G. P. Mathur, J. - (1.) In view of difference of opinion between two learned Judges who heard the appeal, the matter has been placed before this larger bench and the question for consideration is whether the safeguards provided by Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act or the Act) regarding search of any person would also supply to any bag, briefcase or any article or container etc. which is being carried by him.
(2.) The essential facts of the case, which are necessary for decision of the appeal, may be stated in brief. According to the case of the prosecution, Hukum Singh and Munshi Ram, Head Constables and some police personnel were checking buses at the bus stand, Mandi in the night of 18-7-1994. While checking a bus at about 8.45 p.m., they noticed that the accused Pawan Kumar (respondent herein), who was carrying a bag, Ex. P3, slipped out from the rear door of the bus and thereafter started running towards Subzi Mandi side. The police personnel got suspicious and after a chase apprehended him near the gate of bus stand. They felt smell of opium emitting from the bag and, therefore, telephonically informed Prem Thakur, Deputy S.P./S.H.O., P.S. Sardar, Mandi. Prem Thakur came to the spot and inquired from the accused whether he wanted to be searched by police or by a Magistrate. The accused disclosed his name and expressed his willingness to be searched by the police. A search of the accused and the bag being carried by him was then conducted and 360 gms. of opium wrapped in polythene was found inside the bag. Two samples of the recovered opium, each weighing 20 gms. were taken and were sealed separately and a seizure memo was prepared. On the basis of the Ruka Ex. P8, an FIR lodged at the Police Station and thereafter usual investigation followed which culminated in filing of a charge-sheet against the accused. The learned Sessions Judge, Mandi, by the judgment and order dated 26-11-1994 convicted the respondent (accused) under Section 18 of the NDPS Act and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh. The respondent preferred an appeal against his conviction and sentence before the High Court of Himachal Pradesh. The High Court held that the opinion given by the Chemical Examiner regarding the substance recovered from the bag of the accused could not be treated to be opinion of the Chemical Examiner as defined under the Act and the Rules and, therefore, the same had to be excluded from consideration. It was further held that the provisions of Section 50 of NDPS Act had not been complied with while conducting the search of the bag and, therefore, recovery of opium from the possession of the accused was not established. On these findings, the appeal was allowed by the judgment and order dated 26-8-1996 and the conviction of the respondent was set aside.
(3.) The State of Himachal Pradesh preferred the present appeal by special leave challenging the judgment of acquittal passed by the High Court. The appeal was initially heard by a Bench of two learned Judges. Honble Y.K. Sabharwal, J. held that the view taken by the High Court that the report of the Chemical Examiner could not be taken into consideration was not correct. The finding recorded by the High Court that the prosecution had failed to prove that any incriminating substance had been recovered from the possession of the accused was accordingly reversed. Regarding the applicability of Section 50 of NDPS Act, after referring to Namdi Francis Nwazor vs. Union of India and another, (1998) 8 SCC 534, his Lordship held as under: "The answer to the real question in cases where the line of separation is thin and fine can be obtained by applying the test of inextricable connection and then conclusion reached as to whether the search was that of a person or not. If the search is of a bag which is inextricably connected with the person of the accused, Section 50 of the NDPS Act will apply, and if it is not so connected, the provisions will not apply.... The offending article was found in the bag which accused/ respondent was carrying. The test of inextricable connection between the person searched and the object recovered is demonstrably applicable. It cannot be held that Section 50 has no application merely because the offending article was in the bag which the accused was carrying with him." Finally it was held as under: "On this fact situation, it cannot be held that the search was not of a person but was of a bag. Both are inextricably connected. It has to be held that the search was that of the respondents person. Clearly, Section 50 of the NDPS Act was applicable but was not complied. Therefore, the conviction of the respondent could not be sustained and the High Court rightly held that Section 50 had been breached." Honble Arijit Pasayat, J. expressed agreement with the view that the report of the Chemical Examiner could not be excluded but on the question of applicability of Section 50 of NDPS Act held that the said provision was applicable only in the case of a search of a person and not when search of a bag which is being carried by a person on his shoulder or back is conducted. His Lordship accordingly held that having regard to the purport and object of the NDPS Act, the language of Section 50 cannot be given any strained meaning so as to frustrate the legislative purpose. It was thus held that there was no infraction of the requirement of Section 50 and the finding to the contrary recorded by the High Court was clearly wrong. In view of this difference of opinion, the appeal has been placed before the present Bench.;