JUDGMENT
A. Pasayat, J.
1. The appellant (also described as the ‘accused’) assails his conviction for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the ‘Act’) and sentence of five years’ rigorous imprisonment and fine of Rs. 50,000/-, with default sentence to undergo rigorous imprisonment for one year attached to it, as directed by the learned Sessions Judge, Balasore.
2. Prosecution accusations on the basis of which the accused faced trial are as follows :
On 4-4-1992 the Officer-in-charge of Bhograi Police Station (PW 4) got reliable information that the appellant was cultivating cannabis plants in his backyard. At about 11 p. m. that day he along with his staff surrounded the house of the accused which is about a furlong away from the Police Station, and searched his backyard. During search he found nine cannabis plants of different sizes inside the backyard. The plants were uprooted and seized in presence of witnesses, under seizure list (Ext. 1/2). The accused was arrested and a sample of the cannabis plant was collected before the learned JMFC, Jaleswar and was sent for chemical test. After obtaining the chemical examiner’s report, charge-sheet was submitted against the accused leading to his trial.
3. Accused pleaded innocence and false implication.
4. Four witnesses were examined to further prosecution version. PWs 1 and 2 were witnesses to the seizure. In Court, they made a departure from their version as indicated during investigation. PW 3 is the Assistant Sub-Inspector of Police, who accompanied the Investigating Officer along with other police personnel. He stated that though he was present at the spot, he has not signed in the seizure list. PW 4 is the Investigating Officer, who stated that the plants were seized inside the premises of the accused, which he had taken, on rent from one Sudarsan Behera.
On consideration of the evidence on record, conviction was made and sentence awarded as aforesaid.
5. In support of the appeal, Mr. D.P. Dhal has urged three points, namely, (i) non-compliance of Section 50 of the Act, (ii) non-compliance of Section 42 of the Act; and (iii) infirmity in custody of the seized articles.
The learned counsel for State on the other hand supported the judgment and conviction, and submitted that no prejudice has been caused by the infraction, if any.
6. So far as non-compliance of Section 50 of the Act is concerned, reliance was placed on the observations of learned Sessions Judge in paragraphs 10 and 11 of the judgment. It was observed by him that it was not the duty of the Investigating Officer to ask about the presence of the Gazetted Officer at the time of search and seizure, and/or whether the accused wanted to be examined by any such officer. The view is indefensible in view of the decision of the apex Court in State of Punjab v. Balbir Singh : AIR 1994 SC 1872 : (1994) 7 OCR 283. But that is not the end of the matter. Section 50 applies only in case a person is intended to be searched. The case at hand is not one which relates to search of a person. Search of premises of one cannot be equated with search of that person. The relevant expression in Section 50 is “about to search any person”, as appearing in Sub-section (1) thereof. Section 50 comes into play when a person has to be searched, and has no application at all to search of premises.
7. So far as non-compliance of Section 42 of the Act is concerned, is it stated that there is no mention by PW 4 that he had entered into the premises of the accused after mentioning his grounds of belief. The apex Court in Balbir Singh’s case (supra) has observed that the empowered officer on getting prior information given by any person, should necessarily take down it in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and under Section 42(1) there is no mandate that he should record his reasons of belief. But under the proviso to Section 42(1) of such officer has to carry out such search between sunset and sunrise he must record the grounds of his belief. To this extent the provisions are mandatory, and contravention of the same would affect prosecution case and vitiate the trial. Under Section 42(1) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of the same, that would affect the prosecution case. To that extent it is mandatory. But if there is delay, whether it was undue or whether the same has been explained or not, is a question of fact In each case. In the case at hand, the O. I. C. (PW 4) in his cross-examination has categorically stated that he had sent information of the seizure and registration of the case to superior. No attempt has been made to show that such statement was false. Foundation has to be laid by the accused when contravention of any provision is pleaded. During trial, no attempt has been made to establish contravention of any requirement mandated by Section 42(1). The belated plea in the present appeal without any material to prop in cannot be accepted. As observed by the apex Court in Surajmal Kenia Lal Soni v. State of Gujarat : (1994) 2 East. LJ 128 (SC), a foundation has to be laid by the accused where contravention of any statutory requirement is alleged. Similar view was expressed by this Court in Krushna Chandra Mohanty v. State : (1994) 7 OCR 533.
8. The last point is that there was delay in sending the seize articles for chemical test, and there is no evidence that the articles were in sate custody. For consideration of this point, the statement of PW 4 is vital. According to him, the seized articles were produced before the JMFC, Jaleswar on 12-5-1992, that is, one month eight days after the seizure with request to send the sample for chemical test. In his statement in chief he has not breathed a word as to where the seized articles were kept, and whether it was sealed or was in opened state. In the cross-examination he has explained that he had kept the plants in sealed cover, the seal was opened in presence of the JMFC When the sample was sent to the State Forensic Laboratory. He had admitted that he had not sent the intimation of seizure and registration of the case to his superior officer, and he had not mentioned it in the case diary as it was not necessary according to him. Ext. 2 shows that the Material Object No. I was sent for chemical test on 12-6-1992. PW 4 his stated that he had not mentioned in the case diary that the articles were kept in a sealed cover and order of the learned Magistrate dated 12-5-1992 does not show that same was brought in a sealed cover. Additionally, there is no material brought on record as to where the seized articles were between the date of seizure and date of production before learned JMFC, i.e. on 12-5-1992. Even PW 4 is silent on this aspect. No material was placed on record to show as to what transpired in the intervening period. That is a missing link rendering prosecution case vulnerable.
9. The appeal is allowed, and the order of conviction and sentence is set aside. The appellant be set at liberty forthwith, unless he is required to be in custody in connection with any other case.