LEGAL ISSUE: Whether the recovery of contraband from a bag carried by an individual, rather than a personal search, is subject to the requirements of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
CASE TYPE: Criminal Law, Narcotics
Case Name: Dayalu Kashyap vs. The State of Chhattisgarh
Judgment Date: 25 January 2022
Introduction
Date of the Judgment: 25 January 2022
Citation: (2022) INSC 48
Judges: Hon’ble Mr. Justice Sanjay Kishan Kaul and Hon’ble Mr. Justice M.M. Sundresh
Does the requirement to inform a suspect of their right to be searched in the presence of a Gazetted Officer or Magistrate, under Section 50 of the NDPS Act, extend to searches of bags and not just personal searches? The Supreme Court recently addressed this question in Dayalu Kashyap vs. The State of Chhattisgarh. This case clarifies the scope of Section 50 of the NDPS Act, specifically regarding whether the procedural safeguards apply to searches of bags carried by an individual. The judgment was delivered by a two-judge bench comprising Justice Sanjay Kishan Kaul and Justice M.M. Sundresh.
Case Background
On September 11, 2010, at approximately 10:30 AM, Sub Inspector K.S. Singh (PW-5) received information that the appellant, Dayalu Kashyap, was transporting Ganja. The Sub Inspector apprehended the appellant, who was carrying a green polythene bag containing Ganja on a wooden Kanwad from Bhaisabeda to Pithapur. The appellant was subsequently charged under the NDPS Act.
The Special Judge convicted the appellant under Section 20(b)(ii)(c) of the NDPS Act, sentencing him to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh. The High Court of Chhattisgarh dismissed the appellant’s appeal against this conviction on March 28, 2019.
Timeline
| Date | Event |
|---|---|
| 11 September 2010, 10:30 AM | Sub Inspector K.S. Singh apprehended Dayalu Kashyap carrying Ganja. |
| 28 March 2019 | The High Court of Chhattisgarh dismissed Dayalu Kashyap’s appeal. |
| 01 February 2021 | Supreme Court issued notice on the appeal and bail application. |
| 01 March 2021 | Supreme Court noted the issue regarding Section 50 of the NDPS Act. |
| 03 March 2021 | Supreme Court ordered the release of Dayalu Kashyap. |
| 25 January 2022 | Supreme Court dismissed the appeal. |
Course of Proceedings
The Special Judge convicted the appellant under Section 20(b)(ii)(c) of the NDPS Act. The appellant was sentenced to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh. The High Court of Chhattisgarh dismissed the appeal against the conviction. Subsequently, the Supreme Court issued notice on the appeal and bail application on 01.02.2021. The Supreme Court noted the issue regarding Section 50 of the NDPS Act on 01.03.2021. Considering the appellant had already served 10 years of sentence, the Supreme Court ordered the release of the appellant on 03.03.2021.
Legal Framework
The case primarily revolves around Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). This section outlines the conditions under which searches of persons can be conducted.
Section 50(1) of the NDPS Act states:
“When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.”
The core of the issue is whether the safeguards provided under Section 50 of the NDPS Act apply to the search of a bag being carried by a person, or if it is limited to personal searches.
Arguments
Appellant’s Arguments:
- The appellant argued that the option given to him by the officer (PW-5) to be searched by the officer himself, in addition to the options of being searched by a Gazetted Officer or a Magistrate, was contrary to the mandate of Section 50 of the NDPS Act.
- The appellant relied on the judgment of State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345, which in turn relied on State of Punjab v. Baldev Singh – 1999 (6) SCC 172, to argue that if a search is conducted without informing the person of their right to be searched before a Gazetted Officer or a Magistrate, the recovery of the illicit article becomes suspicious and vitiates the conviction.
- The appellant contended that since the third option was not part of the statute, it should not have been offered, and therefore the recovery was vitiated.
- The appellant’s counsel sought to expand the scope of the observations made by contending that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon.
Respondent’s Arguments:
- The State argued that the recovery was made from a polythene bag carried on a Kanwad, and not from the person of the appellant, and thus Section 50 of the NDPS Act was not applicable.
- The State contended that the observations regarding personal search cannot be extended to include searches of bags or other items carried by a person.
Submissions Table
| Main Submission | Sub-Submission | Party |
|---|---|---|
| Violation of Section 50 of NDPS Act | Option to be searched by the officer himself is not prescribed under Section 50 | Appellant |
| Violation of Section 50 of NDPS Act | Failure to inform the right to be searched before a Gazetted Officer or Magistrate vitiates recovery | Appellant |
| Violation of Section 50 of NDPS Act | Recovery of illicit article becomes suspicious due to the violation of Section 50 of NDPS Act | Appellant |
| Scope of Section 50 of NDPS Act | Recovery was from a bag and not a personal search | Respondent |
| Scope of Section 50 of NDPS Act | Observations regarding personal search cannot be extended to bags | Respondent |
Issues Framed by the Supreme Court
The Supreme Court considered the following issue:
- Whether the safeguards under Section 50 of the NDPS Act apply to the search of a bag being carried by a person, or if it is limited to personal searches.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Reason |
|---|---|---|
| Whether Section 50 of the NDPS Act applies to searches of bags carried by a person? | No | The recovery was from a bag carried on a Kanwad, not a personal search. The court held that the scope of Section 50 of the NDPS Act could not be extended to include searches of bags. |
Authorities
The following authorities were considered by the Court:
Cases:
- State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345 – Supreme Court of India
- State of Punjab v. Baldev Singh – 1999 (6) SCC 172 – Supreme Court of India
Legal Provisions:
- Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985
Authority Consideration Table
| Authority | Court | How Considered |
|---|---|---|
| State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345 | Supreme Court of India | The Court noted that this case was relied upon by the appellant to argue that the search was vitiated due to the violation of Section 50 of the NDPS Act. |
| State of Punjab v. Baldev Singh – 1999 (6) SCC 172 | Supreme Court of India | The Court noted that this case was relied upon by the appellant to argue that the search was vitiated due to the violation of Section 50 of the NDPS Act. |
| Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 | N/A | The Court interpreted the provision to determine whether it applies to searches of bags carried by a person. |
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| The option to be searched by the officer himself is not prescribed under Section 50. | The Court did not address the issue directly as the recovery was not from a personal search. |
| Failure to inform the right to be searched before a Gazetted Officer or Magistrate vitiates recovery. | The Court did not accept this argument as the recovery was from a bag, not a personal search. |
| Recovery of illicit article becomes suspicious due to the violation of Section 50 of NDPS Act. | The Court rejected this argument as the recovery was from a bag, not a personal search. |
| Recovery was from a bag and not a personal search. | The Court accepted this argument and held that Section 50 does not apply to searches of bags. |
| Observations regarding personal search cannot be extended to bags. | The Court accepted this argument and held that the scope of Section 50 cannot be extended to include searches of bags. |
How each authority was viewed by the Court?
- The Court noted that State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345 and State of Punjab v. Baldev Singh – 1999 (6) SCC 172 were relied upon by the appellant to argue that the search was vitiated due to the violation of Section 50 of the NDPS Act. However, the Court distinguished these cases by stating that they pertained to personal searches and not searches of bags.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the distinction between a personal search and the search of a bag being carried by a person. The court emphasized that Section 50 of the NDPS Act is specific to personal searches and cannot be extended to include searches of bags or other items. The court’s reasoning was based on a strict interpretation of the statute and the facts of the case.
| Reason | Percentage |
|---|---|
| Distinction between personal search and search of a bag | 70% |
| Strict interpretation of Section 50 of NDPS Act | 30% |
Fact:Law Ratio
| Category | Percentage |
|---|---|
| Fact (percentage of the consideration of the factual aspects of the case) | 60% |
| Law (percentage of legal considerations) | 40% |
Logical Reasoning:
The Court considered the argument that the search was vitiated due to the violation of Section 50 of the NDPS Act. However, it rejected this argument, holding that the recovery was from a bag and not from a personal search. The Court reasoned that the scope of Section 50 cannot be extended to include searches of bags.
The Court’s decision was based on a strict interpretation of Section 50 of the NDPS Act, which is specific to personal searches. The Court did not find any reason to extend the scope of the provision to include searches of bags.
The Court stated:
“In the conspectus of the facts of the case, we find the recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person.”
The Court further stated:
“We cannot give such an extended view as is sought to be contended by learned counsel for the appellant.”
The Court did not have a dissenting opinion. The judgment was delivered by a two-judge bench.
Key Takeaways
✓ Section 50 of the NDPS Act, which mandates that a person be informed of their right to be searched before a Gazetted Officer or a Magistrate, applies only to personal searches.
✓ The safeguards under Section 50 of the NDPS Act do not extend to searches of bags or other items carried by a person.
✓ This judgment clarifies the scope of Section 50 of the NDPS Act and provides guidance to law enforcement agencies on the procedures to be followed during searches.
The judgment may have implications for future cases involving the seizure of contraband from bags or other items carried by individuals. It clarifies that the procedural safeguards under Section 50 of the NDPS Act are not applicable in such cases.
Directions
No specific directions were given by the Supreme Court in this case, other than dismissing the appeal.
Specific Amendments Analysis
There were no specific amendments discussed in this judgment.
Development of Law
The ratio decidendi of this case is that Section 50 of the NDPS Act applies only to personal searches and not to searches of bags or other items carried by a person. This clarifies the scope of Section 50 and distinguishes between personal searches and searches of items carried by an individual. There is no change in previous positions of law, but rather a clarification of the existing law.
Conclusion
In Dayalu Kashyap vs. The State of Chhattisgarh, the Supreme Court held that the safeguards under Section 50 of the NDPS Act do not apply to searches of bags or other items carried by a person. The Court dismissed the appeal, clarifying that Section 50 is specific to personal searches and cannot be extended to include searches of items carried by an individual.