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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 ..... ndra Singh also joined them while on patrol duty. At that very time an informer gave them news that in Village Mohanapur, one person was selling Ganja which was kept in a bag, if promptly reached, he could be arrested. Believing that information, Sri Rajesh Kumar Dwivedi reached near Village Mohanapur and found a man sitting on a culvert who was surrounded by few persons. Having seen police these persons fled from there and the suspect also started to flee right then; at about twenty steps from that place, he was arrested. On being cought he disclosed his name to be Husaini, resident of Mohanapur, P.S. Shyam Deurawa, District Maharajganj. Upon search being made, 500 grams of Ganja was recovered from a plastic bag being carried by him in his hand which consisted ten pudias of 50 grams each. On being enquired as to whether he had authorisation to sell Ganja, he prayed to be excused for this fault. Thus, on his admission of the guilt/offence, he was arrested under Section 20 of the Act after being apprised that he had committed an offence under the said Act by selling the said Ganja. The alleged recovered Ganja was taken into custody by police and was kept in a bag and after taking ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05:00 p.m. no Ganja was recovered from him; the police has arrested him from his house and has falsely implicated in this case. 7. The court below after having analysed all the statements of the witnesses of the prosecution and taking into consideration the documentary evidence on record has found the case against the accused appellant proved under Section 8/20 of N.D.P.S. Act and, hence awarded him the above mentioned punishment. 8. Learned counsel for the appellant, Sri S.S. Tripathi has opened his arguments by saying that the accused-appellant by now has attained the age of 80 years, hence he is extremely old. The recovery of the said Ganja was not proved on the basis of evidence on record. The compliance of the provisions of Section 50 of N.D.P.S. Act has not been made because while conducting personal search of the accused, no option was given to him for being searched before a Magistrate/Gazetted Officer and has relied upon the law laid down in State of Rajasthan Vs. Parmanand & another (2014) 5 SCC 345. Accordingly, it is argued that the judgment of the lower court should be set aside and accused-appellant should be acquitted. Learned counsel for the appellant has also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." 12. In large number of cases the Supreme Court has enterpreted provision mentioned above and now the law is almost settled by pronouncement made in Vijaysinh Chandubha Jadeja Vs. State of Gujrat (2011) 1 SCC 609. In this case the question before the Apex Court for consideration was "whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?" 13. The answer to this question has been given in paras 29 to 32 of the judgment which are reproduced as follows: "29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safegua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well." 14. From a perusal of the above view of the Supreme Court, it is apparent that the compliance of the provisions under Section 50 of N.D.P.S. Act is not a mere formality. It has to be done by the empowered officer in letter and spirit. Whether or not the procedure prescribed had been followed and the said requirement of Section 50 of the Act has been made, has to be judged on the basis of evidence recorded during the trial. Hence, it would be pertinent to scrutinize the relevant portions of the statements of witnesses in connection with the fact as to whether the accused in the present appeal had been apprised by the arresting officer of his right or not that he could opt to be searched in front of a Magistrate/Gazetted Officer. 15. A perusal of the recovery memo would show that the accused is alleged to have been arrested at 05:00 p.m. on 05.04.1993, persuant to information given by informer about his location. It is not mentioned in the recovery memo as to when the information about accused-appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase at hand the provisions of Section 50 of the Act would not be applicable because those provisions were applicable only when a personal search of the accused is required to be made, because in the said section the words used are "any person". Here in this case the contraband Ganja was recovered from the bag which was being carried by the accused and not from his person. It was further argued that even if personal search was made but no contraband was found from the person of the accused-appellant, but the same was found from a bag or attache or some other article being carried by him, the provisions of Section 50 of the Act would not be applicable. 19. This argument has been rebutted by learned counsel for the appellat by relying upon the law laid down by the Supreme Court in Dilip & another Vs. State of M.P. (supra). Attention is drawn of the Court towards paras 12 and 16 of the judgment which are as follows: "12. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with. ................. 16. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be- "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nected 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 which it is impossible to get free." 23. From above, it is apparent that when the principle of personal search would apply it would involve search of the body of human being as presented to public view usually with its appropriate coverings and clothings and not any briefcase, bag, container etc., which a person carries with him because these articles are not inextricable from his person. 24. In view of above position of law, it is apparent that in the case at hand the bag which the accused-appellant was carrying, was not inextricable part of his body, hence it should not be covered under personal search, but in view of the law laid down in subsequent rulings in Dilip's case and Parmanand's case, if personal search is also made with the search of the article being carried by the accused-appellant, the provisions of Section 50 of the Act would be applicable. Therefore, in the case at hand Section 50 of the Act would be applicable which has not been followed in letter and spirit by the prosecution by disclosing to him his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtinent to refer to the findings of the lower court on important aspects. With regard to the sample seal not being presented before the Court, the argument made before the court below, was that it was not proved that the sample of the seal and the recovered Ganja were properly sealed nor was it established that till the date of examination by the F.S.L. the said sample was kept in sealed condition properly. In support of the said argument reliance was placed upon State of Rajasthan Vs. Gopal (1998) 8 SCC 449 in which it was held that in a case where sample is sent for being tested to F.S.L., the burden rests on the prosecution to prove beyond doubt that the sample was sealed and the same was kept intact and the same was also presented for testing in intact condition. In the case at hand it is doubtful that the sample of seal was kept intact, hence accused-appellant should get its benefit. 28. The court below did not find the above argument appealing, stating that the facts of that case were different from the present case. In the present case, the prosecution has proved beyond reasonable doubt that the recovered Ganja was sealed on the spot. Investigaring Officer had also seen the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in black and white in recovery memo and the same should have been proved by statements of witnesses of fact also, who had recovered the same from the accused-appellant and had sealed the same. The F.S.L. also ought to have mentioned in its report the total quantity of the contraband sample received by them for being tested and the same should have been returned with report after the test with their own seal which could be opened before court, when required. All this has not been done, hence the finding of the lower court in regard to the contraband Ganja having been sealed on the spot properly does not inspire confidence and seems erroneous. 31. 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. All this would lead to suspicion with regard to the contraband allegedly recovered from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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