Sankar Aich @ Babai vs The State Of West Bengal
2023 Latest Caselaw 1119 Cal

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       IN THE HIGH COURT AT CALCUTTA
                    Criminal Appeal
                     Appellate Side


Present:
The Hon'ble Justice Debangsu Basak


The Hon'ble Justice Md. Shabbar Rashidi


                CRA 247 of 2021
                Sankar Aich @ Babai

                        Versus

            The State of West Bengal


For the appellant: Mr. Pran Gopal Das, Adv.
                    : Ms. Kaniz Kulsum, Adv.
                    : Mr. Shuvojeet Gupta, Adv.



For the State       : Mr. Sanjoy Bardhan, Adv.
                    : Mr. Palash Chandra Majhi, Adv.



Hearing
concluded on        : January 30, 2023

Judgment on         : February 10, 2023
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Md. Shabbar Rashidi, J.:


 1.

Preferring this appeal, the appellant has assailed

the judgment of conviction dated April 04, 2019 and

order of sentence dated April 05, 2019 passed by the

learned 6th Additional and Sessions Judge, Barasat,

North 24-Parganas in connection with the Case No. N-

138 of 2015 convicting the appellant under Section

20(b)(ii)(c) of the Narcotic Drugs and Psychotropic

Substances Act,1985.

2. On July 01.07.2015 at 17.35hrs, the de facto

complainant received a secret information regarding

the carriage of ganja from near Kestopur, VIP Road.

Upon receiving such information, the de facto

complainant recorded the same under Baguiati P.S.

GDE No. 1516 dated July 01.07.2015. The matter was

brought to the notice of the Inspector-in-charge,

Baguiati P.S. Accordingly; the de facto complainant

was directed to work out the information. In

pursuance of such direction by the Inspector-in-

charge, the de facto complainant along with the Force

left the Police Station by lodging a GDE in this regard.

The raiding party also carried all the necessary

articles for conducting search and seizure

accompanied by the source. The raiding party reached

at Kestopur, VIP Road near Reebok showroom at

about 17.55hrs. They also arranged for two

independent local persons Gautam Mondal and

Debasish Sarkar to be witnesses from the raid, search

and seizure. The raiding team set up an ambush near

the aforesaid place leaving their vehicles away. At

about 17.10hrs, one person was noticed moving

suspiciously with a big yellow coloured nylon sack. He

stopped near the Reebok showroom. Upon

identification by the source, the raiding team

surrounded the said person. On enquiry, the said

person disclosed identity as Sankar Aich @ Babai and

thereafter exposed that the bag he was carrying

contained ganja.

3. The de facto complainant incidentally reported

the matter to the Inspector-in-charge of Baguiati

Police Station over phone and requested him to come

to the spot as a Gazetted Officer. At 18.30hrs, the

inspector-in-charge, Baguiati P.S. arrived at the place

of occurrence and as per his instruction, a notice was

served upon the detained person in writing to the

effect that he was suspected to carry gana and the

police wanted to search him. He was also served with

another notice that stated he had the right to search

the Police Personnel in presence of Gazetted Officer to

which he expressed his willingness. All the Police

Personnel including the de facto complainant and the

inspector-in-charge were searched by the detained

person but no incriminating materials could be found

on the person of the Police Personnel and the

witnesses. One search list was prepared in the mean

time. Thereafter, the de facto complainant conducted

search upon the detained person and 22.700 kg

(twenty two kg and seven hundred grams) ganja was

recovered from the yellow coloured nylon sack being

carried by the accused. The ganja was taken out from

the packet and two separate packets of hundred gram

ganja in each were prepared by wrapping brown paper

as its Test Sample and Security Sample respectively.

The rest amount of ganja i.e. 22.500 kgs were packed

in a white nylon bag tied in jute thread. Thereafter, all

the exhibits including the yellow coloured nylon bag

were properly packed, sealed and labelled in presence

of the witness and were seized under proper seizure

list in presence of the witness. The seizure list was

signed by the witness as well as by the accused. The

process of search and seizure was completed between

19.40hrs and 20.25hrs.

4. On interrogation, the apprehended person failed

to produce any document to justify possession of the

quantity of ganja he was carrying. Accordingly, the

accused was arrested. The person of the accused was

also search but nothing could be found. Inventory was

prepared and thereafter the raiding team returned to

the Police Station along with the accused person.

5. On the basis of the written complaint lodged by

the de facto complainant, Baguiati P.S. Case No. 627

dated 17.07.2015 under Section 20(b)(ii)(c) of Narcotic

Drugs and Psychotropic Substances Act,1985 was

started against the accused Sankar Aich @ Babai and

as such the police took up the investigation and on

completion of investigation submitted charge sheet

against the appellant. Accordingly on the basis of

materials in the Case Diary, charge under Section

20(b)(ii)(c) of the said Act was framed. The appellant

pleaded not guilty and claimed to be tried.

6. In order to prove the charge levelled against the

appellant, prosecution examined nine witnesses.

7. One member of the raiding party deposed as

PW1. He has stated that on 17.07.2015, he went into

a raid under the leadership of SI P. Mondal at

Kestopur in front of Reebok showroom on the basis of

a source information. On going there, one person was

detained with sack. Being intercepted, the said person

disclosed his name as Sankar Aich @ Babai and also

disclosed that he was carrying ganja. PW1 also stated

that the matter was brought to the notice of IC

Baguihati P.S. who came to the spot and in his

possession, the detained person was searched. Ganja

weighing 22.700 kgs was recovered from his sack.

PW1 proved his signature on the seizure list (Exbt. 1).

He also signed on the Search list, Inventory list,

Weighment Chart and Specimen Seal Impression,

each he identified (Exbt. 2,3,4 and 5 respectively).

8. The de facto complainant himself deposed as

PW2. He stated that on 17.07.2015, being posted at

Baguiati P.S., he received an information at 17.35hrs

about illegal trafficking of ganja by one person. He

recorded GDE in respect of receipt of source

information being GDE No. 1516 dated 17.07.2015.

He further stated that the matter was brought to the

notice of IC Baguiati and as per his instruction, PW2

along with the Force left the P.S. to work out the said

information taking the usual investigation kits. Such

exhibit was also entered into the General Diary Entry

being GDE No. 1517 dated 17.07.2015. The extract

copies of the GDEs were marked as Exhibit 6. They

reached Keshtopur Reebok showroom at 17.55hrs and

set up an ambush leaving his vehicle away. At about

18.10hrs, one person was noticed going towards the

said spot with a bag. He was identified by the source.

At the request of PW2, two passersby namely

Debasish Sarkar and Gautam Mondal volunteered to

stand witnesses. Thereafter, the suspected person was

detained. He disclosed his name as Sankar Aich and

that he was carrying ganja. PW2 further stated that

the matter was intimated to the IC, Baguiati P.S. who

arrived at the place of occurrence at about 18.30 hrs

and disclosed himself as a Gazetted Officer.

Thereafter, PW2 served notice upon the detained

person informing him that PW2 wanted to search him

on suspicion of carrying contraband. The carbon copy

of notice was detained by PW2 and marked as Exhibit

7. The detained person agreed to be searched in

presence of the inspector-in-charge but no written

reply was given by the detainee. PW2 also stated that

the detainee searched the police personnel. However,

no incriminating material was recovered and a nil

seizure list was prepared in this regard (Exbt. 2/1).

Thereafter, on search, the bag in the possession of the

said person was found to contain ganja which weighed

22.700 kg. Two samples of hundred grams were

separated from the main bulk. After that, the main

bulk, the sample and nylon bag were sealed and

labelled signed by the witnesses. The aforesaid articles

were seized by PW2 under a seizure list (Exbt. 1/1).

PW2 also prepared Weighment Chart (Exbt. 4/1),

Inventory list (Exbt. 3/1). PW2 also stated that as the

detained person failed to produce any document to

justify his possession of ganja, he was arrested under

proper arrest memo (Exbt.8) and returned to P.S. PW2

wrote a written complaint and proved the same (Exbt.

9). PW2 also identified the accused and the main

bulk, tests sample, security sample and the seized bag

(MAT Exbt. I,II,III and IV respectively). The witness

was cross-examined and in his cross-examination, he

admitted that in the carbon copy of the notice served

upon the accused, signature of the accused was in

original.

9. One of the members of the raiding party was

examined as PW3. He stated that on 17.07.2015, he

was posted at Baguiati P.S. and went to conduct raid

under the leadership of SI P. Mondal at about 05.45

p.m. at Kestopur near the Reebok showroom. He

further stated that reaching there, one person moving

suspiciously with a bag was detained. The said person

disclosed his identity as Sasnkar Aich. He also

disclosed that he was carrying ganja. The matter was

intimated to the inspector-in-charge and upon his

arrival, the bag of the suspect was searched. On such

search, 22.700 kgs of ganja was recovered. Two

samples of hundred gram each were separated from

the main bulk. The contraband were sealed and

labelled on the spot and were seized under a seizure

list. PW3 proved his signature on the seizure list

(Exbt. 1/2) and on the Inventory list as well as the

search list (Exbt. 3/2 and 2/2 respectively). He also

stated that as the suspect failed to produce any

document to justify the possession of ganja, he was

arrested and returned to the P.S. PW3 identified the

appellant in Court.

10. Another member of the raiding party deposed as

PW4. He has stated that on 17.07.2015, he was

posted at Baguiati P.S. as a constable of police. On

the said date, under the leadership of the SI

Pratapaditya Mondal. He went for a raid near the

Reebok showroom at Kestopur. They reached the spot

at about 05.40 p.m. On the basis of a secret

information, one person was apprehended who was

coming to said spot with a yellow coloured plastic bag.

He was detained on suspicion. The suspect disclosed

his name as Sankar Aich. He further disclosed that he

was carrying ganja. Thereafter, in presence of the

inspector-in-charge, Baguiati P.S., the bag of the

detainee was searched and 22.700 kgs of ganja was

recovered, which was seized under a seizure list. PW4

proved his signature on the seizure list (Exbt. 1/2). He

also signed on the Inventory list, Weighment chart

and Specimen Seal Impression. The search was

conducted in presence of the two witnesses. PW4 also

stated that as the detained person could not produce

any document in support of the possession of ganja,

he was arrested. Thereafter, the raiding party

returned to the Police Station. PW4 also identified his

signature on the labels attached to the seizure list. He

was interrogated by the Investigating Officer.

11. PW5 is another Police Constable who was the

member of the raiding party. He has corroborated and

reiterated the statements of PW3 and PW4 regarding

search, recovery and seizure of ganja from the

possession of the appellant. He also proved his

signature on the seizure list (Exbt. 1/4) and identified

his signature on the labels attached to the seized

articles. PW5 however failed to identify the appellant

in Court.

12. The Recording Officer deposed as PW6. He has

stated that on 17.07.2015, he was posted at Baguiati

P.S. as Sub-inspector of Police. He started a case

being Baguiati P.S. case No. 627 dated 17.07.2015 on

the basis of a complaint lodged by SI Pratapaditya

Mondal. PW6 proved his endorsement of receipt on

the written complaint (Exbt. 9/1) and the formal First

Information Report (Exbt. 10).

13. The Inspector-in-charge of Baguiati P.S. deposed

as PW7. He has stated that on 17.07.2015, while he

was posted at Baguiati P.S. as Inspctor-in-charge, SI

Pratapaditya Mondal had received a secret

information to the effect that one person was engaged

in trafficking of ganja. He further stated that the

matter was intimated to him and was duly entered

into the GDE Book. PW7 instructed the SI

Pratapaditya Mondal to work out the information with

available Force. He also stated that he was informed

that the Police team had detained a person at the

Reebok More, Kestopur and PW7 was requested to go

to the spot as a Gazetted Officer. He accordingly

reached the spot at about 18.30 hrs and found that

one person was detained by the Force. On

interrogation, the said person disclosed his name as

Sankar Aich. The detained person was offered with an

option to be searched in presence of PW7, who having

been a Gazetted Officer. PW7 proved the carbon copy

of the notice served upon the appellant. The detainee

was also offered to search the Police Personnel.

However, on such search, nothing incriminating could

be recovered from the possession of the Police

Personnel and therefore a nil seizure list was prepared

in this regard. PW7 proved his endorsement in the

said document (Exbt. 2/5). PW7 further stated that

thereafter the bag of the detained person was

searched in his presence and on such search, 22.700

kgs of ganja was recovered from the bag in presence of

the two independent witnesses, which were seized

under a seizure list. PW7 proved his signature on the

seizure list (Exbt. 1/5). Thereafter, the two samples of

hundred gram each were taken and the seized articles

were sealed and labelled. One Inventory list of the

seized ganja was prepared to which he signed

(Exbt.3/4). He also proved his signatures on the

Weighment chart, Specimen Seal Impression (Exbt.

4/3 and 5/2 respectively). PW7 also stated that as the

said person failed to produce any document regarding

possession of ganja, he was arrested under a proper

memo of arrest. He recorded his statement under

Section 161 of the Code of Criminal Procedure before

the Investigating Officer. PW7 identified the appellant

in Court. He also identified the signatures on the

samples, main bulk and the bag containing MAT Exbt.

I, II, III and IV.

14. One of the seizure list witnesses deposed as

PW8. He identified his signatures on seizure list,

search list, Inventory list of the contraband,

Weighment chart and Sample Seal Impression

(Exbts.1/6, 2/6, 3/5, 4/4 and 3/3 respectively).In his

deposition, PW8 stated that in the Month of July,

2015, he was gossiping in a tea stall at Kestopur at

around 05.36 p.m. At that time, the said Police Officer

came there and informed that one person who was

doing illegal acts was to be arrested and for this, PW8

was requested to remain present at the time of search

and seizure. PW8 and his friend Surajit and Debasish

agreed to assist the Police Personnel. They went to the

spot and noticed that the detained person had one

nylon bag in his hand. One of the Police Officers had

informed the Inspector-in-charge of Baguiati P.S. over

telephone. They kept waiting. About 15/20 minutes

later, the Inspector-in-charge arrived at the spot and

thereafter the detained person searched PW8 and

others. After that the said person was searched by the

Inspector-in-charge and as such ganja was recovered

from his bag. PW8 also stated that the ganja was

weighed by one of the Police Officers with weighing

scale, which came to approximately 22 kgs. The

witnesses including PW8 were asked to sign on some

papers and labels of the seized articles. PW8 stated

that the name of the detained person was Sankar

Aich. However, he was unable to identify the said

person due to passage of time. PW8 proved his

signature on the labels of the packets shown to him.

He also stated that he was interrogated by Police and

the statement was reduced into writing.

15. The Investigating Officer of the case deposed as

PW9. He stated that being endorsed with the

investigation of the case, he perused the complaint,

visited the place of occurrence and prepared rough

sketch map thereto with index (Exbt.11). In course of

Investigation, he examined available witnesses and

recorded their statements under Section 161 Cr. PC.

He also examined the accused and forwarded the

accused and the Alamants to Court. He also sent six

samples upon chemical examination under the exact

challan (Exbt.12) and therefore collected the Chemical

Examination report from the FSL (Exbt.13). As per

such report, the sample was found to be ganja. On

completion of investigation, PW9 submitted charge

sheet on 12.09.2015 against the accused Sankar Aich

@ Babai under Section 20(b)(ii)(c) of Narcotic Drugs

and Psychotropic Substances Act,1985. He further

stated that the endorsement in the Malkhana Register

was tallied with column 11(4) of the charge sheet.

PW9 also proved the seized articles and his signature

on the label attached to them (Exbts.I/1, II/1,III/1

and IV/1). PW9 was cross-examined on behalf of the

appellant but nothing favourable could be extracted

from his cross-examination.

16. On completion of the examination of the

prosecution witnesses, the appellant was examined

under Section 313 of the Code of Criminal Procedure.

In his examination, the appellant claimed the

allegations as false and pleaded as not guilty.

However, he declined to adduce any evidence witness.

17. Accordingly, on the basis of evidence on record,

learned trial court, by the impugned judgment and

order, convicted the appellant and sentenced him to

rigorous imprisonment for 10 (Ten) years and a fine of

Rs. 1, 00,000/- (One Lac) and in default of payment of

fine to undergo rigorous imprisonment for a further

period of 3 months, for the offence punishable under

Section 20 (b)(ii)(c) of the Narcotic Drugs and

Psychotropic Substance Act, 1985.

18. Learned advocate for the appellant has pointed

out the anomalies in the deposition of prosecution

witnesses with regard to the time of apprehension of

the appellant and arrangement of the independent

witnesses as also non identification of the appellant

by the independent witness. It is argued the in

consideration of such anomalies, the case of the

prosecution is rendered highly incredible.

19. It was further contended that the case made out

by the prosecution is also bad for deficiency in

compliance of Section 50 of the Narcotic Drugs and

Psychotropic Substance Act on the ground that there

was no endorsement by the appellant that he received

and understood the notice under Section 50. There

was no time mentioned in the notice and the carbon

copy of the notice contained original signature of the

appellant. It also did not contain the signature of the

Gazetted Officer i.e. Inspector-in-charge. In this

regard learned advocate for the appellant relied upon

paragraphs 29 and 32 of the decision in the case of

Vijaysing Chandubha v State of Gujrat reported in

2011 (1) SCC 609 which was followed in in the case

of State of Delhi v. Ram Avtar alias Ram reported in

2011 (12) SCC 2007.

20. On the same proposition of the compliance of the

provisions under Section 50 of the NDPS Act, learned

advocate also cited the decision in the case of

Beckodan Abdul Rahiman v State of Kerala, 2002

(4) SCC 229 and also that in the case of Laxmi

Sardar & Anr. V State of West Bengal reported in

2015 SCC online Cal 2281. Learned advocate for the

appellant contended that the alleged search and

seizure was done in presence of a Gazetted Officer,

who was police personnel and that the provisions

contained in Section 50 of the NDPS Act was not

complied with. It was also contended that all the

prosecution failed to produce all the independent

witnesses at the trial. for the aforesaid reasons, it is

submitted that the case of the prosecution is doubtful.

As such, the impugned judgment and order is liable to

be set aside.

21. On the other hand, learned advocate for the

State has submitted that in the facts and

circumstances of the case, as the search and seizure

was made from a public place, the compliance of

Section 42 of the Act was not required. Moreover, it is

submitted that though, duly complied with, the

provisions of Section 50 of the NDPS Act, it was not

at all required in the case as the search and seizure

were not made on the person of the appellant. it was

also argued on behalf of the State that PW8 has

sufficiently explained his incapacity to identify the

appellant in court. Furthermore, the chemical

examiner has duly testified that the samples were

received in his office in sealed condition and the

appellant has not challenged the delay in sending the

samples for examination despite opportunity, the

same cannot be challenged. It was contended on

behalf of the State that the impugned judgment and

order is well founded, on the basis of convincing

evidence is liable to be affirmed.

22. In support of his contentions, learned advocate

for the State relied upon the decision in the case of

Sk. Raju alias Abdul Haque alias Jagga v State of

West Bengal reported in (2018) 9 SCC 708, Jagat

Singh v State of Uttarakhand (2016) 13 SCC 119,

State BY CBI v Dilbagh (2004) 13 SCC 99 and Than

Kunwar v State of Haryana (2020) 5 SCC 260.

23. The case as made out by the prosecution is that

the de-facto complainant, upon receipt of source

information, duly reduced such information into

writing, informed his superior officer and under

direction of such superior proceeded to work out the

information. He was accompanied by the source.

Reaching the place pointed out in the source

information, the raiding team set up an ambush.

Being identified by the source, the appellant was

intercepted on the suspicion of carrying 'ganja'.

24. The appellant was served with a notice under

Section 50 of the Narcotic Drugs and Psychotropic

Substance Act (Ext.7) informing his right to be

searched in presence of a Magistrate or a Gazetted

Officer. Upon arrival of the Gazetted Officer, the bag of

the appellant was searched in presence of two

witnesses which was found to contain 22.700 Kgs. Of

ganja. The appellant failed to provide valid documents

for the possession of ganja for which the contraband

was seized upon taking samples under proper seizure

list (Ext.1/1) and the appellant was arrested.

25. Exhibit 1/1 is the seizure list through which the

contraband articles were seized. The said document

contains the signature of its maker, the witnesses and

the appellant as well. Not only that, the appellant also

put his signature on search list, through which, he

searched the person of the police personnel (Ext.2/1),

the inventory prepared on spot (Ext.3/1), weighment

chart (Ext.4/1) and the memo of arrest (Ext.8). No

explanation has been advanced on behalf of the

appellant as how his signatures appeared on the said

documents. The trend of cross examination of the

prosecution witnesses on behalf of the appellant and

in consideration of the aforementioned documents it

seems safely established that the appellant was

apprehended with a sack which was said to contained

contraband articles like ganja. The presence of

appellant at the relevant date and time at the place of

occurrence i.e. Kestopur near Reebok Showroom

within the jurisdiction of Baguiati Police Station is

well established. Similarly it is also established that

the appellant was then carrying one bag or sack. The

said sack was searched observing all legal formalities

in presence of a Gazetted Officer and witnesses and he

was arrested on the charges of carrying contraband

articles like ganja. The case of the prosecution

regarding search, seizure and arrest of the appellant

has been overwhelmingly supported by all the

witnesses examined by the prosecution. They have

monotonously narrated the prosecution case with

reference to the apprehension of the appellant as well

as search and seizure of suspected contraband from

the possession of the appellant and have proved their

signatures on the aforesaid documents.

26. The appellant has assailed the impugned

judgment of learned trial court on the ground of

defects in the compliance of the provisions regarding

notice under Section 50 of Narcotic Drugs and

Psychotropic Substance Act. In the case of Vijaysinh

(Supra) it was laid down that,

29. In view of the foregoing discussion,

we are of the firm opinion that the

object with which the right under

Section 50(1) of the NDPS Act, by way of

a safeguard, has been conferred on the

suspect viz. to check the misuse of

power, to avoid harm to innocent

persons and to minimise the allegations

of planting or foisting of false cases by

the law enforcement agencies, it would

be imperative on the part of the

empowered officer to apprise the person

intended to be searched of his right to

be searched before a gazetted officer or

a Magistrate. We have no hesitation in

holding that insofar as the obligation of

the authorised officer under sub-Section

(1) of Section 50 of the NDPS Act is

concerned, it is mandatory and requires

strict compliance. Failure to comply

with the provision would render the

recovery of the illicit article suspect and

vitiate the conviction if the same is

recorded only on the basis of the

recovery of the illicit article from the

person of the accused during such

search. Thereafter, the suspect may or

may not choose to exercise the right

provided to him under the said

provision."

27. In the case of State of Delhi v Ram Avtar

(Supra), it was observed that while discharging the

onus of Section 50 of the Act, the prosecution has to

establish that information regarding the existence of

such a right had been given to the suspect. If such

information is incomplete and ambiguous, then it

cannot be construed to satisfy the requirements of

Section 50 of the Act. Non compliance with the

provisions of Section 50 of the Act would cause

prejudice to the accused and, therefore, amounts to

the denial of a fair trial.

28. On similar lines, in the case of Laxmi Sardar

(Supra), it was laid down that,

"We have, therefore, no hesitation to

hold that the conviction of the

appellants cannot be sustained in law

firstly, due to the reasons that the

right available to the appellants under

the provisions of sub-Section (1) of

Section 50 of NDPS Act, was not

communicated to them clearly,

individually in an unambiguous

language; and secondly, the arrest of

the appellants on the place of

occurrence was not proved due to non-

compliance of the provision of Clause (i)

of sub-Section (b) of Section 41B of the

Cr.P.C."

29. To the contrary, it has been pointed out on

behalf of the State that since the person of the

appellant was not subject to search, compliance of

Section 50 of the said Act was not at all warranted.

On such proposition, learned advocate for the State

has relied upon the case of Raju v. State of W.B.,

(2018) 9 SCC 708, wherein it was laid down by the

Supreme Court that

17. The principle which emerges from Vijaysinh [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 :

(2011) 1 SCC (Cri) 497] is that the

concept of "substantial compliance" with the requirement of Section 50 is neither in accordance with the law laid down in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] , nor can it be construed from its language. [Reference may also be made to the decision of a two-Judge Bench of this Court in Venkateswarlu [Myla Venkateswarlu v. State of A.P., (2012) 5 SCC 226 : (2012) 2 SCC (Cri) 686] .] Therefore, strict compliance with Section 50(1) by the empowered officer is mandatory. Section 50, however, applies only in the case of a search of a person. In Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] , the Court held : (SCC p. 190, para 12) "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises, etc."

In State of H.P. v. Pawan Kumar [State of H.P. v. Pawan Kumar, (2005) 4 SCC 350 :

2005 SCC (Cri) 943] ("Pawan Kumar"), a three-Judge Bench of this Court held that the search of an article which was

being carried by a person in his hand, or on his shoulder or head, etc., would not attract Section 50. It was held thus :

(SCC pp. 360 & 363, paras 11 & 16) "11. ... In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person"

occurring in Section 50 of the Act.

***

16. ...After the decision in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] , this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him."

30. In the case of Jagat Singh (Supra) the Hon'ble

Supreme Court was pleased to observe that,

"12. We find from the record of the case that the recovery of contraband was made from the appellant in the public place. In this view of the matter, the case in hand fell under Section 43 of

the NDPS Act. So far as compliance with Section 50 is concerned, the prosecution proved that PW 5, who was a gazetted officer, was called and then in his presence the recovery of contraband was made from the appellant. We, thus, find that compliance with Section 50 was made in letter and spirit as provided therein and, therefore, no fault can be found in ensuring its compliance.

13. In the light of these two material issues, which were proved by the prosecution by proper evidence, the two courts below, in our opinion, rightly held that the prosecution was able to prove their case beyond the reasonable doubt against the appellant and hence, the appellant had to suffer conviction as awarded by the trial court. We, therefore, concur with the finding of the two courts which, in our view, does not call for any interference in this appeal."

31. In the case of Than Kunwar (Supra), it was

observed that compliance of Section 50 is mandatory

only in case of search of the person of the suspect and

not in the case of a search of the his belongings like

bag.

32. In the instant case, it is explicit from the

evidence on record that when the appellant was

apprehended, the bag or sack carried by him was

intended to be searched. PW 2, has stated in his

deposition that the appellant was spotted carrying a

bag in his possession. There is no case of search of

the person of the appellant in the evidence. In fact,

the witnesses have testified that when the appellant

was apprehended, he disclosed that he was carrying

ganja. Moreover, the search and seizure in this case,

was made at a public place, in front of Reebok

Showroom at Kestopur.

33. Nevertheless, a notice under Section 50 of the

NDPS Act was served upon the appellant informing

him the intended search of his body and luggage

(Ext.7). PW2 and other witnesses have testified that

such notice was duly served upon the appellant.

Exhibit 7 also bears the signature of appellant on it

establishing such service. Not only that, the Gazetted

Officer (PW7) who was informed to come to the place

of search and seizure arrived at the spot. He in his

deposition stated that he also informed the appellant

and the appellant offered to be searched in presence

of PW7, a gazetted officer. On such offer of the

appellant, search of the bag carried by him was

conducted. There is no evidence whatsoever, that the

person of the appellant was also searched. The

language used in Exhibit 7 clearly indicates that the

appellant was given with the option of being searched

in presence of a Magistrate or a Gazetted Officer.

Therefore, in our consideration, the provisions of

Section 50 of the Act, was duly and sufficiently

complied with in letter and spirit. In that view of the

aforesaid facts, the contention of non-compliance of

the provisions of Section 50 of the NDPS Act, cannot

be sustained.

34. Section 50 of the Act, contemplates the search in

presence of a Magistrate or a Gazetted Officer. There

is no classification to the effect that the gazetted

officer must be from one or the other agency. The

prosecution in not choosing some gazetted officer from

an agency other than the police cannot be faulted.

Similarly, the signature of the gazetted officer on the

notice under Section 50 of the Act, is not

contemplated in the said provision. It is incumbent

upon the seizing officer to serve the notice. In fact,

notice in writing is also not contemplated. The only

requirement of the said Section is to put the accused

on notice of his rights to be searched in presence of a

Magistrate or a gazetted officer.

35. After search and seizure, the seized articles were

sent for examination. The seized articles were kept at

Malkhana. PW 9 has deposed about the relevant

entries in the Malkhana Register under which it was

deposited.

36. PW9 has also proved the report of the chemical

examiner (Exhibit 13). The report reflects that the

seized articles were received by the chemical examiner

with intact seal. The report also discloses that the

seized articles, on examination, were found to be

ganja, a Narcotic Drug under the purview of Narcotic

Drugs and Psychotropic Substance Act, 1985. The

variation in gross weight and remnant weight of the

sample cannot be taken to vitiate the prosecution

case. There may be many reasons for such variation

in the weight. But so long as the seal is found intact

there appears no reason to doubt the genuineness of

the sample and the report on its basis.

37. In that view of the aforementioned facts, it is

well established that the appellant was found in

possession of 'gnaja' which is a narcotic substance as

defined under the provisions of Narcotic Drugs and

Psychotropic Substance Act, 10985. The appellant

failed to produce any valid document required for the

possession of Narcotic Substance. As such his

possession of ganja cannot be said to be an

authorized possession. The quantity of ganja that was

recovered from his possession was surely of

commercial quantity punishable under the provisions

of the Narcotic Drugs and Psychotropic Substance

Act.

38. On the basis of discussions made hereinbefore,

we are of the considered opinion that the impugned

judgment and order is well founded based on

convincing evidence and does not warrant any

interference.

39. Consequently, the impugned judgment of

conviction dated April 04, 2019 and order of sentence

dated April 05, 2019 passed by the learned 6th

Additional and Sessions Judge, Barasat, North 24-

Parganas in connection with the Case No. N-138 of

2015 is affirmed.

40. Accordingly, the instant appeal being CRA

No.247 of 2021 is hereby dismissed.

41. Period of detention already undergone by the

appellant during investigation, enquiry and trial shall

be set off in terms of the provisions of Section 428 of

Code of Criminal Procedure.

42. Trial court records along with copies of this

judgment be sent down at once to the learned trial

Court as well as the Superintendent of Correctional

Home for necessary compliance.

43. Photostat certified copy of this order, if applied

for, be given to the parties on priority basis on

compliance of all formalities.

44. Connected applications, if any, shall also stand

disposed of.

[MD. SHABBAR RASHIDI, J]

45. I agree.

[DEBANGSU BASAK, J.]