Contraband--Word person would mean a human being with appropriate coverings, clothings and footwear.
Contraband--Recovery of 15 Kgs. of charas from two appellants lying on their lap while they were proceeding on a scooter-Section 50 of the Act would not apply.
Contraband--Delay in sending samples--Delay explained--Delay alone would not effect the prosecution case.

Ranjit Singh, J.

1. Recovery of 15 Kgs. of Charas from two appellants in the present appeal while they were proceeding on a scooter, led to their conviction and award of sentence of 10 years RI coupled with fine of Rs.one lac under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act").

2. On 31.1.2000, a scooter driven by appellant, Mohammad Qyoum with appellant Sanjiv Kumar on a pillion seat was signaled to stop by Inspector Varinder Singh, who was holding a Naka near Village Kharl. Sanjiv Kumar was seen carrying a plastic bag in his lap. Suspecting it to be a contraband, option was given to the appellants if they wish to be searched by him or before some Gazetted Officer. The appellants opted for being searched by the Gazetted Officer, whereupon DSP Jaswant Singh Cheema reached the spot, on being so messaged by Inspector Varinder Singh. He also sought option from the appellants for being searched by him. Both the appellants reposed confidence in him and accordingly were searched, which led to recovery of 15 Kgs. of charas from the plastic bag, which was carried by appellant Sanjiv Kumar. 250 Grams of sample was drawn out of the same. The sample as well as the contraband were converted into parcels and the same were sealed with the seal bearing impressions `VS and `JS and were taken into possession. Ruqa incorporating the factum of recovery was prepared and sent to Police Station, leading to registration of a formal FIR, Ex.PA. Case property was deposited with the MHC, its seal being intact. On receipt of report from Chemical Examiner and on completion of other investigations, the appellants were charged under Sections 20 of the Act, leading to their conviction and award of sentence as already noticed.

3. The case of the prosecution is supported by 7 prosecution witnesses. The appellants, when questioned about the evidence and circumstances appearing on record against them, disowned the recovery and pleaded their false implication. They also examined one witness in their defence.

4. Mr. Pheruman has taken shelter behind technicalities to impugn the conviction and award of sentence to the appellants. He may be justified in saying that the provisions of the Act being stringent would ask for strict adherence and any violation of any of the mandatory provision would lead to invalidation of conviction and sentence. He would first say that the driver of the scooter could not be held to be in conscious possession of the contraband whereas the conviction of pillion rider appellant, Sanjiv Kumar, can not be up-held because of violation of mandatory provisions of Section 50 of the Act. In this regard, he would say that both the appellants were not given valid option for being searched before the Magistrate or Gazetted Officer and, thus, they were not apprised of their legal right in this regard, vitiating their conviction and sentence awarded to them. He would further say that no consent memo was prepared. He has also made a grouse that F.S.L. Form was not filled at the spot in terms of the instructions in this regard, which would again go to dent the prosecution case, requiring the appellants to be absolved of the offence for which they have been convicted. In addition, Mr. Pheruman has urged that the samples in this case were not taken in the presence of a Magistrate as required under Section 52-A (c) of the Act and accordingly the conviction of the appellants can not be sustained. In support of this limb of his submission, he has placed reliance on Division Bench judgment of Calcutta High Court reported as Munnanai v. State, 1998 (1) All India Criminal Law Reporter 194. Mr. Pheruman would also refer to number of other judgments in support of his other submissions raised on behalf of the appellants.

5. On the other hand, learned counsel appearing for the State would urge that the prosecution has clearly disputed the recovery as well as contraband being in conscious posse