of Rajasthan Vs. Daulat Ram  Insc 436 (23 August 2005)
Singh & S.H. Kapadia
out of SLP(Crl.)No.1114 of 2004] Heard counsel for the parties.
appeal by special leave has been preferred by the State of Rajasthan against the judgment and order of
the High Court of Judicature for Rajasthan at Jodhpur dated 25th April, 2003
in S.B.Criminal Appeal No.261 of 2000. The High Court by its judgment and order
allowed the appeal preferred by the respondent and set aside the order of
conviction and sentence passed by the Special Judge, NDPS Cases, Chittorgarh
dated 5th May, 2000.
trial court had convicted the respondent of the offence under Section 8/18 of
the NDPS Act and sentenced him to undergo 12 years rigorous imprisonment and to
pay a fine of rupees one lakh, in default of payment of fine, to further
undergo one year's rigorous imprisonment.
facts of the case are that Mangilal, SHO police station, Nimbahera received a
secret information at about 4.00 a.m. on 2nd July, 1997 from an informer to the effect that
the respondent was carrying 16 kgs. of contraband opium and was likely to pass
through Arnoda Bandh with a view to sell that opium. He recorded the
information received in the Rojnamacha and sent copy thereof to the
Superintendent of Police and the Deputy Superintendent of Police, Chittorgarh
and the Circle Officer, Nimbahera through Ramdayal, Constable(PW-2). He himself
proceeded towards the spot indicated by the informant along with PW3 Rais Mohd.
Constable and other Constables. They proceeded in a jeep which was driven by Shakir
Hussain and on the way they picked up 2 panch witnesses, namely, Om Prakash
PW-13 and Bherulal PW1. PW-16 Hari Singh, Dy. Superintendent of Police, Chittorgarh
and Prithvi Singh, PW9, SHO, police station, Chanderiya had also been informed.
When Mangilal, PW-8 reached the spot, he found a person carrying a bag on his
head going towards Karpa Ram Ji Ki Khedi. He was accosted by the police party
in the presence of PW16, Dy.S.P. and PW9 S.H.O. Police Station, Chanderiya who
had also reached that spot. That person disclosed his name as Daulat Ram
(respondent herein). He was informed of the fact that he was suspected of
carrying contraband opium and that he was to be searched. He was also given an
option under Section 50 of the NDPS Act and asked by PW8 Mangilal as to whether
he wanted to be searched before a Magistrate or a Gazetted officer or by PW8 Mangilal,
SHO himself. The respondent agreed to be searched by PW8 Mangilal and did not
opt to be searched before a Gazetted officer or a Magistrate. The respondent
who was carrying the bag on his head was searched. The bag which he was having
on his head was also opened and found to contain 2 polythene bags containing
some substance, brown-black in colour. On being tested, it was found to be
opium. The respondent had no valid license to possess opium. Thereafter,
necessary steps were taken to prepare samples which were duly sealed and sent
for chemical examination to the forensic laboratory, which submitted a report
adverse to the respondent to the following effect:
chemical and micro-chemical examination, each of the samples contained in
packets marked A1 and B-1 gave positive test for the major chemical constituents
of coagulated juice of opium poppy and the sample marked A1 and B-1 were found
to contain 5.32% and 5.26% morphine respectively." The respondent was put
up for trial before the Special Judge, NDPS Cases who found him guilty of the
offence under Section 8/18 of the NDPS Act. The appeal preferred by the
respondent, as noticed earlier, was allowed by the High Court and he was
acquitted of the charges levelled against him.
judgment of the High Court proceeds on the basis that if a bag carried by a
person on his head is searched and found to contain contraband opium, it would
amount to a personal search, and, therefore, the provisions of Section 50 of
the NDPS Act would be applicable.
instant case, the High Court held that the respondent was carrying a bag on his
head which was searched and found to contain contraband opium. According to the
High Court this amounted to a personal search of the respondent and, therefore,
Section 50 of the NDPS Act was attracted. The High Court considered the evidence
on record and came to the conclusion that the option given to the respondent
under Section 50 of the NDPS Act was only a partial option and, therefore,
there was no proper or strict compliance of the mandatory provisions of Section
50 of the NDPS Act. Consequently, it found that the respondent was entitled to
question as to what constitutes personal search within the meaning of Section
50 of the NDPS Act came up for consideration by a Bench of this Court in the
case of State "The word "person" has not been defined in the
Act. Section 2(xxix) of the Act says that the words and expressions used herein
and not defined but defined in the Code of Criminal Procedure have the meanings
respectively assigned to them in that Code. The Code of Criminal Procedure,
however, does not define the word "person".
2(y) of the Code says that the words and expressions used therein and not
defined but defined in the Indian Penal Code have the meanings respectively
assigned to them in that Code. Section 11 of the Indian Penal Code says that
the word "person" includes any company or association or body of
persons whether incorporated or not. Similar definition of the word
"person" has been given in Section 3(42) of the General Clauses Act.
Therefore, these definitions render no assistance for resolving the controversy
in hand. .........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 civilised
society appropriate coverings and clothings are considered absolutely essential
and no sane human being comes in the gaze of others without appropriate
coverings and clothings.
appropriate coverings will include footwear also as normally it is considered
an essential article to be 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, they
would not normally get detached from the body of the human being unless some
specific effort in that direction is made. For interpreting the provision, rare
cases of some religious monks and sages, who, according to the tenets of their
religious belief do not cover their body with clothings, are not to be taken
notice of. Therefore, the word "person" would mean a human being with
appropriate coverings and clothings and also footwear. ......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
cannot even remotely be treated to be part of the body of a human being.
Depending upon the physical capacity of a person, he may carry any 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 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 or head, etc.
it is not possible to include these articles within the ambit of the word
"person" occurring in section 50 of the Act.
view of the principles laid down in the aforesaid judgment of this Court, there
is no scope for the argument that in the facts and circumstances of this case,
the provisions of Section 50 of the NDPS Act were attracted. The judgment and
order of the High Court must, therefore, be set aside.
for the appellant submitted that a person cannot be compelled to give evidence
against himself. He submitted that once the police had accosted the respondent,
who was suspected of possessing contraband opium, he must be deemed to be under
arrest, and if he was under arrest, any confession made by him cannot be used
not find that in this case, the respondent was under arrest merely because he
was questioned by the police on suspicion. Moreover, there is nothing on record
to suggest that he was compelled to make a confession. The submission that
compelling a person to be searched amounts to confession must be rejected. We
do not find any other reason to support the judgment of acquittal passed by the
therefore, set aside the impugned judgment and order of the High Court and
restore the judgment and order of the Special Judge, NDPS Cases, Chittorgarh
dated May 5, 2000.
appellant shall be taken into custody forthwith to serve out the remainder of
the sentence. The appeal is accordingly allowed.