Judgment Intelligence
Acquittal UpheldUnion of India v. Shah Alam & Anr.
Criminal Appeal Nos. 1158-1159 of 2004; reported as (2009) 16 SCC 644
- Court
- Supreme Court of India
- Date of Decision
- 11 June 2009
- Bench
- Justices B. Sudershan Reddy and Aftab Alam
- Relevant Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985 — Sections 8, 21, 29, 50
Final Outcome
The appeals were dismissed: the High Court had taken the correct view and its judgment of acquittal did not suffer from any infirmity (para 11).
Key holdings
- Section 50 governs a search of the person, not of a bag or briefcase the person carries; the Court accepted this proposition from Pawan Kumar (paras 8-9).
- Where the accused were subjected to a body search in the course of which heroin was found in their shoulder bags, Section 50 applied, as in Dilip (para 9).
- The recovery was made in complete violation of Section 50, which supported the acquittal (paras 10-11).
- Not examining the two independent witnesses of the search, after a formal petition to discharge them, was a grave omission by the prosecution (para 10).
Brief Facts
On 5 August 1994, acting on an informer's tip, officers of the Central Bureau of Narcotics kept watch at Charbagh bus stand and recovered 100 grams of heroin from each of the two respondents in the presence of two independent witnesses (paras 3, 7). The Special Judge (E.C.A.), Lucknow convicted them under Section 8 read with Section 21 of the NDPS Act and sentenced each to ten years' rigorous imprisonment and a fine of Rs. 1 lakh (paras 1, 7). The Allahabad High Court, Lucknow Bench, acquitted them in 2002, mainly for non-compliance with Section 50 and the non-examination of the two independent witnesses (paras 3, 7). The Union of India appealed by special leave (para 2).
Court's Findings
Under the amended Act, 100 grams of heroin is an intermediate quantity, and ten years' imprisonment with a fine of one lakh rupees, once the minimum punishment, is now the maximum; the respondents had served 8 years and 3 months, yet the Court examined the merits (paras 3-6). The Union relied on Pawan Kumar: Section 50 governs a search of the person, not of a bag carried by him (para 8). The Court called that legal proposition "unexceptionable" but found it unsupported by the facts: the complainant's evidence and the seizure memo showed that the respondents "were subjected to a body search in course of which packets of heroin were found in the shoulder bags carried by them" (para 9). The case was "very close" to Dilip, where Section 50 had to be complied with because the person of the accused was also searched (para 9). The recovery was made "in complete violation of the provisions of Section 50 of the Act" (para 10). The non-examination of the two independent witnesses was "another grave omission by the prosecution", the more so because the prosecution had filed a formal petition to discharge them (para 10).
Legal Principle
Section 50 of the NDPS Act does not apply to the search of a bag alone, but where the accused are subjected to a body search during which contraband is found in bags they carry, it must be complied with. Not examining the independent search witnesses, whom the prosecution had sought to discharge, is a grave omission (paras 9-10).
Precedents Relied Upon
- State of H.P. vs. Pawan Kumar (2005) 4 SCC 350
Section 50 applies to a search of the person, not to a bag, briefcase or other article carried by him; the proposition was accepted as unexceptionable but did not fit the facts, because the respondents were subjected to a body search.
- Dilip and Another V. State of M.P. (2007) 1 SCC 450
Where the person of the accused was also searched, Section 50 had to be complied with even if it was not required for the search of the scooter; the facts were found very close to the present case.
