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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 ..... – Appellants Conviction order set-aside – Appeal allowed – Decided in favour of Appellant. - Criminal Appeal No. 59/2007 - - - Dated:- 10-5-2013 - RADHE SHYAM SHARMA, J. JUDGEMENT ( 1. ) THIS appeal is directed against judgment dated 8-1-2007 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth the Act, 1985 ), Bilaspur in Special Case No. 25/2004. By the impugned judgment, accused/appellant-Smt. Heeramani Sahu has been convicted under Section 20 (b) (ii) (c) of the Act, 1985 and sentenced to undergo rigorous imprisonment for ten years and to pay fine of ₹ 1,00,000/- in default of payment of fine, to further undergo rigorous imprisonment for one year. ( 2. ) CASE of the prosecution, in brief, is as under :- On 28-4-2004, Sub-Inspector, R.C. Trivedi (P.W. 8), was posted at Crime Branch, Bilaspur. On that day, he received information from mukhbeer that the appellant was having ganja in her possession for sale. He recorded mukhbeer suchana panchnama vide Exh. P-21 and also entered information in rojnamcha sanha 246 vide Exh. P-25. He transmitted the said information to S.K. Tigga, Dy. Superintendent of Police, Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the provisions of the sub-section (4) of Section 50 of the Act, 1985. She further argued that ganja was not sealed by Station House Officer before handing over to Malkhana. She further argued that the prosecution has not been able to establish that the house was in the exclusive possession of the appellant. Therefore, the appellant is entitled to be acquitted from the charges framed against her. ( 3. ) MR . Vinay Harit, learned Dy. Advocate General for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant interference by this Court. ( 4. ) HAVING heard the rival contentions of the parties, I have perused the record of Special Case No. 25/04. To prove the case, the prosecution examined ASI, Ithwa Kujur (P.W.1), Constable Ashok Chourasiya (P.W. 2), Revenue Inspector, Dileep Tiwari (P.W. 3), Sukhdas (P.W. 4), Gouri Shankar Wasnik (P.W. 5), Panchram (P.W. 6), Constable Chandrapal Khande (P.W. 7), Sub-Inspector, R.C. Trivedi - Investigating Officer (P.W. 8), Sub-Inspector, D.P. Singh (P.W. 9) and Head Constable, Lakshmi Prasad (P.W. 10). ( 5. ) NOW , 1 shall examine whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was informed that she has right to be searched before a Gazetted Officer or before a Magistrate. In Exh. P-7, it is mentioned that the appellant was ready to be searched by Sub-Inspector, R.C. Trivedi (P.W. 8). In the instant case, notice under Section 50 of the Act, 1985 was not given to the appellant. Bare perusal of Exh. P-7 would reveal that only consent of the appellant was obtained, but she was not informed about her legal rights under Section 50 of the Act, 1985. ( 11. ) NOW , I shall examine whether non-compliance of Section 50 of the Act, 1985 would be fatal to the case of the prosecution ? ( 12. ) IN Jarnail Singh Vs. State of Punjab, AIR 2011 SC 964, the Hon'ble Supreme Court observed as follows :- 12-A....... This Court in the case of Kalema Tumba Vs. State of Maharashtra, (1999) 8 SCC 257, discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows :- '......if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person.' Similarly, in the case of Megh Singh Vs. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some, extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance, it would 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. Therefore, it is not possible to include these articles within the ambit of the word 'person' occurring in Section 50 of the Act.' In Madanlal and another Vs. State of Himachal Pradesh, (2003) 7 SCC 465 and Megh Singh Vs. State of Punjab, (2003) 8 SCC 666, the Hon'ble Supreme Court observed that a bare reading of Section 50 of the Act, 1985 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms. of ganja from each bag and thereafter 32 samples, each containing 25 gms., were prepared and sealed and remaining ganja was also sealed and handed over to Malkhana Moharrir for safe custody and in that effect he made entry in the Rojnamcha Sanha No. 342 and he also prepared sample packet panchnama vide Exhs. P-18 and P-19 and also prepared panchnama regarding sealing of ganja. He further deposed that samples were sent to Forensic Science Laboratory, Raipur for chemical examination. ( 16. ) HEAD Constable, Lakshmi Prasad (P.W. 10) deposed that on 28-4-2004, he was posted as Head Constable, Malkhana Moharrir in Police Station, Bilha and at that time, Sub-Inspector, D.P. Singh was posted as Station House Officer and Sub-Inspector, R.C. Trivedi (P.W. 8) was posted as Crime Branch Incharge. He further deposed that Sub-Inspector, R.C. Trivedi (P.W. 8) handed over 16 plastic bags in sealed condition, weighing 67.400 kg. and 16 sample packets, each weighing 25 gms., for keeping in safe custody. He further deposed that for that effect he entered in malkhana register (Exh. P-33) and copy of it is Exh. P-33C. He further deposed that on 17-6-2004, samples were sent to Forensic Science L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impression of the seal was prepared. It was also necessary for the prosecution to establish that at the time of entrustment of the samples in the Malkhana, Station House Officer had affixed his seal on the sample packets as also on the remaining quantity of ganja. The prosecution must establish beyond reasonable doubt that the seal affixed on the sample packets not only at the time of seizure but also at the time of entrustment in the Malkhana remained intact till the sample packets were delivered at FSL for their chemical analysis. ( 20. ) IN the instant case, the samples were not prepared on the spot and looking to the evidence of Sub-Inspector, D.P. Singh (P.W. 9), Head Constable, Lakshmi Prasad (P.W. 10), Ex P-30 and Rojnamcha Sanha 342 (Exh. D-1), it appears that the samples were prepared on 12-6-2004, i.e., after 1-1/2 months. Constable, Chandrapal Khande (P.W. 7) specifically deposed that when he took the samples from Police Station, Bilha, the samples were not in sealed condition. In State of Rajasthan Vs. Bher Singh, (2009) 16 SCC 293, the Hon'ble Supreme Court held that if the prosecution has failed to prove that the seal of the seized samples had remained inta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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