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Madhya Pradesh High Court · body

2001 DIGILAW 913 (MP)

PRAHIAD SHARMA v. STATE OF MADHYA PRADESH

2001-12-05

S.P.KHARE

body2001
S. P. KHARE, J. ( 1 ) APPELLANT Prahlad Sharma has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act) for being found in possession of 3. 200 kgs. of Opium and sentenced to rigorous imprisonment for ten years. ( 2 ) THE prosecution case was that on 11/5/1990 at 0. 15 hours Virendra Kumar Sharma (P. W. 3), Narcotic Inspector was at Guna Railway station and at that time Kota Bhopal passenger train arrived there. He saw accused Prahlad Sharma alighting from the train and holding a bag of red colour in his hand. He caught hold of the accused and on search of the bag which he was carrying, it was found that it was containing a total quantity of 3. 200 kgs. of Opium. It was seized from him as per Seizure Memo, Exhibit P-1. The samples were taken from the seized commodity and these were sealed. The search was conducted in the presence of Munnalal (P. W. 1) and Rambharose (P. W. 6 ). Devendra Kumar (P. W. 4), a Constable was also present at that time. The samples were sent for chemical analysis and it was found that the samples were of opium. After investigation the chargesheet was submitted. ( 3 ) THE accused pleaded not guilty. ( 4 ) THE trial Court found the testimony of Virendra Kumar Sharma (P. W. 3 ). Narcotic Inspector as fully reliable though the two panch witnesses did not support him and were declared hostile. The procedural provisions contained in the Act were held to have been fully complied with. It was also held that Section 50 of the Act was not attracted as there was no search of the person of accused but it was a case of the search of his bag which he was carrying. On these findings the accused has been convicted and sentenced as stated at the outset. It was also held that Section 50 of the Act was not attracted as there was no search of the person of accused but it was a case of the search of his bag which he was carrying. On these findings the accused has been convicted and sentenced as stated at the outset. ( 5 ) IN this appeal two questions have been raised by the learned counsel for the appellant (a) the search of the search of his persont within the meaning of Section 50 of the Act and as the provisions of this section were not admittedly complied with the conviction of the appellant cannot be upheld and (b) it is doubtful whether the samples of the commodity which are said to have been taken at the time of seizure were those which were actually sent for chemical analysis. Point (a) ( 6 ) IT has been held by the Constitution Bench of the Supreme Court in the State of Punjab v. Baldeo Singh that section 50 of the Act would come into play only in the Case of a search of a person as distinguished from search of any premises etc. Now the question arises what is the search of a T1persont1? It has been illustrated in a number of subsequent decisions of the Supreme Court. In Sarjudas v. State of Gujarat charas was not found on the ijerson of the accused but it was found kept in a bag which was hanging on scooter which he was riding. It was held that the said search cannot be said to be illegal on the ground that the accused was not informed of his right under Section 50 of the Act to be searched in the present of a Gazetted Officer or a Magistrate. ( 7 ) IN Kalema Tumba v. State of Maharashtra. the search was made of the baggage of the accused which had arrived at the Airport. I t was held that it was not a case of search of the persont of the accused. Again in Kanhaiya Lal v. State of M. P. the opium was found from a bag which was being carried by the appellant. It was held that it is not the case of the search of the person of the accused. I t was held that it was not a case of search of the persont of the accused. Again in Kanhaiya Lal v. State of M. P. the opium was found from a bag which was being carried by the appellant. It was held that it is not the case of the search of the person of the accused. ( 8 ) IN A. R. Mansuri v. State of Gujarat, there was search of an autorickshaw, gunny bags were found stacked therein. It was held that it was also not the case of the search of a person. It was observed that the place where the gunny bags were found stacked was not inextricably connected with the person of the appellant. This is a three Judge Bench judgment. Reference was made to the two earlier decisions of Kalema Tumba (supra) and Saljudas (supra) in this case and the law laid down in those cases was approved. ( 9 ) THE learned counsel for the appellant had placed reliance on a recent decision of the Supreme Court in Gurubaksh Singh v. State of Haryana. In that case also a passenger train arrived at Karnal Railway station and the accused was found sitting in a compartment. He left the train and he was found carrying a katta (gunny bag) on his left shoulder. It was found that there was poppy straw in the bag. Mter making reference to the Constitution Bench Judgment in Baldeo Singh case it was held that section 50 of the Act was not attracted in this case as it was not the case of search of a person but of the bag hanging on his shoulder. It has been reiterated that Section 50 of the Act would be applicable only in those cases where the search of the person is carried out. ( 10 ) IN Sunil Kumar v. State of M. P. it has been held by this Court that section 50 is not attracted where the search of a dicky of the scooter is taken. ( 11 ) IN view of the above legal position the trial Court in the present case has rightly held that Section 50 of the Act is not applicable. In this case the accused was holding the bag in his hand and the search was of that bag and not of the person of the accused. ( 11 ) IN view of the above legal position the trial Court in the present case has rightly held that Section 50 of the Act is not applicable. In this case the accused was holding the bag in his hand and the search was of that bag and not of the person of the accused. Point (b) ( 12 ) VIRENDRA Kumar Sharma (P. W. 3) has deposed that after preparing the seizure memo of the opium recovered from the accused he took out two samples of 24 gms from each bag and sealed those samples. The samples of that seal is Exhibit P-3. The samples were kept in sealed condition in the Police station. He sent one of the samples for chemical analysis to the Manager. Govt. Opium and Alkaloid Works. Neemach for chemical analysis by registered post as per the receipt Exhibit P11. The Specimens of the seals were also sent to the chemical analyst: A copy of the letter along with the memo on which the specimen of the seal were affixed is Exhibit P-12. The report of the chemical analyst is Exhibit P-7. According to this report the seals on the packets were intact and tallied with the specimen seals on the letter. The commodity on analysis was found to be opium. Vakul Vardhan Gautam. Asst. Chemical Examiner (P. W. 5) has corroborated the testimony of Virendra Kumar Sharma. He has deposed that he had received two samples in sealed condition. He tallied the specimen seal with the seal on the packet. both the seals were tallying. On analysis he found the commodity in the sample as opium. There was presence of Morphin to the extent of 10. 55. His report is Exhibit P-7. The trial Court has discussed this evidence in paras 9 and 10 of its judgment. There is no infirmity in the appreciation of evidence on this point. In this respect also the decision of the Supreme Court in Gurbaksh Singh v. State of Haryana, has been cited. It has been held in this case that violation of Sections 52 and 57 would not ipsofacto violate the trial or conviction as these provisions are directory. However, these provisions cannot be ignored as it would have a bearing on appreciation of evidence. It has been held in this case that violation of Sections 52 and 57 would not ipsofacto violate the trial or conviction as these provisions are directory. However, these provisions cannot be ignored as it would have a bearing on appreciation of evidence. In the present case the procedure relating to sealing of the samples and sending them to the chemical analyst has been scrupulously followed. Therefore the second point raised by the learned counsel for the appellant has also no substance. The conviction of the appellant for the aforesaid offence is well merited and the sentence is the minimum provided by law. Therefore this appeal is dismissed. Appeal dismissed. .