TMI Blog2001 (2) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompartment, the appellant who was sitting in the compartment became panicky and left the train from the door towards the side of engine carrying a katta (gunny bag) on his left shoulder. On suspicion, he was nabbed in presence of witness and it was found that he was carrying poppy straw weighing 7 k.g. in a polythene bag of white colour. After separating 100 gms by way of sample, sample and the residue were separately sealed in two separate parcels in presence of witness. The seal which was affixed on parcels was handed over to the witness (PW1) Harbans Lal. He has stated that the case property was deposited with MHC on the same day. He has also stated that on the personal search of the accused, second class railway ticket was recovered. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the accused was carrying poppy straw placed in polythene bag which on weighment was found to be 7 k.g. The police took sample of 100 grams. The recovery memo was prepared in his presence which he had attested. In cross- examination, he has stated that before searching the contents of gunny bag, the police had not offered itself for search to the accused. It is his say that seal affixed on the case property was made of wood (as against the say of the Investigating Officer that it was a brass seal). The seal was kept with him for 10 days. He has also admitted that he had appeared as a prosecution witness in one excise case and that he was having business of sale of tea near Tonga Stand outside the railway station for the last 15 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed in presence of a gazette officer or a magistrate stood overruled. In facts of that case the Court held that Heroine was found from the bags belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a gazetted officer or a magistrate. In the case of Baldev Singh (supra) the Constitutional Bench (in para 12) observed thus: - 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. Further after considering various decisions the Court held (in para 57) that when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is impera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the building, conveyance or place. Hence, in our view, Section 50 of the N.D.P.S. Act would be applicable only in those cases where the search of the person is carried out. The learned counsel for the appellant next contended that from the evidence it is apparent that the I. O. has not followed the procedure prescribed under Sections 52, 55 and 57 of the N.D.P.S. Act. May be that the I.O. had no knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR under Section 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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