@(9 5§ngle gem IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.A. No. é! f] O [2005 APPELLANT Kamlochan, S/o. Baldhar, Agsd LIN JAIL) about 42 years, Occupation— Labourer, R/o. Village Retabandh, Thana Bhanpuri, Distt—Bastar, Jaédalpur (C.G.). VERSUS RESPONDENT a Stats of Chhattisgarh, Through RS. Nagarnar, District Bastar, Jagdalpur. APPEAL UNDER SECTION 374f2/)OF CODE OF CRIMINAL PROCEDURE / ‘ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeal No.490/2005 Single Bench: Hon’ble Shri Dilip Raasaheb Deshmukh, J" Kamlochan‘ Versus Sfa‘re of Ch haf‘fisgarh %V ; Dilip Raosaheb Deshmukh 'i ‘ Judge b 02-2006 V “MW Sdl- HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeal No.490/2005 Single Bench: Hon'bie Shri DNip Raosaheb Deshmukh, J. Kam lochun Versus " STaTe of Chha‘H’isgqrh Shrl Klshore Bhadurl learned Counsel for ’rhe appellnn'r 5hr: Ashlsh Shukia G A /Addl Public Prosecufor for fhe S'ra’re ORAL JUDGMENT (Passed on 13*h of February, 2006) The appellan'l' is aggrieved by The judgmen‘r da‘red 14—01-2005 delivered in Special Case No.42/2004 by Shri Surendra Tiwari, Special Judge, N.D.P.S. Ac‘r. , Bastar, Headquarter aT Jagdalpur whereby The appellan'r was convic‘l'ed under Section- 20(b)(ii)(B) of The NarcoTic Drugs and PsychoTropic SubsTances ACT. 1985 (hereinafTer referred To as The “AcT") and was senTenced To RI. for 5 years and a fine of Rs.10,000/— and in defaulT of paymenT of fine To undergo addiTional RI. for Two years. @ Brief facTs are ThaT on 10-09-2004 $.K.Singh, PW-4 AssisTanT Sub InspecTor, Police Chowki—Bakawand on receiving secreT informaTion apprehended The appellanT aT The Raj Nagar crossing in presence of wiTnesses and found ThaT The appellanT was carrying a blue coloured bag on The carrier of his Cycle. Shri 5.K.Singh PW-4 gave noTice EXP-4 under SecTion—EO of The AcT To The appellan? Na @ informing him Tha‘f if he wanfed he can ge‘r The search affected fhroughhim or fhrough any Gazeffed Officer. The appellanf consenfed ‘ro The search by Assismnf Sub Inspec‘ror Shri S‘K.Singh PW—4 which was recorded. The bag was searched and found 1'0 con‘l’ain ganja iike subsfance which was weighed and found To be 8 KIG. Ou‘r of fhis, 1’wo samples of 30 grams each'were Taken and seaied. The bag conTaining ganja !ike subsTance was also seaied . AfTer ~ complying wiTh The necessary legal formaliTies, Shri SK. Singh, AssisTanT Sub InspecTor deposiTed The sealed blue splasTic bag and Two sample packeTs in The Malkhana of P.S. Bakawand ‘on 10-09-2004. On 12-09—2004, one of The sample packeTs was senT To Forensic Science LaboraTory, Raipur for chemical analysis Through a memo of The SuperinTendenT of Police daTed 12-09—2004. Vide reporT daTed 12-10-2004 The Forensic 5cience LaboraTory opined ThaT The sample packeT conTained ganja. AfTer compleTion of invesTigaTion, The appellanT was prosecuTed for The offences punishable under SecTion-20(b)(ii)(B) of The ACT. The appellanT abjured The guiIT. The prosecuTion examined 5 wiTnesses. The appellanT pleaded innocence in defence and led no evidencel The Trial Judge relying upon The evidence led by The prosecuTion convicTed and senTenced The appellanT as aforesaid in para-1. Shri Kishore Bhaduri, learned counsel for The appellanT has assailed The impugned judgmenT daTed 14—01-2005 on The sole ground of non—compliance of SecTion-50 of The AcT. He hassconTended ThaT AssisTanT Sub InspecTor Shri S.K.Singh @ PW-4 Le. The Officer affec‘ring *he search did nof inform The accused abouf his righ‘l’ under SecTion-50 of fhe Ac’r w i and did no? give him The op‘rion i0 be Taken wiThouT unnecessary deiay To The nearesT MagisTmTe. 5. Learned counsel for The appellanT argued ThaT due To non-compliance of SecTion-5O of,The AcT, The convicTion of The appellanT under SecTion-20(b) ii (B) of The AcT cannoT beVsésTained in The eye of law No oTher poinT was argued by Shri Klshore Bhadurl learned counsel for The appellanT On The oTher hand Shrl Ashish Shukla learned GOVT AdvocaTe for The STaTe has argued ThaT 5ecTion-5O of The ACT would have been aTTracTed only when The person of The accused was searched and noT when The conTenTs of The bag being carried on The cycle were searched. Therefore, even if The noTice EXP-4 had The lacuna as aforesaid, iT would noT be faTal To The prosecuTion since SecTion-50 of The ACT has no applicaTion To The facTs of The case. é. Having considered The rival submissions I have gone Through The record. The TesTimony of AssisTanT Sub— InspecTor Shri S.K.Singh PW-4 is wholly unrebuTTed in cross-examinaTion. IT is also fully corroboraTed by Samaru PW-2. IT shows ThaT on receiving secreT informaTion Shri ‘1‘ 5.K.Singh had proceeded To The Raj Nagar Triangle and apprehended The accused-appellanT who was coming on a acycle on The carrier of which There was a blue bag. a His TesTimony clearly shows ThaT he had searched The bag carried by The accused appellanT on The carrier of The cycle. Secfion-5O of fhe Act is as under :- “Condifions under which search of persons shall be conducfed ~ (1) When any officer duly uufhorized under Sad-ion 42 is abou‘l’ f0 search any person under fhe provisions of Secfion 41, secfion 42 or Secfion 43, he shoH, if such person so requires, Toke such person wifhouf unnecessory delay 1'0 The neores‘r Goze’n‘ed Officer of any of The departmenfs a“ men'rioned in Sec‘rion 42 or To The neoresf " Mogisfrofe. (2) £deToin If such’ The requisi-rion person unTil is he mode, can The bring officer him before may The GozeT‘Fed Officer or The MagisTroTe referred To in sub-secfion (1). (3). The GazeTTed Officer or The MogisTroTe before whom any such person is broughT shoii, 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 auThorized 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). ' o) AfTer a search is conducTed under sub- secTion(5), The officer shall record The reasons for such belief which necessiTaTed such search ( / @ and wifhin sevenTy-‘l'wo hour-s send a copy Thereof To his immediafe official superior.]" In Smfe of Punjab Vs. Ba/bir Sinqh and ofhers reporfed in 2004—Volurne—8, S.C.C.-702, if was held fha‘l‘ The provision of See'rion-5O of fhe Aci' appiies only in case of persona! search of a person and does noi' exfend 1’0 search of a vehicle or conToiner or.hog. The longuoge of Secfion- 5O is clear-Iy unambiguous and The law so well se‘l‘l'led fha‘l i'r rs no‘f possible +0 fake a differen'r view. In my considered opinion, “fherefore, Secfion-5O of The AcT does noT apply To The facfs of This case wherein on search of The bag carried by The accused appellan‘l’ on The carrier of The cycle, ganja was recovered. NoT being a case of personal search, 5ecTion-5O of The AcT had no applicafion. The above principle was reiTeraTed in 5faf'e of Harayana Vs. Jamal? Singh & of/ters reporTed in 2004-Volume—5—5.C.C.-188 also. IT is Thus clear in This case ThaT The provisions of SecTion~50 of The AcT 1985 are noT aTTracTed. The evidence led by The prosecuTion clinchingly shows ThaT The bag carried by The appellanT on his cycle conTained ganja like subsTance and weighed 8 Kg. IT also shows ThaT Two samples of 3O grams each were Taken from The conTenTs of The bag and were sealed separaTely. The specimen of The seal used by The AssisTanT Sub InspecTor Shri S.K.Singh To seal The sample was also affixed on The seizure memo EXP—10. NoT only This The TesTimony of Head ConsTable Maheshwar PW-3 also shows ThaT The sealed sample packeTs prompTly deposiTed in The Malkhana were senT for chemical analysis To The Forensic Science ’umanla 439-2004.: Forensic Science Laborafory The repor'r of fhe Ex.P-1 shows TE? The sample hich had been affixed on LaboraTory proves Th 10. The report of Forensic Science of on chemical examinm‘ion, fhe prosecufion has led , reliable and unimpeachable The accused 9-2004. The convicfion )(ii)(B) of The Acf and y fhe frial Court Thus possession of 8 K6 of ganja on 10-0 of fhé appellanf‘ynder Section-20¢ fhe senfences imposed Thereunder b evl‘dénce‘fo prove fha‘r —appellanf was found in do no? call for any inferference. 10. accordingly dismissed.