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TMI Blog2018 (1) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not established beyond reasonable doubt that the contraband Ganja as well as the contraband sample were separately sealed properly and were kept intact in safe custody. It is also not clear as to whether the samples of their seals were also kept safely. Further it is also made clear that when the sample contraband was tested, it was returned with seal of the F.S.L., which was opened before court at the time of recroding of statement of witnesses. The accused-appellant deserves to be acquitted of charges under Section 8/20 of the Act - Appeal allowed. - Criminal Appeal No. 201 of 1996 - - - Dated:- 1-11-2017 - Hon'ble Dinesh Kumar Singh-I, J. For the Appellant : S. S. Tripathi, Pradeep Kumar, S.S. Tewari For the Respondent : Govt. Advocate ORDER 1. This criminal appeal has been directed against the judgment and order dated 01.02.1996 of Sessions Judge/Special Judge, Maharajganj whereby he had convicted the accused-appellant Husaini and had sentenced him under Section 8/20 of N.D.P.S. Act, 19851 with R.I. of two years and fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in G.D. (Ex. Ka-3). The case was handed over to Investigating Officer, S.O., Sri Khalid Nasim (P.W.-3), who after making inspection of the spot, prepared site plan (Ex. Ka-5). The sample of Ganja was sent for examination to Forensic Science Laboratory, Lucknow2, from where a report (Ex. Ka-6) was received confirming that the same was found to be Ganja. Thereafter the Investigating Officer having completed the investigation submitted chargesheet (Ex. Ka-4) against the accused-appellant in Court. 4. The accused was charged under Section 8/20 of the Act, to which he pleaded not guilty. 5. For establishing the charge against the accused the prosecution examined eye-witness, S.I. Sri Narendra Pratap Singh, who was accompanied by Sri Rajesh Kumar Dwivedi, S.H.O., P.S. Shyam Deurawa at the time of occurrence and this witness has proved recovery memo (Ex. Ka-1), Chick F.I.R. (Ex. Ka-2) and G.D. report (Ex. Ka-3); the main eye-witness, S.H.O. Sri Rajesh Kumar Dwivedi, under whose leadership the said recovery of illegal Ganja was made, as P.W.-2. This witness has proved the recovery memo (Ex. Ka-1) and the recovered Ganja (material Ex.-1). Sri Khalid Nasim, S.I., P.S. Shyam Deurawa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll it would be proper to take up the ground which is mainly pressed by learned counsel for the appellant, which relates to non-compliance of the provision of Section 50 of the Act. 11. It would be pertinent to reproduce Section 50 of the Act for the sake of convenience which reads as follows: 50. Conditions under which search of persons shall be conducted. - (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 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 section 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-section (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. (5) When an officer duly autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. 30. As observed in Presidential Poll, In re: (SCC p. 49, para 13); (13). ... It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.' 31. We are of the opinion that the concept of substantial compliance with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. Needless to add th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused-appellant was apprised that he had a right to be searched before a Gazetted Officer/Magistrate, however in cross-examination, he has simply stated that the S.H.O. had enquired from him about his search being made. Even this reply does not clarify whether he was told about his right to be searched before a Gazetted Officer/Magistrate. P.W.-2 Rajesh Kuamr Dwivedi has also not mentioned in examination-in-chief that the accused-appellant was told that he had a right to be searched before a Gazetted Officer/Magistrate, however in cross-examination he has stated that he had not recorded in the recovery memo that he had spoken to the accused-appellant that he could be searched before a Gazetted Officer/Magistrate. Further he has stated that he had given his statement to the Investigating Officer that he (accused) was apprised that he could opt to be searched in presence of a Gazetted Officer but he could not tell the reason as to why the said statement is not found to have been recorded by the Investigating Officer in his statement given under Section 161 Cr.P.C. The S.O., Sri Khalid Nasim (P.W.-3) in this regard has stated that whatever was stated by the witness, was recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgment of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 21. On this point the Supreme Court has further made clear the position of law in State of Himachal Pradesh Vs. Pawan Kumar 2005 (52) ACC 710 before which the matter came up for consideration in view of difference of opinion between two learned Judges who heard the appeal, the matter had been placed before this larger bench and the question for consideration was whether the safeguards provided by Section 50 of the N.D.P.S. Act regarding search of any person would also apply to any bag, briefcase or any such article or container etc., which is being carried by him. 22. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in the form of 10 pudias of 50 grams each, licence of possessing which he did not have. It is also mentioned that out of that bag approximately 50 grams Ganja was taken out as sample and was sealed separately and a sample of seal was also prepared. In this regard P.W.-2 has stated in examination-in-chief that on being arrested, from accused-appellant 500 grams of Ganja and 10 pudias of Ganja were recovered while in cross-examination he has stated that the said recovered Ganja was not presented before him in Court at the time of his statement and even sample seal was not found on the file. Regarding this P.W.-2 has stated in examination-in-chief that in the bag being carried by the accused-appellant in hand, 500 grams of Ganja and 10 pudias were recovered. While in cross-examination this witness has stated that the said recovered Ganja was not weighed; on conjecture the said entry was made in the recovery memo. Further it is stated that in recovery memo he had mentioned that 500 grams of Ganja was recovered which included 10 pudias, each weighing 50 grams but today he has stated that he had told the weight to be 500 grams and 10 pudias which were recovered from the accused-appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was that on the sealed bundle, witnesses were not asked to put their signatures which would lead to said recovery being doubtful but the said argument was also turned down saying that the witnesses had put their signatures on the recovery memo and that on the sealed bundle, signature of Investigating Officer was found at the time of chemical examination test. 30. The above finding of the court below does not appear confidence inspiring because it is not made absolutely clear as to how the total Ganja allegedly recovered from the accused-appellant was weighed and thereafter before its being sealed, how much quantity (giving wieght of the same), was taken out for sample and how both these quantities i.e. the total recovered Ganja excluding the sample, was sealed and its sample of its seal was made and also how the sample taken was separately sealed and the sample of its seal was separately made. All these details have been mentioned, neither in recovery memo nor in statements of the witnesses of fact. Since the punishment awardable for an offence under Section 50 of the Act is stringent, it was absolute duty of the prosecution to take all precautions beyond doubt that Ganja reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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