Procedural non-compliance under S.50 and S.55 of the Narcotic Drugs Act led to the acquittal of the accused.

1. This appeal is directed against the judgment dated 3-5-2003 delivered by Shri Raghubir Singh, Special Judge, N.D.P.S. Act, Ambikapur, Surguja in special criminal case No. 16/2002 whereby the appellant was convicted under S.22 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act') and was sentenced to R.I. for ten years and a fine of Rs. 1,00,000/-, in default to undergo additional R.I. for three years.

2. Briefly stated the prosecution case is that on 19-3-2002 Sub Inspector Haricharan Singh PW 8 of Police Station Ambikapur received secret information that one person was in unauthorized possession of brown sugar. After complying with the legal formalities, along with witnesses Shahid Khan PW 5 and Anwar Qureshi PW 1, he reached the spot near the school situated at Gram Asola. After giving notice under S.50 of the Act, the appellant was searched. From his full pant, brown sugar like substance was seized in two white coloured polythenes vide Ex.P.5. On weighment, it weighed 10 gms. and 50 milligrams. The contents of both the packets were mixed. The packets were sealed. One white coloured fossil sheet found in cigarette packets having stains showing that brown sugar was consumed was also seized. The seized sealed packets of brown sugar were handed over to Head Constable Mahesh Prasad Gupta PW 2 for safe custody. On 20-3-2002 both the sealed packets were sent along with memo Ex.P25. of Superintendent of Police, Surguja for chemical analysis to the Forensic Science Laboratory, Raipur. Vide report dated 30th March, 2002, both the packets were found to contain diacital morphin (heroin). On completion of investigation, the accused - appellant was prosecuted under S.22 of the Act. The accused abjured his guilt, pleaded innocence and led no evidence in defence. The learned trial Judge relying upon the evidence led by the prosecution convicted and sentenced the accused - appellant as aforesaid in paragraph 1.

3. Smt. Savita Tiwari, learned counsel for the appellant has assailed the conviction of the appellant on the following grounds :
i) Independent witnesses Anwar Qureshi PW 1 and Shahid Khan PW 5 did not support the prosecution story which rendered the testimony of Haricharan Singh, A.S.I. unreliable. Reliance was placed on Bhola Ram Kushwaha v. State of M.P. , reported in 2001 SCC (Cri) 1 : 2001 CriLJ 116 and Bahadur Singh v. State of Madhya Pradesh , 2002 CriLJ 579 : 2002 CriLJ 579 (SC).
ii) Chhedi Prasad PW 6 witness of weighment Panchanama also did not support the prosecution story whereby weighment Panchanama Ex.P.9 was rendered doubtful.
iii) A.S.I. Haricharan Singh PW 8, in the notice under S.50 of the Act Ex.P.1, did not mention that that he had informed the accused - appellant about his legal right to be searched before a Gazetted Officer or a Magistrate. Failure to do so, caused serious prejudice to the accused - appellant. Therefore, for non compliance of the mandatory requirement of S.50 of the Act, the appellant was entitled to be acquitted. Reliance was placed on K. Mohanan v. State of Kerala , reported in 2000 SCC (Cri) 1228.
iv) It was lastly contended that there was no evidence to show that the seized substance was received in the Malkhana of P.S. Ambikapur after putting the seal of the officer in charge of P.S. Ambikapur on it. Thus, there was total non compliance of S.55 of the Act and it could not be ruled out that the sample sent for examination by the F.S.L. had been tampered with.

4. Shri Ravindra Agrawal, learned P.L. for the State supported the impugned judgment and submitted that there has been substantial compli