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Yasihey Yobin And Another v. Department Of Customs, Shillong .
Factual and Procedural Background
The Customs Department, acting on information from the Special Operation Team of the Meghalaya Police, searched the residence of Accused 1 (Yasihey Yobin). Although no heroin was found on Accused 1, it was recovered from Accused 2 (Lisihey Ngwazah) after Accused 1 instructed his wife to summon Accused 2 with the bag containing the contraband. Samples tested positive for heroin.
Both accused were tried before the Special Court (NDPS), which convicted them under Sections 8(c) and 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Accused 1 received 13 years’ rigorous imprisonment and a fine of ₹1 lakh; Accused 2 received 10 years’ rigorous imprisonment and the same fine. The High Court at Guwahati (Shillong Bench) affirmed the convictions and sentences in Criminal Appeal No. 5(SH) of 2006. The present Supreme Court appeal challenges that affirmance.
Legal Issues Presented
- Whether the search and seizure violated Section 50 of the NDPS Act because the Customs Officers did not inform the accused of their right to be searched before a Gazetted Officer or Magistrate.
- Whether the search violated Section 42 of the NDPS Act due to non-compliance with its procedural requirements.
- Whether alleged discrepancies in the investigation rendered the conviction unsafe.
- Whether the sentence imposed on Accused 1 warranted reduction owing to age and ill-health.
Arguments of the Parties
Appellants’ Arguments
- Search of Accused 2’s bag without complying with Section 50 rendered the seizure illegal.
- Customs Officials failed to comply with Section 42 during the residential search of Accused 1.
- Recovery was not effected from the personal possession of Accused 1.
- Investigation contained material discrepancies undermining the prosecution case.
- Sentence of Accused 1 should be reduced in light of age and medical ailments.
Respondent’s Arguments
- Both courts below correctly held Section 50 inapplicable because only the bag, not the person, was searched.
- Section 42 did not apply since the search was conducted by a Gazetted Officer, bringing it within Section 41(2).
- Convictions are supported by consistent evidence; alleged discrepancies are not fatal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Haryana v. Suresh (2007) 15 SCC 186 | Section 50 applies only to personal search, not to bags or containers. | Used to affirm that searching Accused 2’s bag did not trigger Section 50 safeguards. |
| State of H.P. v. Pawan Kumar (2005) 4 SCC 350 | Distinction between search of a person and of an article carried. | Court relied on this to conclude the bag was separate from the “person.” |
| State of Punjab v. Baldev Singh (1999) 6 SCC 172 (Constitution Bench) | Scope of Section 50 limited to personal search. | Reaffirmed foundational principle limiting Section 50’s reach. |
| Megh Singh v. State of Punjab (2003) 8 SCC 666 | Section 50 inapplicable to search of premises, vehicles, or articles. | Supported the view that bag search did not need Section 50 compliance. |
| Namdi Francis Nwazor v. Union of India (1998) 8 SCC 534 | “Inextricable connection” test to decide if article search equals personal search. | Applied to hold the bag was not inextricably connected to Accused 2’s person. |
| Union of India v. Satrohan (2008) 8 SCC 313 | Search by a Gazetted Officer is under Section 41; Section 42 compliance unnecessary. | Answered the Section 42 objection against the Customs search. |
| State of Punjab v. Balbir Singh (1994) 3 SCC 299 | Earlier view on Sections 41–43 obligations. | Cited but distinguished as not governing a Gazetted Officer’s search. |
| Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 | Procedural safeguards under Section 42. | Held inapplicable owing to officer’s Gazetted status. |
| Beckodan Abdul Rahiman v. State of Kerala (2002) 4 SCC 229 | Section 42 requirements. | Similarly found not controlling in the present facts. |
| M. Prabhulal v. Assistant Director, DRI (2003) 8 SCC 449 | Gazetted Officer’s search falls outside Section 42. | Reinforced rejection of Section 42 argument. |
| Mohd. Hussain Farah v. Union of India (2000) 1 SCC 329 | Empowered nature of Gazetted Officer dispenses with Section 42 compliance. | Provided additional authority for the court’s view. |
Court's Reasoning and Analysis
1. Section 50 issue: Both lower courts found—and the Supreme Court agreed—that only Accused 2’s bag was searched, not his person. Applying precedents such as Suresh, Pawan Kumar, and the Constitution Bench ruling in Baldev Singh, the Court held that Section 50 safeguards are triggered only by a personal search, not by inspection of detachable articles. The “inextricable connection” test from Nwazor was not satisfied because Accused 2 brought the bag from elsewhere before it was searched.
2. Section 42 issue: Relying on Union of India v. Satrohan and allied cases, the Court concluded that the search was conducted by a Gazetted Officer, thereby operating under Section 41(2). Consequently, the written-record requirements of Section 42 did not apply.
3. Alleged investigative discrepancies: The Court considered the points raised but found them minor and not fatal to the prosecution, noting concurrent factual findings of the two courts below on “conscious possession.”
4. Sentence modification: Given observations by the trial court regarding Accused 1’s age and ailments, the Supreme Court exercised discretion to reduce Accused 1’s imprisonment from 13 years to 10 years while maintaining the fine. No modification was granted to Accused 2.
Holding and Implications
Holding: The convictions of both appellants under Sections 8(c) and 21(c) NDPS Act are affirmed. The sentence of Accused 1 is reduced to 10 years’ rigorous imprisonment; the sentence and fine of Accused 2 remain unchanged. Both appellants must surrender within six weeks, and their bail bonds are cancelled. The appeal is DISPOSED OF.
Implications: The judgment reinforces two settled propositions: (i) Section 50 applies exclusively to personal searches, not to bags or containers, and (ii) searches conducted by Gazetted Officers fall under Section 41, obviating Section 42 compliance. The decision does not create new precedent but consolidates existing jurisprudence, and its immediate consequence is a modest sentence reduction for Accused 1.
Order
1. This appeal is directed against the judgment and order passed by the High Court of Judicature of Guwahati at Shillong Bench in Criminal Appeal No. 5 (SH) of 2006, dated 6-9-2007. By the impugned judgment and order, the High Court has affirmed the judgment and order passed by the Special Court (NDPS) in Criminal (NDPS) No. 26 of 2003.
2. The factual matrix of the case in brief is: the Inspector of Customs working in the office of the Commissioner of Customs, NER, Shillong, PW 11, received information from the Special Operation Team of Meghalaya Police that Yasihey Yobin, A-1, has stored huge quantity of heroin in his residence. On receipt of such information, PW 4 Inspector of Customs, PW 2 Inspector and PW 7 Superintendent of Police conducted search of the premises of A-1 in the presence of two other independent witnesses. In the course of search, the heroin though not recovered from A-1 but was recovered from Accused 2, Lisihey Ngwazah (A-2) at the instance of A-1, when A-1 instructed his wife to contact A-2 asking him to get the bag containing heroin. It is when A-2 turned up with the bag that the said bag containing contraband heroin was searched and seized from A-2 by the Customs Officials. Thereafter, necessary steps were taken to send the duly sealed samples for chemical examination to the forensic science laboratory and the reports tested positive for heroin.
3. The appellants were thereafter put to trial before the Special Court, NDPS. The trial court after appreciating the evidence on record has come to the conclusion that both the accused persons were in conscious possession of the said contraband substance and therefore convicted the appellants under Sections 8(c) and 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”, for short). Accordingly, Appellant 1 was convicted with rigorous imprisonment of 13 years along with a fine of Rs 1 lakh and in default, to undergo further imprisonment. Appellant 2 was convicted with rigorous imprisonment of 10 years along with a fine of Rs 1 lakh and in default, to undergo further imprisonment.
4. Being aggrieved by the judgment and order passed by the trial court, the appellants had filed appeals before the High Court. The High Court vide its impugned judgment and order affirmed the conviction and sentence so passed by the trial court. It is the correctness or otherwise of the judgment and order passed by the High Court which is called in question by the appellants in this appeal.
5. Shri Altaf Ahmed, learned Senior Counsel appearing for Accused 1 and 2 would strenuously contend that there is breach of Sections 50 and 42 of the Act while search and seizure of contraband substance by the Customs Officer and, therefore, the judgment and order passed by the trial court and so confirmed by the High Court requires to be taken exception to by this Court and in aid of his submission has also taken us through some of the decisions of this Court.
6. Per contra, Shri P.P Malhotra, learned Additional Solicitor General ably supports the judgment and order passed by the trial court and confirmed by the High Court.
7. At this stage, we intend to clarify that certain observations made by the High Court is not the correct legal position but that will not impair the complexion of this appeal.
8. Shri Altaf Ahmed would submit that there was no recovery of the contraband goods by the Customs Officer from the possession of Accused 1 and secondly, that when Accused 2 was searched, the officers of the Department had not complied with the provisions of Section 50 of the Act.
9. The trial court and the High Court while answering the aforesaid issues have concurrently come to the conclusion that Accused 2 was not searched by the Customs Officers but it was only the bag in possession of A-2 containing contraband which was searched and seized. The language employed “any person” under Section 50 of the Act would naturally mean a human being or a living individual unit and not an artificial person. It would not bring within its ambit any non-living creature viz. bags, containers, briefcase or any such other article. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be a part of the body of a human being. The scope and ambit of Section 50 was examined in considerable detail in State of Haryana v. Suresh (2007) 15 SCC 186, AIR 2007 SC 2245 and in a three-Judge Bench decision in State of H.P v. Pawan Kumar (2005) 4 SCC 350, wherein it is observed that when a person is not searched, only the bag, container or the suitcase is searched, the provisions of Section 50 cannot be pressed into service. The items like bag, briefcase, or any such article or container, etc. are not a part of a human being as it 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. In common parlance it could 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. but it is not possible to include these articles within the ambit of the word “person” defined in Section 50 of the Act.
10. This position in law is settled by the Constitution Bench in State of Punjab v. Baldev Singh (1999) 6 SCC 172, AIR 1999 SC 2378 and in Megh Singh v. State of Punjab (2003) 8 SCC 666, where application of Section 50 is only in case of search of a person as contrasted to search of premises, vehicles or articles. But in cases where the line of separation is thin and fine between search of a person and an artificial object, the test of inextricable connection is to be applied and then conclusion is to be reached as to whether the search was that of a person or not. The above test has been noticed in Namdi Francis Nwazor v. Union of India (1998) 8 SCC 534, wherein it is held that if the search is of a bag which is inextricably connected with the person, Section 50 of the Act will apply, and if it is not so connected, the provisions will not apply. It is 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 requirements of Section 50 of the Act for the simple reason that the bag was not found on the accused person.
11. In the instant case, the bag is brought by A-2 and the contents of the bag are taken out by him and given for search which is thereafter seized by the officials after having found contraband substance. In such a case the inextricable connection between the search of a person and the bag cannot be established but rather it is only the search of the bag and therefore the search and seizure conducted by the gazetted officer need not comply with the requirements under Section 50 of the Act.
12. Shri Altaf Ahmed would further contend that when the Customs Officers had searched and seized the contraband in the residence of Accused 1, the officers had not complied with the requirements of Section 42 of the Act.
13. The first impression of ours was that Shri Altaf Ahmed may be justified in canvassing the above proposition. But, on a deeper consideration and after looking into the decision of this Court in Union of India v. Satrohan (2008) 8 SCC 313, we see no merit in the contention canvassed. In the aforesaid decision it is stated as under:
“13. … ‘14. … It can, thus, be seen that Sections 42 and 43 do not require an officer to be a gazetted officer whereas Section 41(2) requires an officer to be so. A gazetted officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a gazetted officer. The High Court is, thus, right in coming to the conclusion that since the gazetted officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decision in State of Punjab v. Balbir Singh (1994) 3 SCC 299, Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 and Beckodan Abdul Rahiman v. State of Kerala (2002) 4 SCC 229 on the aspects under consideration or neither relevant nor applicable.’”
14. A perusal of Section 42 contemplates two situations. It contemplates entry into and search of any building, conveyance or enclosed place at any time between sunrise and sunset by an officer authorised under the Act with a reason to believe that any narcotic substance or any other controlled substance is kept or concealed in such premises; and secondly, if the search is made between the sunset and sunrise, the requirement of the proviso to Section 42 is to be complied with under which the officer authorised under the Act is to record the grounds of his belief. But if the search is made by an officer authorised under Section 41(2) of the Act then the said officer is said to be acting under Section 41(2) and therefore compliance under Section 42 is not necessary at all. This principle is reiterated in M. Prabhulal v. Directorate of Revenue Intelligence (2003) 8 SCC 449 and in Mohd. Hussain Farah v. Union of India (2000) 1 SCC 329, wherein it is observed that a gazetted officer is an empowered officer and so when a search is carried out in his presence and under his supervision, the provision of Section 42 has no application.
15. In view of the observation and the law laid down by this Court, since the search is conducted and the contraband is seized by a gazetted officer from the residential premises of A-1, the proviso to Section 42(1) of the Act is not attracted.
16. Before concluding, Shri Altaf Ahmed, would submit that there are serious discrepancies in the investigation done by the Customs Officers while conducting the search and seizure of the contraband from the possession of Accused 2 in the house of Accused 1. In our opinion, the so-called contradictions pointed out by the learned Senior Counsel are not fatal to the proceedings.
17. Shri Altaf Ahmed, would submit that the trial court in course of its order has observed that Accused 1 is old and is suffering from several ailments and therefore requests for modification of the sentence ordered by the trial court and so confirmed by the High Court. We see merit in the submission made by the learned Senior Counsel. Keeping this aspect in view, we modify the sentence of Accused 1 from 13 years to 10 years. However, insofar as the conviction of Accused 2 is concerned, we are not inclined to grant any remission and accordingly confirm the judgment and order passed by the trial court and so confirmed by the High Court and maintain the fine imposed on him. We further direct that the appellants will surrender after six weeks to serve out the remaining period of sentence. Their bail bonds stand cancelled.
18. The criminal appeal is disposed of accordingly. Ordered accordingly.
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