The mandatory nature of Sec. 50 of the NDPS Act and its impact on the admissibility of evidence, burden of proof, and the validity of convictions based on possession of contraband.

Sachchidanand Jha, J.

1. The sole appellant of this appeal has been convicted under Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to rigorous imprisonment for 15 years and fine of Rs. one lac; in default of payment whereof, further rigorous imprisonment for five years.

2. Briefly stated, the case of the prosecution is that on 3.6.1999 at about 6.30 p.m. in course of routine check of passengers of Narkatiaganj-Darbhanga Passenger train at Sitamarhi Railway Station the Custom officials led by R.N. Prasad, Inspector of Custom, Sitamarhi noticed the frightened posture of a passenger, the appellant herein. His body search revealed that some article in wrapper was tied around his waist. Two independent witnesses, namely, Indrajeet Kumar and Jyotindra Jha were called. All of them went to the customs office where in presence of the Superintendent of Customs and said Indraieet Kumar and Jyotindra Jha, amongst others, the suspect was formally searched, On search, besides one railway ticket from Sikta Railway Station to Laheriasarai Railway Station and cash of Rs. 15, three packets wrapped in polythene bag kept in markin cloth stitched like jhola were found tied around his waist. The article was weighed and the total weight came to 1.5 Kgs. worth Rs. 1.5 lacs. On enquiry the suspect disclosed his name and address. His confessional statement was recorded in his own handwriting which- he signed in presence of the witnesses and customs officials followed by seizure, panchnama and the interrogatory statement. The suspect disclosed that he had been hired by one Tamanna Khan to bring charas from Sikta. The article was handed over to him by a person there. He did not disclose the details of the person who handed over the article to him. In the complaint while R.N. Prasad, Inspector of Customs filed, he stated that the Department was investigating the case to trace the particulars of said two persons. Meanwhile, sample had been taken from the seized article, sealed and sent to the Government Alkaloid Works, Gazipur, U.P. for chemical analysis. The analysis disclosed that the article was #24;charas#25;a contraband under the NDPS Act.

3. At the trial which followed against the appellant the prosecution examined 9 witnesses to prove its case including R.N. Prasad, Inspector of Customs as P.W. 1, and Indrajeet Kumar as P.W. 2. P.W. 1 inter alia proved the seizure memo, panchnama, confessional statement and interrogatory statement of the appellant, chemical report, complaint petition and forwarding letter of the prosecution report which were marked respectively as Exts. 1 to 7. Members of the raiding party namely, Subhash Prasad, Inspector of Customs, Janak Baitha, Chandrabhan Prasad Rai, Sunil Kumar, Rama Shankar Dubey, Anil Kumar Gondall constables were examined as P.Ws. 3 to 8. P.Ws. 4 to 8 were in fact rendered. Another Inspector of Customs, Sanjay Kumar Choudhary, was examined as P.W. 9. He proved Ext. 8 by which the seized article had been handed over to him for being kept in godown. The appellant did not examine any witness in his defence. In his statement under Sec. 313 Cr.P.C. he admitted that the Customs officials had found him in suspicious condition in the Narkatiaganj-Darbhanga Passenger train at Sitamarhi Railway Station at 6.30 p.m. on 3.6.1999 and discovered as cloth wrapped around his waist. He however denied that he was taken to the customs office where he was searched in presence of witnesses. He also denied recovery of 1.5 Kgs. of charas. He stated that the recovery was from the compartment of the train. About his signature on the seizure list he stated that seizure list was prepared at the Railway Station and his signature was forcibly taken thereon. He denied taking of any sample containing his signature, sealing thereof and its despatch for chemical analysis. He also denied to have made any confessional statement. He stated that his signature was obtained by using force and