P.G. Agarwal, J.
1. This appeal has been directed against the judgment and order dated 24.4.2002 passed by the learned Special Judge, Cachar, Silchar in Special Case No. 21/98 whereby the accused appellant was convicted and sentenced to rigorous imprisonment for ten years for the offence Under Section 21 of the NDPS Act.
2. The prosecution allegation is that on receipt of certain information, Shri Sudip Kumar Dutta, Intelligence Officer, Directorate of -Intelligence, Silchar accompanied by other officials visited the Tea Stall, situated near All India Radio, Silchar and found accused Hemanta Bordoloi sitting there along with a carry bag in his possession. Thereafter the said carry bag was searched and two polythene packets containing 910 gms of alleged heroin were found. The contraband was sealed and seized in presence of witnesses and thereafter it was sent to Forensic Science Laboratory for chemical examination. The accused was arrested. On receipt of the report of the chemical examiner that the seized contraband is heroin, the accused appellant was prosecuted and he was charged for commission of the offence Under Section 21 of the NDPS Act. During trial the prosecution examined two witnesses and produced and examined certain documents. On conclusion of the trial the learned trial Court convicted the accused appellant Under Section 21 of the NDPS Act and sentenced him to R.I. for 10 years and to pay a fine of Rs. 1 lakh. Hence, the present appeal.
3. We have heard Shri J.M. Choudhury, learned Senior Advocate, Mr. B.K. Ghosh, learned Sr. Advocate for the appellant and Shri C. Choudhury, learned Sr. Standing Counsel for the Union of India.
4. PW-1 is Sudip Kr. Dutta, Intelligence Officer who had conducted the search and seizure. He has deposed that on receipt of secret information from Intelligence Department he along with Rahul Sinha and Asim Roy went to the Tea Stall situated near the All India Radio, Silchar and found the accused sitting there with a carry bag in his possession. They intercepted him and searched his bag and on search two polythene bag containing the suspected heroine were found and the same was seized vide seizure List Ext.1 in present of witnesses. Sample was collected and the packets were sealed as required. Sample was sent to the F.S.L. and Ext.2 report was received. In the opinion of the Chemical Examiner the sample gave positive test for F.S.L. report. PW-1 also obtained an interrogatory statement from the accused appellant which is marked and proved as Ext.3. Ext.4 is another statement in questioner form and Ext.5 is the Panchanama. Ext.3 and 4 contains the signatures of the accused.
5. PW-2 is Sudip Dasgupta, the seizure witness. The witnesses admitted his signature on the seizure list but he has been declared hostile by the prosecution as he has not fully supported the prosecution.
6. The learned trial Court relied upon the evidence of PW-1 and the other documentary evidence on record and hold that the accused appellant was in possession of 9/10 gms of heroine. The report of the FSL Ext.2 has not been challenged. The learned Court has relied on the evidence of PW-1 to hold that the contraband was found in possession of the accused and it was seized vide Ext.1. As usual, the seizure witness has turned hostile but that will not demolish the prosecution case. PW-1 had no animus with the accused. As a matter of fact, the accused was a stranger and admittedly the search and seizure was conducted on the basis of prior information through intelligence. Considering the evidence of PW-1, we concur with the findings of the learned trial Court regarding the seizure of the contraband from the possession of the accused appellant.
7. Besides the oral evidence, the prosecution has also produced confessional statements allegedly made by the accused in presence of PW-1 and other witness. Ext.3 and Ext.4 are those two statements wherein the accused had admitted seizure of contraband from his possession.
8. In the case of Mandan Lal v. State of Himachal Pradesh, AIR 2003 SCW 3969 and Megh Singh v. State of Punjab, AIR 2003 SC 3184, the Apex Court held :
'Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to his possession is within his special knowledge.'
9. Section 35 read with Section 54 of the NDPS Act has provided for the statutory presumption:
10. Shri J.M. Choudhury, learned Sr. Advocate has challenged the conviction of the accused appellant on the following counts :
(1) This being a case of search of a person, the mandatory requirement of Section 50 of the NDPS Act was not complied with and therefore the evidence regarding the recovery and seizure of heroine may be considered as illegal.
(2) There is non-compliance of the provision of Section 42(2) of the NDPS Act.
(3) As regards the alleged violation of Section 50 of the Act, Shri Choudhury has submitted that as per the prosecution itself, the contraband was found in a bag which was allegedly carried by the accused and hence the bag could not have been searched without searching the person of the accused. It is further submitted that there is no documentary evidence to show that the accused was informed about his right Under Section 50 of the Act to be searched in person by a nearest Magistrate or Gazetted Officer. It is also submitted that it was imperative on the part of PW-1 to inform the accused in writing about his right Under Section 50(1) of the Act.
11. The matter was considered by the Constitution Bench of the Supreme Court in the case of Baldev Singh v. State of Punjab, AIR 1999 SC 2378 and the Apex Court held, 'However, such information may not necessarily be in writing'. However, before considering whether there was any violation of the mandatory requirement of Section 50 of the NDPS Act, let us examine whether Section 50 of the NDPS Act is applicable in the present case or not. In the case of Baldev Singh (supra), the Constitution Bench observed, 'On its plain reading, Section 50 would come into play only in the case of search of a person as-distinguished from search of any premises etc.'.
12. In the case of Kalema Tumba v. State of Maharashtra and Anr., (1999) 8 SCC 257 the matter was considered by the Apex Court and it held :
'It was submitted by her that the appellant was not told before the search by the officers of the Narcotic Control Bureau that he had a right to be searched in the presence of a gazetted officer or a Magistrate. This contention deserves to be rejected because only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a gazetted officer or a Magistrate. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh this Court has held that the requirement of informing the accused about his right Under Section 50 comes into existence only when the person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a gazetted officer or a Magistrate, now stands overruled by the decision in Baldev Singh case. If a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it, it cannot be said that it was found from his 'person'. In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate.
13. In the case of Kanhaialal v. State of M.P., 2000 SCC (Crl.) 1494 the contraband was not found from the person of the appellant but it was found from a bag which was being carried by the appellant and the Apex Court held that:
'This cannot be said to be a case where on search of the person of the accused a narcotic drug or psychotropic substance was found'.
14. It may be mentioned here that the decision rendered in the case of State of Punjab v. Jasbir Singh, (1996) 1 SCC 288 wherein it was held that though poppyhusk was recovered from the bag of the accused, he was required to be informed about his right to be searched in presence of a gazetted officer or a Magistrate stands overruled in view of the decision in Baldev Singh (supra).
15. The question was again considered by the Apex Court in a recent case of Megh Singh v. State of Punjab, AIR 2003 SC 3184 and the Apex Court held :
'A bare reading of S. 50 shows that it only applied in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. (See Kalema Tumba v. State of Maharashtra and Anr., (JT 1999 (80 SC 293). The State of Punjab v. Baldev Singh, (JT 1999 (4) Supreme Court 595), Gurbax Singh v. State of Haryana, (2001) 3 SCC 28.) The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance.'
16. In the present case we find from the evidence on record that the contraband was seized from a carry bag which the accused person was carrying with him. Hence, in view of the above decision of law it was not a case of search of a 'person' and hence the provision of Section 50(1) of the NDPS Act were not applicable.
Section 42(2) of the NDPS Act reads as follows :
'Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the provisions thereto he shall forthwith send a copy thereof to his immediate official superior'.
17. PW-1 has deposed that search in the present case was conducted on receipt of prior information. PW-1 belongs to Revenue Intelligence Directorate of the Govt. of India and he was serving as a Intelligence Officer. In his examination-in-chief the witness has merely stated that after arrest the accused was brought to their office and other formalities were completed there. However, during cross-examination, on being asked, the witness categorically stated they had mitted a report to their higher authorities regarding the aforesaid matter, i.e. the search and seizure. The witness, however, admits that in his complaint petition he has not mentioned about informing his superior officer. In view of the evidence of PW-1, it cannot be said that there is no compliance of the provisions of Sub-clause (2) of Section 42 of the NDPS Act. In Baldev Singh (supra), the Apex Court held :
' Under Section 42(2) such empowered officer who takes down any information in writing or records, the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.'
18. We may also re-capitulate the observation of the Apex Court in the case of Sajan Abraham v. State of Kerala, 2001 Crl. L.J. 4002.
'.......such officer has to send a copy of this information forthwith to his immediate superior. Submission in that PW-5 after receiving the said information has not communicated it to his immediate superior which constitutes violation of Section 42. In construing any facts to find, whether prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the Legislature, time and again has made some of its provisions obligatory for the prosecution to comply, which the Courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of law. The Court however should not interpret it so literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.'
19. In the present case, except asking a single question regarding compliance of the provision of Section 42(2) of the Act, to which the witness stated that he had informed his superior officer immediately afterwards, there is no other cross-examination or contrary material on record. On the other hand, we find that after seizure of the contraband from the person of the accused near a tea stall, he was immediately brought to the Office of the Directorate of Revenue Intelligence and other formalities were carried out there. Further, PW-1 has stated that on receipt of the secret information he along with other officers hasten to the tea stall and found the accused sitting there with a carry bag. Hence, in view of the above facts and circumstances of the case and the evidence on record we hold that in the instant case statutory provisions of law had been complied with and the prosecution does not suffer from any malice.
20. In view of the above, we find no merit in this appeal and the appeal is accordingly dismissed.