Holding

The High Court's acquittal stands because the seizure contravened Section 50, the failure to examine independent witnesses rendered the conviction unsafe, and the respondents had already served the majority of the maximum punishment.

Summary

The Union of India appealed the acquittal of Shah Alam and Mazzum Haq, who had been convicted under the Narcotic Drugs and Psychotropic Substances (NDPS) Act for possessing 100 grams of heroin each and sentenced to ten years' rigorous imprisonment and a fine. The Allahabad High Court set aside the conviction, holding that the heroin was recovered in violation of Section 50 of the NDPS Act and that the prosecution failed to examine two independent witnesses to the search. The Supreme Court examined whether the recovery indeed contravened Section 50, the impact of the missing witness testimony, and whether the respondents’ having served four‑fifths of the now‑maximum punishment barred interference. It concluded that the High Court was correct: the seizure breached Section 50, the omission of witness evidence rendered the conviction unsafe, and the respondents had already served the bulk of the maximum penalty. Consequently, the appeal was dismissed and the acquittal upheld.

Issues considered

Whether the recovery of heroin from the respondents' shoulder bags violated Section 50 of the NDPS Act.
Whether the non‑examination of the two independent witnesses to the search and seizure invalidated the conviction.
Whether the fact that the respondents had already served four‑fifths of the maximum permissible punishment under the amended Act precludes appellate interference.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 29, s. 50, s. 8

Subjects

NDPS Actheroin possessionSection 50search and seizurewitness testimonysentencing amendmentacquittalcriminal appeal

Judgment

[2009l'9 S.C.R. 1118

A UNION OF INDIA
v. _. }
SHAH ALAM & ANR.
(Criminal Appeal No. 1158-1159 of 2004)
JUNE 11,2009
B >--
[B. SUDERSHAN REDDY AND AFTAB ALA~, JJ.] r
·t- ..
I

Narcotic Drugs and Psychotropic Substances Act, 1985
- s.50, s.8 rlw 21 - Allegation of illegal possession of 100
c grams of heroin by respondents - Body search of
respondents, packets of heroin found in shoulder bags carried
by them - Conviction u/s. 8121 and sentenced to rigorous
imprisonment for 10 years with fine - However, acquittal by
High Court - Interference with - Held: Not called for- Alleged
D recovery ofheroin from respondents in violation of s. 50 - Non- ,,,
examination of independent witnesses of search and recovery
- More so, respondents already served 415th of the maximum
permissible punishment for the offence as amended by Act
9 of 2001.,
E Respondents were convicted uls. 8 rlw s. 21 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 ,
for illegal, possession of 100 gms. heroin and were
sentenced' to rigorous imprisonment for 10 years and fine
I
~

, .r
of Rs. 1 lakh. However, they were acquitted uls. 8 r/w s.
F 29. High Court set aside the order of trial court; however,
upheld the acquittal u/s. 8 r/w s. 29. Hence the present
appeal.
Dismissing the appeal, the Court
G i-
HELD: 1.1. Under s. 21 of the Narcotic drugs and
Psychotropic Substances Act, 1985 as it stood in 1994
"' when the occurrence took place, the sentence of rigorous
imprisonment for ten years and fine of rupees one lakh

H 1118 "'
UNION OF INDIA v. SHAH ALAM & ANR. 1119

was the minimum punishment for illegal possession of A
100 grams of heroin. It has now become tbe maximum
permissible punishment as the law stands today, by
Amendment Act 9 of 2001. Having regard to the way the
Act has been amended by the Legislature and the graded
form it has come to assume both in regard to the B
quantities of narcotics and the punishments.it would not
have been wrong for this Court to decline to interfere in
this matter on the ground that the respondents have
already served 4/5th of the (now) maximum permissible.
punishment for the offence. (Para 6] [1122-E-G] c
1.2. From the evidence of the complainant, PW1 and
the seizure memo, it is evident that the two respondents
were subjected to a body search in course of which
packets of heroin were found in the shoulder bags
carried by them and were recovered from there. [Para 9] D
[1125-E-F]
1.3. On the facts of the case, it is found that the
alleged recovery of heroin from the respondents was
made in complete: violation of the provisions of section E
50 of the Act. Apart from this the non-examination of the
two independent witnesse' of the search and recovery
was another grave omission by the prosecution. A formal
petition for discharge of the two witnesses was filed by
the prosecution before the trial court and it is not that F
they were simply not produced before the court.
Therefore, it is satisfied that the High Court took the
correct view of the matter and the judgment under appeal
does not suffer from any infirmity. [Paras 10 and 11]
[1126-D-F]
l
Di/ip and Anr. v. State of M.P. (2007) 1 SCC 450, relied
on.

State of H.P. vs. Pa wan Kumar (2005) 4 SCC 350,
referred to. H
1120 SUPREME COURT REPORTS [2009] 9 S.C.R.

~
A Case Law Reference:
(2005) 4 _sec 350 Referred to. Para 8
(2001) 1 sec 450 Relied on. Para 9
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
B
Nos. 1158-1159 of 2004.

From the Judgment & Order dated 22.11.2002 and t- ..i
26.02.2003 of the High Court of Judicature at Allahabad at
Lucknow Bench, Lucknow in Crl. Appeal No. 523 of 2000 and
c Crl. Misc. Correction Appln. No. 1093 of 2003 in Cri. Appeal
No. 523 of 2000.

S.N. Terdal, S. Wasim A Qadri and Sadhana Sandhu (for
Sushma Suri), for the Appellants.
D
Nagendra Rai, R.K. Gupta, AB. Siddiqui, Arun Yadav, t-
Shekhar Kumar and Bihari Trigunayat for the Respondents.

The Judgment of the Court was delivered by

E AFTAB ALAM, J. 1. The two respondents Shah Alam and
Mazzum Haq were held guilty of illegally possessing 100 grams
of heroin each and were accordingly convicted by the trial court
under Section 8 read with Secti6n 21 of the Narcotic Drugs and ~
· Psychotropic $ubstances Act, 1985 and sentenced to undergo .,
rigorous imprisonment for ten years and to pay a fine of Rs.1
F
lakh each and in default to undergo rigorous imprisonment for
a further period of six months. They wefe acquitted of the other
charge under Section 8 read with Section 29 of the Act. In
.. · ~ppeal, the Allahabad High Court, Lucknow Bench, set aside
·the judgment and order passed by the trial court and acquitted
G the responden1s of the charge under Section 8/21 of the Act. ;..
'i.,-;-
2. Against the judgment and order of acquittal passed by
the Allahabad High Court the Union of India has come in appeal
by special leave.
,.
)

H

•
d
•

UNION OF INDIA v. SHAH ALAM & ANR. 1121
[AFTAB ALAM, J.]

" made3.onTheAugust
recovery of heroin from the two respondents was A
5, 1994. They were convicted and sentenced
by the trial court by judgment and order dated May 11, 2000
and were finally released on being acquitted by the High Court
by its judgment and order dated November 22, 2002. On inquiry
from the court Mr. S. N. Terdal, learned counsel appearing for B
the appellant, Union of India, stated that the respondents were
not on bail either during trial or after conviction during the
i pendency of their appeal. This means that the respondents
have already served 8 years and 3 months out of the total
period of sentence of ten years (plus the default period
\
of six c
months).

4. The law as it stands today is vastly different from what
it was in 1994 when the occurrence took place. Now, 100
grams of heroin is an intermediate quantity between "small
quantity" and "commercial quantity" (vide section 2 sub-clause D
~·
(vii a) and (xxiii a) read with S. 0. 1055(E) dated October 19,
2001 at serial no.56). After the amendment of the Act with effect
from October 2, 2001 (vide Act 9 of 2001) the punishment for
illegal' possession of 100 grams of heroin is provided under
Section 21 (b) of the Act which reads as under:- E

" ,. "21. Punishment for contravention in relation to
manufactured drugs and preparations. - Whoever, in
contravention of any provision of this Act or any rule or
. order made or condition of licence granted thereunder, F
~ manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses any
manufactured drug or any preparation containing any
manufactured drug shall be punishable,-

(a) .................... G
~

(b) where the contravention involves quantity, lesser than
commercial quantity but greater than small quantity, with
rigorous imprisonment for a term which may extend to ten
years and with fine which may extend to one lakh rupees; H
1122 SUPREME COURT REPORTS (2009] 9 S.C.R.

)
A (c) ........... "

5. The position was quite different in 1994. At that time the
possession of narcotic drug in excess of small quantity for
personal consumption (5 milligrams, in case of heroin) attracted
the. punishment of rigorous imprisonment for a minimum period
8
of ten years as well as fine of not less than rupees one lakh.
Section 21 of the Act, as it stood in 1994, is as under:-

"21. Punishment for contravention in relation to
manufactured drugs and preparations.- Whoever, in
c contravention of any provision of this Act or any rule or
order made or condition of licence granted thereunder
manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses any
manufactured drug or any preparation containing any
D manufactured drug shall be punishable with rigorous
imprisonment for a term which shall not be less than ten
years but which may extend to·twenty years and shall also
be liable to fine which shall not be less than one lakh
rupees but which may extend to two lakh rupees:
E
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding two
lakh rupees."

6. It is, thus, to be seen that the sentence of rigorous
F imprisonment for ten years and fine of rupees one lakh that was
the minimum punishment for illegal possession of 100 grams
of heroin has now become the maximum permissible
punishment as the law stands today. Having regard to the way
the Act has been amended by the Legislature and the graded
G form it has come to assume both in regard to the quantities of
narcotics and the punishments it would not have been wrong
for this court to decline to interfere in this matter on the ground
that the respondents have already served 4/5th of the (now)
maximum permissible punishment for the offence.
H Nevertheless, we have examined the case on its merits and we
UNION OF INDIA v. SHAH ALAM & ANR. 1123
[AFTAB ALAM, J.]
are satisfied that the judgment of the High Court does not suffer A
from any infirmity and it does not call for any interference.

7. According to the prosecution case, on receipt of
confidential information from an informer on August 5, 1994 a
team of officers of the Central Bureau of Narcotics laid a vigil
8
at Charbagh bus stand from 11.00 in the morning. At about 5
in the afternoon the informer gave the signal indicating the five
suspects, including the two respondents, from each of whom
i the search party was able to recover 100 grams of heroin in
presence of two independent witnesses, namely, Munni Lal and C
Salig Ram. The two respondents were tried before the Special
Judge (E.C.A.), Lucknow (the other three suspects managed
to abscond) who convicted and sentenced them as noted
above. In appeal, however, the High Court set-aside the
judgment of the Trial Court and acquitted the respondents. The
High Court set-aside the Trial Court judgment mainly on two D
+ grounds; one, recovery of heroin was made from the
respondents without observing the conditions laid down in
Section 50 of the Act in regard to search and the other, the non-
exam in ation of the two. independent witnesses in whose
presence the recovery and seizures. were made. E

8. Mr. Terdal, learned counsel appearing in support of the
appeal submitted that the High Court had misled itself into error
by overlooking the difference between the person of the
respondents and the baggage carried by them. In this case the F
recovery of the heroin was made from the bags being carried
by the respondents and not from their persons. Section 50 of
the Act laid down the conditions for search of the person and
not for any bag or brief case·etc. being carried by him/her and
hence, the _provisions of section 50 had no application in the G
facts of this case. Learned Counsel further submitted that as a
matter of fact heroin was first recovered from the bags being
carried by the respondents and then they were also subjected
to a search of their persons but the personal search did not-
lead to any further recoveries and, therefore, there was no H
1124 SUPREME COURT REPORTS [2009) 9 S.C.R.

)
A question of any violation of Section 50 of the Act. In support of
the submission he relied upon a three-judge Bench -decision
of this Court in State of H.P. vs. Pawan Kumar (2005) 4 SCC
350. In paragraphs 10 and 11 of the decision it was observed
as under:
B
"10. We are not concerned here with the wide definition
of the word "person", which in the legal world includes
corporations, .associations or body of individuals as t- "
factually in these type of cases search of their premises
can be done and not of their person. Having regard to the
c 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 common-sense manner
and, therefore, not a naked or nude body of a human being
D .but the manner in which a normal human being will move
about in a civilized society. Therefore, the most appropriate +
meaning of the word "person" appears to be - "the body
of a human being as presented to public view usually with
its appropriate coverings and clothing". In a civilized society
E appropriate coverings and clothings are considered
absolutely essential and no sane human being comes in
the gaze of others witho~t appropriate .coverings and
clothings. The appropriate coverings will include footwear
also as.normally it is considered an essential article to be
F worn while moving outside one's home. Such appropriate
coverings or clothings or footwear, after being worn, move
along with the human body without any appreciable or extra
effort. Once worn, t_hey would not normally get detached
from the body of the human ·being unless some specific
G effort in that direction is made. For interpreting the
provision, rare cases of some religious monks and sages, f
who, according to the tenets of their religious belief do.not
cover their body with clothings, are not be taken notice of.
Therefore, the word ''person" would mean a human being
with appropriate coverings and clothings and also
H
UNION OF INDIA v. SHAH ALAM & ANR. 1125
[AFTAB ALAM, J.]
~
footwear." A

"11. 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
B
to be part of the body of a human being. Depending upon
the physical capacity of a person, he may carry any
i 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 c
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 D
-1>
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."

9. The legal proposition advance by Mr. Terdal, based on E
the distinction between search of someone's person and the
baggage carried by· him/her is unexceptionable but his
submission is not supported by the facts of this case. We have
carefully gone through the records of this case. From the
evidence of the complainant, PW1 and the seizure memo (Fard F
Baramdegi) Ext Ka 2 it is evident that the two respondents were
subjected to a body search in course of which packets of heroin
were found in the shoulder bags carried by them and were
recovered from there. The facts of the case in hand are very
close to another decision of this Court in Dilip and Another V.
G
State of M.P. (2007) 1 SCC 450 where it was observed in
paragraphs 12, 15 and 16 as under.

"12. Before seizure of the contraband from the scooter,
personal search of the appellants had been carried out
and, admittedly, even at that time the provisions of Section H
1126 SUPREME COURT REPORTS [200~) 9 S.C.R.

A 50 of the Act, although required in law, had not been
complied with. n

"15. Indisputably, however, effect of a search ~arried out
in violation of the provisions of law would have ;a bearing
on the credibility of the evidence of the official w.itnes~es,
B
which would of,course be considered on the facts· ahd
circumstances of each case."

"16. In this case, the provisions of Section 5Q might not
have been required to be complied with sof far f!S the
c search of scooter is _concerned, but, keeping ~.n view the
fact that the person of the app.ellants was alsb searched,
it was obli~tory on the part of PW 10 to comply with the
said provisions. It wasnot done. n .

10. On the fa_cts of the case we find that the a_Heged recovery
0
of heroin from the respondents was made in co~plete violation
of
.
the provisions of Section 50 of the Act. Apart I
from this the
· non-examination of the two independent witne$'ses of the search
and recovery was another grave omission b.y the prosecution.
E It is significant to note here that a formal p~tition for discharge
of the two witnesses was filed by the proseclltion before the trial
court and it is not that they were simply ~ot produced before
the court.

11. We are, .therefore, satisfied that the High Court took
F the correct view of the matter and the jiJdgment coming under
appeal does not sµffer from any infirmity._ We find no merit in
1
these appeals ·and those are accordingly dismissed. The
respondents are ;discharged from their bail bonds .
. I

N.J. Appeal dismissed. f