IMPORTANT POINT
Seizure of Opium – Recovery was effected from bag for which compliance with Section 50 of Act is not required.

JUDGMENT

K.M. Joseph, J.

The appellant was accused No. 1 before the Trial Court and the appellant before the High Court, which, by the impugned judgement, confirmed the judgment of the Trial Court and convicted her under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

2. The prosecution case, briefly put, is as follows:

On 10.04.2004, ASI-PW7 and other police officials noticed the appellant and another accused approaching from 8, Marla Colony carrying a bag in their hands. On seeing the police party, the accused allegedly turned back and started walking briskly. This aroused suspicion in the mind of the ASI. He intercepted them. The bag was suspected to contain narcotic items. The accused were informed that if they so desired, they could have search of the bag in the presence of a Gazetted Officer or Magistrate. The appellant desired search by a Gazetted Officer. The DSP came to the spot. On his directions, the search was carried out. The bag contained on weighment 6 kilograms 300 grams of opium. Samples were taken. Thereafter, the formal FIR was registered. On receipt of the FSL report and completing investigation, the charge-sheet was filed. Prosecution examined 8 witnesses. The appellant denied incriminating circumstances, in the questioning held under Section 313 of the Code of Criminal Procedure. As noticed earlier, the High Court has affirmed the appellant's conviction.

3. We have heard learned Counsel for the appellant.

THE CONTENTIONS OF THE APPELLANT

4. It is firstly pointed out that Shri Om Parkash, DSP - Gazetted Officer, (in whose presence, the search was alleged by the prosecution was conducted) was present at the same time in respect of another case. In other words, he would submit that in connection with this case in his testimony, he has stated that he reached the spot at about 01:30 P.M. There is evidence that he remained there till about 03:00 P.M. However, this is refuted with reference to his testimony which has been produced in the Court, tending to show that he was present from 12:30 P.M. on the very same date in connection with another case and he remained there till 02:30 P.M. The question is, therefore, as to how the same person under whose gaze, the search was allegedly carried out, could be present at two different places at the same time. This brought under a cloud, the entire prosecution case runs the argument. Next, it is contended that the contraband, allegedly 6 kilograms 300 grams, was not produced before the Court. This vitiated the conviction. In this regard, reliance was placed on the following judgments of this Court:

(1) Jitendra and another v. State of M.P. (2004) 10 SCC 562;

(2) Ashok alias Dangra Jaiswal v. State of Madhya Pradesh (2011) 5 SCC 123; and

(3) Gorakh Nath Prasad v. State of Bihar (2018) 2 SCC 305.

5. No doubt, learned Counsel also draws our attention to the judgment of this Court in State of Rajasthan v. Sahi Ram (2019) 10 SCC 649, where a contra view is essentially taken based on the fact that if a large quantity of contraband is involved, it may not be necessary to produce.

6. The next contention urged by learned Counsel for the appellant is that, though, it may be true that for searching the bag carried out by the accused, it may not be necessary to comply with the requirements of Section 50 of the Act but if there is also a personal search, Section 50 is attracted. In this context, he drew our attention to the judgment of Bench of two learned Judges reported in Dilip and another v. State of M.P., (2007) 1 SCC 450. Therein, it is, inter alia, stated as follows:

"16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done."

7. In fact, when it was pointed out by learned Counsel for the appe