Dhan Bahadur Lamba and ors. Vs. State of Bihar - Court Judgment

Excerpt:
ndps act, 1985 - section 23--eight accused-appellants were arrested from a place raided by the police--recovery of 600 gms of heroin--when the accused appellants were apprehended they were found under the influence of intoxicant and were not in their senses--no clear evidence as to what quantity of heroin was recovered from which of the accused as no separate seizure list was prepared in this connection. ndps act, 1985--section 54--conscious possession--the prosecution appears to be completely misdirected and the entire manner of search and seizure as well as of the complaint appears to have been done in illegal manner. when the raiding party had arrived at the p.o., altogether with eight persons were found under the influence of intoxicant and were not in their senses. it cannot be said that any recovery was made from the conscious possession of the appellants and unless it is made from the conscious possession of his person, he cannot be held guilty of possessing any contraband under the provisions of section 54 of the act.ndps act, 1985 -- section 8 r/w section 22--it has been clearly stated by the witnesses for the prosecution that the appellants were under influence of drug at the time they were caught. if it was so, appellants should have been medically examined in order to show that they had consumed intoxicant like narcotic drug or psychotropic substance, but it has not been done in this case. ndps act, 1985 -- section 50--non-compliance of section 50 of the act renders the entire prosecution and trial vitiated. if the seizure and search is made on prior information, before searching the accused, the authorised officer must inform the accused about his rights provided under section 50 of the act. - - 2. the prosecution story is like this: 6. in this case, it is important to note that actually the prosecution appears to be completely misdirected and the entire manner of search and seizure as well as of the complaint appears to have been done in illegal manner. it has not clearly been stated as to what quantity of heroin was recovered from which of accused as no separate seizure list was prepared in this connection. section 8 of the act runs like this: it is stated that apart from other materials, the clause (c) includes consumption also and since it has been clearly stated by the witnesses for the prosecution that the appellants were under influence of drug at the time they were caught, it appears that they had consumed heroin and, therefore, they had contravened, the provision of section 8 of the act and, therefore were liable to be punished. if it was so, appellants should have been medically examined in order to show that they had consumed intoxicant like narcotic drug or psychotropic substance, but it has not been done in this case and the appellants have been punished for recovery of the heroin, 600 grams in weight which was never recovered from their conscious possession. we are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. so far as section 50 of the act is concerned, it runs like this: in the present case, there is no material on the record to show that the accused-person were told that they had right to be searched before a gazetted officer or magistrate or that they did not like to be searched before such gazetted officer or magistrate and then the search was made. 193 (sc). the failure to inform the concerned person about the existence of his right to be searched before a gazetted officer or a magistrate will cause prejudice to an accused. a search made by an empowered officer, on information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a magistrate for search and in case he so opts, failure to conduct search before a gazetted officer or a magistrate may not vitiate the trial but will render the recovery of the illicit article such that and vitiate the conviction and sentence of an accused, where the conviction has been recorded from his person during a search conducted in violation of provisions of section 50 of the act. b.p. sharma, j.1. the present appeal has been filed on behalf of the seven appellants, who have been convicted under section 23 of the narcotic drugs and psychotropic substances act, 1985 (hereinafter to be referred to as the 'act'). they have also been sentenced to undergo r.i. for 11 years each and also to pay a fine rs. 1,00,000 (rupees one lakh) each and, in default to undergo further imprisonment for one year each. the appeal was originally filed as jail appeal and the notice could not be given to the central government, but subsequently, the counsel of the central government was informed and the brief was handed over to him and shri jawahar prasad karn, advocate was heard. appearance was also subsequently filed on behalf of appellants and mr. syed faiz hussain was heard for the appellants. 2. the prosecution story is like this: on a secret information by the informant, the assistant collector (customs), raxaul formed a preventive party under his leadership alongwith staff of different rank for verification of the information which related to illicit drug trafficking in a small hutment located inside railway line, raxaul. the raiding party, accordingly went to the hutment on 24th march, 1993 at about 5.30 a.m. in the morning and raided the same where eight persons were found under influence of heroin. on search of their person, small packets were recovered from their possession which were seized in presence of the witnesses. the said seized heroin weighed 600 grams, valued at rs. 60,00,000 (rupees sixty lakhs). some other materials including spoon, empty matchbox, disposable syringe, weigh balance and cigarette papers were also recovered. the heroin was found in 8 small packets. a seizure memo was accordingly prepared by bimal choudhary, inspector of excise and customs and all the eight persons were arrested and forwarded to court. they were produced before the chief judicial magistrate, east champaran, motihari who remanded them to jail custody. thereafter a prosecution report in the form of complaint (ext. 1) was filed and cognizance was taken by the chief judicial magistrate under sections 12 and 14 of the act, and subsequently, the case was committed to the court of sessions where the accused-persons were tried. however, one of the accused raju thapa was found to be a minor below 16 years of age and, therefore, his case was separated from the case of others to be tried under the provisions of the juvenile justice act. the rest seven persons, i.e., the appellants were tried and sentenced as stated above. the accused persons have denied the allegations against them and pleaded not guilty. no defence evidence has been adduced on behalf of accused-persons in this case. they simply denied the charges against them which was subsequently framed under section 23 of the act.3. altogether eleven witnesses were examined by the prosecution to prove and substantiate the charge against the appellants. out of these eleven witnesses pws. 3, 4, 5, 6 and 9 are tendered. pw 7 indu bhushan prasad is a formal witness who has proved the prosecution report in the pen of bimal choudhary, customs inspector and the prosecution report is marked ext. 1. pw. 8 upendra kumar verma proved the report of the forensic science laboratory, marked ext. 2. again pw 10 sudhir kumar singh is also a formal witness who produced the sealed heroin said to have been seized in this case. it is marked material ext. 1. 4. pw 1 rajesh kumar srivastava also happened to be a customs officer. according to him, he had received information from the assistant collector of customs, that he had to be a member of the raiding party. accordingly, he raided himself and he accompanied other personnels of the department, including inspector, constables, assistant collector and the superintendent and at about 5.30 a.m. in the morning on 24th march, 1993 they went to a hut situated near the railway line at raxaul where they found eight persons lying there under the influence of same intoxicant. their persons were searched and one packet each was recovered from their persons. each packet, recovered, contained heroin. some other articles were also recovered. however, on digging some earth from inside the hutment, 600 grams of heroin kept in a plastic bag was recovered. the materials were seized and those eight persons were taken into custody and they re subsequently forwarded to court to be remanded to custody. in his cross-examination, this witness has stated that nothing was recovered from the possession of one of the appellants, namely, birendra. he also further stated that the persons residing near the hut were not called as witness at the time of search. pw 2 j.n. lal verma also happens to be a custody officer and he has also stated that he had joined the raiding party alongwith others and when they entered in the hut in between them, they found eight persons lying under the influence of intoxicant. according to him, two persons were called and in their presence, the search was made and the articles were recovered which are seized and those persons were caught and later forwarded to the court. however, in his cross-examination, he has stated that no attempt was made to bring those persons to their senses after they were caught and he also further stated that though searches were made separately, no separate seizure list was prepared. pw11 g.s. tondon is also an inspector of customs and excise, and he had also gone to the p.o. alongwith other staff of the raiding party and when the hut was raided, heroin was recovered and seizure list was prepared. he also stated that later statements of these persons caught, were taken by the superintendent shri b.k. sinha at the local jail. he also proved the statement recorded, marked ext. 3. he also further stated that seizure was made and the seized heroin was sent to the expert for analysis and report. in his cross-examination, he stated that he has no idea about the owner of the hut. however, according to him, there were three huts which were searched and he also cannot say as to what quantity of heroin was recovered from which accused. he also further stated that the statements of these persons were recorded at the p.o., but no independent witness was called from the neighborhood. the complainant bimal choudhary has not been examined in this case and superior officer, including the superintendent has also not been examined in this case. 5. it has been submitted on behalf of the appellants that the entire prosecution in the case is misconducted and misdirected and neither the seizure and search was made in proper manner, nor the charge was properly framed and the trial has vitiated on account of non-compliance of section 50 of the act. it has also further been submitted that the prosecution story, so far as the recovery of heroin is concerned, is not fit to be accepted and believed as there is no material to show that any sample of the seized material was taken in proper manner and was sent to the expert by the complainant or any competent authority. therefore, the report of the expert (ext. 2) also loses its value, though the report is admissible under section 293 of the code of criminal procedure. 6. in this case, it is important to note that actually the prosecution appears to be completely misdirected and the entire manner of search and seizure as well as of the complaint appears to have been done in illegal manner. from the evidence of witnesses examined on behalf of prosecution, it appears that when the raiding party had arrived at the p.o., altogether with eight persons were found under the influence of intoxicant and were not in their senses. it has not clearly been stated as to what quantity of heroin was recovered from which of accused as no separate seizure list was prepared in this connection. it is important to note that even if the seizures were made, as claimed by the prosecution witnesses, the fact remains that all the persons who were caught were not in their senses and they have been described as unconscious because of the influence of intoxicant. therefore, it cannot be said that any recovery was made from the conscious possession of the appellants and unless it is made from the conscious possession of his person, he cannot be held guilty of possessing any contraband under the provisions of section 54 of the act. 7. further, it has been submitted that so far as application of section 23 of the act is concerned, under which appellants have been convicted, there is no ingredient present in this case. section 23 of the act reads as follows: section 23. punishment for illegal import into india, export from india or transhipment of narcotic drugs and psychotropic substances.--whoever, in contravention of any provision of this act or any rule or order made of condition of licence or permit granted or certificate or authorization issued thereunder, imports into india or exports from india, or tranships any narcotic drug or psychotropic substance shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees.it is obvious that in this case there is no material to show that any contraband was either imported or exported or was being transhipped by the appellants. therefore, section 23 has no application. 8. it has been pointed out by the learned counsel appearing on behalf of central government that prohibitory section in the act is section 8 and for any contravention of the prohibition under section 8 of the act is punishable under the act. section 8 of the act runs like this: section 8. prohibition of certain operations--no person shall.-- (a) cultivate any coca plaint or gather any portion of coca plaint; or(b) cultivate the opium poppy or any cannabis plant; or produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-state, export inter-state, import into india, export from india or tranship any narcotic drug or psychotropic substance; exept for medical or specific purposes and in the manner and to the extent provided by the provisions of this act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation. it is stated that apart from other materials, the clause (c) includes consumption also and since it has been clearly stated by the witnesses for the prosecution that the appellants were under influence of drug at the time they were caught, it appears that they had consumed heroin and, therefore, they had contravened, the provision of section 8 of the act and, therefore were liable to be punished. in this connection, it may be noted that it is true that the witnesses for the prosecution stated that the appellants were under the influence of intoxicant and they had probably consumed it either orally or by smoking but this much is not sufficient. if it was so, appellants should have been medically examined in order to show that they had consumed intoxicant like narcotic drug or psychotropic substance, but it has not been done in this case and the appellants have been punished for recovery of the heroin, 600 grams in weight which was never recovered from their conscious possession. it also may be noticed in this regard that the offence of the kind can be punishable under section 22 of the act, because it will be treated as use of psychotropic substance. but unless it is proved that the appellants had used, the appellants could not have been convicted under section 22 of the act also. so far as the conviction under section 23 of the act is concerned, it is, therefore, illegal and improper. 9. it has also further been pointed out by the counsel appearing for the appellants that so far as the evidence of seizure is concerned, the witnesses have stated that seizure list has been prepared, no doubt but there is no evidence at all to show that the articles seized, were properly sealed or that it was sent for chemical analysis at the earliest opportunity and according to the principles laid down in the case of valsala v. state of kerala 1994 cr. l.j. 1, such kind of prosecution is illegal and improper. while dealing with a similar situation, their lordships observed: we are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellants alone was sent to the chemical examiner. therefore, it has been contended on behalf of appellants that the entire investigation in the present case also appears to have been completely perfunctory and the evidence is insufficient to draw the conclusion regarding the guilt of the appellants. therefore, the conviction of the appellants is not fit to be sustained. 10. it has also further been submitted that because of the non-compliance of section 50 of the act, the entire prosecution and trial in this case has vitiated and the conviction of appellants cannot be upheld. so far as section 50 of the act is concerned, it runs like this: section 50. conditions under which search of persons shall be conducted.--(1) when any officer duly authorised under section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in section 42 or to the nearest magistrate. (2) if such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the magistrate referred to in sub-section (1). (3) the gazetted officer or the magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that the search be made. (4) no female shall be searched by any one excepting a female.it has been made clear in the latest decision of the apex court that non-compliance of section 50 of the act renders the entire prosecution and trial vitiated. the apex court has ruled from time to time, that if the seizure and search is made on prior information, before searching the accused, the authorised officer must inform the accused about his rights provided under section 50 of the act. however, it has been held by their lordships in several cases, that if the authorised officer apprises the accused of his right under which he could claim his search or seizure before a gazetted officer or a magistrate and if he does not want to be searched before a gazetted officer or a magistrate and his search is taken, then the search cannot be said to be illegal and it will be treated as proper compliance of section 50 of the act, otherwise non-compliance of section 50 of the act will render the seizure and search illegal and in case of non-compliance, the trial will vitiate. in the present case, there is no material on the record to show that the accused-person were told that they had right to be searched before a gazetted officer or magistrate or that they did not like to be searched before such gazetted officer or magistrate and then the search was made. in the circumstances, as held by their lordships in the case state of punjab v. baldev singh 1999 (2) east cr.c. 193 (sc). the failure to inform the concerned person about the existence of his right to be searched before a gazetted officer or a magistrate will cause prejudice to an accused.their lordships further proceeded to observe: a search made by an empowered officer, on information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a magistrate for search and in case he so opts, failure to conduct search before a gazetted officer or a magistrate may not vitiate the trial but will render the recovery of the illicit article such that and vitiate the conviction and sentence of an accused, where the conviction has been recorded from his person during a search conducted in violation of provisions of section 50 of the act.11. in the present case also, neither the accused-persons were informed of their rights nor any option was given to them when the search was made and the entire search was made in perfunctory manner. therefore, it is a clear case of non-compliance of section 50 of the act. in the circumstances, the conviction of the appellants cannot be maintained. 12. the appeal is accordingly allowed, the judgment and order of the trial court are hereby set aside and the appellants are ordered to be acquitted of the charge against them. they are ordered to be released from custody forthwith, if not wanted in any other case. 13. however, we cannot refrain from observing that the appellants have remained in custody all along since they were arrested (24.3.1993) and they were never granted bail either by the trial court or by this court after they preferred appeal which was also filed as a jail appeal because of the poverty and incapability of the appellants which shows very sorry state of affairs.

Judgment:

B.P. Sharma, J.

1. The present appeal has been filed on behalf of the seven appellants, who have been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the 'Act'). They have also been sentenced to undergo R.I. for 11 years each and also to pay a fine Rs. 1,00,000 (Rupees one lakh) each and, in default to undergo further imprisonment for one year each. The appeal was originally filed as Jail Appeal and the notice could not be given to the Central Government, but subsequently, the Counsel of the Central Government was informed and the brief was handed over to him and Shri Jawahar Prasad Karn, Advocate was heard. Appearance was also subsequently filed on behalf of appellants and Mr. Syed Faiz Hussain was heard for the appellants.

2. The prosecution story is like this:

On a secret information by the informant, the Assistant Collector (Customs), Raxaul formed a preventive party under his leadership alongwith staff of different rank for verification of the information which related to illicit drug trafficking in a small hutment located inside Railway line, Raxaul. The raiding party, accordingly went to the hutment on 24th March, 1993 at about 5.30 a.m. in the morning and raided the same where eight persons were found under influence of heroin. On search of their person, small packets were recovered from their possession which were seized in presence of the witnesses. The said seized heroin weighed 600 grams, valued at Rs. 60,00,000 (Rupees sixty lakhs). Some other materials including spoon, empty matchbox, disposable syringe, weigh balance and cigarette papers were also recovered. The heroin was found in 8 small packets. A seizure memo was accordingly prepared by Bimal Choudhary, Inspector of Excise and Customs and all the eight persons were arrested and forwarded to Court. They were produced before the Chief Judicial Magistrate, East Champaran, Motihari who remanded them to jail custody. Thereafter a prosecution report in the form of complaint (Ext. 1) was filed and cognizance was taken by the Chief Judicial Magistrate under Sections 12 and 14 of the Act, and subsequently, the case was committed to the Court of Sessions where the accused-persons were tried. However, one of the accused Raju Thapa was found to be a minor below 16 years of age and, therefore, his case was separated from the case of others to be tried under the provisions of the Juvenile Justice Act. The rest seven persons, i.e., the appellants were tried and sentenced as stated above. The accused persons have denied the allegations against them and pleaded not guilty. No defence evidence has been adduced on behalf of accused-persons in this case. They simply denied the charges against them which was subsequently framed under Section 23 of the Act.

3. Altogether eleven witnesses were examined by the prosecution to prove and substantiate the charge against the appellants. Out of these eleven witnesses PWs. 3, 4, 5, 6 and 9 are tendered. PW 7 Indu Bhushan Prasad is a formal witness who has proved the prosecution report in the pen of Bimal Choudhary, Customs Inspector and the prosecution report is marked Ext. 1. PW. 8 Upendra Kumar Verma proved the report of the Forensic Science Laboratory, marked Ext. 2. Again PW 10 Sudhir Kumar Singh is also a formal witness who produced the sealed heroin said to have been seized in this case. It is marked Material Ext. 1.

4. PW 1 Rajesh Kumar Srivastava also happened to be a Customs Officer. According to him, he had received information from the Assistant Collector of Customs, that he had to be a member of the raiding party. Accordingly, he raided himself and he accompanied other personnels of the Department, including Inspector, Constables, Assistant Collector and the Superintendent and at about 5.30 a.m. in the morning on 24th March, 1993 they went to a hut situated near the Railway line at Raxaul where they found eight persons lying there under the influence of same intoxicant. Their persons were searched and one packet each was recovered from their persons. Each packet, recovered, contained heroin. Some other articles were also recovered. However, on digging some earth from inside the hutment, 600 grams of heroin kept in a plastic bag was recovered. The materials were seized and those eight persons were taken into custody and they re subsequently forwarded to Court to be remanded to custody. In his cross-examination, this witness has stated that nothing was recovered from the possession of one of the appellants, namely, Birendra. He also further stated that the persons residing near the hut were not called as witness at the time of search. PW 2 J.N. Lal Verma also happens to be a Custody Officer and he has also stated that he had joined the raiding party alongwith others and when they entered in the hut in between them, they found eight persons lying under the influence of intoxicant. According to him, two persons were called and in their presence, the search was made and the articles were recovered which are seized and those persons were caught and later forwarded to the Court. However, in his cross-examination, he has stated that no attempt was made to bring those persons to their senses after they were caught and he also further stated that though searches were made separately, no separate seizure list was prepared. PW11 G.S. Tondon is also an Inspector of Customs and Excise, and he had also gone to the P.O. alongwith other staff of the raiding party and when the hut was raided, heroin was recovered and seizure list was prepared. He also stated that later statements of these persons caught, were taken by the Superintendent Shri B.K. Sinha at the local jail. He also proved the statement recorded, marked Ext. 3. He also further stated that seizure was made and the seized heroin was sent to the expert for analysis and report. In his cross-examination, he stated that he has no idea about the owner of the hut. However, according to him, there were three huts which were searched and he also cannot say as to what quantity of heroin was recovered from which accused. He also further stated that the statements of these persons were recorded at the P.O., but no independent witness was called from the neighborhood. The complainant Bimal Choudhary has not been examined in this case and superior Officer, including the Superintendent has also not been examined in this case.

5. It has been submitted on behalf of the appellants that the entire prosecution in the case is misconducted and misdirected and neither the seizure and search was made in proper manner, nor the charge was properly framed and the trial has vitiated on account of non-compliance of Section 50 of the Act. It has also further been submitted that the prosecution story, so far as the recovery of heroin is concerned, is not fit to be accepted and believed as there is no material to show that any sample of the seized material was taken in proper manner and was sent to the expert by the complainant or any competent authority. Therefore, the report of the expert (Ext. 2) also loses its value, though the report is admissible under Section 293 of the Code of Criminal Procedure.

6. In this case, it is important to note that actually the prosecution appears to be completely misdirected and the entire manner of search and seizure as well as of the complaint appears to have been done in illegal manner. From the evidence of witnesses examined on behalf of prosecution, it appears that when the raiding party had arrived at the P.O., altogether with eight persons were found under the influence of intoxicant and were not in their senses. It has not clearly been stated as to what quantity of heroin was recovered from which of accused as no separate seizure list was prepared in this connection. It is important to note that even if the seizures were made, as claimed by the prosecution witnesses, the fact remains that all the persons who were caught were not in their senses and they have been described as unconscious because of the influence of intoxicant. Therefore, it cannot be said that any recovery was made from the conscious possession of the appellants and unless it is made from the conscious possession of his person, he cannot be held guilty of possessing any contraband under the provisions of Section 54 of the Act.

7. Further, it has been submitted that so far as application of Section 23 of the Act is concerned, under which appellants have been convicted, there is no ingredient present in this case. Section 23 of the Act reads as follows:

Section 23. Punishment for illegal import into India, export from India or transhipment of narcotic drugs and psychotropic substances.--Whoever, in contravention of any provision of this Act or any rule or order made of condition of licence or permit granted or certificate or authorization issued thereunder, imports into India or exports from India, or tranships any narcotic drug or psychotropic substance shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees.

It is obvious that in this case there is no material to show that any contraband was either imported or exported or was being transhipped by the appellants. Therefore, Section 23 has no application.

8. It has been pointed out by the learned Counsel appearing on behalf of Central Government that prohibitory Section in the Act is Section 8 and for any contravention of the prohibition under Section 8 of the Act is punishable under the Act. Section 8 of the Act runs like this:

Section 8. Prohibition of certain operations--No person shall.--

(a) cultivate any coca plaint or gather any portion of coca plaint; or

(b) cultivate the opium poppy or any cannabis plant; or

produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance;

exept for medical or specific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation.

It is stated that apart from other materials, the Clause (c) includes consumption also and since it has been clearly stated by the witnesses for the prosecution that the appellants were under influence of drug at the time they were caught, it appears that they had consumed heroin and, therefore, they had contravened, the provision of Section 8 of the Act and, therefore were liable to be punished. In this connection, it may be noted that it is true that the witnesses for the prosecution stated that the appellants were under the influence of intoxicant and they had probably consumed it either orally or by smoking but this much is not sufficient. If it was so, appellants should have been medically examined in order to show that they had consumed intoxicant like narcotic drug or psychotropic substance, but it has not been done in this case and the appellants have been punished for recovery of the heroin, 600 grams in weight which was never recovered from their conscious possession. It also may be noticed in this regard that the offence of the kind can be punishable under Section 22 of the Act, because it will be treated as use of psychotropic substance. But unless it is proved that the appellants had used, the appellants could not have been convicted under Section 22 of the Act also. So far as the conviction under Section 23 of the Act is concerned, it is, therefore, illegal and improper.

9. It has also further been pointed out by the Counsel appearing for the appellants that so far as the evidence of seizure is concerned, the witnesses have stated that seizure list has been prepared, no doubt but there is no evidence at all to show that the articles seized, were properly sealed or that it was sent for chemical analysis at the earliest opportunity and according to the principles laid down in the case of Valsala v. State of Kerala 1994 Cr. L.J. 1, such kind of prosecution is illegal and improper. While dealing with a similar situation, their Lordships observed:

We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellants alone was sent to the Chemical Examiner.

Therefore, it has been contended on behalf of appellants that the entire investigation in the present case also appears to have been completely perfunctory and the evidence is insufficient to draw the conclusion regarding the guilt of the appellants. Therefore, the conviction of the appellants is not fit to be sustained.

10. It has also further been submitted that because of the non-compliance of Section 50 of the Act, the entire prosecution and trial in this case has vitiated and the conviction of appellants cannot be upheld. So far as Section 50 of the Act is concerned, it runs like this:

Section 50. Conditions under which search of persons shall be conducted.--(1) When any officer duly authorised under Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the Officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that the search be made.

(4) No female shall be searched by any one excepting a female.

It has been made clear in the latest decision of the Apex Court that non-compliance of Section 50 of the Act renders the entire prosecution and trial vitiated. The Apex Court has ruled from time to time, that if the seizure and search is made on prior information, before searching the accused, the authorised Officer must inform the accused about his rights provided under Section 50 of the Act. However, it has been held by their Lordships in several cases, that if the authorised Officer apprises the accused of his right under which he could claim his search or seizure before a Gazetted Officer or a Magistrate and if he does not want to be searched before a Gazetted Officer or a Magistrate and his search is taken, then the search cannot be said to be illegal and it will be treated as proper compliance of Section 50 of the Act, otherwise non-compliance of Section 50 of the Act will render the seizure and search illegal and in case of non-compliance, the trial will vitiate. In the present case, there is no material on the record to show that the accused-person were told that they had right to be searched before a Gazetted Officer or Magistrate or that they did not like to be searched before such Gazetted Officer or Magistrate and then the search was made. In the circumstances, as held by their Lordships in the case State of Punjab v. Baldev Singh 1999 (2) East Cr.C. 193 (SC).

The failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate will cause prejudice to an accused.

Their Lordships further proceeded to observe:

A search made by an empowered Officer, on information, without informing the person of his right that if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct search before a Gazetted Officer or a Magistrate may not vitiate the trial but will render the recovery of the illicit article such that and vitiate the conviction and sentence of an accused, where the conviction has been recorded from his person during a search conducted in violation of provisions of Section 50 of the Act.

11. In the present case also, neither the accused-persons were informed of their rights nor any option was given to them when the search was made and the entire search was made in perfunctory manner. Therefore, it is a clear case of non-compliance of Section 50 of the Act. In the circumstances, the conviction of the appellants cannot be maintained.

12. The appeal is accordingly allowed, the judgment and order of the trial Court are hereby set aside and the appellants are ordered to be acquitted of the charge against them. They are ordered to be released from custody forthwith, if not wanted in any other case.

13. However, we cannot refrain from observing that the appellants have remained in custody all along since they were arrested (24.3.1993) and they were never granted bail either by the trial Court or by this Court after they preferred appeal which was also filed as a Jail appeal because of the poverty and incapability of the appellants which shows very sorry State of affairs.