JUDGMENT :

1. As common question of law and facts are involved in both the appeals, they are heard analogously and are being disposed of by this common order.

2. These appeals are preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against judgment dated 14.05.2001 passed by Special Judge (NDPS Act), Surguja (C.G.) in Special Criminal Case No. 20/2000, wherein the said court convicted both the appellants for commission of offence under Section 22 of Narcotic Drugs & Psychotropic Substances Act, 1985 (for short “the NDPS Act”) and sentenced them to undergo R.I. for 10 years each and fine of Rs. 1,00,000/- each with further default stipulations for having possession of contraband article brown sugar to the tune of 1 gm. 950 mg. & 1 gm. 340 mg., respectively on 16.07.2000 at 15:40 O'clock at Bramhapara, Ambikapur (C.G.)

3. The prosecution story, in brief, is that on 16.07.2000, Assistant Sub-Inspector-Bholanath Singh (PW-5) received secret information at about 3:40 p.m. that the appellants namely Raju Pandey & Asha Devi were selling brown sugar at Bramhapara in front of their residence. This information has been recorded in proforma-42 after preparing panchnama and briefly recorded in Rojnamcha Sanha. He prepared the information regarding no receipt of search warrant before raid and intimated the report to the Superintendent of Police, Ambikapur. He found that the appellants stood in front of their residence and notice under Section 160 of the Cr.P.C. was issued to them. The witnesses namely Raju Singh & Shyam Sunder were called as per rules and notice under Section 50 of the NDPS Act was issued to the appellants. The appellants were informed about their rights about their searching through Gazetted officer or through B.N. Singh. The appellants have given consent to be examined by B.N. Singh as reflected from consent panchnama. Later on, the appellants were allowed to examine B.N. Singh and the witnesses. Thereafter, the appellants were searched and from their possession brown sugar and sale receipts of Rs. 698/- and 800/- have been seized. The property was measured through witness Rajendra Prasad Soni who prepared the toul panchnama. Thereafter, the appellants were arrested for commission of offence under Section 22 of the NDPS Act and the FIR was registered on 16.07.2000. The statements of the witnesses were recorded and the seized material was kept in sealed cover and the same was sent to FSL for examination, wherein it is found that the seized material is heroine a contraband psychotropic drug. After completion of investigation, the charge-sheet was submitted before the learned trial Court.

4. The prosecution has examined as many as nine witnesses. The Special Court after examining the evidence of Investigating Officer- Assistant Sub-Inspector – Bholanath Singh (PW-5) has held that the prosecution has followed the procedure prescribed under Sections 41, 42, 50, 52 & 57 of the NDPS Act and accordingly convicted both the appellants for 10 years vide its judgment dated 14.05.2001. The conviction has been assailed by the appellants by filing the present appeals. Record of the case would show that appellants remained in jail from 16.07.2000 & suspension of sentence was granted to appellant- Raju Pandey on 12.01.2004 and appellant- Asha Devi was granted suspension of sentence on 15.11.2002, but they have violated the conditions of bail granted to them, therefore, they remained in jail from 05.02.2018 till the judgment is passed. Thus, appellant- Raju Pandey remained in jail for 8 years & 3 months and appellant- Asha Devi remained in jail for 7 years & 2 months.

5. Learned counsel for the appellants would submit that the alleged contraband article brown sugar was seized by the prosecution from pant of appellant- Raju Pandey and from vest of appellant- Asha Devi, which is “person” as defined in Section 50 of the NDPS Act and compliance of Section 50 of the NDPS Act is mandatory in nature and in the present case, no such