CASE DETAILS v. STATE OF HIMACHAL PRADESH

13 S.C.R. 289 : 2023 INSC 878 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 289 290 SUPREME COURT REPORTS [2023] 13 S.C.R. 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 RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH 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] 292 SUPREME COURT REPORTS [2023] 13 S.C.R. 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] RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH 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. 294 SUPREME COURT REPORTS [2023] 13 S.C.R. 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.