State of Haryana v. Ranbir @ Rana

A ## STATE OF HARYANA ## RANBIR @ RANA ## APRIL 5, 2006 ## B ## [S.B. SINHA AND P.P. NAOLEKAR, JJ.] _Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50-Applicability of-Held, the requirement under the provision would be_ C _upp/icable only in a case of personal search of the accused and not in respect of baggage carried by the accused._ ## 'Obiter dicta' _and'_ Ratio decidende' _--Distinction between._ _Words and Phrases:_ D 'Obiter dicta' _and_ 'decision'--1Heaning _of_ Respondent-accused was taken into custody by a police party on suspicion that the plastic bag which he was holding, contained contraband article. The plastic bag was searched in the presence of Dy. S.P. and a 'pipi' E containing 'charas' was fonud. Trial court held the accused guilty and convicted him under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985. High Court allowed the appeal of the accused on the ground of non compliance of mandatory provision of Section 50 of the Act. In appeal to this Court respondent-accused contended that in _Nandi_ F _Francis Nwazor_ case it was held that incriminating article found in the handbag carried by a person, would still be search of a person attracting mandatory compliance of Section 50 of the Act; and that in _Pawan Kumar's_ case it was "\\rongly stated that the above mentioned observations in _Nandi Francis Nwazor_ case were _obiter dicta._ ## G Allowing the appeal, the Court HELD : I Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 would be applicable only in a case of personal search of the accused and not wh1:n it is made in respect of some baggage like a bag, article or 864 H -- STA TE OF HARY ANA _v._ RANBIR@RANA [S.B. SINHA, J.] 865 container etc. which the accused at the relevant time was carrying. (868-Al _State of Punjab_ v. _Baldev Singh,_ 119991 6 SCC 172, followed. _Himachal Pradesh etc._ v. _Pawan Kimar,_ (2005) 4 SCC 250, relied on. _Namdi Francis Nwazor_ v. _Union of India and Anr.,_ (199818SCC,534 B referred to. > 2.1. The observations made in _Nandi Francis Nwazor_ is merely an _obiter_ and does not constitute a _ratio decidendi._ The three-judge Bench of this Court in _Pawan Kumar_ therefore, correctly distinguished the same. (870-H) c 2.2. A decision is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a _dicta_ and _obiter_ is well known. _Obiter dicta_ is more or less presumably unnecessary to the decision. It may be an expression of a view point or sentiments which has no binding effect. The statements which are not part of the _ratio decidendi_ constitute _obiter dicta_ and are not authoritative. (869-G-H; 870-A( _Additional District Magistrate Jabalpur etc._ v. _Shivakant Shukla etc.,_ (1976] 2 SCC 521; _Division Controller, KSRTC_ v. _Mahadeva Shetty and Anr .._ ' (2003] 7 SCC 197 and _Director ofSe1tlements, A.P. and Ors._ v. _MR. Apparao and Anr.,_ (20021 4 SCC 638, relied on. D E _Behrens_ v. _Pertraman Mi/fs,_ (1957) 2 QB 25, referred to. CRIMINAL ORIGINAL JURISDICTION : Criminal Appeal No. 650 of 1999. From the Judgment and Order dated 15.12.1997 of the High Court of F Punjab and Haryana at Chandigarh in Cr!. No. 715/96. Rajeev Gaur 'Naseem' and T.V. George for the Appellant Rishi Malhotra and Prem Malhotra for Kishan Datta for the Respondent. G The Judgment of the Court was delivered by - -· S.B. SINHA, J. The State of Haryana is in appeal before us from a judgment and order dated 19.08.1998 of the High Court of Punjab and Haryana in Criminal Appeal No.715of1996 allowing the appeal preferred by H [2006) 3 S.C.R. SUPREME COURT REPORTS 866 - A the respondent herein from a judgment of conviction and sentence dated 05.08.1996 passed by the learned Additional and Sessions Judge in Sessions Case No.37 and Sessions Trial No.118 of 1994 under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act'). The prosecution case against the respondent was as under : . B On 15.11.1993 when a police party, comprising of Sub-Inspector Dunger Singh, Constable Randhir Singh, Head Constable Omkar, Constable Urned Singh and Head Constable Om Prakash, were proceeding from Bamla to CIA staff Bhiwani and reached the point on Rohtak-Bhiwani Road near Sanjeev M. College, the respondent was seen coming from the opposite direction, i.e., C from the side of Bhiwani on foot, holding a plastic bag of white colour. Having seen them, the respondent allegedly turned towards his left side on the road as a result whereof a suspicion as regard his conduct arose in their mind. The respondent was, thereafter, taken into custody. A notice was allegedly served on the respondent by the Sub Inspector to the effect "you D (accused) have some contraband in your possession and your search is to be effected in the presence of a gazetted police officer or a magistrate", if he so desired. The respondent is said to have had no objection if the search was conducted in presence of a gazetted officer or a magistrate available at the spot. An intimation was thereafter sent to the DSP, Headquarters, Bhiwani who reached the spot along with his staff. The respondent was E allegedly searched in his presence and on a search of the plastic bag, which the respondent was carrying, a 'pipi' containing 'charas' weighing 2 kg. was found. The in charge of the police party separated 50 grams of 'charas' by way of sample of the seized contraband and made a sealed parcel thereof. Remaining amount of the seized article was said to have been separately F sealed and the entire property was taken into possession wherefor a recovery memo. was prepared. The respondent accused could not produce any licence or permit for possession of the said contraband articles. Therefore a ·ruqa' was sent to the police station for registration of the case and a formal First Information Report was lodged. G On charged of possession of the said contraband article, the respondent was put on trial. - The learned Sessions Judge found the appellant to be guilty of the said offence and sentenced him to undergo rigorous imprisonment for a period of I 0 years and pay a fine of Rs. 1,00,000. The respondent filed an appeal H 867 STATEOFHARYANAv. RANBIR@RANA [S.B. S!NHA,J.) A .. - thereagainst before the High Court. Before the High Court only contention which was raised was that the mandatory provision of Section 50 of the Act had not been complied with. According to the respondent although the article in question was found from a bag, it was obligatory on the part of the Dy. S.P. to bring it to his notice that he had a right to be searched by a magistrate or a gazetted officer and B he having not been informed of his right, the judgment of conviction and sentence was vitiated in law. The High Court in its judgment proceeded on the basis that Section 50 of the Act is mandatory in character. It was held : c "Reverting to the facts in hand, the notice, Ex.PW-4/A, is very material. A close reading of this notice only indicates that SI Dungar Singh had given the option to the appellant by informing him that his search was to be conducted in the presence of a gazetted police officer or a magistrate. Beyond that, he notice, Ex.PW-4/A is silent. D SI Dungar Singh never apprised the appellant that he had the right to be searched in the presence of a Magistrate or a gazetted officer as mentioned in Section 42 of the Act. Even the reply, Ex.PW-4/B, given by the appellant is not in consonance with the provisions of section 50 of the Act. The reply simply states that the appellant was ready to give the search in the presence of a Magistrate or a gazetted E police officer at the spot. Further, the accused has stated vide Ex.PW4/B that he had full confidence in the 1.0. Strange enough, the reply of the appellant has not been attested by HC Randhir Singh or HC Om Kar who, of course, have attested the notice, Ex.PW-4/A, allegedly given by SI Dungar Singh. This indicates that PW-4/A, and PW-4/ F B have been prepared at a different state and, unfortunately, and for the benefit of the appellant... .. " The question as regards applicability of Section 50 of the Act need not detain us for long. We may notice that in view of conflict in the opinions of different benches as also difference of opinion between two judges of this G Court in _State of Himachal Pradesh_ v. _Pawan Kumar._ (2004] 7 SCC 735 the question was referred to a larger Bench. A three-Judge Bench of this Court in _State of Himachal Pradesh etc._ V, _Pawan Kumar,_ (2005] 4 sec 350 relying on or on the basis of a large number of decisions and in particular the decision of the Constitution Bench of this Court in _State of Pwyab_ v. _Baldev_ H SUPREME COURT REPORTS 868 [2006] 3 S.C.R. D E F A _Singh,_ [ 1999] 6 SCC 172 clearly held that Section 50 of the Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying. Before us, however, the learned counsel appearing on behalf of the B respondent placed strong reliance on another three-Judge Bench of this Court in _Namdi Francis Nwa::or_ v. _Union of India and Anr.,_ [1998] 8 SCC 534, wherein the following observations were made : c G "3. On a plain reading of sub-section (I) of Section 50, 1t 1s obvious that it applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to sub-section (4) of Section 50 which in terms says that no female shall be searched by anyone excepting a female. This would, in effect. mean that when the person of the accused is being searched, the law requires that if that person happens to be a female, the search shall be carried out only by a temale. Such a restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said artick was not being carried by the accused on his or her person when apprehended. _We must hasten lo clarifY thal if !hat person is carrying a handbag or !he like and !he incriminaling article is found there/fom. it would still be a search of the person of the accused requiring compliance wilh Sec/ion 50 of !he Ac/._ However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search. incriminating articles are found therefrom it cannot attract the requin:ments of Section 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case, it is difficult to hold that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case." H It was urged that this Court in _Pawan Kumar_ (supra) wrongly distinguished _Namdi Francis Nwazor_ (supra) stating that the observations made therein (underlined by us) were obiter and did not lay down a law. 869 STA TE OF HAR Y ANA _v._ RANBlR@RANA [S.B. SINHA, J.] We may at once notice the observations made in _Pawan Kumar_ (supra) as regards _Namdi Francis Nwazor_ (supra) which is in the following terms : . "The Bench then finally concluded that on the facts of the case Section _50_ was not attracted. The facts of the case clearly show that the bag from which incriminating article was recovered had already been checked in and was loaded in the aircraft. Therefore, it was not B at all a search of a person to which Section _50_ may be attracted. The observations, which were made in the later part of the judgment (reproduced above), are more in the nature of _obiter_ as such a situation was not required to be considered for the decision of the case. No reasons have been given for arriving at the conclusion that search of C a handbag being carried by a person would amount to search of a person. It may be noted that this case was decided prior to the Constitution Bench decision in _State of Punjab_ v. _Baldev Singh._ After the decision in _Baldev Singh_ this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him." D D We do not agree with the contention of the learned counsel for the respondent that in _Namdi Francis Nwazor_ (supra), the observation of this Court constituted a _dicta_ and not an obiter. The appellant therein was apprehended at the International Airport, New Delhi. He had already checked in his baggage. The said baggage was cleared but later on, the same was E called to the customs counter at the airport and upon examination thereof, it was found to be containing 153 cartons of tetanus vaccine, which having been opened, found to be containing 152 cartons of ampoules whereas the remaining one carton carried a polythene packet containing brown-coloured powder packet with black adhesive tape, which was suspected to be heroin F and which was then seized. It is in that context the court clearly came to the opinion that the provisions of sub-section (I) of Section 50 was not required to be complied with. The said conclusion was arrived at, _inter alia,_ upon noticing the provision of sub-section (4) of Section _50_ of the Act. It was, therefore, not G necessary for the Bench, with utmost respect, to make any further observation. It was not warranted in the fact of the said case. A decision, it is well-settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a _dicta_ and _obiter_ is well known. _Obiter dicta_ is more or less presumably unnecessary to the decision. It may be an H SUPREME COURT REPORTS (2006] 3 S.C.R. 870 A expression of a view point or sentiments which has no binding effect. See _Additivnal District Magistrate, Jabalpur etc._ v. _Shivakant Shukla etc.,_ [1976) 2 SCC 521. It is also well-settled that the statements which are not part of the _ratio decidendi_ constitute _obiter dicta_ and are not authoritative. [See _Division Controller. KSRTC_ v. _Mahadern Shetty and Anr.,_ [2003] 7 SCC 197. B In Director of Settlements, _A.P. and Ors .._ v. _MR. Apparuo and Anr.,_ [2002] 4 sec 638, it was held . ## c " ...... An _obiter dictum_ as distinguished from ratio _decidendi_ is an observation of the court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such a obiter may not have binding precedent but it cannot be denied that it is of considerable weight... .. " .. We may usefully refer to an observation of Delvin J. made in _Behrens_ v. _Pertramun Mills,_ (1957) 2 QB 25, which is in the following terms: D E F ·· .... if the Judge gives two reasons for his decisions, both are binding. It is not permissible to pick out one as being.supposedly the better reason and ignore the other one; nor does it matter for this purpose which comes first and which comes second. But the practice of making judicial observation _obiter_ is also well established. A judge may often give additional reasons for his decision without wishing to make them part of the _ratio decidendi;_ he may not be sufficiently convinced of their cogency as to want them to have the full authority of the precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will start with some guidance. This is the matter which judge himself is alone capable of deciding, and any judge who comes after him must ascertain which course he has adopted from the language used and not by consulting his own preference." Although the said observation of Delvin J. has been subjected to some criticism, it throws some light on the subject; but may not be treated to be G an authority. We are satisfied that the observations made in _Namdi Francis Nwuzor_ (supra) is merely an obiter and does not constitute a ratio _decidendi._ The three-judge Bench of this Court in _Puwan Kumar_ (supra), therefore, correctly H distinguished the same. It was, thus, not necessary for the Bench to follow ST A TE OF HAR Y ANA _v._ RANBJR@RANA [S.B. SINHA, J.) 871 the judgment of a coordinate bench in _Pawan Kumar_ (supra) as was argued by the learned counsel. ' For the reasons aforementioned, the impugned judgment cannot be sustained. The judgment of the High Court is, therefore, set aside and that of the learned Sessions Judge is restored. The appeal is accordingly allowed. K.K.T. Appeal allowed.