B. C. PATEL, J. ( 1 ) A Division Bench of this Court, while hearing Criminal Appeal No. 815/90 wherein the accused is convicted for an offence punishable under provisions of narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the ndps Act"), has referred the following question to the larger Bench : "whether search of the bags carried by the appellant should be regarded as search of the person of the appellant or not within the meaning of Sec. 50 of the NDPS Act ?" ( 2 ) SECTION 50 of the NDPS Act reads as under :"50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41. Sec. 42 or Sec. 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted officer of any of the departments mentioned in Sec. 42 or to the nearest magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-sec. (1 ). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. ( 3 ) WHILE hearing Criminal Appeal No. 407/71, attention of the Division Bench was drawn to a question referred to the Larger Bench and, therefore, the aforesaid appeal is also placed along with Criminal Appeal No. 815/90. ( 4 ) (I) In Criminal Appeal No. 815/90, Appellant-accused was tried for an offence punishable under Sec. 20 (b) (ii) of the NDPS Act and for an offence punishable under sec. 66 (1) (b) of the Bombay Prohibition Act, 1949 by learned City Civil and Sessions judge. Ahmedabad in Sessions Case No. 62 of 1990 and on appreciation of evidence, the learned Additional Sessions Judge recorded an order of conviction and sentenced the accused appellant to undergo rigorous imprisonment of ten years and to pay a fine of Rs. 66 (1) (b) of the Bombay Prohibition Act, 1949 by learned City Civil and Sessions judge. Ahmedabad in Sessions Case No. 62 of 1990 and on appreciation of evidence, the learned Additional Sessions Judge recorded an order of conviction and sentenced the accused appellant to undergo rigorous imprisonment of ten years and to pay a fine of Rs. 1 lakh (in default of payment of fine, further rigorous imprisonment for two years) for an offence punishable under Sec. 20 (b) (ii) of the NDPS Act and to undergo rigorous imprisonment for two months and to pay a fine of Rs. 500/- (in default of payment of fine, further rigorous imprisonment for 15 days) for an offence punishable under Sec. 66 (1) (b) of the Bombay Prohibition Act, 1949, by an order dated 20th August, 1990. 4. (ii ). The appellant has challenged the aforesaid order of conviction and sentence by preferring the aforesaid appeal under Sec. 374 of the Criminal Procedure Code. 4. (iii ). On December, 1989, Inspector of Police, Maninagar Police Station received an information about a delivery to be affected of Narcotic drugs (Charas) at about 2. 00 p. m. After following the formalities of recording the complaint, calling the panchas, etc. , a watch was arranged near Shahalam Darwaja and the person whose description was given, was found approaching the road. The said person was accosted by the members of the raiding party and was found carrying two bags, one made of black rexine and another of cloth. The person disclosed his name and on search being carried out, it resulted in recovery of Charas weighing about 20 kgs and 745 gms. Offending article, viz. , Charas, thereafter was seized in the presence of Panchas; the offending article was sealed as per panchanama. The sealed packets were forwarded to Forensic Science Laboratory for analysis. On receipt of the report indicating that substance examined was found to be charas, the accused appellant came to be prosecuted for the aforesaid offences. On appreciation of evidence, the learned Trial Judge recorded an order of conviction. 4. (iv ). The sealed packets were forwarded to Forensic Science Laboratory for analysis. On receipt of the report indicating that substance examined was found to be charas, the accused appellant came to be prosecuted for the aforesaid offences. On appreciation of evidence, the learned Trial Judge recorded an order of conviction. 4. (iv ). Before the Division Bench, it was submitted that before the search was carried out, more particularly of the two bags, the appellant was not informed that he has the right to be searched in the presence of a Gazetted Officer or a Magistrate, and thus, there was violation of mandatory provisions contained in Sec. 50 of the NDPS Act. Reliance was placed by the appellant on the decision of the Apex Court in the case of State of Punjab vs. Balbir Singh, reported in AIR 1994 SC 1872 . Reliance was also placed on the decision dated February 9, 1995 in the case of Alok Badridas Agarwal vs. EM. Bhatt, superintendent of Central Excise and Anr. , decided by a Division Bench of this Court (Criminal Appeal No. 321/90) and on a decision in the case of Michael Gorden Kingsbury vs. Narcotic Control Bureau, reported in III (1994) CCR 1572. 4. (v ). It appears that on behalf of the prosecution, attention of the Division Bench was drawn to the decision of the Apex Court in the case of Sunder Singh vs. State of U. P. , reported in AIR 1956 SC 411 wherein the Court held that Sec. 103 of the Code of criminal Procedure (Sec. 100 of Cr PC 1973) is not applicable when shoes of an accused are searched because it cannot he termed as search of a person. According to the learned counsel for the prosecution arguing the matter before the Division Bench, this was not brought to the notice of the Court. Learned Public Prosecutor also placed reliance on the decision before the Division Bench in the cases of (i) S. Rajan vs. State, Asstt. Collector, customs, (Intelligence) Madurai, reported in 1995 Cr LJ 1584, (ii) Alhaji Kolawole adenola vs. State of Maharashtra, reported in 1994 (1) Prevention of Food Adulteration cases 274. and, (iii) Ramji Duda Makwana vs. State of Maharashtra, reported in 1994 Cr lj 1987. 4. (vi ). Collector, customs, (Intelligence) Madurai, reported in 1995 Cr LJ 1584, (ii) Alhaji Kolawole adenola vs. State of Maharashtra, reported in 1994 (1) Prevention of Food Adulteration cases 274. and, (iii) Ramji Duda Makwana vs. State of Maharashtra, reported in 1994 Cr lj 1987. 4. (vi ). Considering the decision in the case of Sunder Singh (Supra) wherein the view taken is that search of shoes worn by the accused cannot be said to be a search of his person, and, therefore, Sec. 103 of the Cr PC cannot be said to be applicable, the Division bench was of the opinion that it is a highly debatable matter whether search of a bag or suitcase being carried by accused can be regarded as body search of the accused. The division Bench was also of the view that two Division Benches of the Bombay High court has taken the view that search of hand baggage of accused is not personal search of the accused, and, therefore, Sec. 50 of the NDPS Act would not be attracted when search is made of hand baggage of the accused. Rightly, the Division Bench was of the view that the decisions have persuasive value, and they are entitled to great weight. The Division bench was of the view that the point whether search of a thing being carried by an accused or not is not specifically considered by the Supreme Court in the case of Ali mustaffa vs. State of Kerala, reported in AIR 1994 SC 244 . The Division Bench also observed that it has been emphasised by the Apex Court in several decisions that judgment in a case is only an authority for what it was actually decided and not logically follows from it, it is under this circumstances that the Division Bench was of the view that the question whether the case of Ali Mustafa (Supra) can be regarded as an authority for proposition that search of bag of accused would be search of person of accused or not, and that needs consideration. It is under these circumstances that the aforesaid question has been referred to the Larger Bench and in view of the question being referred to a Larger bench in one matter, the other matter being Criminal Appeal No. 407/97 is also placed along with the matter. ( 5 ) 5 (I ). It is under these circumstances that the aforesaid question has been referred to the Larger Bench and in view of the question being referred to a Larger bench in one matter, the other matter being Criminal Appeal No. 407/97 is also placed along with the matter. ( 5 ) 5 (I ). In the case of Ali Mustafa vs. State of Kerala, reported in AIR 1994 SC 244 , facts were as under :5. (ii ). On 12. 10. 1988 at about 11. 15 p. m. the appellant Ali Mustaffa was found in possession of 780 gms. of Charas in the First Class Waiting Room of the Railway Station at Quilon. On receipt of reliable information, the raiding party went to the platform where pw-1 was on patrol duty. Both PW-1 and PW-6 went to the First Class Waiting Room; the appellant was found sitting there with a bag. On suspicion, he was questioned by pw-1 and PW-6. The appellant took out a small packed of Charas from his bag and handed it over to PW-6. On further questioning and search, PW-6 recovered three big packets of Charas from the bag which was in possession of the appellant. Thus, in case of ali Mustafa (Supra), the appellant was found sitting at the place with a bag which contained contraband material. ( 6 ) IN the case of State of Punjab vs. Balbir Singh, (Supra) the Apex Court, in sub-para 5 of paragraph 26 at page 1888 held as under :"on prior information, the empowered officer or authorised officer while acting under Sec. 41 (2) or 42 should comply with the provisions of Sec. 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a magistrate as provided thereunder. It is obligatory on the part of such Officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted officer or the Magistrate, would amount to non-compliance of Sec. 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. " ( 7 ) (I ). After being so informed whether such person opted for such a course or not would be a question of fact. " ( 7 ) (I ). In the case of Sunder Singh (Supra), the prosecution relied on circumstantial evidence, viz. , seizure of the shoes worn by the appellant found to be stained with human blood as reported by Serologist. Before the Apex Court it was argued that seizure of the blood-stained shoes by the Sub- Inspector was not free from doubt, as the witnesses in whose presence the seizure was affected were not respectable inhabitants of the locality. 7. (ii ). In para 4 of the decision in the case of Sunder Singh, the facts narrated are under:"sub-INSPECTOR Ishtiaq Ahmed (PW-16) arrived at the spot and started investigation. After holding the inquest and sending the dead body for post-mortem examination, he noticed blood marks on the shoes of the appellant who was with him during the investigation. He formally arrested him at about 3. 00 p. m. and interrogated him. He took possession of his shoes in the presence of two rickshaw drivers whom he picked up on the road and prepared the seizure list (Exh. p. 8) of the shoes (E. VIII ). 7. (iii ). In para 8 of the judgment, the Apex Court noted the submission made on behalf of the appellant that the seizure of the blood-stained shoes by the Sub-Inspector was not free from doubt as the witnesses who are said to have witnessed the seizure were not respectable inhabitants of the locality in which the place to be searched is situate as required by Sec. 103 of the Cr PC. The Apex Court held that :"section 103 would not apply to seizure of the shoes which were being worn by the accused at the time he was with the Investigating Police Officer. The section applies when a search is to be made of a place. It does not apply to the search of a person. In this case, the Sub-Inspector saw the accused putting on the pair of shoes and he seized them. There is no question of search of a place or person. " ( 8 ) 8 (I ). So far as word "search" is concerned, it is necessary to consider the exact meaning of it. In this case, the Sub-Inspector saw the accused putting on the pair of shoes and he seized them. There is no question of search of a place or person. " ( 8 ) 8 (I ). So far as word "search" is concerned, it is necessary to consider the exact meaning of it. As per the Random House Dictionary of the English Language, College edition, search means : (I) to go or look through (a place, area, etc.) carefully in order to find something missing or lost, (II) to look at or examine (a person, object, etc.) carefully in order to find something concealed : The police searched the suspect for the missing gems; (III) to explore or examine in order to discover : he searched the hills for gold; (iv) to look at, read or examine (a record, writing, collection, repository, etc.) for information. He searched the courthouse for a record of the deed to the land, (v ). . . . . (vi ). . . . . . (vii), to inquire, investigate, examine or seek; conduct an examination or investigation. 8. (ii ). Corpus Juris Secundum, Volume LXXIX (79 C. J. S. "searches and Seizures" $ 1 explains as : "the term "search", as applied to searches and seizures is an examination of a mans house, building or premises or of his person, with a view to the discovery of the contraband or illicit or stolen property or some-evidence of guilt to be used in the prosecution of a criminal action for some crime or offence with which he is charged. " however, when it is matter of mere looking at that which is open to view is not a search. 8. (iii ). Thus, "search" is a process where a person has to be examined carefully or thoroughly. It requires acute observance or penetration. Search requires careful examination and not merely taking an article in custody. It does not apply to a case when an article is merely seized at a look. ( 9 ) (I ). 8. (iii ). Thus, "search" is a process where a person has to be examined carefully or thoroughly. It requires acute observance or penetration. Search requires careful examination and not merely taking an article in custody. It does not apply to a case when an article is merely seized at a look. ( 9 ) (I ). Section 100 (3) of the Criminal Procedure Code, 1973 reads as under:"where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. "9 (ii ). Thus it is clear that even a person may be searched if it is reasonably suspected that the article has been concealed by him, and if the person to be searched is a woman, the search is to be made by another woman with strict regard to decency. ( 10 ) IN the case of Sunder Singh (Supra), the Section was not made applicable as there was no question of search. The Sub- Inspector saw the accused putting on the pair of the shoes and he seized them, and there was no question of search either of a place or a person. Thus in the case of Sunder Singh (Supra) there was no question of search of a person or place. ( 11 ) (I ). In case of Namdi Francis Nawazor vs. Union of India and Anr. , reported in [1 (1997) CCR 27 (SC) (Criminal Appeal No. 3688 of 1995 decided on 27. 2. 1996)]. the apex Court considered that Sec. 50 would be attracted to a handbag or like if the person is carrying with him containing incriminating articles. In that case, a Nigerian national was leaving India on 23. 6. 1987 by Air India flight from Delhi to Lagos via Bombay. He had reported for customs clearance at the airport; however, a team of the Narcotic Control bureau present at the Airport suspected the petitioner and decided to check his baggage. The petitioner was first asked whether he was carrying any narcotic or contraband goods and on his refusal, his luggage was searched. At the point of time when the actual search took place, he was carrying two handbags but nothing incriminating was found therefrom. The petitioner was first asked whether he was carrying any narcotic or contraband goods and on his refusal, his luggage was searched. At the point of time when the actual search took place, he was carrying two handbags but nothing incriminating was found therefrom. He had however booked one bag which had already been checked in and was lodged in the air craft by which he was supposed to travel. This bag was called to the customs counter of the Airport for examination. On examination it was found that it contained 153 cartons of Tetanus vaccine. On being opened it was found that 152 cartons contained ampules whereas the remaining one carton carried polyethylene packs containing brown coloured powder packed with adhesive tapes. It weighed about 180 gms. and since it was suspected to be heroine, it was seized under a panchnama. The Trial Court, after following the formalities, framed charge against the petitioner and the Trial Court, after examining the evidence on record found the petitioner guilty under Secs. 21 and 23 read with Sec. 28 of the NDPS Act and convicted him thereunder. 11. (ii ). At the stage of issuance of notice on the Special Leave Petition, the question was confined to the non-compliance of Sec. 50 of the Act only. Apex Court in paragraph 3 of the judgment held that"on a plain reading of Sub-sec. (1) of Sec. 50, it is obvious that it applies to cases of search of any person and no 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-sec. (4) of Sec. 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 female. Such a restriction would not be necessary for searching the goods of female which are lying at a distant place at the time of search. Such a restriction would not be necessary for searching the goods of 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 article was not being carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying a handbag or like and the incriminating article is found therefrom; it would still he a search of the person of the accused requiring compliance with Sec. 50 of the Act. 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, in criminating articles are found therefrom it cannot attract the requirements of Sec. 50 of the Act for the simple reason that it was not found on the accused person. "11. (iii ). Thus, the Apex Court has in clear terms held that if the article is being carried by a person, namely, a handbag or like, and the incriminating article is found therefrom, then it would be still considered a search of the person of the accused requiring compliance of Sec. 50 of the Act. In view of the law laid down by the Apex Court in case of Namdi Francis Nawazor (Supra) and in case of Ali Mustafa, it is clear that search of a person would mean not necessarily a search of a person only but will also include search of article carried by him such as a handbag or like. ( 12 ) (I ). Before the Division Bench in the case of Alok Badridas Agarwal (Supra) the question as to whether search of the suit case from which contraband substance was found can be said to be search of the person of the accused or not was considered. While considering this question, the Division Bench has placed reliance on the decision of the apex Court in the case of Ali Mustaga (Supra ). While considering this question, the Division Bench has placed reliance on the decision of the apex Court in the case of Ali Mustaga (Supra ). Before the Division Bench in the case of alok Badridas (Supra), a question was raised which is dealt with by the Bench as under:"a question may arise as to whether the search of the suit case can be said to be the search of the person of accused No. 1 or not. The answer is given by the Supreme Court in the case of Ali Mustaffa Abdul Rahman Moose vs. State of Kerala, (AIR 1955 SC 244 ). There, the Supreme Court, after referring to the cases of Balbir Singh (Supra), has held that the failure to provide the option to the accused as to whether he would like to be searched in the presence of Gazetted Officer vitiates his conviction. 12. (ii ). Before reaching the first class waiting room at the railway station, PW-6 had received information that a foreigner was sitting with Charas at the railway station. The appellant was thereafter spoted and subjected to search and from his possession already 780 grams of Charas was seized, undoubtedly, before the search of the appellant was made, he was not given any option as to whether he desired to be searched in the presence of a Gazetted Officer or a Magistrate as envisaged by Sec. 50. ( 13 ) (I ). Before the Division Bench, in the case of Alok Badridas Agarwal (Supra), siddarath Palace Hotel came to be raided and in Room No. 111 accused No. 1 was found who was asked about his receptacles and he produced two suit cases, and o. i being asked to open the same, the contraband articles were found and the Court held :"therefore, search of the suit case possessed by Accused No. 1, in our opinion, in view of the judgment in the case of Ali Mustafa (Supra), was the search of the person of the accused. Before the person of the accused No. 1 was searched PW-1 was required to give him option as required under Sec. 50 of the NDPS Act. Admittedly, he has not given such option. Therefore, the search of Accused No. l is in contravention of provisions of Sec. 50 of NDPS act. "13. (ii ). From the judgment it appears that at the time of raid, accused Nos. Admittedly, he has not given such option. Therefore, the search of Accused No. l is in contravention of provisions of Sec. 50 of NDPS act. "13. (ii ). From the judgment it appears that at the time of raid, accused Nos. 1, 2 and 3 were in the room. Their person was searched. Their belongings were searched and on search of the belongings, namely, suitcase of accused No. 1, two packets containing brown sugar were found. 13. (iii ). Division Bench relying on the law laid down by the Apex Court on facts held that PW-1 has not complied with any of the requirements of Sec. 41 (2), 42 (2) or sec. 50 of the NDPS Act which vitiated the trial. So far as breach of Sec. 50 in the case before the Division Bench in case of Alok Badridas Agarwal (Supra) is concerned, the absence of positive material that the bag was in the hand or on shoulder or like it cannot he said that was also a search of a person. In our opinion, in view of the Apex Courts judgments in the case of Ali Mustafa (Supra) and Namdi Francis Nawazor vs. Union of india and Anr. , reported in 1 (1997) CCR 27 (SC) (Criminal Appeal No. 3688/95 decided on 27. 2. 1996) when a person is carrying a handbag or like i. e. , while sitting the bag is with him and not at a distant place, or person is in physical custody of a container, Sec. 50 of the NDPS Act will apply insofar as search of article is concerned, and not otherwise. In Alok Badridass case (Supra), from the belonging of accused No. 1 namely a suit case, two packets of contraband articles were recovered. In Alok Badrinath case the Division Bench, has on facts said in that case that the accused No. 1 was asked about his receptacles and he produced two suit cases found to contain brown sugar. It was not the case that he was with the bags but on asking he produced the bags. In our opinion, bags which were produced by accused No. 1 were not in physical custody of accused No. 1 at the time of the raid so as to attract Sec. 50. It was not the case that he was with the bags but on asking he produced the bags. In our opinion, bags which were produced by accused No. 1 were not in physical custody of accused No. 1 at the time of the raid so as to attract Sec. 50. So far as the view taken on facts in the case of Alok Badridas (Supra) with regard to applicability of Sec. 50 of the ndps Act is concerned, with respect to the learned Judges of the Division Bench, we are of the view that as the articles searched were not found on the person of the accused or the articles searched were not with the accused, provisions contained in Sec. 50 of the NDPS act cannot be attracted. ( 14 ) IN view of the above, our answer to the question referred to the Larger Bench must be that"the search of the bag carried by the appellant should be regarded as search of the person of the appellant within the meaning of Sec. 50 of the NDPS Act". ( 15 ) IN view of the answer given hereinabove the papers may be placed before the honourable the Chief Justice for placing it before the appropriate Division Bench for hearing the Criminal Appeals. .