HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2238 of 2004 O R D E R: This appeal arises out of the conviction and sentence dated 13.8.2004 passed in SC No. 25 of 2004 on the file of the I Additional Sessions Judge, Karimnagar. The appellant herein prosecuted for the offence punishable u/Sec. 8(c) r/w. Sec. 20(b)(i) of the N.D.P.S. Act (for short ‘the Act’) alleging that on 6.3.1004 the Inspector of Police, Manthani on patrolling duty found the accused waiting for a bus having in possession of two hand bags and on suspicious circumstances, he checked the bag and found the accused in possession of 7 kgs. And 5 kgs. of Ganja in each bag and the accused confessed that he purchased the said ganja from unknown person to sell it at higher price. The police drawn samples and seized the property in the presence of mediators and arrested the accused and registered it as a case in Cr.No. 27 of 2004 and sent the samples for chemical examination and the expert opined that the samples contained ganja. Hence, the accused was charge sheeted for the offence punishable u/Sec. 8(c) r/w. Sec. 20(b)(i) of the Act. 2. The learned sessions Judge framed a charge against the accused for the offence punishable u/Sec. 8(c) r/w. Sec. 20(b)(i) of the Act, read over and explained to him in Telugu for which the accused pleaded not guilty of the said charge. 3. The prosecution in order to establish its case examined P.Ws.1 to 3 and got marked Exs.P1 to P3 and M.Os.1 to 3. No defence witnesses were examined on behalf of the accused. The learned Sessions Judge taking into consideration of the oral and documentary evidence found the accused guilty of the offence punishable u/Sec. 8(c) r/w. 20(b)(i) of the Act and convicted and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for two months. Aggrieved by the same, the present appeal has been filed. 4. Now the point for consideration is whether the prosecution could able to establish the guilt of the accused for the offence punishable u/Sec. 8(c) r/w. Sec. 20(b)(i) of the Act beyond all reasonable doubt. 5. The learned appellant counsel has pleaded that the Investigating Officer has not complied with the mandatory provisions of Secs.42(1) & (2), 50 and 57 of the Act and as such the conviction and sentence imposed against the accused are vitiated. In support of his version, he relied upon a decision in Gurbax Singh Vs. State of Haryana[1] wherein the apex court held that under Sec.50 of the Act when an empowered officer or a duly authorised officer acting on prior information is about to carry out search of a ‘person’ as distinguished from search of a ‘premises’ and it is imperative for that officer to inform the person being searched of his right u/Sec.50 of the Act being taken to the nearest Gazetted Officer or a Magistrate for making the search and that such information may not necessarily be in writing. He has also relied upon another decision rendered in Ankireddy Ramana Reddy V. State of A.P.[2] wherein a learned single Judge of this Court held that non- compliance of Secs.50, 42(1) & Sec. 57 of the Act vitiates the trial. 6. The learned public prosecutor on the other hand, pleaded that the provisions of Secs. 42 (1)& (2) and 50 of the Act are all only directory and it depends upon the circumstances of each case and non-compliance of Sec. 50 of the Act is not fatal to the case of prosecution and that in the instant case, as the accused is in possession of Ganja and as such the question of compliance of Sec.50 of the Act does not arise. 7. On the other hand, the appellant counsel relied on Karnail Singh V. State of Haryana[3] wherein the apex court held that whether there is an adequate and substantial compliance of Sec.42 of the Act or not is a question of fact that has to be decided in each case and held that non- compliance of Sec.42 of the Act may not vitiate and it does not prejudice the accused and further held that whether the police officer does not record the information called for and it will be a clear violation of Sec. 42 of the Act where there is adequate and sufficient compliance of the Act to decide each case. 8. In view of the above decisions, it has to be examined whether the Investigating Officer has complied with the provisions of Section 42(1), Sec.50 and Sec.51 of the Act. 9. The Investigating Officer is examined as P.W.2 and according to him, on 6.2.2004 while he was on patrolling duty found the accused at the bus stop waiting for a bus having two bags and on seeing the police, he tried to escape from the bus stand and that they caught hold of the accused and secured the presence of panch witnesses, P.w.1 and Thummana Rajaaiah. The accused was interrogated in their presence and he confessed that he hails from Mahdya Pradesh and that he was transporting Ganja from Thangallapalli of Warangal District to Madhya Pradesh. The police conducted Search of the bags in the presence of panch witnesses and found Ganja in it. He also drew samples of 100 gms from each of the bags and obtained signatures of the panch witnesses on the samples and prepared a panchanama of the proceedings Ex.P1 and obtained signatures of panch witnesses. The accused was arrested on 6.3.2004 and was remanded to judicial custody. The samples were also deposited in the court on 27.3.2004. He received the chemical examiner report Ex-P3 wherein he opined that the sample contains ganja. In the cross-examination he stated that on the date of offence, he went on patrolling duty at 6.00 a.m. and that he mentioned the same in the general diary. Panchanama was drafted by their writer and he further stated that he informed about the proceedings to his superior officers over phone. 10. P.W.1, who is the panch witness, is also supported the version of P.W.2 in apprehending the accused and seizure of two bags containing ganja from his possession and also drawing samples and preparing panchnama Ex-P1 and he identified M.Os.1 and 2 are bags containing ganja and M.O.3 is the sample packet containing ganja. 11. P.W.3 is the Inspector of Police, who took up investigation from P.W.2 and verified the investigation and filed charge sheet. Therefore, from the above evidence of P.Ws.1 and 2, it is established that the accused is in possession of two ganja bags and that were seized by the Investigating Office, PW2 under Ex-P1 and drawn sample, M.O.3. 12. The main contention of the learned counsel for the appellant is that the information was not sent to his superior officers by the Investigating Officer as such the provisions of Section 42 and 57 of the Act were not complied with. 13. The Investigating Officer after search and seizure of the accused person seized the material from his possession and issued Ex.P2 FIR and the copies of the same were sent to the higher officials. But there is a delay in sending the information to the higher officials by the Investigating Officer. If he waited to send the information to his superior officials, the accused would have escaped from the clutches of P.W.2 as he was running away from the bus stop, on seeing P.W.2. Therefore, the Investigating Officer has complied with the provisions of Secs. 42 and 57 of the Act. The delay in compliance of the provisions of the Act cannot be termed as vitiating the trial of the accused. Hence, the contention of the learned counsel for the appellant cannot be accepted. 14. With regard to the mandatory provisions of Sec.50 of the Act, admittedly, PW-2 Investigating Officer has seen the accused with two gunny bags and searched him and found the bags containing ganja. Sec.50 of the Act is mandatory. Whenever a search is conducted on a person, the Investigating Officer has to inform to his superior officers for making search. In the present case, admittedly no such information was given by P.W.2. The accused person has not lost his right of search in the presence of the gazetted officer or Magistrate. The two bags are in possession of the accused and therefore, it amounts to search of the person and as such the mandatory provisions of Sec.50 of the Act are liable to be complied with. In view of non-compliance of the said provisions, prejudice is caused to the accused as the right of search in the presence of the gazetted Officer or Magistrate was lost. Thus, for violation of Sec.50 of the Act, the trial will be vitiated. Hence, it is doubtful whether M.Os.1 to 3 are seized from the possession of the accused and the finding of the lower court that the prosecution has established the case against the accused for the offence punishable u/Sec.8(c) r/w.20(b)(i) of the Act is liable to be set aside. 15. In the result, the criminal appeal is allowed and the conviction and sentenced passed in SC No.29 of 2003 on 20.9.2004 by the I Additional Sessions Judge, Karimnagar is hereby set aside and the accused is acquitted. _________________ P.DURGA PRASAD, J Dt. 11-02-2011. Mjl/* [1] (2001) 3 Supreme Court Cases 28 [2] 2005(3) ALT(Crl.) 176(A.P.) [3] (2009) 8 Supreme Court Cases 539