JUDGMENT Hon'ble Dr. GOMBER, J.—Since the two appeals being appeal No.1214/04 & 1295/2004 filed by (a) Kedar Bai D/o Jagannath @ Baijath and (b) Anoop S/o Ram Swaroop, arise out of a common judgment dated 21.9.2004 passed by learned Special Judge, NDPS Cases, Jhalawar in Sessions case No.10/2003, hence are being decided by a common order. 2. Both the accused-appellants Kedar Bai and Anoop have been convicted for offences under Section 8/21 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as “the Act”) and were sentenced with rigorous imprisonment of ten years alongwith fine of Rs.1,00,000/- each in default whereof to further undergo simple imprisonment for three years. 3. At the outset, challan had been filed against four accused persons including the present appellants. However, the other two accused namely Pappu and Madanlal were acquitted of the offence under Sec. 8/21 of 'the Act'. 4. The facts as culled out by the prosecution are that on 29.9.02 at 6.15 am, PW-3 Gopi Chand, S.H.O., Police Station- Manohar, District Jhalawar while he was out with his team in connection with the investigation of criminal case No.154/02 registered at his police station, for the search of abducted woman, he saw the present appellants Kedar Bai and Anoop with a bag hung on his shoulder standing near Krishi Upaj Mandi situated infront of Police Station. On enquiring, they could not answer satisfactorily. Hence on suspicion, he made a search of the bag of appellant Anoop and also got made the search of appellant Kedar Bai by PW-8 Sushila, lady Constable who was also accompanying the investigating team made for search of abducted woman. The bag hung on appellant Anoop's shoulder was found to contain 520 gms of smack whereas on personal search of Kedar Bai, 520 gms of smack was found tied on her waist. On being asked, the appellants told that they had brought the smack from Madanlal and Pappu and that it was to be sent to Beenaganj (M.P.). The appellants did not have any license for its possession. The contraband was seized & sealed on the spot in accordance with prescribed rules and procedure. Thereafter, both the accused-appellants were arrested. 5. Case was registered at Police Station and after investigation, charge-sheet against four persons including Madan & Pappu (since acquitted, not before this Court) was filed under Sections 8/21 of 'the Act'. The contraband was seized & sealed on the spot in accordance with prescribed rules and procedure. Thereafter, both the accused-appellants were arrested. 5. Case was registered at Police Station and after investigation, charge-sheet against four persons including Madan & Pappu (since acquitted, not before this Court) was filed under Sections 8/21 of 'the Act'. Seized articles were deposited in the Malkhana and sealed samples were forwarded to Forensic Science Laboratory for examination. The report Ex.P/36 was received showing the positive test for the presence of diacetylmorphine (Heroin). 6. On commital, the learned Special Sessions Judge, framed the charges against the appellants for the offence under Sections 8/21 and 8/29 of 'the Act'. Accused denied the charges and claimed trial. 7. Accused-appellant Anoop jumped his bail and absented himself from 6.10.03 to 17.2.04. 8. In order to substantiate its case, prosecution examined nine witnesses i.e. PW-1 Vijay Singh, PW-2 Ranglal, PW-3 Gopi Chand, PW-4 Bhawar Singh Nathawat, PW-5 Bhawar Singh, PW-6 Mod Singh, PW-7 Kishan Singh, PW-8 Sushila and PW-9 Chaitanya and exhibited 37 documents. 9. After completion of prosecution evidence, accused appellants were examined under Section 313 Cr.P.C. and all the incriminating evidence was put to them. They denied recovery and alleged false implication. They also denied possessing any contraband. They examined two witnesses namely DW-1 Banshilal and DW-2 Bhawarlal. 10. The learned Trial Court after hearing both the parties and after perusal of the record before it, passed the impugned judgment whereby accused-appellants were convicted for offence under Section 8/21 of 'the Act' whereas other two were acquitted. 11. The appellants have assailed the impugned judgment on various grounds: (i) The first argument of learned counsel for the appellants was that while making the search of the accused-appellants by PW-3 Gopi Chand, mandatory provision under Section 50 of 'the Act' was not complied with; (ii) The second argument was that the alleged date of occurrence is 29.9.02 whereas the FSL report is dated 20.6.02 which shows that Ex.P-36 FSL report does not pertain to the case in hand; (iii) Relying on the judgment of Hon'ble Apex Court in the case of E.Micheal Raj, argument of learned counsel for the appellants was that Ex.P-36 report did not show the percentage of diacetylmorphine. Therefore, for want of pure content of contraband, the appellants could not have been convicted under Section 21(c) of 'the Act'. 12. Therefore, for want of pure content of contraband, the appellants could not have been convicted under Section 21(c) of 'the Act'. 12. The first argument advanced by learned counsel for the appellants was that the prosecution did not comply with the mandatory provisions of Section 50 of 'the Act' before making search of the accused and for this reason entire trial got vitiated and the appellants deserved acquittal. The learned Trial Court has wrongly arrived at a conclusion that it was a case of chance recovery whereas it was not. My attention was drawn to the statements of PW-8 Sushila, the lady constable and it was submitted that according to PW-8 the SHO PW-3 Gopi Chand had suspected of accused having contraband and that, he, in such circumstances, before making search should have issued notice under Section 50 of 'the Act'. 13. This argument was controverted by the learned Public Prosecutor for the State stating that the provisions of Section 50 of 'the Act' were not attracted in this case for two reasons. Firstly it was a case of chance recovery and secondly in case of appellant Anoop Kumar he was found as carrying a bag on his shoulder and that his search was not a personal search. He placed reliance on the judicial principles laid down by Apex Court from time to time. It was submitted that as per the principles laid down by Apex court in the matter of State of Haryana vs. Ranbir @ Rana-2006 Criminal 441, Section 50 of 'the Act' is only applicable in a case of personal search of the accused and not when it is made in respect of some baggage like bag, article or container etc. Which, the accused, at the relevant time, was carrying. Reliance was also placed on the case of Bharat Bhai Bhagwanji Bhai vs. State of Gujarat reported in AIR 2003 SC 070 at page 10. 14. In Ranbir @ Rana's case (supra) referring to the three judge Bench decision in State of Himachal Pradesh etc vs. Pawan Kumar- (2005) 4 SCC 350 -14, Apex Court, relying on the decision of Constitutional bench in State of Punjab vs. Baldev Singh-1999(6) SCC 162 clearly held that Section 50 of 'the Act' shall only be applicable in a case of personal search and not in a case where, at the relevant time, the accused was carrying bag, baggage or container. Hon'ble Apex Court has held that in a case of search of a bag being carried by the accused at the relevant time, there is no necessity of compliance of Section 50 of 'the Act'. 15. Further in the matter of State of H.P. vs. Pawan Kumar- 2005(4) SCC 350 Apex Court dealing with the scope of the word “Person” in Para 9 held that 'person' would mean a human being with appropriate coverings and clothings and also footwear & a bag briefcase or any such article or container etc can, under no circumstances, be treated as body of human being. It has been held as under: “The word “person” has not been defined in the Act. Section 2(xxix) of the Act says that the words and expressions used herein and not defined but defined in the Code of Criminal Procedure have the meanings respectively assigned to them in that Code. The Code of Criminal Procedure, however, does not define the word “person” Section 2(y) of the code says that the words and expressions used therein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. Section 11 of the Indian Penal Code says that the word “person” includes any company or association or body of persons whether incorporated or not. Similar definition of the word “person” has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand... 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 clothing.” 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 alongwith 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. Such appropriate coverings or clothings or footwear, after being worn, move alongwith 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 also footwear.... A bag, briefcase or any such article or container, etc., can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. Of varying size, dimension or weight. However, while carrying or moving alongwith them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in section 50 of 'the Act'. 16. Out of the two appellants before us, the allegation against Anoop Kuar was that the contraband was found in the bag he was carrying on his shoulder, at the relevant time. 17. Thus it is clear that in case of appellant, Anoop Kumar, the compliance of Section 50 of 'the Act' as per the principles mentioned hereinabove, was also not necessary as it was a recovery from a bag and not from his person. 18. 17. Thus it is clear that in case of appellant, Anoop Kumar, the compliance of Section 50 of 'the Act' as per the principles mentioned hereinabove, was also not necessary as it was a recovery from a bag and not from his person. 18. So far as Kedar Bai is concerned, admittedly she was found to have tied a polythene bag on her waist, therefore, it was a case of personal search and in her case also the provisions of Section 50 of 'the Act' cannot be said to have been attracted. Because Section 50 of the Act reads as under: “50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any suich person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (3) The Gazetted Officer or the Magistrate before whom any suich person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” It is clear from above that the notice under Section 50 of 'the Act' is mandatory in cases where the competent officer has prior information of the accused having contraband given by some one or has reason to believe from his personal knowledge that any person has committed an offence punishable under this Act and he is about to search that person. 19. In the case in hand, it is clear that the police teat set out of police station for the search of accused and abducted woman pertaining to report roznamcha Ex.P/15. Record of police station in particular Ex.P/15 clearly suggests that a case relating to the abduction of a woman had been registered and PW-3 & his team set out for search of accused and the abducted woman and when they saw the appellants in suspicious circumstances, they made a search because of suspicion. Ex.P/15 as well as the statements of PW-3 Gopi Chand and for that matter, also of PW-8 Sushila, clearly show that on the date of occurrence at about 6.00 am he, alongwith lady constable PW-8 Sushila as well as other members of his team, was on duty in search of abducted woman for which case No.154/02 under Section 369 IPC was registered. Ex.P/15 is a copy of Rojnamcha entered on 29.9.02 at 6.00 am which is on record. Ex.P/15 is a copy of Rojnamcha entered on 29.9.02 at 6.00 am which is on record. It is at that time, while on way, in search of abducted woman, that PW-3 along with team reached near Krishi Upaj Mandi and found the present appellants sitting in suspicious condition. The appellant Anoop was found holding a bag on his shoulder whereas on search, appellant Kedar Bai was found to possess on her body the substance. PW-3 clearly stated that he did not have any information or doubt of possession of contraband but he simply had a doubt of some wrong act that too because of the abnormal behaviour of the appellants. 20. Admittedly there was no information with regard to the commission of any offence under this Act. PW-3 Gopi Chand had proceeded for investigation of an abduction case and while going for search of abducted woman he found the appellants in suspicious condition. Thus it was clearly a case of chance recovery as held in Bharat Bhai Bhagwanji Bhai vs. State of Gujarat-AIR 2003 SC 07, at P.10, that if at the time of effecting search, there was no knowing that an offence under Chapter IV of “the Act” has been committed by the accused, the provisions of Section 50 of the Act are not attracted. 21. On the basis of discussion made herein-above, it is clear that case in hand was a case of chance recovery and not the case on the basis of prior information as it is proved that police team on its way for investigation of case no.154/02 as mentioned in Ex.P/15. Thus compliance of Section 50 of 'the Act' cannot be said to be necessary. Learned Trial Court has rightly arrived at said finding that it was a case of chance recovery. This argument of learned counsel for appellants has no force. 22. The second argument advanced was that the occurrence is stated to be of 29.9.02 whereas Ex.P/36 FSL Report is dated 20.6.02 which means Ex.P/36, by no stretch of imagination, could be said to pertain to the case in hand. 23. This argument of learned counsel for appellants has no force. 22. The second argument advanced was that the occurrence is stated to be of 29.9.02 whereas Ex.P/36 FSL Report is dated 20.6.02 which means Ex.P/36, by no stretch of imagination, could be said to pertain to the case in hand. 23. On the other hand, learned Public Prosecutor appearing for respondent State argued that it appears to be a bonafide mistake because entire report Ex.P/36 is a typed one except the hand written date of 20.6.02' and that the report, if read in totality makes it clear that the report cannot be of a prior date than the date of receipt of samples. 24. I have perused the original record and I find that Ex.P/36 is a typed report and all the columns are typed except this hand written date of 20.6.02. It is also clear that just below this hand written date of 20.6.02, the letter accompanying the samples has been shown to be letter No.15950 dated 17.10.02 and this fact is corroborated by PW-7 Kishanlal, Constable who claims to have carried Ex.P/29 which is a forwarding letter which is dated 17.10.02. He has categorically stated that he went on 17th night and reached Jaipur FSL office on 18.10.02. There is no reason to disbelieve his statements and even Ex.P/29. 25. For the discussion made hereinabove, this purely appears to be a bonafide error as all the entries except this hand written date in Ex.P/36 show that the report pertains to the case in hand. Hence, the argument of learned counsel for appellants is also not sustainable. 26. Third and last argument advanced by learned counsel for the appellants was that since the FSL report Ex.P/36 does not show as to what was the percentage of contraband in the substance, the appellants could not have been convicted for offence under Section 21(c) of 'the Act'. 27. The FSL report Ex.P/36 received during investigation shows that the samples gave positive tests for the presence of diacetylmorphine. Ex.P/36, the Forensic Science Laboratory report reads as under: “DESCRIPTION OF ARTICLES” Each of the packet marked A and D contained brown coloured powdered substance enclosed in respective polythene pouch separately. The substance contained in each of the packet marked A and D weighed 10.600 gms alongwith polythene pouch. Ex.P/36, the Forensic Science Laboratory report reads as under: “DESCRIPTION OF ARTICLES” Each of the packet marked A and D contained brown coloured powdered substance enclosed in respective polythene pouch separately. The substance contained in each of the packet marked A and D weighed 10.600 gms alongwith polythene pouch. RESULT OF EXAMINATION On microchemical examination, the sample contained in each of the packet marked A and D gave positive tests for the presence of diacetylmorphine (HEROIN).” 28. The appellants have been convicted for an offence under Section 8/21 of 'the Act'. This Section prescribes punishment for possessing manufactured drugs and preparations. The “manufactured drug” has been defined in Section 2(xi). As per Section 2(xi)(a), manufactured drug includes opium derivatives. “2(xi): “manufactured drug” means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate” 29. “opium derivative” in turn has been defined in Section 2(xvi) as under: “2(xvi): opium derivative” means- (a) the medicinal opium, that is, opium which has undergone the process necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; (b) prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts; (d) diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and (e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine.” 30. As is clear from Ex.P/36 that diacetylmorphine was found present in the samples and as per provisions of Section 2(xvi)(d) (supra), the other name of diacetylmorphine is 'heroin'. As per Section 2(xvi)(e), all preparations containing any diacetylmorphine are opium derivatives. According to provisions of Section 2(xvi)(e), preparation containing more than 0.2 per cent of morphine shall also be taken to be opium derivative whereas in case of diacetylmorphine, the word used is 'any diacetylmorphine'. It is clear from this that morphine and diacetylmorphine are two different chemicals. 31. As per Section 2(xvi)(e), all preparations containing any diacetylmorphine are opium derivatives. According to provisions of Section 2(xvi)(e), preparation containing more than 0.2 per cent of morphine shall also be taken to be opium derivative whereas in case of diacetylmorphine, the word used is 'any diacetylmorphine'. It is clear from this that morphine and diacetylmorphine are two different chemicals. 31. For this reason also, in my view there was no necessity of writing the percentage of actual content of the contraband because the provision is very clear that if, on chemical examination of a substance, morphine is found, then only the question of percentage will come and it has to be more than 0.2 per cent. In case presence of morphine is upto 0.2 per cent, then such preparation will not be treated as opium derivative. In that case, it will neither be manufactured drug nor narcotic drug. 32. Section 21 of the Act prescribes punishment not only for possessing manufactured drugs but also possessing any preparation containing any manufactured drugs. In the case in hand, in the first place there was no necessity to give the percentage of actual content of contraband. 33. Moreover Central Government, vide notification no. SO-2941A dated 18.11.09, has amended earlier notification no.S.O.-1055A dated 19.10.01, which clearly shows that determination of quantity of contraband will be on the basis of actual quantity recovered and not pure contents of the contraband. By way of this amendment, it has been clarified that entire quantity recovered from the accused shall be taken into consideration for the purpose of determining whether quantity is small, intermediate or commercial. 34. For the reasons mentioned herein-above, I find no force in this argument also. 35. No other argument was advanced. 36. On the basis of discussion made herein-above, I am of the view that the appellants have not made any case warranting interference in the finding of conviction recorded by the learned Trial Judge. 37. Consequently, the appeals filed by appellant Kedar Bai being appeal No.1214/04 and Anoop being appeal No.1295/04 are devoid of merit and hence deserve to be dismissed and are hereby dismissed. 38. The conviction and sentence awarded by the learned Special Judge, NDPS Cases Court, Jhalawar vide his order dated 21.9.04 passed in Sessions case No.10/2003 is upheld.