decision of this Court in SK. Raju (supra) is that if the search is of
both the bag as well as the person of the accused, Section 50 of the NDPS
Act would be attracted.
13. In such circumstances referred to above, the learned counsel
prayed that there being merit in her appeals, the same be allowed and the
judgment and order of conviction and sentence passed by the High Court
may be set aside.
RANJAN KUMAR CHADHA v.
STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
300
SUBMISSIONS ON BEHALF OF THE STATE
14. Mr. Anil Nag, the learned counsel appearing for the State, on the
other hand, vehemently opposed these appeals submitting that no error, not
to speak of any error of law, could be said to have been committed by the
High Court in passing the impugned judgment and order of conviction and
sentence. He would argue that the High Court was justifi ed in holding the
appellant herein guilty of the off ence punishable under Section 20 of the
NDPS Act. It was vehemently argued that Section 50 of the NDPS Act is
not applicable at all in the present case as the search was made only of the
bag which the appellant was carrying on his shoulder and the person of the
appellant was not searched. It was argued that the decision of this Court in
SK. Raju (supra) is of no avail to the appellant herein as in the said case not
only the person of the accused was searched but even the bag was searched
and as the recovery of the contraband was from the bag, this Court took the
view that Section 50 of the NDPS Act would be attracted.
15. The learned counsel appearing for the State in support of his
aforesaid submission placed strong reliance on the decision of this Court
in the case of State of Punjab v. Baljinder Singh reported in (2019) 10
SCC 473.
16. In such circumstances referred to above, the learned counsel
appearing for the State prayed that there being no merit in the appeals, those
may be dismissed.
ANALYSIS
17. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls
for our consideration is, whether the High Court committed any error in
holding the appellant herein guilty of the off ence punishable under Section
20 of the NDPS Act?
18. Before we advert to the rival submissions canvassed on either side,
we must look into the relevant fi ndings recorded by the High Court as well
as by the Trial Court.
19. The Trial Court in its judgment of acquittal, while discussing
Section 50 of the NDPS Act and its compliance, held as under:-
301
"11. Regarding compliance of provisions of section 5O of the Act,
which is also a mandatory provisions under the Act, none of the
witnesses of this consent memo EX.PG have supported the version
of the prosecution. PW-9 Surinder Kumar and PW-10 Karam Singh
independent witnesses joined in the raiding party have categorically
stated that no such notice was given in their presence to the accused
nor accused gave in writing the endorsement EX. PG/1 in their
presence. There is only bare statement of PW-14 ASI Lal Singh that
this notice was given to the accused but when there were admittedly
independent witnesses present on the spot as per case of the
prosecution, who have been declared hostile in court, it was for the
prosecution to prove that these witnesses have suppressed truth from
the court, but nothing has been proved against them as to why they
should have deposed falsely against the prosecution or in favour of
the accused and therefore, it is held that the prosecution has failed
to prove beyond reasonable doubt the compliance of Section 50 of
the Act, which is mandatory provision and on this score the accused
Ranjan Chadha is entitled to acquittal. Moreover the recovery of
charas from the bag of the accused is alleged to have taken place
in presence of PW-9 Surinder Kumar and PW-10 Karam Singh in
addition to PW-12 HC Mohan Lal, PW-13 Sant Ram and PW-14 ASI
Lal Singh. However both the independent witnesses PW-9 Surinder
Kumar and PW-10 Karam Singh have been declared hostile when
they deposed that no bag was found in possession of the accused
in their presence nor search of the accused was conducted in their
presence and nothing has been proved against them, in their cross
examination as to why they should have deposed falsely. From the
statements of these witnesses, who have been declared hostile, I am
of the opinion that reasonable doubt has been created in the case
of the prosecution by the accused regarding alleged recovery of
charas from the conscious and exclusive possession of the accused
and accordingly by giving the benefi t of doubt to the accused, it is
held that the prosecution has failed to prove that on 23.8.1998 at
6.30 pm 1.250 grams of charas was recovered from the conscious
and exclusive possession of the accused point No. I is accordingly
answered."
RANJAN KUMAR CHADHA v.
STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
302
20. The High Court, while reversing the judgment and order of acquittal
passed by the Trial Court and more particularly on the issue of applicability
of Section 50 of the NDPS Act, held as under:-
"As far as Section 50 of the Act is concerned the same is not at
all applicable to the facts of the present case. The recovery of the
contraband substance was not made as a result of the personal search
of the accused but on account of the search from his bag. In such
eventuality the police is not required to comply with Section 50 of the
Act. In this behalf reference may be made to the decision of the Apex
Court in State of Himachal Pradesh Versus Pawan Kumar Latest
HLJ 2004 [SC] 1247."
ORAL EVIDENCE ON RECORD:-
21. We shall now look into the deposition of PW 12 Mohan Lal. Head
Constable No. 175, Kullu Police Station. PW 12 in his examination in chief
has deposed as under:-
"Stated that I am posted in P.S. Kullu since 1997. On 23.8.1998 I
with ASI Lal Singh, Constable Sant Ram and Baldev Dass proceeded
from P.S. Kullu at 5.30 p.m. for patrolling. At about 6.30 p.m. ASI
received secret information at Dhalpur. Whereupon ASI Lal Singh
prepared Information Report and sent to S.P. through Const. Baldev
Dass and I and ASI Lal Singh and Const. Sant Ram went to Bus
Stand. Kullu (Sarbari). We reached Sarbari Bus Stand at 6.45 p.m.
Surender, Bus Stand lncharge and Karam Singh were made to join
the investigation. Accused Ranjan Chadha present in the court was
standing in the verandah of Bus Stand and he had a black blue colour
bag on his shoulder. Before witnesses Surender and Karam Singh,
notice was issued by ASI Lal Singh to the accused to the eff ect that ASI
has apprehension that you may be having charas in your possession
and whether he wants to give his search to ASI or before G.O. or
Magistrate. Accused gave in writing that he wants his search to be
conducted by the police. Memo of this was also prepared. Accused
told his name as Ranjan Kumar Chadha. After that accused along
with witnesses was taken to a room which is adjacent to the room of
Incharge of Bus Stand. ASI searched the bag and besides personal
luggage of Ranjan Chadha, Charas in three polythene packets were
303
recovered from the bag and it was weighed and the charas was found
to be 1 kg. 250 gms. Out of which two samples of 25 gm. each were
taken and sample and recovered charas were separately sealed in two
packets with seal H. After affi xing seal on samples, the seal was handed
over to Surender Kumar witness. After that ASI prepared Rukka and
gave it to constable who took the Rukka to police station. Accused was
arrested and accused was told of the ground of arrest and sentence.
Accused and witnesses Surender Singh, Karam Singh and I affi xed our
respective signature on the Consent Memo Exh.PJ, Recovery Memo
Exh.PK, Grounds of Arrest Exh.PN. Exh.P.1 packet and Exh.P.2 sample
are same. Personal search of accused was conducted. Exh.PE the
memo of personal search bears my signature as witness."
22. We also looked into the cross examination of the PW 12 by the
defence counsel. We take notice of the fact that nothing substantial could
be elicited from the PW 12 in his cross examination. We also take notice of
the fact that except suggestions put to the witness, there is no other form of
cross examination.
23. We shall now look into the evidence of PW 14 ASI Lal Singh of
Kullu Police Station. The PW 14 in his examination in chief has deposed
as under:-
"Stated that I am posted in P.S. Kullu since 1997. On 23.8.98, I along
with HC Mohan Lal, Constables Sant Ram and Baldev Dass moved
out of police station Kullu at 5.30 p.m. for patrolling. The departure
report was entered in the GD. When we were present at Dhalpur at
6.30 p.m., I got information from informer that one person wearing
white T Shirt and green pajama and having French cut beard and is
healthy is having one big bag with him and he with charas is ready
to go to Delhi by bus from Sarbari Bus Stand. Thereupon I prepared
information report and sent it to SP, Kullu through Constable Baldev
Dass. Exh.PB is copy of it. After that I, with HC Mohan Lal, Constable
Sant Ram went to Sarbari Bus Stand on foot and we reached Sarbari
bus stand at 6.45 p.m. Surender Kumar, Bus Stand Incharge and Karam
Singh were asked to join the investigation who joined the investigation.
The person with same features as told by informer was found standing
at that bus stand who had a bag on his shoulder. Before witnesses I
RANJAN KUMAR CHADHA v.
STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
304
asked name of that person whereupon that person told his name as
Ranjan Kumar Chadha S/o Ved Prakash Chadha, Sarva Priya Vihar,
New Delhi. Before the witnesses, I asked that person that police has
apprehension that he is in possession of charas and whether he wants
that his personal search is to be conducted by police or by any G.0. or
Magistrate. The accused present in the court is the same person who
had given his consent in writing and verbally that he is ready to give
his search to me. Consent Memo Exh.PJ was prepared in this regard
and accused has given his consent thereon by writing the same in his
handwriting. After that I gave my personal search through Exh.PM in
the presence of witnesses. Then the bag which accused was holding
was searched before the witnesses. Bag was black blue colour on
which MITRE was found written. On search of bag, besides other
belongings of accused such as D.L., Diary, etc., three polythene packets
were recovered in which Charas in the form of Battis and tablets
were recovered. On weighing, charas 1 kg. 250 gms. was found out of
recovered charas, 2 samples of 25 grns. each were taken out and charas
and samples were sealed with seal H. After fi lling up NCB Form and
sample seal, seal was handed over to witness Surender Kumar. Charas
was seized through seizure memo Exh.PJ on which accused affi xed his
signature and witnesses affi xed their signatures. Accused was informed
through Exh.PN regarding grounds of arrest, etc. Rukka Exh.PH was
prepared and sent to Police Station through Constable Sant Ram and
after registration of FIR he brought the fi le from police station. Site
plan Exh.PP was prepared correctly. Statements of witnesses were
recorded. Statement of Surender Kumar Marked X, now Exhibited as
Exh.PQ and statement of Karam Singh marked Y now exhibited as
Exh.PR have been correctly recorded by me as given by them. Nothing
was left out and nor anything was added of my own in their statements.
Memo of personal search Exh.PE was prepared and tickets Exh.PF
for Delhi Bus was recovered from accused. Thereafter I with accused
and case property came to police station. Case property, sample and
NCB Form were submitted by me to SHO who sealed case property
and sample with seal X. Parcels are Exh.P1 and Sample is Exh.P2.
Accused was produced in the court on 24.8.98 and remand of accused
obtained. During investigation, accused informed that charas has been
305
given to him by Nathan Ashley for taking the same to Delhi and that
person is staying at Nest Guest House located near bus stand. We went
to that Guest House but no person of this name was found there. On
25.8.98 I prepared special report and sent to SP through. constable
Lakshman Dass and Exh.PC is copy of the same. After completing the
investigation, documents and papers were given to SHO who (SHO)
has prepared the challan."
24. We also looked into the cross examination of the PW 14 by the
defence counsel. We take notice of the fact that nothing substantial could
be elicited from the PW 14 in his cross examination. We also take notice of
the fact that except suggestions put to the witness, there is no other form of
cross examination.
25. What is pertinent to note in the oral evidence of PW 12 and PW 14
respectively referred to above, is that the appellant herein was told or rather
informed that if he so desired, he may get himself searched before the ASI
or before the Gazetted Offi cer or Magistrate. Thus, it is evident from the
oral evidence of both PW 12 and PW 14 resply that three options were given
to the appellant herein - fi rst to be searched before the ASI i.e. Assistant
Sub-Inspector, second, before the Gazetted Offi cer and third, before any
Magistrate. It is also pertinent to note that the appellant was not informed
in so many words that it is his right under Section 50 of the NDPS Act to
seek search before a Gazetted Offi cer or Magistrate.
26. So far as the issue of applicability of Section 50 of the NDPS
Act is concerned, there are two aspects of the same. Even if we hold that
Section 50 of the NDPS Act was not complied with, then the second
question would be, whether Section 50 could at all be made applicable
to the case on hand.
27. We have no hesitation in recording a fi nding that Section 50 of
the NDPS Act was not complied with as the appellant could not have been
off ered the third option of search to be conducted before the ASI. Section
50 of the NDPS Act only talks about a Gazetted Offi cer or Magistrate.
What is the legal eff ect if an accused of the off ence under the NDPS Act is
being told, whether he would like to be searched before a police offi cer or
a Gazetted Offi cer or Magistrate?
RANJAN KUMAR CHADHA v.
STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
306
28. This Court in State of Rajasthan v. Parmanand and another,
(2014) 5 SCC 345, held that it is improper for a police offi cer to tell the
accused that a third alternative is also available i.e. the search before
any independent police offi cer. This Court also took the view that a joint
communication of the right available under Section 50 of the NDPS Act to
the accused would frustrate the very purport of Section 50. We quote the
relevant observations made by this Court as under:-
"15. Thus, if merely a bag carried by a person is searched without
there being any search of his person, Section 50 of the NDPS Act
will have no application. But if the bag carried by him is searched
and his person is also searched, Section 50 of the NDPS Act will
have application. In this case, respondent 1 Parmanand's bag was
searched. From the bag, opium was recovered. His personal search
was also carried out. Personal search of respondent 2 Surajmal was
also conducted. Therefore, in the light of the judgments of this Court
mentioned in the preceding paragraphs, Section 50 of the NDPS Act
will have application.
16.