Sakaldeep Rai vs State Of Bihar on 13 January, 2009

[Cites 8, Cited by 1]

Patna High Court

Sakaldeep Rai vs State Of Bihar on 13 January, 2009

Bench: Kishore Kumar Mandal

CRIMINAL APPEAL No.700 OF 2007(S.J.)

(Against the judgment and order of conviction dated 18th June 2007 and 22nd of June

2007, passed by Sri Brajendra Kumar Srivastava Additional District & Sessions

Judge IX, Patna in Special Case No. 75/2004)

********

Sakaldeep Rai son of Lachhan Rai R/o Village Mirampur P.S. Raghopur, District-
Vaishali
----(Appellant)
-:Versus:-
State of Bihar ----(Respondent)

For the appellant : Mr.Dhirendra Kumar Sinha &
Mr. Ram Sewak Prasad Advocates

For the State : Mr. Satya Narayan Prasad, A.P.P.

******

PRESENT

THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL

***

Kishore K. Mandal, Challenge in this appeal is thrown to the judgment and order of
J.

conviction dated 18th of June, 2007 and 22nd of June 2007, recorded by

the learned trial court (Additional District and Sessions Judge, IX,

Patna ) in Special Case No. 75 of 2004, whereby the appellant has

been found guilty of violating Section 8( c) of the Narcotic Drugs

and Psychotropic Substance Act, 1985 ( hereinafter referred to as

N.D.P.S.Act). The appellant has been convicted under Section 20(b) &

(c ) of the N.D.P.S.Act.
2

2. The present trial is an enation of Rajendra Nagar Terminal

Patna Junction Railway P.S. Case No. 540/2004.

3. Background facts in a nutshell are as under:

"On 11.12.2004 at about 8.30 P.M. the informant of this case,

namely, Nigam Kumar Verma (P.W.1) along with other police

personnel was on patrolling duty at platform No. 1 to 4 of Rajendra

Nagar Terminal within the city of Patna. In course thereof, they

reached near the eastern over bridge on Platform No.1 and found two

persons moving carrying one carton each on their shoulders. Finding

them in suspicious condition, the informant commanded them to stop.

It is the prosecution case that when the police personnel tried to

captivate them they started fleeing away whereafter they were

apprehended and interrogated. The two accuseds are said to have

disclosed their identities. Appellant herein was found one of them. The

other accused accompanying appellant was identified as Bijay Kumar

Mahto (not the appellant). The informant thereafter carried search of

the cartons which were allegedly being carried by them on their

shoulders. It is the prosecution case that 25 Kgs of 'ganja' from each

carton was/were recovered. The prosecution case further is that in

presence of two independent witnesses, namely, Mishri Prasad

(P.W.8) and Sheo Balak Paswan (P.W.9) the bags containing

contraband article (ganja) was/were seized. A seizure memo was
3

prepared vide Exhibit-1. The same was signed by the two seizure

witnesses, namely, Mishri Prasad (P.W.8) and Sheo Balak Paswan

(P.W.9).

The informant, thereafter, submitted a written report (Exhibit-

2), whereon a formal F.I.R.(Exhibit-3) was drawn. From the

prosecution case it further appears that the informant after recording of

the case sent both the cartons to the 'Malkhana'. Kameshwar Prasad

Singh (P.W.2) investigated the case, sent the samle drawn from carton

for chemical examination on 10.01.2005 (Exhibit 4).The F.S.L. report

dated 10.05.2007 was received rather belatedly (Exhibit-5). It was

found to be 'Ganja'. On conclusion of investigation he submitted

charge sheet against the appellant and one another. The learned court

below took cognizance on 09.03.2005 and the matter was thereafter

transferred to the file of the present trial Judge for hearing and

disposal.

4. The appellant pleaded not guilty and thus claimed to be tried.

The defence of the appellant appears to be that nothing like 'Ganja'

was recovered from the carton allegedly held by him/them.

5. In order to bring home the charges, the prosecution, in all, got

examined altogether 9 witnesses.

Nigam Kumar Verma (P.W.1) is informant of this case,

who is a police official. Kameshwar Prasad Singh (P.W.2), A.S.I. of
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police is the Investigating Officer of this case who conducted

investigation and thereafter submitted charge-sheet. Deo Muni Singh

(P.W.3), Vinay Kumar Singh ( P.W.4), Radhe Kant ( P.W.5), Jay

Bahadur Rai (P.W.6) and Ambika Prasad (P.W.7) are the other police

personnel/ constables who constituted the raiding team. Mishri Prasad

(P.W.8) and Sheo Balak Paswan (P.W.9) are the witnesses to seizure

of the two cartons which were allegedly being carried on shoulders by

the present appellant and one Bijay Kumar Mahto. The defence did

not choose to produce any witness. The learned trial court on the basis

of the evidence on record found the appellant guilty and convicted as

noticed above.

6. The issue before this court is whether on the basis of the

evidence adduced on behalf of the prosecution and the documents

placed on record the charge(s) leveled against the appellant stands

proved beyond reasonable shadow of doubt.

7. This court in order to have birds' eye view of the case proposed

to first scan the evidence brought on record.

8. Nigam Kumar Verma (P.W.1) is none other than the informant

of this case. He has deposed to the effect that on 11.12.2004 he was

on patrolling with slew of police personnel ( which include the other

PWs). He further deposed to that effect that he found two persons

moving near the over bridge in suspicious manner. Each of them was
5

carrying a carton on their shoulder. This witness started interrogating

those accused persons (including the appellant herein). As they were

unable to answer satisfactorily, the cartons carried by them was/were

searched in presence of two independent witnesses (PWs 8 & 9). This

witness is said to have found that each carton contained 25 Kgs of

'Ganga'. The cartons were tied with a plastic rope. According to him,

he got the seizure memo ( Exhibit-1) prepared at the place of search

itself and obtained signature of the punch witnesses (PWs 8 & 9) and

the L.T.Is. of this appellant and other co-accused was obtained

thereon. This witness further goes on record saying that after such

seizure of the articles the cartons containing the articles were sent to

the 'malkhana' and thereafter he submitted a written report (Exhibit-

2). On the basis whereof, a formal F.I.R.( Exhibit-3) was drawn and

the investigation was carried out by A.S.I., namely, Kameshwar

Prasad Singh (P.W.2).

9. Kameshwar Prasad Singh (P.W.2) is the Investigating Officer of

the case. His evidence, therefore, needs to be closely scrutinized. In

his examination-in-chief he has stated that during the relevant time he

was posted at Rajendranagar T.O.P. and took over the charge of

investigation of this case in question on 11.12.2004. He recorded the

statement of the informant and other witnesses including the statement

of the punch witnesses, namely Mishri Prasad (P.W.8) and Sheo Balak
6

Paswan (P.W.9). He has admitted that the articles allegedly recovered

from the cartons were kept in two different cartons/packets and in the

same way those articles were seized and kept in two different cartons.

He has proved Exhibit-1 and Exhibit 1/A (material Exhibits).

According to this witness each packet/carton contained 25 kgs of

'ganja' like substance. In paragraph No.3 of his deposition, this

witness has admitted that in both the packets/cartons 'ganja' like

substance was found. He has further stated that he drew sample from

these cartons and under orders of the court the same was forwarded on

10.01.2005 (Exhibit-4) for chemical analysis/ examination. This

witness has admitted that the seized 'ganja' was not found sealed.

However, there is positive evidence of this witness to the effect that

the sample which was drawn from the cartons/packets was properly

sealed. In his cross-examination, this prosecution witness has admitted

that the accused/appellant before effecting search was not made aware

of his rights contemplated under Section 50 of N.D.P.S.Act. He has

also shown his inability to disclose as to how and in what manner the

seized substance was/were weighed and found to be 25 kg in each

packet/carton. The physical condition of the carton has been admitted

described when this witness says that the cartons were in torn state and

further he has admitted that those packets/cartons was/were not found

sealed. According to him, as a precaution the police case No. was
7

pasted on those cartons which did not contain signature of either the

informant or any other police officials. He further admits that the

paper so pasted on those cartons also did not contain signature of the

accused/appellant. Paragraph no.5 of his cross-examination, needs a

deeper look. In this paragraph, this witness has candidly stated that

150gm of the 'ganja' like substance was drawn as sample for chemical

analysis. He further admits that this factum has not been noted in the

case diary. Looking to Forwarding letter (Exhibit-4) this P.W. admits

that the same in no uncertain words state that the sample weighing 50

gram was sealed and sent for chemical examination/analysis. This

witness looking to the physical condition of the material Exhibit

(Exhibit 1/a) stated that the seized articles/packets/cartons were never

wrapped in 'lungi'. It was found in a carton which was seized along

with the cartons itself. He further states that the 'lungi' and the

'chaddar' which was/were brought to court along with the seized

substance was not part of material Exhibits of the present case. Before

proceeding further this court would like to deal with the Exhibit-4

which is the forwarding letter. A perusal of this Exhibit shows that

only one sample weighing 50 grams seized in two cartons from

possession of present appellant and one Bijay Mahto was drawn and

kept in 'Jarda ka Dabba' which was sealed. This Exhibit further

indicates that such sample was drawn and sent for chemical
8

examination on 10.01.2005.

10. Deomuni Singh (P.W.3) is a police personnel who was part of

the raiding team. He has, in his examination-in-chief, supported the

prosecution case. According to him, two cartons carried each by

present appellant and one Bijay Mahto was/were seized in presence of

the two punch witnesses, namely, Mishri Prasad (P.W.8) and Sheo

Balak Paswan (P.W.9). The seizure memo was accordingly drawn.

11. Vinay Kumar Singh (P.W.4) is another police personnel, who

was part of the raiding team. This witness, in his examination-in-chief,

has stated that on the relevant date and time of occurrence, he was

forming a patrolling party and was on patrolling at platform No.1 of

Rajendranagar terminal. Two persons were found carrying cartons on

their shoulder. They were interrogated and thereafter checked and

searched in presence of the two witnesses. This witness has gone on

record saying that both the arrested accuseds had disclosed their

names but he did not remember their names. In his cross-examination

at paragraph no.5, this witness has stated that at the orders of the

informant (P.W.1) both the arrested persons had put down their

cartons which they were carrying on their shoulder. He has admitted

that all the packets were seized and sealed. All the seven police

personnel constituting the raiding team became witness to such seizure

and signed the seizure document/memo. He is emphatic on this aspect
9

of the matter and further states that the seizure list was prepared then

and there and thereafter the cartons/articles were consigned to the

'malkhana'.

12. P.W.5 Radhe Kant and P.W.6 Jay Bahadur Rai are again the

police constables. They have supported the prosecution case in so far

as the recovery of contraband articles from the two cartons allegedly

carried by two accused persons ( including the present appellant).

They have also stated that the articles found in the two cartons were

seized under seizure memo in presence of two witnesses namely, PWs

8 and 9.

13. The factual scenario as projected at the trial is, thus, that the

contraband articles/substance were allegedly carried in two separate

cartons by two accused persons. One of them is present appellant. The

witnesses obviously are the police personnels. However, to lend

credence to the seizure so effected by the prosecution two seizure list

witnesses have been produced in court. They are PW 8 Mishri Prasad

and P.W.9 Sheo Balak Paswan. The prosecution is, therefore, heavily

relying on these two witnesses. Having underlined the importance of

these witnesses, this court now proceeds to scan the evidence of PWs

8 and 9.

14. P.W.8 is Mishri Prasad who claims to be a porter at the station.

In his cross-examination, he has flatly refused to endorse the
10

prosecution case and as such he has been declared hostile and has been

cross-examined by the prosecution. In his cross-examination his

attention was drawn to previous statement made before the

Investigating Officer where he is said to have stated that in course of

search, on the relevant date and time, two cartons allegedly carried by

the appellant and another co-accused was checked and searched

wherefrom 'ganja' like substance was recovered and the same was

seized under a seizure list containing his signature.

15. P.W.9 Sheo Balak Paswan is another witness on the point of

recovery and seizure. In his examination-in-chief he has stated that he

is a porter. He has flatly denied that on the alleged date and time of

occurrence any such recovery was made in his presence from the two

carton each carried by the present appellant and another co- accused.

In paragraph no.2, he has, however, admitted that the signatures

appearing on the seizure memo ( Exhibit-1) are the signature of Mishri

Prasad (PW-8) and present witness P.W.9 which have been marked as

Annexure-1/1 and ½ respectively. This witness has also been declared

hostile and thereafter cross-examined by the prosecution wherein he

is said to have denied that he made any such statement regarding

recovery of articles/substance in his presence by the police personnel.

He also denied to have signed the seizure memo on his own free will.

16. Learned counsel for the appellant on the basis of the evidence
11

and materials available on record has submitted that the learned trial

court has committed serious illegalities in convicting the appellants.

Learned counsel for the appellant assailed the findings of the learned

trial court chiefly on the following grounds/points:-

(i) There has been an ex-facie violation of the mandatory provision

of Section 50 of the N.D.P.S.Act and as such the impugned judgment

is not fit to be sustained. In this regard he placed reliance on the

judgment rendered in the case of Kalayath Nassar Versus State of

Kerala 1999(7) SCC 309.

(ii) The evidence on record is not sufficient enough to indicate

conclusively that the alleged seizure and sample thereof was drawn

from the carton/packets seized/recovered from his possession and

kept in a safe custody. The submission of the learned counsel for the

appellant is that admittedly two cartons were seized as admitted by the

prosecution throughout and the same was/were thereafter consigned to

'malkhana'. Admittedly one sample was drawn in a box weighing 50

grams which was sent for chemical examination. There is absolute

lack of evidence that the sample was drawn from the carton /packets

allegedly recovered from the carton held by the appellant. In this

regard he has placed reliance on the judgment of the Hon'ble Supreme

Court in the case of Gaunter Edwin Kircher Versus State of Goa AIR

1993 SC 1456.
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(iii) It has further been highlighted that as per prosecution case the

recoveries/serizure(s) were made and effected on 11.12.2004 and the

articles/ cartons so recovered were thereafter consigned to 'malkhana'.

Exhibit-4 indicates that only one sample was drawn and sent for

chemical analysis only on 10.01.2005. The delay in sending the

samples in the light of facts/circumstances appearing in the present

case creates a serious doubt in proving the charge against the

appellant. According to him, these factums entitle the appellant to an

order of acquittal. In this regard strong reliance has been placed on a

judgment reported in the case of Ajay Kumar Raj Versus State of

Orissa 1996, CRI.L.J.898.

17. Per contra, learned counsel for the State has submitted that

there is/are sufficient and cogent evidence on record to show that the

appellant was carrying contraband articles in a carton which was

seized and subsequently found to be a contraband substance(ganja)

and as such the learned trial court has rightly convicted the appellant.

Learned counsel for the State further submits that the plea of the

learned counsel for the appellant that there has been complete

disregard of the provision of Section 50 of N.D.P.S.Act is thoroughly

misplaced and mis-conceived. In this regard he has relied upon a

judgment of the Apex court rendered in the case of State of Rajasthan

Versus Ram chandra 2005(3) PLJR SC 17.
13

18. This court now proceeds to examine the rival contentions

advanced by the parties. First of all, I propose to deal with the

submission of learned counsel for the appellant that non-compliance

with Section 50 of the N.D.P.S.Act has vitiated the judgment

recording conviction under provisions of N.D.P.S.Act. Learned

counsel for the appellant referring to the evidence on record submits

that as per prosecution case itself the article was being carried by the

present appellant in a carton which was held on his shoulder.

Referring to the evidence of P.W.1 he submits that there is no

indication that he was informed about his right to be searched in

presence of a Gazetted Officer or a Magistrate. The search was carried

out not in presence of either a Gazetted Officer or a Magistrate. It has

further been submitted that there is some evidence on record to

indicate that the accused/appellant along with the cartons was first

brought to the Railway Thana and thereafter search was carried out. It

is his submission that normally a Magistrate is deputed at the platform

and as such the search should have been carried out in presence of the

Magistrate. Learned counsel for the appellant in this regard relies on

the judgment rendered in the case of Kalayath Nassar Versus State of

Kerala (supra) . Heavy reliance has been placed on paragraph nos

3,5,6 and 7 of the said judgment. A perusal of the judgment indicates

that the convict/appellant was found carrying a bag on a vehicle. Two
14

other bags were also found kept close to him. On information the

informant intercepted the said vehicle and effected recoveries from

the bag allegedly carrying on the shoulder by the appellant as also

from the bags kept close to him. Facts of the said case have been

culled out in paragraph nos.3 and 4 which read thus:-

"3. The facts lie in a narrow compass. PW 1 Circle
Inspector Police received information that certain persons
were on the move in an autorickshaw carrying brown sugar.
He, therefore, went in search of the autorickshaw and came
across the same. He stopped the vehicle and found the
appellant and two other persons sitting on the seat. When the
appellant was searched he was found carrying a bag in
which 300 grams of brown sugar had been detected. Two
other bags kept close to him were also seized and those bags
also contained brown sugar. Further facts of the case are not
necessary for disposal of this appeal.
4. It is admitted by PW1 that the appellant was not
informed that he has a right of being searched in the
presence of a gazetted officer or a Magistrate. When PW 1
was confronted with this aspect he said that the appellant did
not make a demand that search should be conducted in the
presence of a gazetted officer or a Magistrate. Learned
Single Judge of the High Court relied on the decision of this
Court in State of Punjab v. Balbir Singh for holding that the
requirements of Section 50 of the Act are not mandatory and
non-compliance therewith would not vitiate the search.
Learned Judge further held that there was no question of
non-compliance with Section 50 of the Act in this case
inasmuch as the appellant did not make a request on his own
that the search should be conducted in the presence of a
gazetted officer or a Magistrate."
15

The Hon'ble Supreme Court noticing the
submissions in paragraph nos. 5,6 and 7 held as under:
"5. The legal position has since been changed
with the pronouncement of the decision of the Constitution
Bench of this Court in State of Punjab v. Baldev Singh. It has
been held that a search conducted in violation of Section 50
of the Act would vitiate the search and prejudice would be
caused to the accused if the requirements are not complied
with.
6. The dictum in Balbir Singh has been
explained away by the Constitution Bench. In a case where
the searching officer failed to communicate to the accused,
who was subjected to search, that he has a right to be
searched in the presence of a gazetted officer or a Magistrate
there would be non-compliance with the requirement of
Section 50. Merely for the reason that the accused did not
make a request to the searching officer on his own that the
search should be conducted in the presence of such officer it
cannot be held that there was no need to inform him of that
right.
7. In view of the change in the legal position with the
pronouncement of the Constitution Bench decision in the aforesaid
case the search conducted in this case must be held to have been
vitiated. Consequently, it must be inferred that prejudice has been
caused to the accused. The evidence concerning the search is not
acceptable in view of non- compliance with the requirements of
Section 50. There is no other evidence, apart from the search, to
prove that the appellant was in possession of the forbidden article.
As such we are unable to sustain the conviction and sentence passed
by the trial court which were confirmed by the High Court."

Learned A.P.P. appearing on behalf of the State, on the

contrary, submits that the said judgment is not applicable to the facts
16

of the case in hand. It has been further argued by him that the said

judgment does not hold good in view of the law laid down in the case

of Pawan Kumar Versus State of Himachal Pradesh, (2005(4) SCC

350) and the judgment rendered in the case of State of Rajasthan

Versus Ram Chandra ( 2005(3) PLJR(SC)17). Facts of the case in the

case of State of Rajasthan Versus Ram Chandra (Supra) have been

noticed by the Hon'ble Supreme Court in paragraph no.2 which runs

thus:-

"2. Background facts in a nutshell are as under:
On 8.9.1995 Prem Shanker Meena (PW-2), SHO Police Station,
Kotwali, Baran having received information about illicit trafficking
in narcotic substances, rushed to the place pointed out by the
informant and apprehended the accused respondent. Satyendra
Singh, Dy. S.P. (PW-3) also reached there. Subsequently, being of the
suspicion that accused respondent was in possession of contraband,
the SHO informed him of his right to have his search conducted
either in presence of Shri Satyendra Singh, Dy. S.P. (PW-3) who was
a Gazetted Officer and happened to be present there or in the
presence of any Magistrate. The accused consented for his search to
be conducted in the presence of the Dy. S.P. (PW-3). On being
search, 570 grams of opium was recovered from his possession in the
presence of Ramesh Chand (PW-5) and Rajendra Kumar (PW-6).Out
of the recovered opium, a sample weighing 30 grams was taken and
was sealed. The remaining opium was also sealed. The accused was
accordingly arrested vide arrest memo Ex.P-5 and memo of recovery
was prepared. The SHO, thereafter, registered a case vide FIR Ex. P-
4 and deposited the recovered opium in the „Malkhana‟. During
investigation, the police recorded the statement of witnesses and
sent the sample to the Forensic Science Laboratory. On chemical
examination, the sample contained in the packet marked ‟B‟ gave
positive tests for the chief constituents of coagulated juice of opium
17

poppy having 5.43% morphine."

The submission is that in these circumstances whether

compliance of Section 50 was mandatory or not has been dealt with in

paragraph nos. 8 and 9 of the said case( at page 19 of the report) which

run thus:

"8. Only question to be adjudicated is the alleged non-compliance of
Section 50. The said provision reads as follows:
"50.Conditions under which search of persons shall be conducted.-
(1) When any officer duly authorized 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."
9. A bare reading of Section 50 shows that it only applies in case of
personal search of a person. It does not extend to search of a vehicle
or a container or a bag, or premises. ( See Kalema Tumba vs. State
of Maharashtra and Anr. ( JT 1999(8) SC 293), State of Punjab vs.
Baldev Singh ( 1999(6) SCC 172) and Gurbax Singh vs. State of
Haryana ( 2001(3) SCC 28). 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, vehicles or articles. This position was settled
beyond doubt by the Constitution Bench in Baldev Singh‟s case
(supra)."
18

19. This court, in order to come to a conclusion on the issue,

would like to deal with the judgment rendered in the case of State of

Himachal Pradesh Versus Pawan Kumar (supra). In course of

checking of bus at a bus stand it was noticed that respondent (Pawan

Kumar) was carrying a bag which was slipped out from the rear door

of the bus and subsequently on chase he was apprehended along with

the bag. The same was seized under seizure memo and subsequently

found to be opium ( contraband article/substance which led to his trial

in which he was found guilty under Section 18 of the N.D.P.S.Act and

sentenced to undergo R.I. for 10years. On appeal preferred by the

convict it was found that there was non compliance with the

mandatory provision of Section 50 of the N.D.P.S.Act. while effecting

search and seizure and therefore the recovery of opium from the

possession of the accused was not established. The matter was carried

to the Hon'ble Supreme Court. The Hon'ble Supreme Court

considered the materials in order to decipher whether a seizure or

search of a bag will constitute seizure or search from/of a person. The

Hon'ble Supreme Court after referring to several interpretation

including the dictionary meaning of the 'person' held in paragraph no.

11,12, 13 of the report as under:-

"11. A bag, briefcase or any such article or container, etc. can,
under no circumstances, be treated as body of a human being. They
are given a separate name and are identifiable as such. They cannot
19

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.
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 words
"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 effort is made. Either they have to be carried in hand
or hung on the shoulder or back or placed on the head. They can be
easily and in no time placed away from the body of the carrier. In
order to make a search of such type of objects, the body of the carrier
will not come in contact of the person conducting the search. Such
objects cannot be said to be inextricably connected with the person,
namely, the body of the human being. Inextricable means incapable
of being disentangled or untied or forming a maze or tangle from
20

which it is impossible to get free.
13. The scope and ambit of Section 50 of the Act was examined in
considerable detail by a Constitution Bench in State of Punjab v.
Baldev Singh and para 12 of the Report is being reproduced below
(SCC p.190)
"12. On its plain reading, Section 50 would come into
play only in the case of a search of a person as distinguished
from search of any premises etc. However, if the empowered
officer, without any prior information as contemplated by
Section 42 of the Act makes a search or causes arrest of a
person during the normal course of investigation into an
offence or suspected offence and on completion of that
search, a contraband under the NDPS Act is also recovered,
the requirements of Section 50 of the Act are not attracted."
The Bench recorded its conclusion in para 57 of the Report
and sub-paras (1),(2),(3) and (6) are being reproduced
below: (SCC pp. 208-10)
"57. On the basis of the reasoning and discussion
above, the following conclusions arise:
(1) That when an empowered officer or a duly
authorized officer acting on prior information is about to
search a person, it is imperative for him to inform the person
concerned of his right under sub-section (1) of Section 50 of
being taken to the nearest gazetted officer or the nearest
Magistrate for making the search. However, such
information may not necessarily be in writing.
(2) That failure to inform the person concerned about
the existence of his right to be searched before a gazetted
officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on
prior information, without informing the person of his right
that if he so requires, he shall be taken before a gazetted
officer or a Magistrate for search and in case he so opts,
failure to conduct his search before a gazetted officer or a
Magistrate may not vitiate the trial but would render the
21

recovery of the illicit article suspect and vitiate the
conviction and sentence of an accused, where the conviction
has been recorded only on the basis of the possession of the
illicit article, recovered from his person, during a search
conducted in violation of the provisions of Section 50 of the
Act.
(6) That in the context in which the protection has
been incorporated in Section 50 for the benefit of the person
intended to be searched, we do not express any opinion
whether the provisions of Section 50 are mandatory or
directory, but hold that failure to inform the person
concerned of his right as emanating from sub-section (1) of
Section 50, may render the recovery of the contraband
suspect and the conviction and sentence of an accused bad
and unsustainable in law."

20. Having given thoughtful consideration to the rival submissions

made by the parties on this aspect, this court finds itself in agreement

with the stand taken by the learned A.P.P. that in the particular facts of

the case the alleged seizure/ recovery from the carton carried by the

appellant cannot be said to be a search of the person of the

accused/appellant. This court, therefore, finds no merit in the

submission of the learned counsel for the appellant that the non

compliance with section 50 of the N.D.P.S. Act has vitiated the

judgment. The said contention stands rejected.

21. Now, the other issues/points highlighted by learned counsel for

the appellant has to be considered in the light of the

materials/evidence appearing on the record. Learned counsel for the
22

appellant referring to the evidence of PWs 2 (Investigating Officer)

has submitted that the seizure of articles was not made in a manner so

as to inspire confidence of this court to convict the appellant.

Supporting his argument he drew attention of the court to paragraph

nos. 3 and 4 of the evidence of the said witness. According to this

witness, admittedly two cartons were seized. From which

carton/packet initially 150 gms of substance was drawn is not clerar.

This P.W.2 (I.O.) has further admitted that sample was further drawn

weighing 50 grms only and kept in a box( 'dabba') which was

dispatched only on 10.01.2005 vide Exhibit-4. This witness has

further admitted that regarding the fact of seizure having been effected

by him has not been incorporated in the case diary. The physical

condition of the cartons has also been described by this witness. He

further admits that both the recovered packets were not found sealed.

In paragraph no.5 he has admitted that 150 gram was drawn from the

packet as sample for chemical examination but Exhibit-4 indicates that

only 50 gram was drawn therefrom and sealed in a box which was sent

on 10.01.2005 for chemical analysis. The court perused the evidence

of P.W.1 and P.W.2 in order to find out whether any explanation has

been given by them for sending the sample belatedly for chemical

examination. There is no such explanation. The picture which emerges

from careful reading of the evidence of P.W.s 1 and 2 is that two
23

cartons were searched and certain amount was drawn as sample from

one of them. The rest of the articles were not sealed and the same were

consigned to the 'malkhana' where it remained for over a month.

Thereafter, as per the evidence of P.W.2 and the documents placed at

annexure-4 further sample weighing 50 grms was drawn, kept in a

box( 'dabba') which was sent for chemical examination after about a

month. Learned counsel for the appellant in the light of the materials

available on record has rightly submitted that admittedly only 50 gram

of the substance/articles drawn from the cartons allegedly seized by

the prosecution was sent for chemical examination. There is no

positive evidence on record to show that the sample which was

allegedly drawn and sent for chemical examination was drawn from

the carton which was seized from the possession of the appellant.

This court in the light of the evidence available on record more

particularly the evidence of P.Ws 1 and 2 and the documents placed at

annexure-4 is of the view that there is force in the contention so

advanced on behalf of the appellant. Learned counsel for the appellant

in this connection refers to the judgment reported in the case of

Gaunter Adwin Kirchar Vrs. State of Goa(supra). He also relies on

and refers to the judgment rendered by the Hon'ble Supreme Court in

the case of Ajay Kumar Raj Versus State of Orissa (supra). This court

would like to deal with the said judgment. In the case of Ajay Kumar
24

Raj Versus State of Orissa (supra) the facts of the case was/were that

on a particular day the Sub- Inspector of police along with a police

party was patrolling at beach near Panjim and came across the

accused who was sitting on a wooden log. As suspicion grew, his

person was searched in presence of punch witnesses and polythene

pouch from his paijam pocket containing tobacco, cigarette papers and

two cylindrical pieces of 'charas' like substance were seized. The

two pieces of 'charas' were held and found to be 7 gram and 5 gram .

One of the pieces weighing less than 5 gram was sent for chemical

analysis whereas the other piece was not sent. On getting chemical

analysis report indicating that the seized article was 'charas' the

accused was convicted under diverse section of N.D.P.S.Act. The

appellant having failed in appeal moved the Hon'ble Supreme court

where a plea was raised that only one piece of the cylindrical like

substance was sent for chemical analysis. The other piece admittedly

was never sealed and sent and as such the presumption that the same

was also 'charas' has no ground to stand on in absence of evidence.

The Hon'ble Supreme Court, on consideration of the arguments and

materials on record, considered the said matter in paragraph no.5 of

the judgment as under:

"5 The next and most important submission of Shri Lalit Chari, the
learned senior counsel appearing for the appellant is that both the
courts below have erred in holding that the accused was found in
possession of 12 gms. Of charas. According to the learned counsel,
25

only a small quantity i.e. less than 5 gms. has been sent for analysis
and the evidence of P.W.1, the Junior Scientific Officer would at the
most establish that only that much of quantity which was less than 5
gms. of Charas is alleged to have been found with the accused. The
remaining part of the substance which has not been sent for analysis
cannot be held to be also Charas in the absence of any expert
evidence and the same could be any other material like tobacco or
other intoxicating type which are not covered by the Act. Therefore
the submission of the learned counsel is that the quantity proved to
have been in the possession of the accused would be small quantity
as provided under S. 27 of the Act and the accused should have been
given the benefit of that section. Shri Wad, learned senior counsel
appearing for the State submitted that the other piece of 7 gms. also
was recovered from the possession of the accused and there was no
need to send the entire quantity for chemical analysis and the fact
that one of the pieces which was sent for analysis has been found to
contain Charas, the necessary inference would be that the other
piece also contained Charas and that at any rate since the accused
has totally denied, he cannot get the benefit of S.27 as he has not
discharged the necessary burden as required under the said
Section. Before examining the scope of this provision, we shall first
consider whether the prosecution has established beyond all
reasonable doubt that the accused had in his possession two pieces
of Charas weighing 7 gms. and 5 gms. respectively. As already
mentioned only one piece was sent for chemical analysis and P.W.1,
the Junior Scientific Officer who examined the same found it to
contain Charas but it was less than 5 gms. From this report alone it
cannot be presumed or inferred that the substance in the other piece
weighing 7 gms. also contained Charas."

22. Learned counsel appearing on behalf of the appellant therefore

submitted that the entire evidence available on the record is silent on

the point as to from which carton the sample was drawn. Admittedly
26

only one sample was drawn and sent for chemical examination which

has been found to be 'ganga' (Exhibit-5). He has once again drawn

attention of the court to the relevant evidence available on record in

the shape of deposition of P.W.2 (Investigating Officer) and Exhibit-4.

This court on consideration of the materials on record agrees with the

submission of the learned counsel for the appellant. The evidence

available on record does not conclusively indicate as to from which

cartons/packets sample was drawn. Further more, P.W.2 in his cross-

examination has deposed that 150 grams from the seized

articles/substance was drawn and sealed for dispatching it for

chemical examination. In the same paragraph he does admit that the

Exhibit-4 (forwarding letter) indicates that only 50 gram contained in

a box was sent for chemical examination which was found to be a

contraband article/substance. Further, statement of P.W.2 incorporated

at paragraph no.5 admits of serious doubt about the material Exhibit

which was subsequently produced before the court. This witness has

stated that the seized article/ substance was wrapped in a 'lungi' or in

a 'chaddar'. This was not the prosecution case that it was ever

wrapped in the 'lungi or 'chaddar'. He candidly admits that this 'lungi

and 'chaddar' is not material Exhibits of the present case. As noticed

above, in paragraph no.4 of his deposition this witness has stated that

both the packets were not found sealed.
27

23. The circumstances, in the opinion of the court, creates a serious

doubt as to whether the sample was drawn from the packets which

is/are said to have been recovered from the cartons allegedly carried

on shoulder by the present appellant. In the light of the

observations/findings of the Hon'ble Supreme Court in the case of

Gaunter Edwin Kircher(supra) this court is not prepared to presume

that both the cartons contained article/substance which is

prohibited/contraband substance under the provision of N.D.P.S.Act

24. There is yet another aspect of the matter which has been

highlighted by the learned counsel for the appellant and needs

consideration of the court. As noticed above, going by the evidence on

record the seizure was effected on 11.12.2004. The recovered

articles/substance were sealed and after drawing samples the same was

consigned to the 'malkhana'. In court, P.W.2 has admitted that the

material exhibits that have been produced in court were not found

sealed. The evidence on record too indicates in no uncertain manner

that the samples so drawn was further converted into a little

measurement of 50 gram and kept in a box and the same was

dispatched for chemical examination on 10.01.2005. There is

unexplained delay of about 30 days in dispatching the samples. This

court looked for any explanation from the records but, unfortunately,

there is none. Learned counsel for the appellant in this regard draws
28

attention of this court to a judgment rendered by the Hon'ble Supreme

Court in the case of Ajay Kumar Raj Versus State of Orissa 1996

CRI.L.J.898 and in the case of Nilamani Sahu Versus State of Orissa

reported in 1997(2) East Cr. C.439(Orissa). In the said case the

contraband/article (cannabis plants) was seized on 04.04.1992 but was

sent on 12.05.1992 for chemical examination. The Hon'ble Supreme

Court in paragraph no.8 of the said judgment observed as under:

"8. The last point is that there was delay in sending the seized articles
for chemical test, and there is no evidence that the articles were in safe
custody. For consideration of this point, the statement of P.W.4 is
vital. According to him, the seized articles were produced before the
JMFC, Jaleswar on 12.5.1992, that is, one month eight days after the
seizure with request to send the sample for chemical test. In his
statement in chief he has not breathed a word as to where the seized
articles were kept, and whether it was sealed or was in opened state. Is
the cross- examination he has explained that he had kept the plants in
sealed cover, the seal was opened in presence of the JMFC when the
sample was sent to the State Forensic Laboratory. He had admitted
that he had not sent the intimation of seizure and registration of the
case to his superior officer, and he had not mentioned it in the case
diary as it was not necessary according to him. Ext.2 shows that the
Material Object No.1 was sent for chemical test on 12.5.1992. P.W.4
has stated that he had not mentioned in the case diary that the articles
were kept in a sealed cover and order of the learned Magistrate dated
12-5-1992

does not show that same was brought in a sealed cover. Additionally, there is no material brought on record as to where the seized articles were between the date of seizure and the date of production before learned JMFC, i.e. on 12-5-1992. Even P.W.4 is silent on this aspect. No material was placed on record to show as to what transpired in the intervening period. That is a missing link rendering prosecution case vulnerable."

This court on thoughtful consideration of the factual aspect emerging from the records such as non sealing of both the packets, consigning them to the 'malkhana', initially drawing 150 gram as sample not disclosing as to whether from which carton the same was drawn and the fact that only 50 gram thereafter was collected in a box and sent for chemical examination after about a month is of the view that a serious doubt on the veracity of the prosecution case has arisen. This court further takes into account that P.W.2, namely Kameshwar Prasad Singh has very candidly accepted that he has not incorporated in the case diary regarding the seizure and sealing of the articles.

25. Having regard to all these peculiar facts appearing on the record this court is not prepared to accept and hold that the prosecution has been able to prove the charge beyond all shadow of reasonable doubts.

26. Learned counsel for the appellant lastly submits that the evidence on record in fact does not inspire confidence so far as recovery of the substance/article from the carton allegedly recovered from the appellant is concerned. In this regard he draws attention of the court to the evidence of PW- 8 and 9 . P.W.8 namely Mishri Prasad has not supported the factum of seizure. He was declared hostile and was cross-examined. Similarly, P.W.9,namely, Sheo Balak 30 Paswan has also not supported the factum of recovery/seizure in his presence. He has however, proved his signature on the seizure memo. This witness has also been declared hostile and cross-examined in order to elicit that they had made a different statement before the Investigating Officer. Learned counsel for the appellant referring to the deposition of P.W.2,Kameshwar Prasad Singh (I.O.) submits that this witness has not stated in court that these two seizure memo witnesses in their respective statements before him supported the prosecution case in general and recovery of the substance/articles from the two cartons in particular. In this view of the matter, in the submission of the learned counsel for the appellant, the recovery, as such, becomes doubtful from the carton allegedly carried on shoulder by the appellant.

27. This court on critical examination of the entire evidence on record and after considering the submissions advanced by the rival parties reiterates its view that there is serious doubt with regard to the seizure effected by the informant. It is not proved beyond all shadow of reasonable doubt that the samples so collected and sent for chemical examination and found to be contraband/article was, in fact, drawn from the carton which was carried by the appellant. There is contradictory evidence on record with regard to the actual manner and weight of the sample which was drawn. There is unexplained delay of 31 nearly 30 days in sending the collected sample for chemical analysis. Thus, in the opinion of this court, on the basis of materials /evidence available on record the charges cannot be said to have been proved beyond all reasonable doubts. The doubts which have crept into the mind of the court definitely entitles the appellant to get benefit of doubt and this court grants the same.

28. In the result, the appeal is allowed and the judgment and order of conviction dated 18th of June 2007 and 22nd of June 2007, passed by Sri Brajendra Kumar Srivastava, Additional District and Sessions Judge-IX, Patna, in Special Case No.75 of 2004 is quashed and set aside. The appellant, namely, Sakaldeep Rai is directed to be released from jail forthwith, if not required in any other case.

Patna High Court,                                         ( Kishore K. Mandal, J.)
Dated the 13th of January,2009,
Sym/NAFR

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