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2002 (3) Crimes 51
MADHYA PRADESH HIGH COURT
S.P. Khare. J.
Prahlad Sharma -Appellant
versus
State of Madhya Pradesh-Respondent
Criminal Appeal No. 156 of 1994
Decided on 5- 12-2001
For the Appellant:Shri A.K. Barua and Shri Vinay Sharma, Advocates.
For the Respondent:Ku. Chitra Saxena, Advocate.
IMPORTANT POINT
When a bag which accused was carrying was searched and it contained narcotic sub-stances search and seizure did not attract provisions of Section 50 of NDPS Act.
Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 Section 50 - Appellant found in possession of 3.200 kgs of opium convicted and sentenced to 10 years imprisonment - Appeal - Contention that provisions of Section 50 not being complied with conviction was vitiated - Appellant having alighted from train was holding a bag in his hand when he was caught and bag when searched was found containing opium - Search was that of bag which accused was holding and not of person of accused – Trial Court rightly held that provisions of Section 50 of the Act were not attracted. (Paras 6 to 11)
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985 -Sections 18, 52 and 57 - Conviction for possession of opium - Question of identity of sample sent for analysis - Samples were received in sealed condition and specimen seal tallied with seal on the packet and presence of Morphine was found in the sample - Violation of Sections 52 and 57 of the Act would not ipso facto violate the trial as provisions were directory but would have a bearing on appreciation of evidence – Conviction called for no interference. (Para 12)
Result : Appeal dismissed.
JUDGMENT
S.P. Khare, J. – Appellant Prahlad Sharma has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act) for being found in possession of 3.200 kgs. of Opium and sentenced to rigorous imprisonment for ten years.
2. The prosecution case was that on 11-5-1990 at O. 15 hours Virendra Kumar Sharma (P.W. 3), Narcotic Inspector was at Guna Railway station and at that time Kota-Bhopal passenger train arrived there. He saw accused Prahlad Sharma alighting from the train and holding a bag of red colour in his hand. He caught hold of the accused and on search of the bag which he was carrying, it was found that it was containing a total quantity of 3.200 kgs. of Opium. It was seized from him as per Seizure Memo, Exhibit P-1. The samples were taken from the seized commodity and these were sealed. The search was conducted in the presence of Munnalal (P.W. 1) and Rambharose (P.W. 6). Devendra Kumar (P.W. 4), a Constable was also present at that time. The samples were sent for chemical analysis and it was found that the samples were of opium. After investigation the chargesheet was submitted.
3. The accused pleaded not guilty.
4. The trial Court found the testimony of Virendra Kumar Sharma (P.W. 3). Narcotic Inspector as fully reliable though the two panch witnesses did not support him and were declared hostile. The procedural provisions contained in the Act were held to have been fully complied with. It was also held that Section 50 of the Act was not attracted as there was no search of the person of accused but it was a case of the search of his bag which he was carrying. On these findings the accused has been convicted and sentenced as stated at the outset.
5. In this appeal two questions have been raised by the learned counsel for the appellant (a) the search of the search of his "person" within the meaning of Section 50 of the Act and as the provisions of this section were not admittedly complied with the conviction of the appellant cannot be upheld and (b) it is doubtful whether the samples of the commodity which are said to have been taken at the time of seizure- were those which were actually sent for chemical analysis.
Point (a) :
6. It has been held by the Constitution Bench of the Supreme Court in the State of Punjab v. Baldeo Singh1 that section 50 of the Act would come into play only in the Case of a search of a person as distinguished from search of any premises etc. Now the question arises what is the search of a "person"? It has been illustrated in a number of subsequent decisions of the Supreme Court. In Sarjudas v. State of Gujarat2 charas was not found on the person of the accused but it was found kept in a bag which was hanging on scooter which he was riding. It was held that the said search cannot be said to be illegal on the ground that the accused was not informed of his right under Section 50 of the Act to be searched in the present of a Gazetted Officer or a Magistrate.
7. In Kalema Tumba v. State of Maharashtra3. the search was made of the "baggage" of the accused which had arrived at the Airport. I t was held that it was not a case of search of the "person" of the accused. Again in Kanhaiya LaL v. State of M.P.4 the "opium was found from a bag which was being "carried by the appellant". It was held that it is not the case of the search of the "person" of the accused.
8. In A.R. Mansuri v. State of Gujarat5, there was search of an autorickshaw, gunny bags were found stacked therein. It was held that it was also not the case of the search of a "person". It was observed that the place where the gunny bags were found stacked was "not inextricably connected with the person" of the appellant. This is a three Judge Bench judgment. Reference was made to the two earlier decisions of Kalema Tumba (supra) and SaIjudas (supra) in this case and the law laid down in those cases was approved.
9. The learned counsel for the appellant had placed r
