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TMI Blog2017 (12) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... e side of Barkatpur who had illegal Ganja in his bag, who would proceed towards Badausa. Believing this information, the police party tried to find an independent witness but due to it being dark, no one was available. After having taken search of each other and having ensured that they had no illegal article with them. They started waiting for that person to arrive concealing themselves behind the trees. After some time, a person was seen coming from the side of Barkatpur and when they reached near him, the informer pointed out towards him and stated that he was referring to the same person. Thereafter, the police party focused their torch on the said person and directed him to stop, but he turned in reverse direction and started running towards Barkatpur. He was caught using sufficient force at about 20:30 hours, 100 yards away from the road. When inquired, he disclosed his name as Idrish Khan @ Khaura. He was told that the police party had got information that he was having illegal Ganja in his bag, therefore, if he wanted to be searched in presence of any Magistrate or a Gazetted Officer, he could be taken there. But, the accused expressed full faith in the police party and sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge Sheet (Ext. ka-6) and Chemical Examination Report (Ext. Ka-7). 6. Perusal of the impugned judgment indicates that before the learned court below, it was argued that compliance of Section 50 of NDPS Act was not made because search was not made before a Magistrate, although, a Magistrate could be available. Learned court below did not find any weight in the said argument and held that sufficient compliance of the said section was made because the Arresting Officer had apprised accused of his right that he could prefer to be searched before a Magistrate or a Gazetted Officer, but the accused did not exercise his right to be searched before any of them. It was also argued before learned court below that no sample was taken of the contraband substance allegedly recovered from the accused on the spot. The learned court below found this to be factually incorrect on the ground that the sample had been taken and sent to the chemical examiner and report in that regard was obtained, which was found on record. The statement of PW-1 to the effect that he did not take sample, was discarded by the court below holding that the same was uttered by him inadvertently. 7. Next argument made be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also drawn towards the report of FSL, which mentions that a bundle was received on 25.8.1993, which was sealed and was having seal written on it 'Emblem + Zila Nyayalay, Banda Uttar Pradesh'. It is further recorded that 50 grams suspected Ganja was received, which after having been analyzed, was found to be Ganja. 15. Referring to above statements and the evidence on record, it is argued by the learned counsel for the appellant that according to the PW-1, no sample was taken, which also gets substantiated from the fact that in recovery memo, it is not mentioned that any sample was taken, but in his statement PW-2 has stated that he had seen the same material, sample of which was taken on the spot and was sealed. It is evident that the seal which was used on the spot would have been of either the P.S. or of P.W.-1, but it has not been clarified. If the said sample which is alleged to have been taken by PW-2 on the spot, although he was not an eye-witness, how could it be possible that it would bear seal of 'Emblem + Zila Nyayalay, Banda Uttar Pradesh'. The finding of said seal on the sample suggests that the sample which is alleged to have been taken on the spot mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard, reliance may be placed upon the interpretation made of Section 50 of NDPS Act by Supreme Court in the case of State of Himachal Pradesh Vs. Pawan Kumar, (2005) 4 SCC 350. "12. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ja was recovered. PW-1 in this regard has stated in cross examination-in-chief that when he made search then from the bag, being carried by him in right hand, 1/2 kg Ganja was recovered. 29. From the above evidence, it is apparent that initially information received by police party was that the said accused was carrying Ganja in his bag. After search made of the accused, it has come in the statement of PW-1 that from the bag which he was carrying, Ganja was recovered. The recovery memo contains that when 'Zamatalashi' was taken 1/2 kg Ganja was recovered from his bag. It appears that here during search, person of the accused was not searched rather only the search was made of the bag which he was carrying, hence, in the light of law stated above, Section 50 of the NDPS Act shall not be applicable. Therefore, the argument made by learned counsel for the appellant that there was no compliance made of the provisions of Section 50 of NDPS Act does not hold water. 30. Next, this Court would like to take up the point as to whether the compliance of Section 57 of the NDPS Act has been made, which is as follows:- "57. Report of arrest and seizure.- Whenever any person makes any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 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 Section 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. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inadvertent error that he by mistake had stated about no sample being taken. But to this Court, that does not seems to be correct decision because statement of PW-1 finds support from the recovery memo, which also does not contain any reference that the sample was taken of the contraband substance recovered from the accused. It is also on record that the prosecution has failed to produce the seal by which the sample of the contraband substance as well as the remainder was sealed on the spot. The seal which has been found to have been affixed on the sample sent to the FSL is of 'Emblem + Zila Nyayalay Banda Uttar Pradesh' which obviously was not the seal which was affixed on the spot at the time of making recovery of contraband substance from the accused. The prosecution has absolutely failed to establish on record as to how the said seal of 'Emblem + Zila Nyayalay, Banda Uttar Pradesh' came to be affixed on the sample of contraband substance. No link evidence has been provided from the side of prosecution. In this regard, these infirmities may not be taken lightly. They go to the root of the matter. It was primary duty of the prosecution to establish that the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, bearing identical markings and the contents of each package given identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hasish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. (c) Whereafter making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. (d) If it is 5 or more in case of other drugs and subsistances and 20 or more in case of Ganja and Hasish, one more sample in duplicate may be drawn for such remainder package/containers. (e) While drawing one sample in duplicate from a particular, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 1.8.- Numbering of packages/containers:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 57 of the NDPS Act would make a huge dent in the prosecution's case. It may be pertinent to mention here that till the recovery of contraband substance is proved beyond doubt from the accused-appellant, no burden can be shifted upon the accused to explain as to how he came in possession of the said contraband substance under Section 35 and 54 of the NDPS Act. 39. In the opinion of this Court, the prosecution has failed absolutely to prove beyond doubt that any recovery of contraband substance (Ganja) was made from him. The learned court below has not made proper appreciation of evidence at all. It is also to be noted that there is no public witness taken in this case to support the prosecution version and if the same was not available at least for corroboration of the statement of PW-1, the other police witnesses could have been examined but it is found that no such corroboration also has been made of the statement of PW-1. 40. In view of above infirmities, this Court comes to the conclusion that the prosecution has failed to prove the charge against accused-appellant. Appeal is allowed. The accused is held not guilty of offence under Section 20 of NDPS Act. If no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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