The mandatory nature of Section 50 safeguarding the right to be searched before a Magistrate and the graver consequences of non-compliance with Sections 52, 55, and 57 on the accused's prejudice.

Gopal Prasad, J. Heard learned counsel for the appellant and the State.

2. The appellant has been convicted under Sections 20(b)(ii)(c), 22(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as, ‘the Act’) and has been sentenced to undergo rigorous imprisonment for ten years with a fine of rupees one lakh an in case of non-payment of fine, further, to undergo simple imprisonment for two years.

3. The prosecution case, as alleged in the first information report, by the informant, Krishna Kant Bharti, Rail Police, Narkatiyaganj, that while he was on patrolling and reached platform no. 2 got a secret information that a person has come in the Bus Stand and he has article of theft in his bag. He proceeded for verification and reached from platform no. 3 to 4, saw one person sitting on platform no. 6 and on seeing him he started fleeing away recklessly towards platform no. 2, he was chased and caught hold while he concealed himself behind the Automated Teller Machine and in presence of independent witnesses the person disclosed his name as Mukesh Sah and on search of his person nothing was recovered and on search of bag in his hand fourteen packets of charas in yellow plastic bags were recovered. On enquiry he did not produce any paper about charas and he was asked whether he will like to make statement before a Magistrate or not, he disclosed hat the statement made before him regarding charas shall also be disclosed to Magistrate. The said packets were weighed and alleged charas found to be seven kilogram. The seizure list was prepared in accordance with law and the witnesses signed and put their thumb impressions and Mukesh Sah also singed and gave his thumb impressions and disclosed that he used to do the business of charas along with Yado Singh and, further, disclosed that Yado had brought charas and has disclosed that he has to sell it in Punjab.

4. On the written report of the Station Head Officer, Rail Police, Narkatiyaganj, the first information report lodged and investigation proceeded. After investigation the charge sheet submitted, cognizance taken, thereafter, the charge is framed.

5. During the trial ten witnesses were examined in the case, who are P.W. 1, Sita Ram Sahni, P.W. 2, Radha Sharma, P.W. 3, Rajendra Sah, P.W. 4, Indrajeet Sharma, P.W. 5, Gona Lal Yadav, P.W. 6, Harendra Singh, P.W. 7, Babban Singh, Constable No. 475, P.W. 8, Ravindra Kumar Pandey, P.W. 9, Kishore Yadav, and P.W. 10, Krishna Kand Pandey.

6. The documentary evidence adduced are Exhibit 1, signature of Harendra Singh on seizure list, Exhibit 2, search and seizure list, Exhibit 3, fardbeyan, Exhibit 4, formal first information report, Exhibit 1/1 signature of P.W. 8 on seizure list, Exhibit ½ signature of witnesses on seizure list, Exhibit 5, the first information report, Exhibit 6, signature of P.W. 10 on seizure list, Exhibit 7, formal first information report and Exhibit 8, the charge sheet.

7. The trial Court, after taking into consideration the oral and documentary evidence that seven kilogram of charas was seized from the possession of the appellant and the Forensic Science Laboratory’s report shows that the seized article was charas, convicted and sentenced the appellant, as mentioned above.

8. The learned counsel for the appellant, however, contends that there is non-compliance of Sections 42, 50, 52, 55 and 57 of the Act. It is stated that the safeguard provided under Section 50 of the Act has not been complied though it is stated in the first information report, itself, that on secret information, the police proceeded and on having caught hold of the appellant searched his body, but, there is no mention that safeguard provided under Section 50 of the Act was complied with for his option of his personal search before a Magistrate. It has, further, been contended that the article seized were not properly sealed and there is no evidence that the sample was taken from each of the pack