State of Himachal Pradesh v. Pawan Kumar

Supreme Court of India · 8 April 2005 · 3 judges

Section 50 of the NDPS Act applies only to a search of a person's body with its clothing and footwear, not to a bag, briefcase or other container the person is carrying.

Facts

Police checking buses at Mandi bus stand chased and stopped Pawan Kumar, who had slipped out of a bus carrying a bag that smelled of opium. After he chose to be searched by the police, 360 gms. of opium were found in the bag. The Sessions Judge convicted him under Section 18 of the NDPS Act. The High Court acquitted him, excluding the Chemical Examiner's report and holding that Section 50 had not been complied with. On the State's appeal, a two-Judge Bench agreed that the report was admissible but split on whether Section 50 applies to a bag carried by the accused, so the matter was referred to a larger Bench. In the connected Rajasthan appeal, 5 kgs. of opium were found in an attachi carried by Bhanwar Lal, and the High Court acquitted him for non-compliance with Section 50.

Questions before the Court

Does the expression 'search any person' in Section 50(1) of the NDPS Act include a bag, briefcase or other container carried by the person?

What the Court held

'Person' in Section 50 means a human being with appropriate coverings, clothing and footwear. A bag, briefcase or similar article or container carried by a person can under no circumstances be treated as the body of a human being and is outside the word 'person'.
One test is whether in the search the body of the person comes into contact with, or must be touched by, the searcher. Articles carried in the hand, on the shoulder, back or head can be put away from the body and are not inextricably connected with the person.
The Constitution Bench decision in Baldev Singh shows that Section 50 applies only to personal search. The observation in Namdi Francis Nwazor that search of a handbag carried by a person is a personal search was obiter and unreasoned.
Criminal law must be certain. Extending Section 50 to baggage would make its application turn on momentary changes in how a bag is held and would produce unworkable results, letting offenders escape on technical pleas.
Section 50 did not apply in either case. Both appeals were allowed, the High Court judgments set aside, and the appeals remitted to the High Courts for fresh hearing on merits.

Why it matters

The judgment settles, on a reference arising from a split between two Judges, that the safeguard in Section 50 of the NDPS Act is confined to a search of the person and does not cover bags or containers carried by him. It applies the Constitution Bench ruling in Baldev Singh, treats the contrary remark in Namdi Francis Nwazor as obiter, and relies on literal construction and the avoidance of unworkable results.

In the Court's words

Copied from the official judgment; each passage links to its page.

“Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society.”

G.P. Mathur, J.Page 4 of the judgment

“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.”

G.P. Mathur, J.Page 5 of the judgment

“Having regard to the scheme and the language used, a very strict view of Section 50 of the Act was taken and it was held 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 sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him.”

G.P. Mathur, J.Page 12 of the judgment

“Criminal law should be absolutely certain and clear and there should be no ambiguity or confusion in its application. The same principle should apply in the case of search or seizure, which come in the domain of detection of crime. The position of such bags or articles is not static and the person carrying them often changes the manner in which they are carried.”

G.P. Mathur, J.Page 8 of the judgment

Provisions interpreted

Section 50, Narcotic Drugs and Psychotropic Substances Act, 1985

Related judgments

Follows State of Punjab v. Baldev Singh (1999)“The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused” (page 6)
Distinguished in Noor Aga v. State of Punjab (2008)
Followed in Ranjan Kumar Chadha v. State of Himachal Pradesh (2023)

Case and bench

Parties: State of Himachal Pradesh v. Pawan Kumar
Case: Criminal Appeal No. 222 of 1997, with Criminal Appeal No. 375 of 2003
Decided: 8 April 2005
Bench: R.C. Lahoti, CJI, G.P. Mathur, P.K. Balasubramanyan
Opinions: Judgment of the Court delivered by G.P. Mathur, J. The appeal came to this three-Judge Bench because two Judges who first heard it (Y.K. Sabharwal and Arijit Pasayat, JJ.) differed on Section 50.