Strict compliance with the mandatory provisions of Section 50 for personal search and the significance of producing the suspect before the nearest Magistrate are crucial in cases under the ND & PS Act.

N. Kotiswar Singh, J.

Heard Mr. M.I. Sharma, learned counsel for the appellant and Mr. R.S. Reisang, learned Sr. P.P. for the State respondent.

2. The present jail appeal has been filed against the judgment and order dated 19.8.2013 and sentence dated 29.8.2013 passed by the Special Court of ND & PS Manipur, by which the appellant was convicted under section 21(b) of the ND & PS Act and sentenced to undergo rigorous imprisonment of 5 years with fine of Rs. 20,000/- and in default of payment of fine, to undergo another two months simple imprisonment.

3. The relevant facts in brief may be stated as follows:

As per prosecution, on 29.5.2000 at 9.30 am, the complainant, S.I. N. Kesho Singh lodged a written report stating that on the same day at around 7 am, he received a reliable information from a source that one person, namely, Md. Nasim Ali of Lilong Awang Leikai, the appellant, was trying to dispose of some quantity of Heroin powder at his house. Thereafter, after obtaining authorisation for search from SP/NAB, he along with a police team rushed to the said house and found the appellant, Md. Nasim Ali, trying to escape. He was, however, apprehended and his body search was conducted in presence of witnesses after observing all legal formalities, during which process one polythene packet containing some Heroin powder was recovered from the right side pocket of his trouser, weighing 15 gms. The same was seized by observing formalities and a regular case being FIR No. 7(5)2000 u/s. 21 ND & PS Act was registered against him.

On completion of investigation, the accused appellant was charge-sheeted under Section 21(b) of the ND & PS Act and on his denial of the charges, the trial was conducted.

4. The prosecution examined as many as five witnesses and produced 18 documents/evidences in support of their case. The appellant was examined under section 313 of Code of Criminal Procedure and he took the plea of total denial and also did not prefer to lead any evidence in his defence. The learned Trial Court, convicted the appellant under Section 21(b) of ND & PS Act. In coming to the conclusion for convicting the appellant, the learned Trial Court found that the provisions of Section 50 of the ND & PS Act which deal with the procedure for searching of person were duly complied with and it was observed that the appellant was given due warning and option at the time of his search before a Gazetted Officer or a Magistrate. It was observed that the appellant preferred to be searched at the spot without the presence of Magistrate or Gazetted Officer. Accordingly, search was conducted on his body and about 15 gms. of heroine recovered from his possession. Necessary seizure was made in the presence of witnesses and accordingly the Trial Court was of the view that mandatory requirements of Section 50 were complied with.

The learned Trial Court also observed that there was no legal lacuna in the chemical examination of the seized article. The Trial Court after being fully satisfied with the evidences on record was of the view that the charge against the appellant had been proved beyond reasonable doubt and accordingly convicted the appellant under Section 21(b) of the ND & PS Act.

5. At the time of hearing, the appellant has raised mainly the following grounds while challenging the judgment and conviction under Section 21(b) of the ND & PS Act.

(i) It has been contended that mandatory provisions of Section 50 of the ND & PS Act had not been complied with nor the mandatory provisions of Section 55.

(ii) It has been also contended that the heroin seized from the appellant was of small quantity.

(iii) It was also contended that neither the Chemical Analyst was examined in the trial nor the Chemical Analysis mentioned about the quantity of heroin and in the absence of which, there cannot be any definitive finding that the amount recovered from the appellant was 15 gms. As neither the Chemical Analyst was examined nor the quantity mentioned by the chemical