Proper application of legal provisions in the context of the case, including the distinction between search of a person and search of baggage, and the requirement of informing the person to be searched under Section 50 of the Act in the presence of a Gazetted Officer or a Magistrate.

B.N.P.Singh, J.

1. The sole appellant suffered conviction under Section 23 of the Narcotic Drugs and Psychotropic Sub-stances Act for violation of the provisions of Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Rule 53 of the Narcotic Drugs and Psychotropic Substances Rule, 1985 and was sentenced to suffer rigorous imprisonment for a term of ten years.

2. The factual matrix-the prosecution was launched against the appellant by an Excise Official on accusation that the appellant was apprehended while travelling in a bus bearing No. B.P.K. 752, which led to seizure of five hundred grams of Charas for which he did not hold valid authority. At trial that commenced, the State examined two witnesses including the Reporting Officer and a Constable.

3. The defence of the appellant before the Court below and also this Court had been denial of entire allegations and he ascribed false implication. Though the positive finding recorded by the chemical examiner was also upheld by the Court below, that point has not been pressed before me. The trial Court, on consideration of testimony of the witnesses who claim to have effected seizure of the contraband from possession of the appellant, recorded verdict of guilt finding appellant guilty under Section 23 of the Act and sentenced him in the manner stated above.

4. Two fold contentions were raised at Bar on behalf of the appellant ostensibly to assail the finding recorded by the Court below and it is sought to be urged that in view of mandatory requirement of Section 50 of the Act, the Officer who searched a person must inform him of his right available under sub-section (1) of Section 50 of the Act for being taken to nearest Gazetted Officer or Magistrate for making search, and on these premises, it is urged that since the evidences placed on the record do not suggest that the appellant was ever asked by the Excise Official for being searched in presence of Gazetted Officer or a Magistrate, there being violation of mandatory provision of Section 50 of the Act, the entire proceeding before the Court below had vitiated, and finding of guilt, and sentence imposed on the appellant which followed consequently, was without jurisdiction.

The other contention raised on behalf of the appellant was that though search and seizure is shown to have been effected in presence of other persons, the prosecution was also guilty of examining only the Excise Officials, entirely to the exclusion of the independent witnesses and on this score too credibility of the witnesses had to be discarded and reliance is placed on a decision of the Apex Court reported in 1999 Criminal Law Journal 3672 (State of Punjab V/s. Baldev Singh and others), the other decision reported in 2000 Criminal Law Journal 3181 (C. Ali V/s. State of Kerala). Reliance was also placed on a decision of High Court of Haryana (sicapex court) reported in 2002 (2) P.L.J.R. (SC)34, (State of Haryana V/s. Vikram Singh) and a decision of this Court reported in 2000 B.L.J. 437 : 2000(2) PLJR 231 (Suresh Bhagat V/s. State of Bihar).

5. Now coming to the evidences that has been placed on behalf of the State, one would find Sukhdeo Prasad Bhagat (P.W. 1) reiterating the prosecution version about seizure of five hundred grams of Charas from a plastic bag of the appellant which he held while travelling in a bus. Almost similar narrations were made by Ramjee Thakur (P.W. 2), other Excise Official, about seizure of Charas from possession of the appellant which he had kept in a bag. Both the witnesses stated about seizure of contraband, from the possession of the appellant. The State also brought on the record the report of the Chemical Examiner who recorded positive finding about the sample sent for examination, to be Charas. The finding of the Chemical Examiner in view of there being other mitigating evidence cannot be challenged. About article in question to be contraband, the Court below has principally relied on the