Recovery From Bag Carried By Accused Does Not Attract Mandatory Compliance Of Section 50 NDPS Act: Kerala High Court

The Court observed that where recovery is made from a source other than the body of the accused, non-compliance with Section 50 of the NDPS Act would not vitiate the prosecution case.

The Court was hearing a criminal appeal filed by a woman convicted under Section 21(b) of the NDPS Act for possession of 25.400 grams of brown sugar allegedly recovered from plastic packets carried by her in a bag.

A Bency of Justice A. Badharudeen, while referring to the Apex Court’s ruling in Ranjan Kumar Chadha v. State of Himachal Pradesh (2023), observed: “Any recovery made from source other than the body would not warrant compliance of Section 50 of the NDPS Act and non-compliance necessarily is of no significance in such cases.”

Further, while referring to State of Punjab v. Baldev (1999), the Bench observed: “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.”

Senior Public Prosecutor Alex M. Thombra appeared for the State.

Background

The prosecution's case was that police officials received secret information regarding the sale of brown sugar by the accused near her residence at Kozhikode.

Acting upon the information, the police party proceeded to the location and allegedly found the accused standing near the by-lane road in front of her house, carrying a plastic bag.

According to the prosecution, when the accused noticed the police party, she attempted to flee and conceal the plastic bag. She was immediately intercepted, and the plastic bag carried by her was searched in the presence of a woman police officer.

During the search, the police allegedly recovered brown sugar packed in multiple small plastic covers and two long packets. On weighing, the total contraband was found to be 25.400 grams.

The Special Court under the NDPS Act convicted the accused under Section 21(b) of the NDPS Act and sentenced her to rigorous imprisonment for four years along with a fine.

Before the High Court, the principal challenge raised by the appellant was that mandatory safeguards under Section 50 of the NDPS Act had not been complied with, and therefore, the entire prosecution stood vitiated.

Court’s Observation

The High Court examined the scope and applicability of Section 50 of the NDPS Act in detail.

The Court reproduced the statutory provision and observed that the legislative intent behind Section 50 clearly indicates that the provision applies only where an authorised officer is about to conduct “search of any person” under Sections 41, 42 or 43 of the NDPS Act.

The Bench observed that the phraseology employed in Section 50 makes it evident that the safeguard is confined to personal search and does not extend to search of bags, containers, articles or other objects carried by the accused.

The Court extensively relied upon the Supreme Court judgment in Ranjan Kumar Chadha v. State of Himachal Pradesh (2023), wherein the Apex Court had considered earlier Constitution Bench precedents, including State of Punjab v. Baldev Singh (1999).

Referring to Baldev Singh, the Court noted that the Constitution Bench had specifically held that Section 50 applies only to the personal search of the accused and not to the search of baggage or containers carried by the accused.

The High Court quoted the Supreme Court’s observation that, “The emphasis laid by the Court is on illicit articles seized from the ‘person of an accused’ during the search conducted in violation of safeguards provided in Section 50 of the NDPS Act.”

The Court also referred to the principles summarised by the Supreme Court in Ranjan Kumar Chadha regarding communication of rights under Section 50 and waiver thereof.

The Bench noted that the Supreme Court had clarified that while oral communication of rights under Section 50 may be sufficient, any waiver by the accused should preferably be reduced into writing to lend authenticity and transparency to the search proceedings.

Applying these principles to the facts of the case, the High Court found that the contraband was not recovered pursuant to a body search of the accused but from plastic bags carried in her hand.

The Court observed: “In the instant case, as found by the learned Special Judge, recovery was not on the basis of body search and it was from the plastic bags carried by the person and therefore Section 50 has no application.”

The Court additionally noted that even otherwise, the prosecution had produced Ext.P2 showing that the accused had waived her right to be searched before a Gazetted Officer or Magistrate.

The Bench thereafter examined the evidence of the detecting officer, the woman police officer who assisted in the search, independent witnesses, seizure mahazar, forwarding notes and chemical analysis reports.

The Court found that the prosecution had successfully established conscious possession of brown sugar by the accused and that the quantity recovered fell within the category of quantity lesser than commercial quantity but greater than small quantity punishable under Section 21(b) of the NDPS Act.

While sustaining the conviction, the Court took a lenient view on sentence and reduced the substantive imprisonment from four years to two years rigorous imprisonment while maintaining the fine imposed by the trial court.

Conclusion

The Kerala High Court upheld the conviction of the accused under Section 21(b) of the NDPS Act, holding that non-compliance with Section 50 was not fatal since the contraband was recovered from a plastic bag and not through personal body search.

The Court partly allowed the appeal only to the extent of reducing the sentence from four years rigorous imprisonment to two years rigorous imprisonment while maintaining the conviction and fine.

Cause Title: Bichathu v. State of Kerala (Neutral Citation: 2026:KER:39133)

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