STATE OF HARYANAversusMAI RAM SON OF MAM CHAND

                         [2008] 11 S.C.R. 586


A                      STATE OF HARYANA                               ii
                                  v.
                 MAI RAM SON OF MAM CHAND
                 (Criminal Appeal No.211 of 2001)
                           JULY 31, 2008
B
        [DR. ARIJI! PASAYAT AND DR. MU_l-(UNDAKAM
                                                                      ):
                       SHARMA, JJ.]

          Narcotic prugs and Psychotropic Substances Act, 1985:
c   ss. 17 and 50.
          Search - On basis of suspicion - Held: Law does not
    require recording of elaborate reasons for entertaining suspi-
    cion about an accused.
        Seizure - Of contraband article - Only police officials,
D
  PWs 1 and 2 examined as witnesses - High Court holding
  that the prosecution version became vulnerable for non-ex-
  amination of persons who were not official witnesses - Cor-         ~~
  rectness of - Held: -Not correct, since no material brought on
  record by defence to discredit the evidence of official witnesses
E and further PWs 1 and 2 categorically stated that no other
  person was willing to depose as witness.
        Seizure - Of contraband article - After search of bag car-
  ried by accused - High Court holding that there was violation
F of the provisions of s. 50 - Correctness of - Held: Not correct
  - s. 50 only applies in case of personal search of a person - It
  does not extend to search of a vehicle or a container or a bag,
  or premises - Language of s. 50 is implicitly clear that the
  search has to be in relation to a person as contrasted to search
  of premises, vehicles or articles - Hence, finding of High Court
G
  regarding non-compliance of s. 50 is without substance.
       According to the prosecution, when Respondent
  alighted from a train, police officials stopped him at the          'f
  railway station itself on basis of suspicion and after
H                             586
         STATE OF HARYANA v. MAI RAM SON OF             587
                     MAM CHAND

search, seized about 1.5 kgs of contraband article (opium)     A
from the bag carried by Respondent. Trial Court found
the Respondent guilty under s.17 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 and sentenced
him to undergo imprisonment for 10 years.
     On appeal, High Court difected acquittal of the Re- B
spondent on the ground that there was violation of the
provisions of s.50 of the Act; that elaborate reasons were
not recorded about the suspicion regarding Respondent
being in possession of opium; that though the recovery
was purportedly effected at the railway station and many C
independent witnesses would have been available, but
only two police officials PW-1 and PW-2 were examined
and further that there was no evidence to show that the
seal of the samples collected were intact.
                                                               D
     In appeal to this Court, the appellant-State contended
that s.50 of the Act has no application because there was
no question of personal search and the search was of
the bag carried by the accused; that there was no require-
ment in law to record the reasons for the suspicion; that
merely because police officials were examined as wit- E
nesses, tha~ cannot be a ground to suspect the prosecu-
tion version and finally that there was not even a sugges-
tion during the examination of the witnesses that the seals
were not intact and therefore, the High Court's reasoning
and conclusions are not sustainable.                        F
     Allowing the appeal, the Court
     HELD:1.There is nothing in law that elaborate rea-
sons for entertaining a suspicion about an accused, car-
rying contraband articles should be recorded. The High G
Court was clearly in error in holding that the reason for
the suspicion was not recorded. (Para 8] [591 G-H]
     2. No material was brought on record by the defence
to discredit the evidence of the official witnesses. The ul-
                                                               H
    588      SUPREME COURT REPORTS              [2008] 11 S.C.R.


A   timate question is whether the evidence of the official wit-
    ness suffers from any infirmity. In the instant case noth-
    ing of the nature could be pointed out. Further PWs 1 and
    2 categorically stated that no other person was willing to
    depose as witness. Therefore, the High Court was clearly
8   in error in holding that the prosecution version became
    vulnerable for non-examination of persons who were not
    official witnesses. [Para 8J [592 A-BJ
       3. The Trial Court found that the seals were intact as
  deposed by the official witnesses. The High Court came
c to an abrupt conclusion that there was no evidence to
  show that the seals were intact. As rightly submitted by
  the State no such question was raised and on the con-
  trary the Trial Court found that the evidence of official wit-
  nesses clearly establish that the seals were intact. [Paras
D 9, 1OJ [592 C-DJ
                                                                   ~ ~
       4. So far as applicability of s.50 of the Narcotic Drugs
  and Psy.chotropic Substances Act, 1985 is concerned, the
  High Court's view is clearly indefensible. A bare reading
  of s.50 shows that it only applies in case of personal
E search of a person. It does not extend to search of a ve-
  hicle or a container or a bag, or premises. The language
  of s.50 is implicitly clear that the search has to be in rela-
  tion to a person as contrasted to search of premises, ve-
  hicles or articles. Above being the position, the finding
F regarding non-compliance of s.50 is also without any
  substance. [Paras 11, 12, 13J [592 D-E 593 8-C]
         State of Punjab v. Baldev Singh (1999) 6 SCC 172 -
    followed.
G        Ka/ema Tumba v. State of Maharashtra and Anr. JT
    (1999) 8 SC 293 and Gurbax Singh v. State of Haryana (2001)
    3 sec 28 - relied on.                                          J

        Madan Lal and Anr. v. State of Himachal Pradesh (2003)
    6 Supreme 382 - referred to.
H
          STATE OF HARYANA v. MAI RAM SON OF                 589
            MAM CHAND [DR. ARIJIT PASAYAT, J.]

                       Case Law Reference                           A
     JT (1999) 8 SC 293             relied on      Para 12
     (1999) s sec 112               •followed      Para 12
     (2001 > 3 sec 28               relied on      Para 12
                                                                    B
     (2003) 6 Supreme 382           referred to    Para 12 ·
     CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 211 of 2001
     From the final Judgment and Order dated 2.12.1999 of           c
the High Court of Punjab in Haryana at Chandigarh in Criminal
Appeal No. 538-SB of 1988
     Naresh Bakshi and T.V. George for the Appellant.
     Prem Malhotra for the Respondent.
                                                                    D
     The Judgment of the Court was delivered by
      DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of the learned Single Judge of the Punjab and
Haryana High Court, directing acquittal of the respondent (here-    E
inafter referred to as the 'accused'). The respondent was found
guilty of offence punishable under Section 17 of the Narcotic
Drugs Psychotropic Substance Act, 1985 (in short 'NDPS Act')
by learned Additional Sessions Judge 111, Hissar. He found the
accused guilty of the offence punishable under Section 17 of
the Act ~nd was sentenced to undergo imprisonment for 10 years      F
     2. Background facts giving rise to the trial are as follows:
      On 3.1.1988, lshwar Singh, Sub Inspector along with ASI
Ram Kishan and 3 Constables was present at platform No.3
near Railway bridge. At about 8.30 p.m. one train came from         G
the side of Sadalpur, Chandgi Ram PW was also with the po-
lice party at that time. Accused Mai Ram alighted from that train
and started walking towards the engine. He was carrying one
bag (Ex.P1) in his right hand.' On suspicion, he was stopped.
First of all, the Sub Inspector served him with a notice Ex. PA     H
    590      SUPREME COURT REPORTS                [2008] 11 S.C.R.
                                                                      -1'

A and told him that he (S.I.) suspected that he (accused) was car-
  rying some contraband article like opium and Ganja etc. and if
  he (accused) wanted he could be searched before the Magis-
  trate or the Gazetted Officer. But the accused gave in writing
  that he (S.I.) could search him himself and the accused also
B made an endorsement Ex.PA/1 to this effect. Then the Sub In-            I{'
  specter gave his search to the accused and th~re after searched
  bag (Ex.P1) carried by the accused which contained 1-1/2 kgs.
  of opium, without any licence or permit. The S.I. took 25 grams
  of opium as a sample out of the recovered opium and put the
c remaining opium in tin box (Ex.P.2). He then sealed the sample                     .._
  and tin-box (Ex.P2) with the seal of IS and the seal after use
  was given to Chandi Ram PW. The articles were taken into                           r
  possession vide memo Ex.P.3 attested by the PWs. Thereaf-
                                                                                     ~
  ter, the personal search of the accused was effected and a ticket
  Ex.P3 and a cash amount of Rs.45/- were also recovered from
                                                                                     ~
D                                                                                    I
  his possession which were taken into possession vide the re-
  covery memo Ex.PC attested by the PWs and thumb marked
                                                                      J. _,,_, , '
                                                                                "-


  by the accused. The accused was arrested after telling him the                     ~
  grounds of arrest Ruea f;x.PD was sent to the Police Station
  on the basis of which formal F.l.R/ Ex. PD/1 was recorded. Rough
E site plan Ex.PE with correct marginal notes was prepared. State-
  ment of witnesses was recorded. After returning to the Police
  Station, the case property was deposited with the MMC with
  the seals intact. The S.I. also telephonically informed the Dy.
  S.P. regarding seizure of opium. After the investigation, the ac-
F cused was challaned by the Sub Inspector lshwar Singh.              }

          3. Learned Trial Judge found that the prosecution estab-
    lished its case and accordingly convicted and imposed sen-
                                                                                 (._
    tence as aforesaid.                                                          ~



G       4. An appeal was filed before the Punjab and Haryana                     ·-
  High Court. Learned Single Judge allowed the appeal holding
  that there was violation of the provisions of Section 50 of the
                                                                      .,
  Act. It was noted that elaborate reasons were not recorded
  about the suspicion about the accused being in possession of                       t
H opium. It was also noted that the recovery was said to have
                      STATE OF HARYANA v. MAI RAM SON OF                 591
                        MAM CHAND [DR. ARIJIT PASAYAT, J.]

      ~     been effected at the railway station and many independent wit-      A
            nesses would have been available. But only police officials were
            examined as PWs.1 and 2. There was no evidence to show
            that the seals were inta'ct.
                  5. Learned counsel for the appellant-State submitted that
            Section 50 has no application because there was no question         B

      7'.
            of personal search and the search was of bag which was car-
            ried by the accused. Additionally, there was no requirement in
            law to record the reasons for the suspicion. Further, the accused
            was apprehended when he got down at the railway station about
            8.30 p.m. PWs 1 and 2 categorically stated in their evidence        c
            that no other person was willing to be a witness. Merely be-
            cause the officials witnesses were examined, that cannot be a
            ground to suspect the prosecution version. There was not even
            a suggestion during the examination of the witnesses that the
            seals were not intact. Therefore, the High Court's reasoning        D
            and conclusions are not sustainable.
--;    .          6. Leaned counsel for the respondent-accused on the
            other hand submitted that the respondent is presently about 70
            years old. The quantity stated to have been recovered is about
            1.5 kilos. Subsequently, there has been amendment and by            E
            notification dated 2.10.2001 the commercial quantity is 2.5 kg.
                  7. It is submitted that after 20 years, and having already
            suffered some year of custody, respondent should. not be asked
            to surrender to custody.                                            F
                  8. The Trial Court record categorical finding that the requi-
      ~
            site procedure was followed and even if there was no require-
            ment for giving a notice in terms of Section 50 of the Act as no
            personal search was made, requisite procedures were followed.
            There is nothing in law that elaborate reasons for entertaining a G
            suspicion about an accused, car rJing contraband articles should
            be recorded. The High Court was clearly in error in holding that
            the reason for the suspicion was not recorded. So far as the
       't
            examination of only official witness is concerned, it is to be noted
            that the only independent witness who was examined to speak H
     592         SUPREME COURT REPORTS                   [2008] 11 ~.C.R.


A    about the seizure did not support the prosecution version. No
     material was brought on record by the defence to "discredit the
     evidence of the official witnesses. The ultimate question is
     whether the evidence of the official witness suffers from any
     infirmity. In the instant case nothirog of the nature could be pointed
B    out. Further PWs 1 and 2 categorically stated that no other per-
     son was willing to depose as witness. Therefore, the High Court
                                                                              .lo'
     was clearly in error in holding that the prosecution version be-
     came vulnerable for non-examination of persons who were not
     official witnesses.
c          9. It is to be noted that Trial Court found that the seals were
    _intact as deposed by the official witnesses. The High Court came
     to an abrupt conclusion that there was no evidence to show that
     the seals were intact.                                                          I
           10. As rightly submitted by learned counsel for the State
D
     no such question was raised and on the contrary the Trial Court
     found that the evidence of official witnesses clearly establish
                                                                              -¥ 't"'
     that the seals were intact.
           11. So far as the applicability of Section 50 is concerned,
E    the High Court's view is clearly indefensible. Section 50 reads
     as follows:
           "50. Conditions under which search of persons shall be
           conducted. -

F          (1)   When any officer duly authorised 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
G
                 to the nearest Magistrate.
           (2)   If such requisition is made, the officer may detain the
                 person until he can bring him before the gazetted            1
                 officer or the Magistrate referred to in sub-section
H                (1 ).
           STATE OF HARYANA v. MAI RAM SON OF                593
             MAM CHAND [DR. ARIJIT PASAYAT, J.]

     (3)   The gazetted officer or the Magistrate before whom        A
           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         B
           female."                          ,

      12. A bare reading of Section 50 shows that it only ap-
plies in case of personal search of a person. It does not extend
to search of a vehicle or a container or a bag, or premises.         c
[(See Kalema Tumba v. State of Maharashtra and Anr. (JT
1999 (8) SC 293), State of Punjab v. Baldev Singh (1999 (6)
SCC 172) and Gurbax Singh v. State of Haryana (2001 (3)
SCC 28)]. The language of Section 50 is implicitly clear that
the search has to be in relation to a person as contrasted to        D
search of premises, vehicles or articles. This position was
settled beyond doubt by the Constitution Bench in Baldev
Singh's case (supra). A similar question was examined in
Madan Lal and Anr. v. State of Himachal Pradesh (2003 (6)
Supreme 382).
                                                                     E
     13. Above being the position, the finding regarding non-
compliance of Section 50 of the Act is also without any sub-
stance.

      14. Looked from any angle the judgment of the High Court
is clearly indefensible and is set asid~.                            F
      15. Respondent shall surrender to custody forthwith to serve
the remainder of sentence.
B.8.8.                                          Appeal allowed.