Uttarakhand High Court
Chaman vs State Of Uttarakhand on 1 August, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
Judgment reserved on:-09.07.2025
Judgment delivered on:-01.08.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.105 of 2016
01st August, 2025
Chaman .........Appellant
Versus
State of Uttarakhand .........Respondent
----------------------------------------------------------------------
Presence:-
Ms. Sukhwani Singh, Advocate for the appellant.
Mr. S.S. Chauhan, D.A.G. with Mr. Vikash Uniyal, B.H. for the
State.
----------------------------------------------------------------------
Hon'ble Pankaj Purohit, J.
This criminal appeal is preferred by the appellant
under Section 374(2) of Cr.P.C. and is directed against the
judgment and order dated 10.02.2016, passed by learned
Special Judge (N.D.P.S.), Haridwar in Special Sessions Trial
No.40 of 2009, State Vs. Chaman, whereby the accused-
appellant has been convicted under Section 8/20 of N.D.P.S.
Act, 1985 (hereinafter referred to "Act of 1985") and was
sentenced to undergo two years rigorous imprisonment with a
fine of ₹25,000/- with default stipulation of additional six
month imprisonment.
2. In brief, the story of prosecution is that S.I.
Dayanand Pokhariyal lodged an FIR on 06.02.2009 at around
18:05 hours, against appellant-Chaman, alleging therein that
on 06.02.2009 at around 14:10 hours when he was on
patrolling duty alongwith Constable - Mukesh Chamoli and
Constable - Harshwardhan, an informer approached them
and informed about a person who was in possession of charas
and was intending to sell it to the local people. Thereafter,
they were joined by another Constable -Hoshiyaar. After that,
they proceeded to the said location as told by the informant
and upon reaching the said location the informer pointed out
towards a person who was in possession of the charas. On
seeing them, the applicant turned around and started
walking in the opposite direction. After getting caught at
around 15:35 hours on inquiry, he told that he was in
possession of charas. Thereafter when the Sub-Inspector told
him that he had a right to be searched in the presence of a
Magistrate or a Gazetted Officer, he replied that the Police
team was free to search him as he has already admitted that
he was in possession of charas. Thereafter he himself took
out a white polythene from his pocket from which charas
was recovered. Even after multiple requests no person of the
public agreed to be a witness of the alleged incident. Later on,
Constable - Mukesh Chamoli was sent to the police mess to
bring a weighing machine; the charas was weighed at 500
grams and a sample of 100 grams was prepared and a
recovery memo was further made.
3. On the basis of above, after preparing site plan,
recording statement of witnesses and sending the charas to
F.S.L. Dehradun and receiving the F.S.L. Report a charge
sheet was filed by the Investigating Officer in the trial court
under Section 8/20 of Act of 1985. Thereafter learned Special
Judge, (N.D.P.S.), Haridwar framed charges under Section
8/20 of Act of 1985; charges were read over and explained to
the accused, who pleaded not guilty and claimed to be tried.
4. To prove its case, the prosecution has examined
PW1-S.I. Dayanand Pokhariyal (informant). PW2-S.I.
Gajendra Singh, PW3-Constable Ravinder Singh, PW4-
Constable Hoshiyar Singh, PW5-Head Constable Jayveer
Singh Rawat, PW6-Kundan Singh Rana to substantiate and
prove the charge against the appellant.
5. After prosecution evidence, the statement of
appellant was recorded under Section 313 of Cr.P.C. in which
he stated that he was innocent. He further stated that all
witnesses were Policemen; therefore, were not independent
witnesses and could not be relied upon.
6. During trial PW1-S.I. Dayanand Pokhariyal
(informant) on oath stated that on 06.02.2009 at around
14:10 hours when he was on patrolling duty alongwith
Constable - Mukesh Chamoli and Constable -
Harshwardhan, an informer approached them and informed
about a person who was in possession of charas and was
intending to sell it to the local people. Thereafter, they were
joined by another Constable -Hoshiyaar. After that, they
proceeded to the said location as told by the informant and
upon reaching the said location the informer pointed out
towards a person who was in possession of the charas. On
seeing them, the applicant turned around and started
walking in the opposite direction. After getting caught at
around 15:35 hours on inquiry, he told that he was in
possession of charas. Thereafter when the Sub-Inspector told
him that he had a right to be searched in the presence of a
Magistrate or a Gazetted Officer, he replied that the Police
team was free to search him as he has already admitted that
he was in possession of charas. Thereafter he himself took
out a white polythene from his pocket from which charas
was recovered. Even after multiple requests no person of the
public agreed to be a witness of the alleged incident. Later on,
Constable - Mukesh Chamoli was sent to the police mess to
bring a weighing machine; the charas was weighed at 500
grams and a sample of 100 grams was prepared and a
recovery memo was further made.
7. PW2-S.I. Gajendra Singh on oath reiterated the
prosecution story and supported it in its entirety and stated
that on 06.02.2009 at around 14:10 hours when he was on
patrolling duty alongwith Constable - Mukesh Chamoli and
Constable - Harshwardhan, an informer approached them
and informed about a person who was in possession of charas
and was intending to sell it to the local people. Thereafter,
they were joined by another Constable -Hoshiyaar. After that,
they proceeded to the said location as told by the informant
and upon reaching the said location the informer pointed out
towards a person who was in possession of the charas. On
seeing them, the applicant turned around and started
walking in the opposite direction. After getting caught at
around 15:35 hours on inquiry, he told that he was in
possession of charas. Thereafter when the Sub-Inspector told
him that he had a right to be searched in the presence of a
Magistrate or a Gazetted Officer, he replied that the Police
team was free to search him as he has already admitted that
he was in possession of charas. Thereafter he himself took
out a white polythene from his pocket from which charas
was recovered. Even after multiple requests no person of the
public agreed to be a witness of the alleged incident. Later on,
Constable - Mukesh Chamoli was sent to the police mess to
bring a weighing machine; the charas was weighed at 500
grams and a sample of 100 grams was prepared and a
recovery memo was further made.
8. PW3-Constable Ravinder Singh in his
examination-in-chief said that he was posted at the
concerned police station when the FIR was being registered.
He recognized his signatures in chik FIR Ex. Ka-8 and on
carbon copy of general diary Ex. Ka-9.
9. PW4-Constable Hoshiyaar Singh reiterated the
facts of the prosecution story and supported it in its entirety.
10. PW5-Head Constable Jayveer Singh Rawat in his
examination-in-chief stated that the alleged incident was
reported on 06.02.2009 at around 18:05 hours and samples
of 400 grams and 100 gram were kept in the evidence room
out of which 100 grams sample was sent to FSL Dehradun.
He also stated that the recovered charas was safely and
securely kept at the evidence room and was not tampered
with. He verified the copy of maalkhaana register and proved
it as Ex. Ka-10.
11. PW6-Sub. Inspector Kundan Singh Rana was the
Investigating Officer and he also supported the prosecution
story and proved various documents and on oath stated that
he has investigated the matter and has submitted the charge
sheet.
12. The main thrust of argument advanced by learned
counsel for the appellant is that it is a case of total non-
compliance of Section 50 of Act of 1985; therefore the order
cannot sustain in the eyes of law. She relied on multiple
judgments of Apex Court on this point. She also submits that
the prosecution has also not complied with the mandate of
Section 52-A of Act of 1985.
13. Per contra, State counsel submits that as the
recovery was done from the bag and not from the person of
the accused, therefore non-compliance of Section 50 of the
Act of 1985 is not fatal to the prosecution. He relied upon
para nos.94, 95 and 125 of judgment of Apex Court passed in
Ranjan Kumar Chadha Vs. State of Himanchal Pradesh
reported in 2023 SCC OnLine SC 1262.
14. The learned counsel for the appellant in reply
submitted that PW4 in his examination has submitted that
the polythene containing the charas was handed-over by the
accused-appellant when he was being searched, which means
that the mandate of Section 50 Act of 1985 ought to have
been followed.
15. Having heard the learned counsel for the parties,
perusing the material available on record and going through
Sections 50 and 52-A of Act of 1985 and case laws supplied
by the learned counsel for the appellant and the State, the
moot question before this Court is whether the recovery of
charas from the polythene can be said to be recovered from
the body of the appellant. As it is a settled position of law
after the judgments pronounced by the Apex Court that the
mandate of Section 50 of Act of 1985 is applicable only when
the search of person of the accused is done and is not
applicable when the contraband is alleged to be recovered
from a bag/polythene carried by the accused. On perusal of
the factual matrix of the case it is quite clear that the
contraband was recovered from the polythene supplied by the
accused-appellant, therefore the mandate of Section 50 of Act
of 1985 does not apply as per the law laid down in the case of
Ranjan Kumar Chaddha (supra) relevant paragraphs are
quoted hereinbelow:-
"84.The case of the prosecution in Pawan Kumar
(supra) was that two head constables namely, Hukum
Singh and Munshi Ram and some police personnel
were checking buses at the bus - stand, Mandi in the
night of 18.07.1994. While checking a bus at about
8.45 p.m., they noticed that the accused Pawan
Kumar (respondent accused therein), who was
carrying a bag, slipped out from the rear door of the
bus and thereafter started running towards the Subzi
Mandi side. The police personnel got suspicious and
after a chase apprehended him near the gate of bus
stand. They felt smell of opium emitting from the bag
and, therefore, telephonically informed Prem Thakur,
Deputy S.P./S.H.O., P.S. Sadar, Mandi. Prem Thakur
came to the spot and inquired from the accused
whether he wanted to be searched by police or by a
Magistrate. The accused disclosed his name and
expressed his willingness to be searched by the police.
A search of the accused and the bag being carried by
him was then conducted and 360 gms. of opium
wrapped in polythene was found inside the bag.
85. This Court interpreted Section 50 strictly and
stated that the cardinal rule of interpretation of statutes
is to read the statute literally and give the words their
grammatical and natural meaning. In this regard, it was
held as under: -
"8. One of the basic principles of interpretation of statutes
is to construe them according to plain, literal and
grammatical meaning of the words. If that is contrary to,
or inconsistent with, any express intention or declared
purpose of the Statute, or if it would involve any
absurdity, repugnancy or inconsistency, the grammatical
sense must then be modified, extended or abridged, so
far as to avoid such an inconvenience, but no further. The
onus of showing that the words do not mean what they
say lies heavily on the party who alleges it. He must
advance something which clearly shows that the
grammatical construction would be repugnant to the
intention of the Act or lead to some manifest absurdity. In
the well known treatise - Principles of Statutory
Interpretation by Justice G.P. Singh, the learned author
has enunciated the same principle that the words of the
Statute are first understood in their natural, ordinary or
popular sense and phrases and sentences are construed
according to their grammatical meaning, unless that
leads to some absurdity or unless there is something in
the context or in the object of the Statute to suggest the
contrary (See the Chapter - The Rule of Literal
Construction -p. 78 - 9th Edn.). This Court has also
followed this principle right from the beginning. In
Jugalkishore Saraf v. Raw Cotton Co. Ltd.: (1955) 1 SCR
1369 , S.R. Das, J. said: -
"The cardinal rule of construction of statutes is to read
the statute literally, that is, by giving to the words used
by the legislature their ordinary, natural and grammatical
meaning. If, however, such a reading leads to absurdity
and the words are susceptible of another meaning the
Court may adopt the same. But if no such alternative
construction is possible, the Court must adopt the
ordinary rule of literal interpretation."
The larger Bench also considered the dictionary
meanings of the word "person" and held that any article
like a bag, briefcase or container cannot under any
circumstance be considered as a person or a part
thereof. This Court stated that one of the tests could be,
where in the process of search the human body comes
into contact or shall have to be touched by the person
carrying out the search. If that be so, then it will be
search of a person. However, this Court was quick to
clarify that a bag or briefcase or any such article cannot
be interpreted to mean a person. It was held as under: -
"10. We are not concerned here with the wide definition
of the word "person", which in the legal world includes
corporations, associations or body of individuals as
factually in these type of cases search of their premises
can be done and not of their person. Having regard to the
scheme of the Act and the context in which it has been
used in the Section it naturally means a human being or
a living individual unit and not an artificial person. The
word has to be understood in a broad common sense
manner and, therefore, not a naked or nude body of a
human being but the manner in which a normal human
being will move about in a civilized society. Therefore, the
most appropriate meaning of the word "person" appears
to be - "the body of a human being as presented to public
view usually with its appropriate coverings and
clothings". In a civilized society appropriate coverings
and clothings are considered absolutely essential and no
sane human being comes in the gaze of others without
appropriate coverings and clothings. The appropriate
coverings will include footwear also as normally it is
considered an essential article to be worn while moving
outside one's home. Such appropriate coverings or
clothings or footwear, after being worn, move along with
the human body without any appreciable or extra effort.
Once worn, they would not normally get detached from
the body of the human being unless some specific effort
in that direction is made. For interpreting the provision,
rare cases of some religious monks and sages, who,
according to the tenets of their religious belief do not
cover their body with clothings, are not to be taken notice
of. Therefore, the word "person" would mean a human
being with appropriate coverings and clothings and also
footwear.
11. A bag, briefcase or any such article or container, etc.
can, under no circumstances, be treated as body of a
human being. They are given a separate name and are
identifiable as such. They cannot even remotely be
treated to be part of the body of a human being.
Depending upon the physical capacity of a person, he
may carry any number of items like a bag, a briefcase, a
suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a
carton, etc. of varying size, dimension or weight.
However, while carrying or moving along with them,
some extra effort or energy would be required. They
would have to be carried either by the hand or hung on
the shoulder or back or placed on the head. In common
parlance it would be said that a person is carrying a
particular article, specifying the manner in which it was
carried like hand, shoulder, back or head, etc. Therefore,
it is not possible to include these articles within the ambit
of the word "person" occurring in Section 50 of the Act.
12. An incriminating article can be kept concealed in the
body or clothings or coverings in different manner or in
the footwear. While making a search of such type of
articles, which have been kept so concealed, it will
certainly come within the ambit of the word "search of
person". One of the tests, which can be applied is, where
in the process of search the human body comes into
contact or shall have to be touched by the person carrying
out the search, it will be search of a person. Some
indication of this is provided by Sub-section (4) of Section
50 of the Act, which provides that no female shall be
searched by anyone excepting a female. The legislature
has consciously made this provision as while conducting
search of a female, her body may come in contact or may
need to be touched and, therefore, it should be done only
by a female. In the case of a bag, briefcase or any such
article or container, etc., they would not normally move
along with the body of the human being unless some
extra or special effort is made. Either they have to be
carried in hand or hung on the shoulder or back or placed
on the head. They can be easily and in no time placed
away from the body of the carrier. In order to make a
search of such type of objects, the body of the carrier will
not come in contact of the person conducting the search.
Such objects cannot be said to be inextricably connected
with the person, namely, the body of the human being.
Inextricable means incapable of being disentangled or
untied or forming a maze or tangle from which it is
impossible to get free.
87. The larger Bench also relied upon Baldev Singh
(supra) while analysing the scope of Section 50 and held
that: -
"13. The scope and ambit of Section 50 of the Act was
examined in considerable detail by a Constitution Bench
in State of Punjab v. Baldev Singh and para 12 of the
reports is being reproduced below:
"12. On its plain reading, Section 50 would come into
play only in the case of a search of a person as
distinguished from search of any premises etc. However,
if the empowered officer, without any prior information as
contemplated by Section 42 of the Act makes a search or
causes arrest of a person during the normal course of
investigation into an offence or suspected offence and on
completion of that search, a contraband under the NDPS
Act is also recovered, the requirements of Section 50 of
the Act are not attracted."
The Bench recorded its conclusion in para 57 of the
reports and sub-paras (1), (2), (3) and (6) are being
reproduced below :"
14. The above quoted dictum of the Constitution Bench
shows that the provisions of Section 50 will come into
play only in the case of personal search of the accused
and not of some baggage like a bag, article or container,
etc. which he may be carrying.
88. Accordingly, the Court held that the benefit of
Section 50 of the NDPS Act cannot be extended to
include bags or articles as the same may lead to an
unworkable understanding of the provision. It was held
as under: -
"18. There is another aspect of the matter, which requires
consideration. Criminal law should be absolutely certain
and clear and there should be no ambiguity or confusion
in its application. The same principle should apply in the
case of search or seizure, which come in the domain of
detection of crime. The position of such bags or articles is
not static and the person carrying them often changes the
manner in which they are carried. People waiting at a
bus stand or railway platform sometimes keep their
baggage on the ground and sometimes keep in their
hand, shoulder or back. The change of position from
ground to hand or shoulder will take a fraction of a
second but on the argument advanced by learned counsel
for the accused that search of bag so carried would be
search of a person, it will make a sharp difference in the
applicability of Section 50 of the Act. After receiving
information, an officer empowered under Section 42 of
the Act, may proceed to search this kind of baggage of a
person which may have been placed on the ground, but if
at that very moment when he may be about to open it,
the person lifts the bag or keeps it on his shoulder or
some other place on his body, Section 50 may get
attracted. The same baggage often keeps changing hands
if more than one person are moving together in a group.
Such transfer of baggage at the nick of time when it is
about to be searched would again create practical
problem. Who in such a case would be informed of the
right that he is entitled in law to be searched before a
Magistrate or a gazetted officer? This may lead to many
practical difficulties. A statute should be so interpreted as
to avoid unworkable or impracticable results. In Statutory
Interpretation by Francis Bennion (3rd Edn.), para 313,
the principle has been stated in the following manner :
"The court seeks to avoid a construction of an enactment
that produces an unworkable or impracticable result,
since this is unlikely to have been intended by
Parliament. Sometimes however, there are overriding
reasons for applying such a construction, for example
where it appears that Parliament really intended it or the
literal meaning is too strong.
26. The Constitution Bench decision in Pooran Mal v. The
Director of Inspection: (1974) 1 SCC 345, was considered
in State of Punjab v. Baldev Singh, and having regard to
the scheme of the Act and especially the provisions of
Section 50 thereof it was held that it was not possible to
hold that the judgment in the said case can be said to
have laid down that the "recovered illicit article" can be
used as "proof of unlawful possession" of the contraband
seized from the suspect as a result of illegal search and
seizure. Otherwise, there would be no distinction
between recovery of illicit drugs, etc. seized during a
search conducted after following the provisions of Section
50 of the Act and a seizure made during a search
conducted in breach of the provisions of Section 50.
Having regard to the scheme and the language used a
very strict view of Section 50 of the Act was taken and it
was held that failure to inform the person concerned of
his right as emanating from sub-section (1) of Section 50
may render the recovery of the contraband suspect and
sentence of an accused bad and unsustainable in law.
As a corollary, there is no warrant or justification for
giving an extended meaning to the word "person"
occurring in the same provision so as to include even
some bag, article or container or some other baggage
being carried by him.
89. Thus, in Pawan Kumar (supra) the larger Bench
while answering the reference in no uncertain terms
stated that "a bag, briefcase or any such article or
container, etc. can, under no circumstances, be treated as
body of a human being. They are given a separate and
are identifiable as such. They cannot even remotely be
treated to be part of the body of a human being." The
Court reasoned that a person of varying capacity can
carry different items on his or her body but that does
not make those items as a part of body. The Court
observed, "Depending upon the physical capacity of a
person, he may carry any number of items like a bag, a
briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri,
a holdall, a carton, etc. of varying size, dimension or
weight. However, while carrying or moving along with
them, some extra effort or energy would be required.
They would have to be carried either by the hand or hung
on the shoulder or back or placed on the head. In
common parlance it would be said that a person is
carrying a particular article, specifying the manner in
which it was carried like hand, shoulder, back or head,
etc." Therefore, Pawan Kumar (supra) concluded that an
external article which does not form part of body is
outside the ambit of the word "person" occurring in
Section 50 of the NDPS Act.
95. 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.
124. The aforesaid observations made by the seven-
Judge Bench of this Court, more particularly the last
three lines referred to above, "These considerations
become still more significant when the earlier decision
happens to be a unanimous decision of a Bench of five
learned Judges of this Court." persuade us to say that
we must adhere to the principle of law as explained by
the Constitution Bench in Baldev Singh (supra) and the
larger Bench in Pawan Kumar (supra).
125. For all the foregoing reasons, we are of the view
that the High Court was justified in holding the
appellant guilty of the offence under the NDPS Act and
at the same time, the High Court was also correct in
saying that Section 50 of the NDPS Act was not required
to be complied with as the recovery was from the bag."
16. Moreover the objection of the appellant's counsel
regarding the fact that PW4 has on oath admitted that the
charas was recovered cannot be given much importance in
view of the fact that other prosecution witnesses have given
the eye witness account of the fact of handing over the
polythene containing charas himself.
17. Moreover the argument advanced by the learned
counsel for the appellant regarding non-compliance of Section
52-A of Act of 1985 also does not hold any water as by recent
judgment of the Apex Court has held that "mere non-
compliance of Section 52-A of Act of 1985 is not fatal to the
prosecution and Section 52-A of Act of 1985 is procedural in
nature". Relevant paragraphs of the judgment of Bharat
Ambale Vs. The State of Chattisgarh arising out of SLP (CRL.)
No.14420 of 2024 are quoted hereinbelow:-
"50.(V). Mere non-compliance of the procedure
under Section 52A or the Standing Order(s) / Rules
thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the
prosecution's case doubtful, which may not have been
there had such compliance been done. Courts should
take a holistic and cumulative view of the discrepancies
that may exist in the evidence adduced by the
prosecution and appreciate the same more carefully
keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the
prosecution, oral or documentary inspires confidence
and satisfies the court as regards the recovery as-well as
conscious possession of the contraband from the
accused persons, then even in such cases, the courts
can without hesitation proceed to hold the accused
guilty notwithstanding any procedural defect in terms of
Section 52A of the NDPS Act."
18. Therefore this Court is of the considered view that
the court below did not commit any illegality in convicting the
accused-appellant under Section 8/20 of Act of 1985. The
findings of conviction are the findings of fact which cannot be
doubted at this stage in view of unimpeachable evidence given
by prosecution witness who could not be shaken even after
intense cross-examination. Moreover learned counsel for the
appellant could not highlight any material illegality in the
impugned judgment.
19. With the result, the appeal sans merit and the
same is accordingly dismissed. The impugned judgment and
order dated 10.02.2016 passed by learned Special Judge
(N.D.P.S.), Haridwar in Special Sessions Trial No.40 of 2009,
State Vs. Chaman, is hereby affirmed. Appellant, who is
presently in judicial custody, shall undergo the sentence as
awarded to him by the learned trial court.
20. Let the T.C.R. be immediately sent back to the trial
court for consignment.
(Pankaj Purohit, J.)
01.08.2025
SK
