LexSAIKOU JABBI versus STATE OF MAHARASHTRA
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·' A SAIKOU JABBI v. ST ATE OF MAHARASHTRA DECEMBER 3, 2003 B [DORAISWAMY RAJU AND ARIJI1' PASAYAT, JJ.] Narcotic Drugs and Psychotropic Substances Act, 1985 : Section 50-Search of persons-Conditions to be fuljilled-Applica- C bility of-S 50 applies in case of personal search of a person-It does not extend to search of a vehicle or a container or a bag or premises. The appellant was apprehended for carrying heroin in his bagg~ge. The Intelligence Officer attached to the Narcotics Control Bureau screened the baggage and seizure was made of the heroin, D which was concealed in the appellant's suitcase. The appellant was charged for offences punishable under Sections 21, 23, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and also under Section 135(i)(a)(ii) of the Castoms Act, 1962. E The trial court acquitted the appellant on the ground that there was non-compliance with the requirement of Section 50 of the NDPS Act as the appellant was not made aware of his right to be searched before a gazetted officer or a Magistrate before the s~arch was conducted. However, the High Court held that Section 50 of the NDPS Act was not attracted to the facts of the case and accordingly convicted the F appellant. Hence this appeal. Dismissing the appeal, the Court HELD : 1.1. Section 50 of the Narcotic Drugs and Psychotropic G Substances Act, 1985 only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. [463-D-E] State of Punjab v. Baldev Singh, JT (1999) 4 SC 595, followed. H Kalema Tumba v. State of Maharashtra, JT (1999) 8 SC 293 and 456 •. SAIKOU JABB! v. STATE OF MAHARASHTRA [PASA YAT, J.] 457 Gurbax Singh v. State of Haryana, 12001 I 3 sec 28, relied on. A 1.2. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. 1463-E-Fl State of Punjab v. Baldev Singh, JT (1999) 4 SC 595, followed. 2. The contraband articles were suspected to be hidden in the suitcase of the accused and were not in his physical possession. The suitcase was put on the screening machine. This cannot be equated to B be a recovery made from the person of the accused by a personal C search. 1463-F-G-HJ Birakishore Kar v. State of Orissa, 12001 )9 SCC 541 ani Madan Lal v. State of Himachal Pradesh, (2003) AIR SC 3969, relied on. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. D 103 of 2003. From the Judgment and Order dated 7/8.8.2001 of the Bombay High Court in Crl. A. No. 690 of 1997. Mis. C.K. Sucharita (AC) for the Appellant. Mukesh K. Giri and Ravindra Keshavrao Adsure for the Respondent. The Judgment of the Court was delivered by E ARIJIT PASAYA T, J. The appellant, a Gambian national, was F apprehended around mid-night of 17 .9 .1993 at the Sahara Airport Bombay for carrying heroin in his baggage in ET Flight No. 661. Ashok Thaker, (PW- I) an intelligence officer attached to the Narcotic Bureau screened the baggage and seizure was made of the heroine weighing about l kg. which was concealed in a suitcase. After recording the statement accused was G taken for alleged contravention of various provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'Act') and also under the Customs Act, 1962 (in short the 'Customs Act'). He was charged for offence punishable under Se~tions 21, 23, 28 and 29 of the Act and also • Sections 135(1 )(a)(ii) of the Customs Act. Accused pleaded innocence: H 458 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R. A He was tried in the Court of Special Judge for Greater Bombay who found that there was non-compliance with the requirement of Section 50 of the Act as he was not made aware of his right·to be searched before a gazetted officer or a Magistrate before the search was conducted. It was also held that the requirement of Section 42(2) to submit the gist of information to B higher officer immediately was also not established. The accused was acquitted of all the charges. The prosecuting agency filed an appeal before the Bombay High Court which by the impugned judgment held the accused guilty for offences punishable under Section 8(c) read with Section 21 of the Act for which custodial sentence of I 0 years imprisonment and fine of Rs. I lakh for default stipulation was awarded. Further for offence C relatable to Sections 28 re
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