TAQUI AHAMED SHAKIL MARUF Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) -

(2.) PRESENT appeal seeks to impugn an order of conviction and sentence imposed upon the Appellant/Original Accused No.1 under Section 21 read with Section 8(c) of the N.D.P.S. Act under which the accused has been sentenced to suffer rigorous imprisonment for ten years and to pay a fine of rupees one lac, in default he is directed to suffer further rigorous imprisonment for three years.

(3.) A full bench of this Court, in the case of "Ebanezer Adebaya @ Monday Obtor Vs. B.S.Rawat and another" (Criminal Appeal No.531 of 1993) and decided by M.B.Shah, C.J. & P.S.Patankar & A.P.Shah, JJ, in a Judgment delivered on 22nd of April, 1996 (Now Reported in 1996(2) ALL MR 402 - Ed.) had an occasion to consider the issue at hand. The Full Bench, in paragraph 5 of its Judgment has made a reference to the case of "Mohinder Kumar" reported in "A.I.R. 1995 SC 1157", and has observed, as under : "5. In Mohinder Kumar's case, the Supreme Court has clarified that even if the search is not effected on prior information if the officer carrying such search happens to be an empowered officer, from the stage he had reason to believe that the accused persons were in possession of narcotic drugs, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. However, the question which requires consideration is what meaning can be assigned to the phrase, "to search any person" used in Section 50 of the NDPS Act. Whether "to search any person" means : (a) search of articles on the person or body of the person; (b) would include search of articles in immediate possession such as bag and other luggage carried by him or in physical possession of the person to be searched; or (c) would include search of bag or luggage which are presumed to be in possession of the person even though it may be lying in a house, or railway compartment or at the airport; and (d) Whether application of Section 50 can be extended to a case of search of a place, a conveyance or a house if the accused is physically present at the time of the search. " In our view, considering the provisions of Sections 42, 43 and 50 of the NDPS Act and the similar provisions of Section 100 of the Code of Criminal Procedure, 1973 and Section 50 (1), 52 and 102 (3) of the Code of Criminal Procedure, 1898, it can be stated that the officer making the search of a person arrested when something is to be searched from the body of the person, then the procedure prescribed under Section 50 of the Act is required to be followed. "To search any person" would mean, to search the articles on the person or body of the person to be searched and would not normally include the articles which are not on the body of the person to be searched. The main object of Section 50 of the Act is to avoid the allegation of planting something or of fabricating evidence by the prosecution or the authorised officer." "6. This interpretation would be clear by referring to Section 50, sub-section (4), of the Act, which provides for searching of a female. Section 50 (4) of the Act provides that no female shall be searched by anyone excepting a female. If articles are to be searched which are not on the person or body, then there is no question of a search being carried out by a female. But when articles which are on the body of the person are to be searched, such search could be done only by another female. This is necessary as law enjoins strict regard to decency. This provision also gives clue how to interpret the phrase "to search any person" in Section 50 (1)." The Full Bench has further gone on to make a reference to the decision of the case of the Supreme Court in the case of "Ali Mustaffa Vs. State of Kerala" "1994 AIR SCW 4393" and has observed, as follows : "16. Coming then to the judgment rendered by the Supreme Court in the case of Ali Mustaffa Vs. State of Kerala, 1994 AIR SCW 4393. In that case it was alleged by the prosecution that Sub-Inspector of Police attached to Quilon Railway Station, on receipt of reliable information that a foreigner having charas in his possession was sitting at the Quilon Railway Station, went to the First Class Waiting Room with a Police Constable. the accused was found sitting with a bag. On being questioned by the Police Officer, the accused took out a small packet of charas from his bag and handed it over to the Police Officer. Then on further questioning and search, three big packets of charas were recovered from the bag which was in possession of the accused. The accused denied any seizure and disowned the bag from which the contraband was recovered and asserted that it was an abandoned bag and that he had been unnecessarily linked up with the seizure of the contraband on misguided suspicion. In that case the Court observed that undoubtedly when the search of the appellant-accused was made, he was not given any option whether he was to be searched before a Gazetted Officer or magistrate as envisaged by Section 50 and, therefore, there was violation of the provisions of Section 50 of the Act. hence the conviction was set aside. In view of this enunciation, it can be said that `personal search' would include and can be extended to search as stated in paragraph 5 (b) as mentioned above." The Full Bench has finally concluded by observing as follows : "22. ... ... ... In our view, the provisions of Section 50 would be attracted only if it is confined to search of article on the person or body of the person or bag or luggage in physical possession of the person at the time of the search. Therefore, `personal search' would be confined to clauses (a) and (b) of paragraph 5 under Section 50, but it would not include and cannot be extended to clauses (c) and (d) of paragraph 5 as mentioned above. If, however, the contraband is recovered in a search of a house, building, conveyance or public place, Section 50 will not be attracted. ... ... ... " "24. We have already indicated that the words "personal search" in Section 50 would include and can be extended to "searches" covered by clauses (a) and (b) of paragraph 5 and would not include cases covered by clauses (c) and (d) of the said paragraph."