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2018 DIGILAW 1506 (ALL)

Dil Kumari v. State of U. P.

2018-07-07

SIDDHARTH

body2018
JUDGMENT & ORDER : Siddharth, J. Sri Manu Sharma and Sri. D.K. Pandey, learned counsel for the appellant have been heard in Jail Appeal No. 1706 of 2015 and Sri. Radhey Shyam Yadav, learned Amicus Curiae has been heard in Jail Appeal No. 1707 of 2015 and Sri. Ashwani Yadav, learned A.G.A has been heard for the State. 2. This Jail Appeal is directed against the judgment and order dated 12.3.2015 passed by Additional District and Sessions Judge, Court No. 1, Maharajganj in Special Case No. 61 of 2011 (State v. Dil Kumari) registered as Case Crime No. 835 of 2011, under Section 8/23 N.D.P.S. Act, Police Station Sonauli, District Maharajganj and Special Case No. 62 of 2011 (State v. Rajendra Pun Magar) registered Case Crime No. 836 of 2011, under Section 8/23 N.D.P.S. Act, Police Station Sonauli, District Maharajganj. 3. The brief facts of the case are that on 17.9.2011, Sub-Inspector Ramshabad Verma, Constable Harish Shukla and Constable Deva Prasad got information that some people are coming to Sonauli with Charas and if proper checking is done, they can be apprehended. Accordingly, joint team was constituted and they found one woman with a child in a lap and another a man going back after seeking the police. Lady constable apprehended them and they told their name as Dil Kumari and Rajendra respectively and 39 packets of Charas were recovered from the waist of Dil Kumari, which was found to be 4 kg. Rajendra was found in possession of 20 packets of Charas in a black bag, which was 2 kg. in weight. From every packet, samples were collected about 100 gm. of Charas, was sealed as sample and remaining Charas was sealed and kept. No public witness agreed to give statement. The case was registered against them and after investigation, charge sheet was submitted. In the report of chemical analysis, the recovery of Charas was proved. PW-1, Sub Inspector, Ramshabad stated in his evidence that Dil Kumari was informed whether she would be like her search to make before a Gazetted Officer or Magistrate to which she refused and stated that a lady constable may make search from her body. Thereafter, her consent letter was prepared and she made signatures thereon. Lady Constable, Anuradha Singh recovered 39 packets from her waist and it was found to be 4 kg. in weight. Thereafter, her consent letter was prepared and she made signatures thereon. Lady Constable, Anuradha Singh recovered 39 packets from her waist and it was found to be 4 kg. in weight. Similarly, Rajendra was also given option of search in presence of a Gazetted Officer and Magistrate, he refused and accordingly, this consent letter was prepared and got signed by him and on search 20 packets of Charas were recovered from his bag. Therefore, they were charge-sheeted. PW-5, Head Constable, Akhilesh Kumar Pandey proved the lodging of report on 17.9.2011. PW-2 Constable Harish Shukla, PW-3 lady Constable Priti Kumar, PW-4 Sub Inspector Ram Sanware Yadav, proved prosecution case. 4. The learned trail court considered defence of the accused persons regarding non-compliance of Section 50 and held that there is no proforma for informing of accused of their rights. It is only necessary that they should be informed that they can be searched before a Gazetted Officer or Magistrate. This is sufficient compliance of Section 50. Learned trial court convicted and sentenced the accused appellants under Section 8/23 NDPS Act with 10 years rigorous imprisonment and fine of Rs. One lac each. Aggrieved by the same, this jail appeal has been preferred by the accused appellants. 5. Learned counsel for the accused appellants has argued that the prosecution fails to prove that samples were taken from all the packets recovered from the accused and were sent for examination nor any finding has been recorded in this regard by the court below. The recovery of 39 packets is alleged from Dil Kumari and 20 packets from Rajendra, but prosecution has not proved whether samples were taken from every packets recovered and were sent for examination by the expert. He has relied upon the judgment of this Court in the case of Jitendra Singh Rathore v. State of U.P., (2014) 4 AllLJ 76 (Paragraph Nos. 27 and 28) : Manu/UP/0087/2014, which reads as follows:- "27. Moreover from the record, it further appears that it is categorical case of the prosecution that 29 packets have been recovered from a white bag with which the appellant was found sitting and the appellant has stated the contraband article weighed about 25 Kgs. 27 and 28) : Manu/UP/0087/2014, which reads as follows:- "27. Moreover from the record, it further appears that it is categorical case of the prosecution that 29 packets have been recovered from a white bag with which the appellant was found sitting and the appellant has stated the contraband article weighed about 25 Kgs. Charas but P.W.1, who had made the arrest and seizure of the appellant did not weighed the contraband article recovered from him and only on the statement of appellant it was believed to be 25 Kgs. Charas and no actual weight was taken by P.W.1 which further creates doubt whether the alleged contraband article was the same which was recovered from the possession of the appellant and sent to chemical analysis. It is further noted that 29 packets of Charas weighing about 25 Kgs. Charas is said to have been recovered from the appellant but the sample in question which was taken before the court by the Investigating Officer does not disclose or shows that whether the sample was taken from all the 29 packets recovered from him from a white bag and send to chemical analysis by P.W.3 which further creates doubt whether the 29 packets which were recovered also contained Charas as from the report of the chemical analysis shows that he has only received one bag sealed in a cloth which was found to be Charas. The prosecution has thus failed to show from the record that how many samples were taken from the contraband article which was recovered from the appellant and sent to chemical analysis. Lastly from the record it transpires that no sample of seal was sent along with the sample to chemical analysis for the purpose of comparing with the seal bearing on the sample, therefore, there is no evidence to prove satisfactorily that the seal found was in fact the same seal as was put on the sample bag immediately after seizure of the contraband. These loopholes in the prosecution case cannot sustain the conviction of the appellant in view of the judgment of the Apex Court in the case of State of Rajasthan v. Gurmail Singh, (2005) AIR SC 1578. 29. These loopholes in the prosecution case cannot sustain the conviction of the appellant in view of the judgment of the Apex Court in the case of State of Rajasthan v. Gurmail Singh, (2005) AIR SC 1578. 29. The learned A.G.A. though had tried to justify the conviction and sentence of the appellant but he could not point out to the Court from the record whether the police party had taken the actual weight of the article, i.e., Charas recovered from the appellant, whether the Malkhana register was produced by the prosecution to show that the article which was deposited by P.W. 1 in the Malkhana of the concerned police station and entrusted to P.W. 4 was the same which was produced before the court on 23.8.1999 and sent to the chemical analyst. Moreover, he could not also dispute the fact that the sample was not taken from all the 29 packets recovered from the white bag with which the appellant was sitting and only one sample was taken of the contraband article which was sent to chemical analysis. 6. Second argument has been advanced by the learned counsel for the appellant regarding the compliance of Section 50 of the NDPS Act, he has submitted that as per law, police is required to produce the accused before the nearest Gazetted Officer or the Magistrate and resort to search as per sub-sections (5) and (6) of Section 50 can be resorted to only in emergent and urgent situations and not as a matter of course. He has relied upon the judgment in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) AIR SC 77, Manu/SC/0913/2010. Paragraph Nos. 12 to 22 of the aforesaid judgment has been relied upon, which are as follows:- "12.The NDPS Act was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances. Paragraph Nos. 12 to 22 of the aforesaid judgment has been relied upon, which are as follows:- "12.The NDPS Act was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances. The object of the said legislation has been explained time and again by this Court in a plethora of cases and, therefore, we feel that it is not necessary to delve upon this aspect all over again, except to re-emphasise that in order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered officers, the safeguards provided by the Legislature have to be observed strictly. Moreover, having regard to the terms of reference to the larger Bench, extracted above, it is equally unnecessary to extract extensively all the provisions of the NDPS Act to which reference was made by learned counsel appearing for the States, and a brief reference to these provisions would suffice. 13.Under Section 41 of the NDPS Act, certain classes of Magistrates are competent to issue warrants for the arrest of any person whom such Magistrates have reason to believe to have committed any offence punishable under the NDPS Act, or for the search of any building, conveyance or place in which such Magistrate has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA is kept or concealed. Under Section 42 of the NDPS Act, the empowered officer can enter, search, seize and arrest even without warrant or authorisation, if he has reason to believe from his personal knowledge or information taken down in writing, that an offence under Chapter IV of the said Act has been committed. Under Section 42 of the NDPS Act, the empowered officer can enter, search, seize and arrest even without warrant or authorisation, if he has reason to believe from his personal knowledge or information taken down in writing, that an offence under Chapter IV of the said Act has been committed. Under proviso to sub-section (1), if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief and send the same to his immediate official superior in terms of sub-section (2) of the Section. 14. Section 50 of the NDPS Act prescribes the conditions under which personal search of a person is required to be conducted. Being the pivotal provision, the Section (as amended by Act 9 of 2001 - inserting sub-sections (5) and (6) with effect from 2nd October, 2001) is extracted in full. It 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 such 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 such 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." 15. Sub-section (1) of the said Section provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-section (2), it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such gazetted officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the gazetted officer or the Magistrate, the empowered officer is restrained from effecting the search of the person concerned. He can only detain the suspect for being produced before the gazetted officer or the Magistrate, as the case may be. Sub- section (3) lays down that when the person to be searched is brought before such gazetted officer or the Magistrate and such gazetted officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct the search to be made. The mandate of Section 50 is precise and clear, viz. The mandate of Section 50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so. 16. At this juncture, we must state that the issue before us in terms of the referral order is not about the applicability of Section 50 of the NDPS Act per se but is confined to the scope and width of the expression "if the person to be searched so requires" as figuring in sub-section (1) of the said Section. Therefore, we deem it unnecessary to evaluate the submissions made by the learned counsel regarding the applicability of the rigours of Section 50 of the NDPS Act when a search of the suspect is conducted by an officer empowered under Section 41 of the said Act. We may, however, add that while considering the question of compliance with Section 50 of the NDPS Act, the Constitution Bench in Baldev Singh (supra) considered the provisions of Section 41 as well. It observed as under :- "8. Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of and for search of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Vide sub-section (2) the power has also been vested in gazetted officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force, empowered in that behalf by a general or special order of the State Government to arrest any person, who he has reason to believe to have committed an offence punishable under Chapter IV or to search any person or conveyance or vessel or building etc. with a view to seize any contraband or document or other article which may furnish evidence of the commission of such an offence, concealed in such building or conveyance or vessel or place." 17. In the above background, we shall now advert to the controversy at hand. with a view to seize any contraband or document or other article which may furnish evidence of the commission of such an offence, concealed in such building or conveyance or vessel or place." 17. In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh's case. We are concerned with the following conclusions:- "57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search." 18. Although the Constitution Bench did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. 19. As noted above, sub-sections (5) and (6) were inserted in Section 50 by Act 9 of 2001. It is pertinent to note that although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub- sections, viz. when the authorised officer has reason to believe that any delay in search of the person is fraught with the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance etc., or article or document, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases a safeguard against any arbitrary use of power has been provided under sub-section (6). Under the said sub-section, the empowered officer is obliged to send a copy of the reasons, so recorded, to his immediate official superior within seventy two hours of the search. In our opinion, the insertion of these two sub-sections does not obliterates the mandate of sub-section (1) of Section 50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate. The object and the effect of insertion of sub-sections (5) and (6) were considered by a Constitution Bench of this Court, of which one of us (D.K. Jain, J.) was a member, in Karnail Singh v. State of Haryana, (2009) AIR SCW 5265. Although in the said decision the Court did observe that by virtue of insertion of sub-sections (5) and (6), the mandate given in Baldev Singh's case is diluted but the Court also opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have been taken away completely. Although in the said decision the Court did observe that by virtue of insertion of sub-sections (5) and (6), the mandate given in Baldev Singh's case is diluted but the Court also opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have been taken away completely. The Court observed :- "Through this amendment the strict procedural requirement as mandated by Baldev Singh case was avoided as relaxation and fixing of the reasonable time to send the record to the superior official as well as exercise of Section 100, CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance with Section 50 by Baldev Singh case was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only (2009) 8 SCC 539 to balance an urgent situation. As a consequence the mandate given in Baldev Singh case is diluted." 20. It can, thus, be seen that apart from the fact that in Karnail Singh, the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search, seizure and arrest without warrant or authorisation, the said decision does not depart from the dictum laid down in Baldev Singh's case insofar as the obligation of the empowered officer to inform the suspect of his right enshrined in sub-section (1) of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two newly inserted sub-sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, sub-section (6) of Section 50 of the NDPS Act makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of sub-section (5), to his immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial. 21. 21. We shall now deal with the two decisions, referred to in the referral order, wherein "substantial compliance" with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey (supra), a two Judge Bench of this Court culled out the ratio of Baldev Singh's case, on the issue before us, as follows: "What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word "right" at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the "suspect" at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it." However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez (supra), the Court chose to follow the views echoed in the latter case, wherein it was held that searching officer's information to the suspect to the effect that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression "substantial compliance" in the following words: "The use of the expression "substantial compliance" was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations." It is manifest from the afore-extracted paragraph that Joseph Fernandez does not notice the ratio of Baldev Singh and in Prabha Shankar Dubey, Joseph Fernandez is followed ignoring the dictum laid down in Baldev Singh's case. 22. 22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed In Re Presidential Poll 14, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 : ( AIR 1974 SC 1682 ) 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. 7. Third argument advanced by the learned counsel for the accused appellants is that Malkhana Register was not produced by the prosecution before the court below to prove the seizure list. He has argued that no reason has been given why the same was not produced. He has relied upon paragraph Nos. 3 and 4 of the judgment of the Apex Court in the case of State of Orissa v. Sitansu Sekhar Kanungo, Manu/SC/0952/2002, which are as follows:- 3. The High Court, in a rather detailed judgment, stated that the vital question was whether necessary safeguards have been observed relating to the safe custody of articles alleged to have been seized and thus questioned the validity of seizure. Admittedly, the seizure was made on 31st January, 1993 and the articles seized were produced before the learned SDJM on 15.4.1993. The seizure lists related to collected samples of brown sugar/heroin, the place of seizure mentioned to be power house road, park area, Rourkela and the seizure lists were prepared on 31st January, 1993 at about 7.15 p.m. and 7.30 p.m. It has been argued before the High Court that in the seizure lists, there is a reference to the plant-site police station case No. 43 of 1993 which, in the normal course of events, should not have been recorded and as such seizure lists became suspect. The High Court, however, did not find it convenient to deal with the matter oh the ground that it may not be appropriate to deal with the said plea for the first time in appeal. The High Court, however, placed strong reliance on the defence submission of non-production of the malkhana register. On this ground, the High Court recorded that the malkhana register has not been tendered in evidence and acceptance of the oral statement of PW5 that the articles were in the police malkhana of plant site police station and nothing else is available on record would not arise. Significantly however, no reason whatsoever has been ascribed as to why the malkhana register could not be produced thereby exposed to the adverse presumption under the Evidence Act that in the event of its production, it would have thrown sufficient light to the detriment of the respondents in the matter. The High Court, in its order (being impugned) noted that even no official attached to the plant-site police station has been examined to further the stand that the seized articles were kept in the plant-site police station. PW5, the High Court noted, has not stated that he had deposited the articles in the malkhana of the plant-site police station and there is thus a vital omission about the custody of articles and it is on this score, the High Court thought it fit that the court cannot be a silent spectator while justice is being trampled by inept handling of the case. It further held that in the case at hand, the non-production of the malkhana register being one of the vital missing finks, the other factors highlighted above coupled with the non-production of the malkhana register have given a fatality to the prosecution case. 4. The learned advocate appearing in support of the appeal, however rather confidently stated that since the provisions of section 57 of the Act are now settled to be only directory and not mandatory in nature, the question of non-production of the malkhana register though vital, but the success of a case does not and cannot depend upon it. It may be a mere irregularity but cannot go to the root of the prosecution which make the prosecution vulnerable. It may be a mere irregularity but cannot go to the root of the prosecution which make the prosecution vulnerable. At the first blush, the arguments, seem to be rather convincing but on a closure scrutiny, however, it lost its efficacy by reason of the fact of there being no factual support therefore. The High Court has dealt with the matter purely on the factual score and concluded adversely by reason of non-production of malkhana register coupled with other set of facts, as argued before the High Court. The doubt which sprang up as regards the seizure lists, admittedly cannot be brushed aside. The seizure lists ought to have been prepared before the lodgment of the FIR and as such question of mention of the FIR No. in the seizure lists would not arise at all. But in the contextual facts, the indication of the case number in the seizure lists has resulted in the submission of the learned advocate for the defence before the High Court as also before this Court that this extra noting on the seizure lists cannot but be ascribed to be a manipulation in the document which is not permissible under the law. The High Court though not placed much reliance apparently thereon but obviously the same had its due impact and effect on the court since in the last paragraph, the High Court did speak of "other factors highlighted coupled with the non-production of malkhana register that have given fatality to the prosecution case". This observation of the High Court by itself connotes that the High Court has taken note of it with due particulars and it is on the issue of facts that the High Court felt that there would be justice trampled if an order is passed in favour of the prosecution." 8. Learned AGA has argued that the argument of the learned counsel for the accused appellants that separate samples of all the packets recovered from the accused was required, is not justified since all the packets contained same materials and production of one sample was sufficient compliance of the law. He has disputed the argument that the information to the appellant No. 1, Dil Kumari about her right to be searched before the Gazetted Officer or the Magistrate was sufficient compliance of Section 50. He has disputed the argument that the information to the appellant No. 1, Dil Kumari about her right to be searched before the Gazetted Officer or the Magistrate was sufficient compliance of Section 50. He has also argued that mere non-production of Malkhana Register will not adversely affect the rights of the accused. He has clarified that the compliance of Section 50 was not necessary for accused No. 2, who was found in possession of the contraband in a bag and it was not recovered from his body. 9. After considering the rival submissions, it is clear from the judgment of this Court in the case of Jitendra Singh Rathore, (supra) that the prosecution was required to prove that samples were taken from all the packets recovered from the accused appellants and if this fact was not proved by the prosecution, the conviction of the appellant cannot be upheld. It is clear from the record that samples were not made for chemical analysis from all the packets recovered from the appellant No. 1 and also from the appellant No. 2 and therefore, it cannot be conclusively held that all the packets recovered from the presence of the first accused and from the bag of the second appellant, were Charas as alleged by the prosecution. 10. The first appellant was required to be produced before the Magistrate or the Gazetted Officer as per the ratio of the Apex Court's judgment in the case of Vijaysinh Chandubha Jadeja (supra) and mere information to the first appellant that she has option to be searched before the Gazetted Officer or the Magistrate, is not sufficient. In paragraph 19 of the judgment aforesaid, the Apex Court clearly held that when the authorized officer has reason to believe that any delay in search of the persons is fraught with the possibility of parting with possession of any narcotic drug, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. In such a case, the empowered officer is obliged to send a copy of the reasons, so recorded, under sub-section (6) of Section 50 to his immediate superior officers within seventy two hours of the search. The Apex Court has clarified that the mandate of sub-section (1) of Section 50 has not been obliterated by the amendment of the Section and insertion of sub-section (5) of Section (6). 11. The Apex Court has clarified that the mandate of sub-section (1) of Section 50 has not been obliterated by the amendment of the Section and insertion of sub-section (5) of Section (6). 11. In view of the above, non-compliance of Section 50 in the case of first appellant is writ large on the face of record. The final argument of the learned counsel for the accused appellants regarding the non-compliance of Section 57, relying upon State of Orissa, is well founded since had the Malkhana Register been produced by the court below, seizure list could have been verified by the court below, however this Section is only directory and, therefore, much reliance on the same is not required. Finally the search of first appellant by the lady Constable Anuradha Singh in violation of Section 42 (1) of NDPS Act cannot be approved. 12. In view of the above consideration, the judgment and order passed by the court below cannot be sustained since the recovery from the possession of the appellants has not proved beyond reasonable doubt in strict compliance of the provisions of NDPS Act. 13. The impugned judgment and order passed by the trial court convicting and sentencing the appellants is hereby quashed. The appeal stands allowed. The appellants shall be released forthwith, if not required in any other case. Let the record of these appeals be sent to the court below.