SHORT NOTE
CHHATTISGARH HIGH COURT
Radhe Shyam Sharma, J.
Gangabai —Appellant
versus
State of M.P. (Now C.G.) —Respondent
Criminal Appeal No. 1449 of 1997
Decided on 3.2.2012

IMPORTANT POINT
Section 50 of NDPS Act is not applicable in case of search of house.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20B read with Sections 50, 52 and 55—Recovery of Ganja—Conviction—Search was made in house of appellant—Section 50 is not applicable—However, In a prosecution for offence under Section 20 , it is duty of prosecution to establish beyond shadow of doubt that samples taken from quantity of Ganja seized from appellant were sealed and specimen impression of seal was prepared—Prosecution did not examine officer-in-charge of Malkhana—No evidence to explain delay in submitting sample in FSL—There is non-compliance of provisions of Sections 52 and 55—Neither delay in delivering sample at FSL has been explained nor Malkhana Register was produced in evidence—Prosecution did not establish that seized Ganja was kept in safe custody in Malkhana—Conviction and sentence set aside—Appellant acquitted of charges framed against her.

       Held: In view of the above settled legal position, Section 50 of the Act, 1985 would not be applicable when search is made in a house. In the instant case, the search was made in the house of the appellant, therefore, Section 50 of the Act, 1985 is not applicable. (Para 19)

       In a prosecution for the offence under Section 20 of the Act, 1985, it is the duty of the prosecution to establish the shadow of doubt that samples taken from the quantity of Ganja alleged to have been seized from the appellant were sealed and specimen impression of the seal was prepared. It was also necessary for the prosecution to establish that at the time of entrustment of the samples in the Malkhana, Station House Officer of the Police Station had affixed his seal on the sample packets as also on the remaining quantity of Ganja. The prosecution must establish beyond reasonable doubt that the seal affixed on the sample packets not only at the time of seizure but also at the time of entrustment in the Malkhana remained intact till the sample packets were delivered at FSL for their chemical analysis.

       In the instant case, the prosecution did not examine the officer-in-charge of Malkhana. It also did not produce the Malkhana Register in its evidence. Even Gulabdas (PW2) did not state anything about safe custody of the seized contraband article. In the FSL Report (Ex.P8), it is mentioned that the sample was received from Constable No.302 Shyam Sunder Chandrakar on 26.10.1996. In the FSL Report (Ex.P8), specimen impression of seal is not mentioned. It is also not mentioned in the FSL Report (Ex.P8) that the sample was received along with specimen impression of the seal of the officer-in-charge of the concerned police station. Constable 302 Shyam Sunder Chandrakar was not examined by the prosecution. The contraband article was seized on 19.10.1996 and the sample was received by the FSL, Raipur on 26.10.1996. There is no evidence to explain custody of the sample during this period and the delay in submitting the sample in the FSL, Raipur is also not explained.

       30. After having considered the evidence led by the prosecution in its entirety, I am of the considered opinion that there is non-compliance of the provisions of Sections 52 and 55 of the Act, 1985. Neither delay in delivering the sample at FSL has been explained nor the Malkhana Register was produced in evidence. The prosecution did not establish that the seized Ganja was kept in safe custody in Malkhana. The prosecution did not examine the officer-in-charge of Malkhana, Station House Officer and Constable 302 Shyam Sunder Chandrakar. Therefore, the report of FSL (Ex.P8) cannot form basis of conviction of the appellant under Section 20B of the Act, 1985. In view of the above, the impugned judgment deserves to be set aside.

       In the .result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 20B of the Narcotic Drugs and Psychotropic Substances Act, 1985 are set aside. The appellant is acquitted of the charge framed against her, after giving her benefit of doubt. (Paras 28 to 31)

       Result: Appeal allowed.