Union of India Vs.
Shah Alam & ANR.  INSC 1131 (11 June 2009)
JURISDICTION CRIMINAL APPEAL NOS.1158-1159 OF 2004 Union of India ... Appellant
Versus Shah Alam & Anr. ... Respondents
AFTAB ALAM, J.
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 Section 21 of the narcotic drugs and
psychotropic substances act, 1985 and sentenced to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.1 lakh each and in default
to undergo rigorous imprisonment for a further period of six months. They were
acquitted of the other charge under Section 8 read with Section 29 of the Act.
In appeal, the Allahabad High Court, Lucknow Bench, set aside the judgment and
order passed by the trial court and acquitted the respondents of the charge
under Section 8/21 of the Act.
the judgment and order of acquittal passed by the Allahabad High Court the
Union of India has come in appeal by special leave.
recovery of heroin from the two respondents was made on August 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 the appellant, Union of India, stated
that the respondents were not on bail either during trial or after conviction
during the 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 months).
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 (vii a) and (xxiii a) read with S. O. 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:- "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,
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)....................
(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;
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 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
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 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
that the court may, for reasons to be recorded in the judgment, impose a fine
exceeding two lakh rupees."
is, thus, to be seen that the sentence of rigorous 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 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. Nevertheless, we have examined the case on its
merits and we are satisfied that the judgment of the High Court does not suffer
from any infirmity and it does not call for any interference.
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 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 the search party was
able to recover 100 grams of heroin in presence of two independent witnesses,
namely, Munni Lal and 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
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- examination of the two independent witnesses in whose
presence the recovery and seizures were made.
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
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 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 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:
"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 factually in these type of cases search of their premises can be done and
not of their person. 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 common-sense 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. 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 appropriate coverings and clothings are
considered absolutely essential and no sane human being comes in the gaze of
others without appropriate coverings and clothings. The 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 be taken notice of. Therefore, the word
"person" would mean a human being with appropriate coverings and
clothings and also footwear."
"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 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
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. Therefore, it is not
possible to include these articles within the ambit of the word
"person" occurring in Section 50 of the Act."
legal proposition advance by Mr. Terdal, based on 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 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. State of M.P. (2007) 1
SCC 450 where it was observed in paragraphs 12, 15 and 16 as under.
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 50 of the Act, although required in law, had not been complied
Indisputably, however, effect of a search carried out in violation of the
provisions of law would have a bearing on the credibility of the evidence of
the official witnesses, which would of course be considered on the facts and
circumstances of each case."
"16. In this
case, the provisions of Section 50 might not have been required to be complied
with so far as the search of scooter is concerned, but, keeping in view the
fact that the person of the appellants was also searched, it was obligatory on
the part of PW 10 to comply with the said provisions. It was not done."
the facts of the case we find that the alleged recovery of heroin from the
respondents was made in complete violation of the provisions of Section 50 of
the Act. Apart from this the non-examination of the two independent witnesses
of the search and recovery was another grave omission by the prosecution. It is
significant to note here that a formal petition for discharge of the two witnesses
was filed by the prosecution before the trial court and it is not that they
were simply not produced before the court.
are, therefore, satisfied that the High Court took the correct view of the
matter and the judgment coming under appeal does not suffer from any infirmity.
We find no merit in these appeals and those are accordingly dismissed. The
respondents are discharged from their bail bonds.
(B. SUDERSHAN REDDY)
........................................J (AFTAB ALAM)