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Madhya Pradesh High Court · body

2000 DIGILAW 230 (MP)

KANIRAM v. STATE OF M. P.

2000-03-03

S.B.SAKRIKAR

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S. B. SAKRIKAR, J. ( 1 ) ACCUSED appellant has directed this appeal against the judgment dated 15-2-1998 passed by Sessions Judge and Special Judge, Mandsaur in ST. No. 12/88, thereby convicting accused-appellant Kaniram for the offence punishable under Sections 8/16 of NDPS Act and awarding sentence to undergo R. I. for 10 years. ( 2 ) BRIEFLY stated the facts of the case are that on the intervening night of 26 and 27th October, 1987, at about 2. 50 a. m. the appellant was intercepted by Constable Bachusingh and NCO Dilip of the Home Guard near Kalakhet Mandsaur. At the relevant time, Constable Bachusingh and NCO Dilip were on patrolling in the area. On being intercepted they found that the appellant was having a cotton bag in his hand and the Constable Bachusingh, on preliminary search suspected opium being carried in the same bag. It is said that when the appellant was intercepted by the Constable Bachusingh, T. I. Harmendarsingh Billa (PW. 5) alongwith S. I. Siddique also reached the place of the incidence. Constable Bachusingh informed T. I. Harmendra singh Billa (PW. 5) that he suspected opium in the bag carried by the appellant. Thereafter T. I. Harmendra Singh Billa called the independent Panch witnesses and in presence of the witnesses searched the bag carried by the appellant and seized about 5 kgs and 200 gms. of opium from the possession of the appellant by seizure memo Ex. P. 1. kept in four polythene bags. The samples were taken from the seized contraband article and sent for analysis to the Govt. Opium and Alkaloid Factory Neemuch from where analysis report (Ex. P. 4) was received. The analysis report disclosed that the seized article is opium. The accused was arrested. The FIR was registered and on completion of the investigation, the appellant was prosecuted and tried for the offence punishable under Sections 8/18, NDPS Act. On completion of the trial, the appellant was convicted and sentenced by the Trial Court as indicated above Aggrieved, the appellant has filed this appeal. ( 3 ) LEARNED Counsel for appellant contended that in this case during the search and seizure, the Investigating Officer did not comply with the mandatory provisions of Sections 50 and 57 of the NDPS Act. ( 3 ) LEARNED Counsel for appellant contended that in this case during the search and seizure, the Investigating Officer did not comply with the mandatory provisions of Sections 50 and 57 of the NDPS Act. He also contended that in this case the prosecution relied on the analysis report Ex, P. 4 given by the Assistant Chemical Analyst of the Government. Opium and Alkaloid Factory, Neemuch, not admissible in evidence in view of the provisions of Section 293 of Cr. P. C. and the whole trial vitiates against the appellant and the appellant deserves to be acquitted. The learned Counsel relied on the following decisions of the Honourable Supreme Court. Kalayathnassar v. State of Kerala, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala and Mehmood v. State of M. P. ( 4 ) AS against this learned Panel Lawyer supported the impugned judgment and submitted that in view of the facts and circumstances of this case the provisions of Section 50 are not attracted as it is a case for chance recovery. The learned Counsel also submitted that the alleged contraband article was seized from the bag of the appellant-accused. As such, the compliance of Section 50 of the Act was not necessary. The reliance was placed on the decisions of the Apex Court in case of Namdi Francis Nwazor v. Union of India and Another and State of Punjab v. Baldev Sincjh. ( 5 ) I have considered the rival submissions of the learned Counsel for parties and carefully perused the record. ( 6 ) ON perusal of the record, it emerged that the analysis report Ex. P. 4 with regard to the seized article was given by Assistant Chemical Analyst of the Government. Opium and Alkaobid Factory, Neemuch, Madhya Pradesh. The Chemical Analyst who signed the report was not examined as witness in the Court to prove the contents of the report. As held by this Court in case of Mahmood v. State of M. P. (supra), the report given by the Chemical Examiner of the Government. Opium and Alkaloid Factory Neemuch is not admissible in evidence under Section 293. Cr. P. C, As such, in absence of the said report that the fact is not proved in the instant case that the alleged contraband article seized from the bag of the accused-appellant was opium and on this count the accused-appellant deserves acquittal. Opium and Alkaloid Factory Neemuch is not admissible in evidence under Section 293. Cr. P. C, As such, in absence of the said report that the fact is not proved in the instant case that the alleged contraband article seized from the bag of the accused-appellant was opium and on this count the accused-appellant deserves acquittal. ( 7 ) ON considering the noncompliance of Section 50 of the NDPS Act, on perusal of the evidence it emerged, that it cannot be considered to be a chance search and seizure of the alleged article from the possession of the accused so far as Investigating Officer (PW 5) Harmendrasingh Billa is concerned. On perusal of the statements of Constable Bachusingh (PW 1) and H. S. Billa (PW 5), it emerged that at the time of the incidence initially Constable Bachusingh took the initial search of the bag carried by the appellant and suspected opium in the said bag and on arrival of T. I. H. S. Billa (PW. 5) at the place of the incidence, this fact was conveyed to the T. I. H. S. Billa by the constable Bachusingh. As such, when T. I. H. S. Billa initiated the search of the bag carried by the accused, he had knowledge that the bag contained the contraband article. In case of Namdi Francis Nwazor (supra), the Apex. Court has held that the provisions of Section 50 of the NDPS Act are attracted even in cases of search of a bag or the luggage actually carried by the accused at the time of the alleged search, In the aforesaid case, the Apex Court held that: We hasten to clarity that if that person is carrying a, handbag or the like and the incriminating article is found there from, it would still be a search of the person of the accused requizing compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found and on search incriminating articles are found there from it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person( 8 ) A similar view expressed in view of the facts and circumstances of the case by the Apex Court in case of Ali Mustaffa Abdul Rahman Moosa (supra) and Kalayathnassar v. State of Kerala (supra ). ( 9 ) IN the present case, it is not disputed that the alleged contraband article was seized from the bag of the appellant carried in his hand, it is also not in dispute that in this case the Investigating Officer did not comply with the provisions of Section 50 of the NDPS Act. As such, in view of the law laid down by the Constitutional Bench of the Apex Court in case of State of Punjab v. Baldev singh (supra), the non-compliance of Section 50 of the Act in the present case rendered the search and the seizure illegal. In Baldev singhs case (supra), the Apex Court further held that the omission of complying Section 50 of the Act may not be vitiated the trial as such but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the Section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible - it cannot be disregarded by the prosecution except at its own peril. ( 10 ) IN view of the facts and circumstances of the case on hand and the law applicable in my considered opinion, due to the non-compliance of Section 50 of the NDPS Act in this case as also the inadmissibility of the analysis report Ex. P. 4, the appellant accused deserves to be acquitted of the charge under Section 8 read with Section 18 of the NDPS Act levelled against the appellant. ( 11 ) IN the result, this appeal is allowed. P. 4, the appellant accused deserves to be acquitted of the charge under Section 8 read with Section 18 of the NDPS Act levelled against the appellant. ( 11 ) IN the result, this appeal is allowed. The conviction and sentence passed against the appellant by the Trial Court stands set-aside and he is directed to set at liberty if his detention is not required in any other case. Appeal allowed. .