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TMI Blog2013 (5) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation to S.K. Tigga, Dy. Superintendent of Police, Crime Branch, Bilaspur. Thereafter, he proceeded for the house of the appellant along with ASI, Kujur and other police personnels. They reached the house of the appellant and called witnesses Sukhdas (P.W. 4) and Mulchand Sharma (not examined). Sub-Inspector, R.C. Trivedi (P.W. 8) informed the witnesses about the mukhbeer suchana and they entered the house of the appellant. The appellant was present in the house. The appellant was informed about her legal rights under Section 50 of the Act, 1985 and consent of the appellant regarding search was recorded vide Exh. P-7. Thereafter, he searched the house of the appellant. The appellant concealed the ganja in the basement of her house under the chips. After removing the chips, 16 plastic bags were found. The bags were filled with ganja like substance. Identification of the articles was conducted vide Exh. P-15. Thereafter, panchnama was prepared vide Exh. P-16 and recovery memo was prepared vide Exh. P-12. Ganja was weighed on the spot vide Exh. P-14. Samples of the seized ganja were prepared separately, ganja was sealed vide Exh. P-16 on the spot. The appellant was arrested vide Exh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asad (P.W. 10). ( 5. ) NOW , 1 shall examine whether provision of Section 42 of the Act, 1985, has been substantially complied with or not ? ( 6. ) SUB -Inspector, R.C. Trivedi (P.W. 8) deposed that on 28-4-04, he was posted as Sub-Inspector in Crime Branch, Bilaspur. On that day, he received secret information from mukhbeer that the appellant had ganja in her possession and was engaged in selling the same. He recorded mukhbeer suchana panchnama vide Exh. P-21 and also entered the information in Rojnamcha Sanha No. 246 (Exh. P-25) and its copy (Exh. P-25C). He transmitted the said information to S.K. Tigga, Dy. SP, Crime Branch, Bilaspur. Constable, Ashok Chourasiya (P.W. 2) deposed that on 28-4-2004, he was posted as Constable in Crime Branch, Bilaspur. He further deposed that mukhbeer suchana panchnama was recorded by Sub-Inspector, R.C. Trivedi (P.W. 8), and thereafter, they proceeded for Bilha along with S.K. Tigga, Dy. SP, Crime Branch, Bilaspur. ( 7. ) LOOKING to the evidence of Sub-Inspector, R.C. Trivedi (P.W. 8), Constable Ashok Chourasiya (P.W. 2) and Exh. P-21, it appears that Sub-Inspector, R.C. Trivedi (P.W. 8) received secret information and recorded the same vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly, in the case of Megh Singh Vs. State of Punjab, (2003) 8 SCC 666, this Court observed that :- 'A bare reading of Section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises.' The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh Vs. Pawan Kumar, (2005) 4 SCC 350. In Paragraphs 10 and 11, this Court observed as follows :- '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 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extend to search of a vehicle or a container or a bag or premises. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicle or articles. The position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172. ( 13. ) IN view of the above settled legal position, Section 50 of the Act, 1985, would not be applicable when search is made of a house or a vehicle or a container or a bag or premises. In the instant case, the search was made in the house of the appellant, therefore, Section 50 of the Act, 1985 would not be applicable. ( 14. ) LEARNED Counsel for the appellant argued that the evidence of Sub- Inspector, R.C. Trivedi (P.W. 8) was not supported by independent witnesses. The seized articles were not sealed on the spot and samples were not taken on the spot, therefore, provisions of Section 55 of the Act, \ 985, is not complied with, therefore, conviction of the appellant cannot be based on the evidence of Sub-Inspector, R.C. Trivedi (P.W. 8). Sub-Inspector, R.C. Trivedi (P.W. 8) deposed that he reached the house of the appellant and searched the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere sent to Forensic Science Laboratory, Raipur for chemical examination through Constable 225 Chandrapal. Its acknowledgment is Exh. P-24 and FSL report is Exh. P-32. Sub-Inspector, R.C. Trivedi (P.W. 8) did not mention about preparation of samples. He simply deposed that he seized ganja vide Exh. P-16. Even in dehati nalishi (Exh. P-21), it was not mentioned about the preparation of the samples, but was only mentioned that 67.400 kg. ganja was seized. In the seizure memo, it is mentioned that 16 bags, SI. Nos. 1 to 16 containing (1) 4.200 kg., (2) 3.300 kg., (3) 5.500 kg., (4) 5 kg., (5) 4 kg., (6) 5.300 kg., (7) 4 kg., (8) 2.200 kg., (9) 3.300 kg., (10) 4.300 kg., (11) 3.200 kg., (12) 3.300 kg., (13) 6 kg., (14) 3.300 kg., (15) 5.300 kg., (16) 6.400 kg., total weighing 67.400 kg., including the bags. In the seizure memo, it is not mentioned that the samples were prepared on the spot. In Exh. P-30, it is mentioned thathttp:// ( 17. ) HEAD Constable, Ashok Chourasiya (P.W. 2) deposed that recovered ganja was sealed on the spot, but he did not state in his deposition that the samples were prepared on the spot. ( 18. ) LOOKING to the evidence of Sub-Inspector, R.C. Trivedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les had remained intact till its examination in FSL, this being a mandatory requirement to establish the fact that seized goods was in fact a prohibited drug under the NDPS Act. ( 21. ) IN the instant case, it is established that when Constable, Chandrapal Khande (P.W. 7) took the samples to FSL for chemical examination and at that time, samples were not in sealed condition. It is also established that samples were not prepared when the ganja was seized and it was prepared after 1-1/2 months of the seizure of ganja. There is no evidence to explain the delay regarding preparation of the samples. The prosecution did not establish that the seized ganja was kept in safe custody. There is also no evidence to explain the custody of samples during this period and delay in submitting the samples at FSL. Therefore, the report of FSL (Exh. P-32) cannot form basis of conviction of the appellant under Section 20 (b) of the Act, 1985. In view of the above, the impugned judgment deserves to be set aside. ( 22. ) IN the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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