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Judgment
(Sanjeev Kumar Sharma, J)
Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned Addl. Public Prosecutor for the State.
This is an application under Section 483 of the BNSS, 2023, praying for the grant of bail to the petitioner, namely, Ruhel Uddin, in connection with Special (NDPS) Case No. 21/2026 arising out of Nilambazar P.S. Case No. 132/2025 registered under Sections 22(C)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, pending in the Court of the learned Special Judge, Sribhumi.
The case of the petitioner is that one SI (P) Samar Barman of Nilambazar P.S. lodged an FIR alleging, inter alia, that on 23.09.2025, at about 4:00 PM, SSP, Sribhumi, provided information regarding a person, namely, Ruhel Uddin, who was loitering near the Rehabilitation Centre, Nilambazar, and was suspected to be carrying a huge quantity of narcotic contraband inside a black-coloured cloth bag. Accordingly, a GDE entry was made, and the complainant and his team proceeded towards the location. After reaching the location, i.e. at the Rehabilitation Centre, Nilambazar, the source identified the suspected person who was carrying a black-coloured cloth bag. After seeing the police personnel, he tried to flee from the place of occurrence, but the police officials apprehended him along with the black-coloured cloth bag. During preliminary interrogation, the alleged accused was identified as Ruhel Uddin. Accordingly, the police commenced the search and seizure proceedings in the presence of independent witnesses. During the search, the police found five small brown packets, each containing ten black-coloured small pouches, and each pouch containing approximately 200 suspected Yaba tablets. Therefore, a total of 250 pouches containing 250 x 200 = 50,000 suspected Yaba tablets, i.e. a total of 5292.38 grams of Yaba tablets, were found. Accordingly, Police registered a case vide Nilambazar P.S. Case No. 132/2025 dated 23.09.2025 under Sections 22(C)/29 of the NDPS Act.
Learned counsel for the petitioner has submitted with reference to the contents of the FIR, that although the body search of the petitioner was carried out, the provisions of Section 50 of the NDPS Act were not complied with, inasmuch as the petitioner was not informed of his right to be searched before a Gazetted Officer or a Magistrate.
On the other hand, Mr. Gogoi, learned Public Prosecutor, does not deny that Section 50 of the NDPS Act was not complied with, but rather it is his contention that, in the facts of the present case, there was no requirement to comply with the aforesaid provision.
From the above, therefore, the admitted position is that Section 50 of the NDPS Act, which is mandatorily required to be complied with in case of search of the person of the accused, the question that requires determination is whether such compliance was necessary in the facts and circumstances of the present case.
Learned counsel for the petitioner has taken a stand, by filing a written reply to the arguments advanced by learned Public Prosecutor, that, in view of the law laid down in the case of State of Rajasthan v. Parmanand and Anr., (2014) 5 SCC 345, following the decision of the three-Judge Bench of the Apex Court in SK Raju alias Abdul Haque @ Jagga v. State of West Bengal, (2018) 9 SCC 708, Section 50 of the NDPS Act would be applicable where the search of the person of the accused was carried out prior to the search of the bag from which the alleged contraband was recovered. It is contended that the judgments in Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 SCC OnLine SC 1262, as well as Than Kunwar v. State of Haryana, (2020) 5 SCC 260, which relied upon the decisions of the three-Judge Bench of the Apex Court in State of H.P. v. Pawan Kumar, (2005) 4 SCC 350, as well as in Baljinder Singh v. State of Punjab, (2019) 10 SCC 473, both of which were relied upon in Than Kunwar (supra), and both of which relied upon the five-Judge Constitution Bench judgment in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, were rendered in factually different circumstances, and that in none of the judgments was it held that Section 50 of the NDPS Act is not applicable when the body of the person was searched in the aforesaid sequence.
It is submitted that, in Parmanand (supra), it was held that once a body search was made in violation of the mandatory provision of Section 50 and thereafter, if any contraband is recovered from the bag, the said seizure has no evidentiary value unless corroborated by any other circumstances, which would be needed to be proved during the trial. It is reiterated on behalf of the petitioner that Section 50 of the NDPS Act is not applicable where contraband is recovered pursuant to a search of the bag and thereafter the body is searched, but not vice versa, where the body is searched in violation of Section 50 of the NDPS Act and thereafter the alleged contraband is recovered from the bag. It is contended that the same is contrary to the view expressed by the Hon’ble Apex Court in Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 SCC OnLine SC 1262 (three-Judge Bench), which did not interfere with the interpretation of the law laid down in Parmanand and Anr. (supra), as aforesaid.
At this stage, it would be worth noting that Mr. Gogoi, learned Public Prosecutor, had advanced his contentions as to the non-applicability of Section 50 of the NDPS Act in the facts and circumstances of the present case on the basis of the following decisions:
Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 SCC OnLine SC 1262.
Than Kunwar v. State of Haryana, (2020) 5 SCC 260.
Radhika Aggarwal v. Union of India & Anr., (2025) 6 SCC 545.
In addition to the above, learned Public Prosecutor had also referred to the decision of the Apex Court in Yumnam Rajesh Singh alias Rajesh Yumnam v. State of Assam, ZAHC 010176392026.
In Ranjan Kumar Chadha (supra), reference was made to the three-Judge Bench decision of the Apex Court in Pawan Kumar (supra), and it was observed as follows:
“96.What is most important to note in Pawan Kumar (supra) is that the search was not only of the bag, but also of the person of the accused, however, the contraband was recovered only from the bag and not from the person of the accused therein. What we are trying to highlight is that although in Pawan Kumar (supra) the search was of the accused as well as the bag, yet since the recovery of the contraband was only from the bag, this Court took the view that Section 50 would have no application.
101.Pawan Kumar (supra) was also relied upon in Jarnail Singh v. State of Punjab reported in (2011) 3 SCC 521. In the said case, opium was recovered from a bag which the accused was carrying. Section 50 was held to be not applicable as accused was not searched. It was held that:-
“16.This apart, it is accepted that the narcotic/opium, i.e., 1 kg. and 750 grams was recovered from the bag (thaili) which was being carried by the appellant. In such circumstances, Section 50 would not be applicable. The aforesaid Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted.”
102.In Suresh v. State of Madhya Pradesh reported in (2013) 1 SCC 550, illicit articles were recovered from the polythene bags placed in a vehicle found to be in the possession of the accused person upon their personal search. This Court held that though the requirement of Section 50 was not complied with qua the personal search of the accused, yet the provision was inapplicable qua the recovery made from the vehicle. Therefore, this Court gave a restricted interpretation to Section 50 and held as under:-
“19.Though a portion of the contraband (opium) was recovered from the vehicle for which Section 50 is not applicable, if we exclude the quantity recovered from the vehicle, the remaining would not come within the mischief of “commercial quantity” for imposition of such conviction and sentence. Taking note of the length of period in prison and continuing as on date and in view of non-compliance with sub-section (1) of Section 50 in respect of recovery of contraband from the appellants, we set aside the conviction and sentence imposed on them by the trial court and confirmed by the High Court.”
105.However, in Dilip v. State of M.P. reported in (2007) 1 SCC 450, a contrary view was taken to that of Pawan Kumar (supra). In the said case, Section 50 was not complied with while conducting the search of the person and drugs were recovered from the accused’s scooter. This Court while acquitting the accused held that the recovery made from the scooter ought to be inadmissible. It is pertinent to note that in this case the judgement in Pawan Kumar (supra) was not looked into. The Court held as under:-
“12.Before seizure of the contraband from the scooter, personal search of appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with. x x x x
15.Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case. 16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the persons of the appellants were also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.”
The decision of Dilip (supra) was relied upon in Union of India v. Shah Alam reported in (2009) 16 SCC 644, wherein packets of heroin were recovered from the accused’s shoulder bag. This Court rejected the argument of the State that Section 50 was not applicable as no further recoveries were made from the person of the accused after the recovery from the bag. Accordingly, the recovery was held to be in violation of Section 50 and the accused’s acquittal was upheld. It was held that:-
“15.The legal proposition advanced by Mr. Terdal, based on the distinction between search of someone's person and the baggage carried by him/her is unexceptionable but his submission is not supported by the facts of this case. We have carefully gone through the records of this case. From the evidence of the complainant, PW 1 and the seizure memo (fard baramdegi) Ext Ka-2 it is evident that the two respondents were subjected to a body search in course of which packets of heroin were found in the shoulder bags carried by them and were recovered from there.
16.The facts of the case in hand are very close to another decision of this Court in Dilip and Anr. v. State of M.P. where it was observed in paragraphs 12, 15 and 16 as under: …
17.On the facts of the case we find that the alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the Act.”
A similar view was taken by a Division Bench of this Court in Parmanand (supra). This Court was called upon to consider whether Section 50 ought to apply when the search of the person and his bag is carried out. This Court held that if the bag is searched without searching the accused, then Section 50 would have no application. However, as a corollary it was held that if the bag carried by the accused is searched along with his search, then Section 50 would be applicable. The relevant portion is as under:-
“15.Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.”
Parmanand (supra) was relied upon by a three-Judge Bench in SK. Raju (supra).
Thus, one view which originated from Dilip (supra) and relied upon in SK. Raju (supra) implied that if a person is searched and along with him or her, his or her bag is also searched, then the benefit of Section 50 should be extended while conducting the personal search of the accused.
However, it is pertinent to note that although Pawan Kumar (supra) has been referred to and considered in SK. Raju (supra) yet, the Court in SK. Raju (supra) overlooked the fact that in Pawan Kumar (supra) also the search was not only of the person of the accused but also of his bag. Even in such circumstances, the larger Bench in Pawan Kumar (supra) took the view that Section 50 would not apply if nothing incriminating is recovered from the person of the accused. Thus, there is an apparent conflict between the two decisions. Section 50 not applicable when recovery made from bag, conveyance, etc.
A three-Judge Bench in the State of Punjab v. Baljinder Singh reported in (2019) 10 SCC 473 considered the question:-
“8.… If a person found to be in possession of a vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements under Section 50 of the Act; but the search of the vehicle results in recovery of contraband material, which stands proved independently; would the accused be entitled to benefit of acquittal on the ground of non-compliance of Section 50 of the Act even in respect of material found in the search of the vehicle?”
The Court went on to hold that Section 50 would be applicable only to the personal searches and not to the searches of vehicles or bags. This was in line with the ratio laid down in Pawan Kumar (supra) and Baldev Singh (supra). This Court held that:-
“15.As regards applicability of the requirements under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to “personal search” and not to search of a vehicle or a container or premises.
16.The conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based “only” on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into.
It is pertinent to note here that in Baljinder Singh (supra) the decision of SK. Raju (supra) was not looked into, however, the decision in the case of Dilip (supra) was considered and held to be not laying down the correct law on the ground that it did not consider the decision of Baldev Singh (supra). This Court held that:-
“18.The decision of this Court in Dilip’s case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in said judgment in Dilip’s case is not correct and is opposed to the law laid down by this Court in Baldev Singh and other judgments.”
In Than Kunwar v. State of Haryana reported in (2020) 5 SCC 260, this Court took a different view. In the said case, the personal search of the accused did not lead to any recovery. However, upon conducting the search of the bag, opium was recovered. This Court acknowledged the divergent views and noted that the decision of SK. Raju (supra) was not considered while deciding Baljinder Singh (supra). However, the latter was applied and was read to be in line with Baldev Singh (supra). It was held that:-
“22.Having regard to the judgment by the three-Judge Bench, which directly dealt with this issue, viz., the correctness of the view in Dilip (supra) reliance placed by the appellant on para 16 may not be available. As already noticed, we are not oblivious of the observation which has been made in the other three-Judge Bench judgment of this Court in SK. Raju (supra), which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (supra). We notice however that the later decision draws inspiration from the Constitution Bench decision in Baldev Singh (supra). We also notice that this is not a case where anything was recovered on the alleged personal search. The recovery was effected from the bag for which it is settled law that compliance with Section 50 of the Act is not required.”
Baljinder Singh (supra) was followed by this Court in Kallu Khan v. State of Rajasthan reported in 2021 SCC OnLine 1223, wherein the search and seizure was made from the accused’s motorcycle. This Court while holding that the search cannot be said to be vitiated on account of non-compliance of Section 50 as the same only applies to a search of a person, held as under:-
“15.Simultaneously, the arguments advanced by the appellant regarding non-compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar (supra) and Baljinder Singh (supra). Considering the facts of this case, the argument of non-compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled.”
Similarly, in a recent judgement, this Court in Dayalu Kashyap v. State of Chhattisgarh reported in (2022) 12 SCC 398, held that an extended view of Section 50 cannot be given to include a polythene bag containing narcotics being carried by the accused. This Court rejected the argument that as three options were given to the accused to get himself searched from the officer which was in violation of Section 50, the search conducted, even of the polythene bag, ought to be vitiated. It was held as under:-
“4.The learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-section (1) of Section 50 of the Act is something which goes contrary to the mandate of the law and in a way affects the protection provided by the said section to the accused. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345], more specifically, SCC para 19. The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172] to conclude that if a search is made by an empowered officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only on the basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned not being part of the statute, the same could not have been offered to the appellant and thus, the recovery from him is vitiated.
5.In the conspectus of the facts of the case, we find that the recovery was in a polythene bag which was being carried on a kanwad. The recovery was not in person. The learned counsel seeks to expand the scope of the observations made by seeking to contend 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. We cannot give such an extended view as is sought to be contended by the learned counsel for the appellant.”
While interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See : Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5 SCC 515). The legislative casus omissus should not be supplied by judicial interpretative process. The language of Section 50 of the NDPS Act is plain and unambiguous. There is no scope of reading something into it as was done in many decisions of this Court which we have referred to in our judgment.
126.As such, there is no direct conflict between SK. Raju (supra) and Baljinder Singh (supra). It is pertinent to note that in SK. Raju (supra) the contraband was recovered from the bag which the accused was carrying, whereas in Baljinder Singh (supra) the contraband was recovered from the vehicle. This makes a lot of difference even while applying the concept of any object being “inextricably linked to the person”. Parmanand (supra) relied upon the judgment in Dilip (supra) while taking the view that if both, the person of the accused as well as the bag is searched and the contraband is ultimately recovered from the bag, then it is as good as the search of a person and, therefore, Section 50 would be applicable. However, it is pertinent to note that Dilip (supra) has not taken into consideration Pawan Kumar (supra) which is of a larger Bench. It is also pertinent to note that although in Parmanand (supra) the Court looked into Pawan Kumar (supra), yet ultimately it followed Dilip (supra) and took the view that if the bag carried by the accused is searched and his person is also searched, Section 50 of the NDPS Act will have application. This is something travelling beyond what has been stated by the large Bench in Pawan Kumar (supra). Baljinder Singh (supra), on the other hand, says that Dilip (supra) does not lay down a good law.”
It is also to be noted that the decision of the three-Judge Bench in Pawan Kumar (supra) was rendered prior in point of time of the decision of the three-Judge Bench in SK Raju (supra) and, as observed in Than Kunwar (supra), the decision in Baljinder Singh (supra) draws inspiration from the unanimous five-Judge Bench decision in Baldev Singh (supra).
In the light of the above exposition of the law, I am of the view that the provisions of Section 50 of the NDPS Act are not attracted in a situation where a search is carried out of the person of the accused as well as of any bag carried by him or found in his possession, and the recovery of any contraband is made only from the bag. Accordingly, there is no necessity for compliance with the provisions of Section 50 of the NDPS Act.
As regards the contention of learned counsel for the petitioner that in view of the decisions in Parmanand (supra) and SK Raju (supra), it is clear that Section 50 of the NDPS Act is applicable where the search of the person of the accused was carried out prior to the search of the bag from which the contraband was recovered, I do not find any such proposition of law having been laid down in either of the aforesaid two decisions and, therefore, there is no force in the said contention of learned counsel for the petitioner.
Reverting to the facts of the present case, a perusal of the FIR reveals that what is stated therein is that the informant served a notice under Section 50 of the NDPS Act to the detained person for conducting his body search in the presence of the SSP and independent witnesses and, before carrying out the body search of the apprehended person and his bag, he got his own body search conducted by the independent witnesses and thereafter, on being led and shown by the apprehended person, they successfully recovered the contraband, which was kept concealed inside a black-colour cloth bag marked as ‘SH-RIFF’. The total weight of the contraband was found to be 5292.38 grams, i.e. above 5 kgs. The forwarding report, as well as the charge sheet, are similarly worded, and so are the statements of the witnesses. In none of the above documents is it anywhere mentioned that a body search or search of the person of the accused was actually carried out, whether before or after recovery of the contraband from the bag of the petitioner.
Therefore, prima facie, there appears to be no material to show that the body search of the petitioner was, in fact, carried out, thereby requiring compliance with Section 50 of the NDPS Act. As far as the other decisions cited on behalf of the respective parties are concerned, the same do not affect the aforesaid findings and, therefore, need not be discussed in the present case.
In view of the submission of the learned counsel for the petitioner that the only point involved is regarding the necessity of compliance with Section 50 of the NDPS Act in the facts and circumstances of the case, any other contention that may be stated in the bail application need not be adverted to. Nevertheless, it would be pertinent to mention that though the petitioner has alleged non-compliance with Section 36 of the BNSS due to the absence of the signature of any witness on the memorandum of arrest, the same cannot be held to be sufficient to warrant the release of the petitioner on bail, as no prejudice can be said to have been caused to the petitioner in view of the contemporaneous issuance of notice under Section 48 of the BNSS to the relative of the petitioner, the validity of which is not in dispute. Violation of a statutory provision like Section 36 of the BNSS, though mandatory, need not initiate the arrest in every case, as held by the Division Bench of this High Court in Injamamul Haque alias Injamul Haque vs. State of Assam: GHAC010092472026 (On Reference).
Consequently, the prayer for bail stands rejected and the petition stands dismissed.