Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar - Court Judgment

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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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(a) narcotic drugs and psychotropic substances act, 1985 - sections 23, 42 and 50--recovery of charas--conviction and sentence--seizure of article from the possession of appellant--no evidence of chemical examiner--non-compliance of provisions of the sections 42 and 52 of the act--conviction and sentence liable to be set aside--prosecution illegal.(b) narcotic drugs and psychotropic substances act, 1985 - section 52--provisions thereunder--recovery of charas--every person arrested and article seized under warrant shall be forwarded without unnecessary delay to the magistrate. - - of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the.....

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
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			'decidedon' => '1998-12-15',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
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		'decidedon' => '1998-12-15',
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		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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			'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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			'respondent' => 'The State of Bihar',
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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	'Judgement' => array(
		'id' => '121510',
		'acts' => '',
		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
		'caseanalysis' => null,
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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r.n. sahay, j.1. appellant noor mohammad has been convicted under section 23 of the narcotic drugs and psychotropic substance act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of rs. one lakh by the learned sessions judge, west champaran in sessions trial no. 16/93.2. the case of the prosecution against the appellant can be gathered from the report of bhagirath rai, inspector, customs (p) division, motlhari, dated 14.6.93. the said report is quoted hereunder.on receipt of a secret information regarding presence of shri noor mohammad, son of gafoor mian of village barbat sena, bettiah muffasil. west champaran on 13.6.93 a team of officers and staff of customs (prev.) motlhari rushed to village, barbat sena, said shri noor mohammad was found sitting near his.....

Judgment:

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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
		'pubs' => null,
		'ratiodecidendi' => '',
		'respondent' => 'The State of Bihar',
		'sub' => ';Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '',
	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'id' => '121510',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
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			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
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		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
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		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
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R.N. Sahay, J.

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			'id' => '121510',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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			'respondent' => 'The State of Bihar',
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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	'Judgement' => array(
		'id' => '121510',
		'acts' => '',
		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
		'caseanalysis' => null,
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
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1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.

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			'id' => '121510',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'id' => '121510',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
)
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On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'id' => '121510',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
		'observations' => null,
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		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'counselplain' => '',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
		'pubs' => null,
		'ratiodecidendi' => '',
		'respondent' => 'The State of Bihar',
		'sub' => ';Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '',
	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'id' => '121510',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'court' => 'Patna',
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			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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5. Section 50(1) of the Act as follows-

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'id' => '121510',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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			'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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			'respondent' => 'The State of Bihar',
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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	'Judgement' => array(
		'id' => '121510',
		'acts' => '',
		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
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When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'id' => '121510',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'id' => '121510',
		'acts' => '',
		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
)
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8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'id' => '121510',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'court' => 'Patna',
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			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'respondent' => 'The State of Bihar',
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
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			'decidedon' => '1998-12-15',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
		'caseanalysis' => null,
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		'court' => 'Patna',
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		'decidedon' => '1998-12-15',
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		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
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10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:

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			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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			'respondent' => 'The State of Bihar',
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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	'Judgement' => array(
		'id' => '121510',
		'acts' => '',
		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
		'caseanalysis' => null,
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
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The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.

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			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
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		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
)
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11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'id' => '121510',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
		'observations' => null,
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		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'respondent' => 'The State of Bihar',
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		'circuit' => null
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	(int) 0 => '',
	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
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[main] - APP/webroot/index.php, line 109

12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.

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Code Context
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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'id' => '121510',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
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		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
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		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
		'pubs' => null,
		'ratiodecidendi' => '',
		'respondent' => 'The State of Bihar',
		'sub' => ';Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '',
	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
)
$paragraphAfter = (int) 1
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13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).

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			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.

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			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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			'respondent' => 'The State of Bihar',
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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	'Judgement' => array(
		'id' => '121510',
		'acts' => '',
		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
		'caseanalysis' => null,
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
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15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.

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			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
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		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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	'Judgement' => array(
		'id' => '121510',
		'acts' => '',
		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'respondent' => 'The State of Bihar',
		'sub' => ';Criminal',
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		'circuit' => null
	)
)
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	(int) 0 => '',
	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.

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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'id' => '121510',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'id' => '121510',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
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		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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		'respondent' => 'The State of Bihar',
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
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19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.

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Code Context
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	'title_for_layout' => 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | ',
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			'id' => '121510',
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			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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			'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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	'Judgement' => array(
		'id' => '121510',
		'acts' => '',
		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
		'caseanalysis' => null,
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
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20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.

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			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
			'authreffered' => '',
			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
			'caseanalysis' => null,
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => ' 
R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
On r',
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			'respondent' => 'The State of Bihar',
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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	'Judgement' => array(
		'id' => '121510',
		'acts' => '',
		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
		'authreffered' => '',
		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
		'caseanalysis' => null,
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 1 => '<p>R.N. Sahay, J.',
	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
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			'id' => '121510',
			'acts' => '',
			'appealno' => 'Criminal Appeal No. 146 of 1997',
			'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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			'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
			'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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			'court' => 'Patna',
			'court_type' => 'HC',
			'decidedon' => '1998-12-15',
			'deposition' => 'Appeal Allowed',
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			'judge' => 'R.N. Sahay, J.',
			'judgement' => ' </p><p style="text-align: justify;">R.N. Sahay, J.</p><p style="text-align: justify;">1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p style="text-align: justify;">2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p style="text-align: justify;">On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p style="text-align: justify;">3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p style="text-align: justify;">4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p style="text-align: justify;">5. Section 50(1) of the Act as follows-</p><p style="text-align: justify;">When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p style="text-align: justify;">6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p style="text-align: justify;">7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p style="text-align: justify;">8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p style="text-align: justify;">9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p style="text-align: justify;">10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p style="text-align: justify;">The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p style="text-align: justify;">11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p style="text-align: justify;">In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p style="text-align: justify;">12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p style="text-align: justify;">13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p style="text-align: justify;">14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p style="text-align: justify;">15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p style="text-align: justify;">16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p style="text-align: justify;">17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p style="text-align: justify;">18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p style="text-align: justify;">19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p style="text-align: justify;">20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p style="text-align: justify;">',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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$title_for_layout = 'Noor Mohammad Noor Mohamad Ansari Vs the State of Bihar - Citation 121510 - Court Judgment | '
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		'id' => '121510',
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		'appealno' => 'Criminal Appeal No. 146 of 1997',
		'appellant' => 'Noor Mohammad @ Noor Mohamad Ansari',
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		'casename' => 'Noor Mohammad @ Noor Mohamad Ansari Vs. the State of Bihar',
		'casenote' => '(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 23, 42 and 50--Recovery of charas--Conviction and sentence--Seizure of article from the possession of appellant--No evidence of chemical examiner--Non-compliance of provisions of the Sections 42 and 52 of the Act--Conviction and sentence liable to be set aside--Prosecution illegal.(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52--Provisions thereunder--Recovery of charas--Every person arrested and Article seized under warrant shall be forwarded without unnecessary delay to the Magistrate. -  -  of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena. 7. It is well settled by the Apex Court in State of Punjab v. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation.',
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		'court' => 'Patna',
		'court_type' => 'HC',
		'decidedon' => '1998-12-15',
		'deposition' => 'Appeal Allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'R.N. Sahay, J.',
		'judgement' => ' </p><p>R.N. Sahay, J.</p><p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.</p><p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.</p><p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.</p><p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.</p><p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.</p><p>5. Section 50(1) of the Act as follows-</p><p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.</p><p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.</p><p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.</p><p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.</p><p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.</p><p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:</p><p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.</p><p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-</p><p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.</p><p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.</p><p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).</p><p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.</p><p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.</p><p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.</p><p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.</p><p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.</p><p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.</p><p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.</p></p><p>',
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R.N. Sahay, J.
1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.
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	(int) 2 => '<p>1. Appellant Noor Mohammad has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge, West Champaran in Sessions Trial No. 16/93.',
	(int) 3 => '<p>2. The case of the prosecution against the appellant can be gathered from the report of Bhagirath Rai, Inspector, Customs (P) Division, Motlhari, dated 14.6.93. The said report is quoted hereunder.',
	(int) 4 => '<p>On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil. West Champaran on 13.6.93 a team of officers and staff of Customs (Prev.) Motlhari rushed to village, Barbat Sena, said Shri Noor Mohammad was found sitting near his neighbour home, who soon after the seight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. jeep and drove away from the village immediately. The said Noor Mohammad S/o Gaffoor Mian was brought to Customs office, Motihari. Then two independent witnesses were called on by us from the near by locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali Chara was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of chara for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered Charas were recorded into the Panchnama and seizure memo No. 655 dated 13.6.93 in the presence of Noor Mohammad and two independent witnesses. The said recovered Charas was seized under Section 110 of the Customs Act, 1962 and Section 42 of N.D.P.S. Act, 1985 for violation of the provision of Section 8 of the N.D.P.S. Act, 1985 read with Section 11 of the Customs Act. 1962 and Section 3(i) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered Charas, two representative sample of the same were kept in the two envelops and sealed before the Noor Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt.. Customs (Prev.), Motihari for interrogation on 13.6.93. After completion of interrogation, the said Noor Mohammad was arrested by me on 14.6.93 under Section 104 of the Customs Act. 1962 and Section 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge, West Champaran, Bettiah for remanding into judicial custody on 14.6.93. The said Noor Mohammad was absconding and evading arrest in this office case No. 29/93 dated 17.3.93 for which the honorable Court had also issued warrant of arrest against him after registering a case No. 3/0C/93 on the basis of F.I.R. lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for Judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act, as referred to above.',
	(int) 5 => '<p>3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70 Kgs. of Charas 17.3.93 from the house of one Nathuni Darzi of village Barwat Sena. Since the recovery was not made from the possession of the appellant nor he was apprehended on that day and as such warrant of arrest was procured for his arrest relating to the above recovery. The appellant was arrested on 13.6.93. He was taken to the office of custom department had due planning the present false and fabricated case relating to the recovery of 40 gms. of Charas has been instituted against the appellant.',
	(int) 6 => '<p>4. Shri Kanhaiya Prasad Singh, learned Counsel for the appellant has pointed out number of infirmities in the procedure followed and non-compliance of mandatory provision of the Act and submitted that the appellant is entitled to acquittal because Section 50(1) of the Act was not complied with.',
	(int) 7 => '<p>5. Section 50(1) of the Act as follows-',
	(int) 8 => '<p>When any officer duly authorised under Section 42 is about to search any person under the provisions of 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.',
	(int) 9 => '<p>6. Learned Counsel further argued that admittedly recovery from the person of the appellant was made at Motihari hence the trial of the appellant before the Special Judge, Bettiah was without jurisdiction. Learned Counsel next contended that prosecution lodged by Inspector of custom department was incompetent since Superintendent of Custom alone was authorised for this purpose vide Ministry of Finance Notification No. 50824 (E), dated 14.11.85 and similarly vide S. No. 821 (E), dated 14.11.85 the officers above the rank of Inspector have been authorised by the Central Government to make search and seizure after due compliance of Section 50 of the NDPS Act. It is submitted that in the instant case the entitle power of Narcotic Commissioner (Superintendent of Custom) has been misutilized by the Inspector Bhagirath Rai, Learned Counsel for the appellant further submitted that contraband article has to be examined by chemical examiner duly authorised by the Central Government who has to testify the genuineness and otherwise of the report. No chemical report has been tendered in evidence nor the same had been marked exhibit and thus in absence of the same there cannot be any finding that any narcotic drug or psychotropic substance has been seized from the possession of the accused Noor Mohammad. The entire story of arrest of accused Noor Mohammad at village Barwat Sena, the search at Motihari office, the recovery of alleged 40 gms. of contraband article, the preparation of seizure list is false and concocted in face of the contradictory and self-condemned statement of the prosecution witnesses who are none else but the employees of the custom department. Accused Noor Mohammad was arrested at village Barwat Sena then the search would have been made in the village itself and the independent villager would have been made witness to the search and seizure. It clearly goes to show that Noor Mohammad was not arrested at village Barwat Sena.',
	(int) 10 => '<p>7. It is well settled by the Apex Court in State of Punjab v. Balbir Singh : 1994CriLJ3702 , that non-compliance of Section 50 of the Act renders the entire prosecution illegal. The next significant point is that there is no report of chemical expert that article which was recovered from the possession of the appellant was Charas or Psychotropic substance. There is a report of Senior Scientific Officer, Govt. of Bihar, Patna that the greenish brown solid substance contained in the envelop described was found to be 'Charas'. Charas is also known as Hashish. In the absence of standard 'Charas' sample of known T.H.C. contents of pure T.H.C, it was not possible to determine the percentage of T.H.C. in the above sample. Surprisingly, the report has not been proved by the scientific officer who has conducted the test.',
	(int) 11 => '<p>8. Learned Counsel for the appellant further submitted that Section 52(2) of the Act provides that every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.',
	(int) 12 => '<p>9. Having regard to the evidence on record it was submitted that the appellant was not searched at the place where he was arrested in his village home at Barwat Sena and instead he has taken to the divisional office, Motiharl where he was searched. Sri Singh has rightly contended that unless the appellant was found in possession of psychotropic substance he could not be arrested. Learned Counsel further submitted that so-called recovery of the incriminating article at the Divisional Office of the Customs makes the entire story of search and recovery, highly redolent with doubt and suspicion.',
	(int) 13 => '<p>10. In Ali Mustaffa v. State of Kerala : AIR1995SC244 . the Hon'ble Supreme Court quashed the conviction of the appellant before the Supreme Court who has been convicted under Section 20(b)(ii) of the NDPS Act, 1985 on the simple ground there was no compliance of Section 50 of the Act which has been held to be a mandatory provision in State of Punjab v. Balbir Stngh : 1994CriLJ3702 , the conviction and sentence of the appellant could not be sustained. In Balbir Singh's case (supra), it was observed:',
	(int) 14 => '<p>The words 'if the person to be searched so desires' are important. One of the submission is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed it is imperative on the part of the officers to inform the person to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done duly by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right.',
	(int) 15 => '<p>11. In Mahendra Kumar v. The State of Panaji Goa : 1995CriLJ2074 , the Supreme Court not aside the conviction of the appellant on account of violation of Section 42 and 50 of the Act. Repliance was placed on Balbir Singh's case (supra). The Supreme Court in Mahendra Kumar's case held as follows-',
	(int) 16 => '<p>In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effect the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panches and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the provision to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officers after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record that the mandatory requirements pointed above had been adhered to the accused is, therefore, entitled to be acquitted.',
	(int) 17 => '<p>12. In Satnam Singh v. State of Punjab 1997 Cri.L.J. 2067, the Punjab & Haryana High Court held that to obviate possibility of change or tampering with sample parcel. Provided prosecution was bound to produces entire like link evidence from stage of seizure till it reached hands of chemical examiner.',
	(int) 18 => '<p>13. In Ajay Kumar Naik v. State of Orissa 1995 Cr.L.J. 82, the Orissa High Court held that 'in our system of judicial administration in cases of grave offence like the one at hand, search and seizure from an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the mere necessary and imperative on the part of the investigating agency to seal it In such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst'. In support of this view reliance was placed on State of Rajasthan v. Daulatram : 1980CriLJ929 . Orissa High Court's view has been approved by Supreme Court in Mahendra Kumar's case (supra).',
	(int) 19 => '<p>14. As stated earlier the substance seized from the possession of the appellant has not been proved to be Narcotic substance within the definition of the Act.',
	(int) 20 => '<p>15. In re Ramapuram Ayyanna : AIR1963AP334 , it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. However, in the State v. Kaptan Singh : AIR1952All118 and State of Madhya Pradesh v. Nanda Dhanna Tell 1964 (I) Cr.L.J. 453, it has been held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium in such a characteristic substance that a Court may on its own knowledge decide that the article is opium.',
	(int) 21 => '<p>16. In the present case the article seized is said to be charas. It was the duty of the prosecution to examine the expert to prove that recovered article was Charas. The trial Court erred in accepting the evidence of the complainant that charas was seized from the possession of the appellant in absence of the evidence of chemical examiner.',
	(int) 22 => '<p>17. As noticed earlier that the appellant was arrested in his village home in the district of West Champaran. He was not searched there for which there is no explanation. He was brought to Motihari custom office in a vehicle. He was searched there.',
	(int) 23 => '<p>18. Learned Counsel for the appellant has argued that the evidence regarding search and seizure is highly discrepant. Some witnesses have stated that the appellant was searched in the jeep and some witnesses have stated that seizure was conducted in Motihari custom office. Apart from that the place of arrest of the appellant was also contradictory.',
	(int) 24 => '<p>19. As there Is total non compliance of the provisions of Sections 50 and 42 of the Act, the conviction of the appellant cannot be sustained in view of the decision of the Supreme Court aforesaid.',
	(int) 25 => '<p>20. In the result, the appeal is allowed and the conviction and sentence of the appellant is set aside. The fine is also set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case.',
	(int) 26 => '',
	(int) 27 => '<p>'
)
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