Judgment ( 1. ) BEING aggrieved by the judgment dated 28-11-2000 passed in Special Case no. 4/2000 by Special Judge (NDPS) and Additional Sessions Judge, Gwalior, whereby convicted the appellant under Section 8/15 of the Narcotic Drugs and psychotropic Substances Act, 1985 (hereinafter, referred to as the Act) and sentenced to 10 years R. I. with fine of rupees one lac; in default of payment of fine further to two years R. I. ; the appellant has filed this appeal. ( 2. ) AS per prosecution story, on 16-2-2000 Incharge of Police Station g. R. P. , Gwalior received this information from Station Superintendent that in train No. 2155 Dn. presence of bomb has been suspected and the train is standing at Rairu Station near Gwalior. On receiving this information Incharge g. R. P. went to Rairu Station and searched Bogie No. CR 99420 and while searching one broken suitcase was lying in the laboratory. Thereafter, intensive checking was conducted. They found two suspected persons under perplexed condition and trying to hide here and there. In suspicion they were interrogated in presence of Panchas. One person told his name as Manoharlal. Thereafter, notice of search was given and after obtaining his consent his bag of grey colour was searched. Inside a plastic packet 12 packets of poppy husk were found in plastic bag under a cloth of white colour. Seizure memo was prepared on spot and thereafter material was weighed and weighing Panchnama was also prepared, 100 gms, each from every packet by way of sample was taken out and sealed by Ex. P-6. The accused was arrested and the seized material was referred for chemical examination to Forensic Science Laboratory, Sagar. According to its report Ex. P-10 it was found as poppy straw. Thereafter, charge-sheet was filed against the appellant. Before the Trial Court the appellant was charged under Section 8/15 of the Act. Appellant abjured his guilt. Prosecution examined 4 witnesses and after considering their evidence the Trial Court found the appellant guilty of the offence, convicted and sentenced him as aforesaid, against which he was preferred this appeal. ( 3. ) I have heard Shri Pawan Vijayvergiya, learned Counsel for the appellant, and Shri V. G. Khot, learned Government Advocate for the respondent-State. Prosecution examined 4 witnesses and after considering their evidence the Trial Court found the appellant guilty of the offence, convicted and sentenced him as aforesaid, against which he was preferred this appeal. ( 3. ) I have heard Shri Pawan Vijayvergiya, learned Counsel for the appellant, and Shri V. G. Khot, learned Government Advocate for the respondent-State. Learned Counsel for the appellant argued and submitted that the prosecution witnesses Ramesh and Vidya Sagar were declared hostile and have not supported the prosecution and the evidence of Suresh is not reliable. There is no evidence about the quantity seized and kind of material seized. There is delay in sending the material for chemical examination. There is no compliance of mandatory provisions of Sections 50 and 57 of the Act. He submitted that search of handbag or the like which a person is carrying amounts to search of his person attracting Section 50 and he placed reliance on a decision in the case of Namdi Francis Nwazor Vs. Union of India and another, reported in 1998 SCC (Cri.) 1516; and, in support of his contention on the compliance of section 57 of the Act he placed reliance on a decision of the Supreme Court in case of Gurbax Singh Vs. State of Haryana, reported in AIR 2001 SC 1002 , and submitted that the appellant is liable to be acquitted. Alternatively, he submitted that as per the decision of this Court in the case of Ramesh Vs. State of M. P. and another, 2003 (4) M. P. H. T. 78 (DB) = 2004 (1) JLJ 133, the provisions of amendment Act No. 9 of 2001 are applicable to the cases of appeal and the quantity as per the prosecution case which was around 12 kg. is below the commercial quantity of 50 kg. and in that case the jail sentence can only be upto 10 years and since the appellant has already suffered jail sentence of more than 5years, he be released on undergone jail sentence and sentences of fine amount be set aside. ( 4. ) SHRI V. G. Khot, learned Government Advocate, supported the judgment and placed reliance on a latest decision in the case of State of H. P. Vs. Pawan Kumar, reported in (2005) 4 SCC 350 , and submitted that the appeal is liable to be dismissed. ( 5. ( 4. ) SHRI V. G. Khot, learned Government Advocate, supported the judgment and placed reliance on a latest decision in the case of State of H. P. Vs. Pawan Kumar, reported in (2005) 4 SCC 350 , and submitted that the appeal is liable to be dismissed. ( 5. ) AFTER hearing the rival contentions of the learned Counsel for the parties, I have perused the evidence on record. First of all, I would like to deal the question of application of Section 50 of the Act. ( 6. ) NO doubt, in the case of Namdi Francis Nwazor (supra), the supreme Court had observed that search of handbag or the like which a person is carrying amounts to search of his person attracting Section 50, but in that case considering the facts of the case that the bag containing incriminating articles, though belonging to the petitioner, was out of his reach after it was checked in and there was no place where he was apprehended and searched although it was called from the aircraft luggage compartment end brought to the customs counter for examination, the Supreme Court had held that the question of compliance of Section 50 does not arise. ( 7. ) RECENTLY, in the case of State of H. P. Vs. Pawan Kumar (supra), the apex Court has considered the question in more detail and firstly has held that the decision in the case of Namdi Francis Nwazor (supra), is obiter on this point and has further held that under the word "search of a person" as used under section 50, search of a bag, briefcase or any such article or container etc. which is being carried by the accused, is not a search of the person. Hence, in such cases provision of Section 50 would not apply. In this case too, the bag of the appellant was searched, which he was carrying in his hand. Therefore, admittedly in the light of the decision in the case of Pawan Kumar (supra), the provision of section 50 would not be applicable and, therefore, non-compliance of mandatory provision of Section 50 would not be fatal in this case. ( 8. In this case too, the bag of the appellant was searched, which he was carrying in his hand. Therefore, admittedly in the light of the decision in the case of Pawan Kumar (supra), the provision of section 50 would not be applicable and, therefore, non-compliance of mandatory provision of Section 50 would not be fatal in this case. ( 8. ) SO far as the compliance of Section 57 of the Act is concerned, it provides that whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, shall make a full report of all the particulars of such arrest or seizure to his immediate official superior. As has been held in the case of Gurbax Singh (supra), the compliance of provision of Section 57 is directory. It has been further held that the violation of these provisions would not ipso facto vitiate the trial or conviction. However, i. O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In this case, I. O. has not stated anything nor has produced any document to show whether within 48 hours he had sent report and full information to his immediate superior officer or not about the arrest and seizure. Therefore, admittedly, in this case there is no compliance of the provision of Section 57, but its effect I will consider in the subsequent paragraphs while discussing the evidence on record. ( 9. ) I have considered the evidence of the witnesses on record. Ramesh (P. W. 1) is the witness of seizure memo Ex. P-l. He has not supported the prosecution though he has admitted his signature on Ex. P-l. He says that in his presence nothing was weighed nor he had gone along with the police for weighing the articles; only his signatures were obtained. In the cross-examination he says that his signatures were obtained on plain paper. Vidya sagar (P. W. 2) was also declared hostile. He has stated that he is the witness of documents Exs. P-l to P-8, but in the examination-in-chief he stated that the material was not sealed in his presence nor the material was weighed. He has only signed over the papers. He says that he does not know that how many packets were seized. He has stated that he is the witness of documents Exs. P-l to P-8, but in the examination-in-chief he stated that the material was not sealed in his presence nor the material was weighed. He has only signed over the papers. He says that he does not know that how many packets were seized. They were 7-8 packets. In the cross-examination he says that he had seen that packets were kept before the accused, but he has not seen whether they were taken out from the bag or from the train. Packets were kept where the accused was standing. It was dark place but platform light was available. In the cross-examination he says that in his presence no search was made either of the bag or the person/accused. He says that his signatures were obtained but the papers were not read over in his presence. Suresh (P. W. 3) is also the witness of Exs. P-l to P-4 and Ex. P-8. He says that there were only 4 packets. Each packet may be of 1 kg. each. In the cross-examination he states that the appellant is the same person. His bag was searched and 4 packets were found in the bag. His signatures were obtained on 5-6 papers and they were half-written papers. He admits that in his presence neither any search of the appellant was taken nor any material was weighed nor the police personnels have made their own search. Packets were full of powder but those packets were not opened in his presence. Only police personnels were saying that it is poppy straw. Kashi Prasad Jawre (P. W. 4) was the Incharge of G. R. P. Gwalior. He says in the examination-in-chief that the appellant was carrying a bag in his hand. It was searched and poppy seeds of opium were found therein. In the cross-examination he admits that they were not having any information about the appellant that what he was carrying but when they were searching the bogie on the suspicion of presence of bomb, at that time appellant was searched with his bag. ( 10. ) FROM the prosecution evidence on record it is clear that there is no clear proof on record about the quantity of the seized material. There is no proof that the material was weighed. Though seizure memo of weighment is Ex. ( 10. ) FROM the prosecution evidence on record it is clear that there is no clear proof on record about the quantity of the seized material. There is no proof that the material was weighed. Though seizure memo of weighment is Ex. P-l, but Ramesh (P. W. 1), who is the witness of the seizure memo, has denied the weighment of the material in his presence and he has stated that his signatures were obtained on plain paper. Vidya Sagar (P. W. 2) in the examination-in-chief has stated that the material was not weighed in his presence. Suresh (P. W. 3) has also denied that in his presence any material was weighed. Therefore, all the three witnesses have denied the weighment of the aforesaid seized material. So far as the seizure of packets is concerned, Ramesh (P. W. 1) has not supported the prosecution and was declared hostile. Vidya Sagar (P. W. 2) says that they were 5-7 packets and Suresh (P. W. 3) says that they were 4 packets. So far as the evidence about duly sealed, the evidence of Ramesh (P. W. 1) is not useful to the prosecution, as he was declared hostile and Vidya Sagar (P. W. 2) says that the material was not sealed in his presence. They have stated that they have not seen the packets whether they were taken out from the bag or from the train. Only police personnels were saying that they have been seized from the appellant. So far as the execution of the documents, all the witnesses have stated that their signatures were obtained by the police personnels without seeing them or without reading them. There is also no evidence on record that what was the material in those packets. Thus, the packets were not opened in presence of the witnesses nor they were made known to them about the material available in the packets whether it was poppy straw, poppy husk or poppy seed. Kashi Prasad jawre (P. W. 4) has stated in the examination-in-chief that poppy seed of opium was found in those packets. Nowhere he has stated in the examination-in-chief that the material seized was poppy straw or poppyahusk and it was the material covered under the NDPS. In the definition of poppy straw under the NDPS act, poppy seeds have been excluded, therefore, there can be no offence for carrying poppy seeds. ( 11. Nowhere he has stated in the examination-in-chief that the material seized was poppy straw or poppyahusk and it was the material covered under the NDPS. In the definition of poppy straw under the NDPS act, poppy seeds have been excluded, therefore, there can be no offence for carrying poppy seeds. ( 11. ) IN view of the aforesaid evidence, there is no such positive and clear evidence on record that the material which was seized was poppy straw or poppy husk and it was duly sealed in presence of independent witnesses and it was the same material which was referred for chemical examination. It has come in the evidence that the material was referred for chemical examination after six days and the prosecution has not explained delay in forwarding the material for chemical examination. As has been held repeatedly by the Supreme Court, it is the duty of the prosecution to explain the delay in forwarding the materials for chemical examination as well as it is the burden on the prosecution to prove that during this period where and in what condition the material was kept, whether it was duly sealed. In the absence of any evidence that the seized material was poppy straw and it was properly sealed and kept and the same material was forwarded for chemical examination, it cannot be held that it was the same material which was forwarded for chemical examination. The statement of Kashi prasad Jawre (P. W. 4), who was the Incharge of G. R. P. Gwalior, who says that the seized material was poppy seeds of opium, has created clear doubt about the material seized. As has been discussed above, it is clear that the poppy seeds are excluded and there cannot be any offence for the recovery of the same. Poppy seeds are available in the market and being sold freely. In such circumstances, the compliance of Section 57 was also material and if there was no compliance, it would be treated that it is fatal to the case in hand. As held above, the compliance of Section 50 was not necessary in this case. So far as the alternative argument of the learned Counsel for the appellant is concerned, as recently in the case of Basheer alias N. P. Basheer Vs. State of Kerala, (2004) 3 scc 609 , the judgment of this Court in the case of Ramesh Vs. As held above, the compliance of Section 50 was not necessary in this case. So far as the alternative argument of the learned Counsel for the appellant is concerned, as recently in the case of Basheer alias N. P. Basheer Vs. State of Kerala, (2004) 3 scc 609 , the judgment of this Court in the case of Ramesh Vs. State of M. P. and another, 2003 (4) M. P. H. T. 78 (DB) = 2004 (1) JLJ 133 , has been overruled. Therefore, the provision of the Amended Act of 2001 will not be applicable on pending appeals. Thus, the appellant is not entitled for any benefit of the same. ( 12. ) HOWEVER, considering the totality of the evidence on record, I find that no reliable evidence is available on record about the material, which was seized whether it was poppy seed or poppy straw, what was its quantity, its weighment, its seizure and duly sealed and whether the same material was referred for chemical examination, etc. etc. and, thus, I do not find that the prosecution has proved the case against the appellant by producing evidence beyond reasonable doubt. Admittedly, the evidence on record is full of doubt. ( 13. ) CONSEQUENTLY, this appeal is allowed. The judgment of conviction and sentence is set aside. The appellant is in jail. He be released if not required in any other case. Criminal Appeal allowed.