JUDGMENT
Indu Prabha Singh, J.
1. The sole appellant has been convicted under Section 21(b) of the Narcotic Drugs and Psychotropic Substance Act, (in short the Act) and has been sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 50,000/- and in default he is ordered to further undergo rigorous imprisonment for 6 months.
2. The prosecution story, as disclosed in self statement of Inspector Piranjeet Singh, is that on receipt of the memo of the Superintendent of Police on that day of occurrence he constituted a raiding party and proceeded for conducting checking of the vehicle on Buxar Sasaram road near Shiv Temple in village-Malah Chakia. Further story is that the Superintendent of Police, Buxar had authorised the informant under Section 41(2) of the Act to conduct the raid. As per the message of the Superintendent Buxar two persons after purchasing Heroin from the appellant Ranjeet Rai of village-Sarenja were to come on a motor cycle towards Buxar. Out of whom one was a lame person. The informant alongwith others were checking the vehicle at about 15 hours, he saw two persons on a motor cycle having registration No. U.P. 60 C-8489. But on seeing the police the person who was pillion rider escaped while the other person who was lame driving the motor cycle was caught. In presence of two witnesses, namely, Md. Azad and Laxman Soni searched of the person was done. He disclosed his name to be Mahendra Pathak (Co-accused not the appellant). He also disclosed that the pillion rider was Santosh Tiwary of village-Ekauni, P.S. Charpokhari, District-Bhojpur, his brother-in-law. After fulfilling the formalities he made search on Mahendra Pathak and recovered a polythene packet containing brown colour powdery substance which he disclosed that the same was Heroin purchased from the appellant. He also disclosed that the appellant alongwith his brother used to manufacture Heroin in his own house which is sold by him and some other persons. He further disclosed that appellant was also to arrive soon on his Maruti Car with Heroin for selling the saem to other persons. The brown power recovered from the co-accused Mehendra Pathak was duly seized and samples were made. After making seizure list suddenly at about 16 hours (another motor cycle without any number came and on seeing the police party the person riding on the motor cycle attempted to flee away but was also apprehended. He disclosed his name to be Braj Mohan Rai. While he was being interrogated the Maruti Car No. UP 60E 3684 also came which was stopped. The person, driving the car disclosed his name as appellant, Ranjeet Rai. The informant shown him the authorisation memo of Superintendent of Police, Buxar and also disclosed him that 50 gram of Heroin had been recovered from the possession of Mahendra Pathak. He also informed him that he wanted to search his car and his person. He also gave him option that whether he wants to be searched in presence of Gazetted Officer or a Magistrate. Upon it the appellant, Ranjeet Rai gave him in writing that they can search him in presence of the witnesses and he was not willing to go to a Magistrate or a Gazetted Officer. On being search in presence of witness a polythene packet containing brown colour power was recovered which was weighed to be 50 grams. The samples were taken and sealed with the signature of witness arid were properly sealed. It has been further alleged that a rifle, life cartridges and a mobile phone were also recovered from his possession. Seizure, list was prepared on which appellant, Ranjeet Rai, put his signature beside the witnesses. The Superintendent of Police, Buxar was also informed about the arrest of the appellant and recovery of contraband articles. On his statement a formal F.I.R. was lodged. The case was investigated. The article so seized was handed over to the I.O. which was kept properly in Malkhana. The specimen sample of the seized articles were sent to Forensic Science Laboratory for examination. The I.O. submitted charge sheet after the investigation. Thereafter the cognizance was taken and trial was concluded with the result as indicated above.
3. The prosecution altogether examined 8 witnesses including Md. Azad (P.W.1) and Laxman Soni (P.W.6) who were made witnesses to the seizure list but they did not support the case and were declared hostile. P.W.1 has stated that he was made to sign on four plain papers by Vijoyji on Mufasil police Station. P.W. 6 has also stated that he was made to sign on plain paper at his shop in Thatheri Bazar Buxar. P.W.2, Azad Ansari and P.W.3, Wahid Ansari have also not supported the seizure and recovery of Heroin from the Maruti Car and has claimed that the signature was taken on plain paper. As such none of the independent witnesses have supported the seizure. P.W. 4 the informant has supported the case as per his self report on the basis of which the F.I.R. was drawn. He has fully supported that Mahendra Pathak aloghwith a pillion rider was coming on his motor cycle which was stopped by him but the pillion rider succeeded in escaping. From the possession of the Mahendra Pathak Heroin was recovered which was duly seized. According to him at about 4 O’Clock appellant, Ranjeet Rai also came there on his Maruti Car and a motor cycle rider was piloting him. His car was stopped and he was also informed that the informant wanted to search him. He was also informed that if he wanted he could be searched in presence of a Gazetted Officer or a Magistrate but he gave written consent that he wanted to be get searched by the Police Officer itself. Thereafter on search from the left pocket of his full paint Heroin in a polythene packet was recovered. A rifle, live cartridges and a mobile phone were also recovered from his car. Proper sealing and sampling of the contraband so recovered was made. Seizure list was also prepared. The sample so taken out was sent for Forensic Science Laboratory for examination. The seizure list, also got signed by the appellant. The appellant, Ranjeet Rai and his brother-Braj Mohan Rai who was piloting him has confessed that they were engaged in business of Heroin. His confessional statement was also recorded. On his report F.I.R. was drawn. He has further stated that after seizure and arrest of the appellant, he gave written information to the Police Officer. Other witness, Bachha Jha (P.W.5) was a member of the raiding party and he has also supported the case. He has also supported that seizure list was duly prepared and samples were duly taken, in front of the witnesses.
4. P.W.7 is the I.O. of this case. He has stated that he got the seized article deposited in Malkhana, recorded the statement of the witnesses and inspected the place of occurrence. He has further stated that the hostile, witnesses had supported the fact of recovery in their statement, before him. However, on cross examination he stated that all the independent witnesses are not from the locality where seizure and search was done. They reside 2 K.M., 2 1/2 K.M. and 4 K.M. away from the place of occurrence.
5. P.W. 8, Dr. Kapileshwar Choudhary is a technical officer in Forensic Science Laboratory. He has been examined to prove that the samples which were sent for examination were derivative of Morphin, a kind of Narcotic drug. He has proved Ext. 8. He has also stated that for which a report, was sent and he further stated that earlier a report No. F.S.L. 158/2003 was received by the court which were said to be sent from his office and they were forged report.
6. Learned Counsel for the appellant has submitted that letter of authorisation from the Superintendent of Police, Buxer vide his memo No. 5079 dated 8.11.2003 (Ext.4) was for conducting the search and seizure of co-accused Mahendra Pathak and not the appellant. As such he was not authorised to search the appellant Ranjeet Rai. It is submitted that on search of Mahendra Pathak 50 gram of Heroin was recovered but another co-accused Braj Mohan Rai who was coming on the motor cycle had no contraband in his possession all the seizure list witnesses P.Ws. 1, 2, 3 and 6 were declared hostile and have not supported the case. Not only that they are not from the locality from where the seizure and search was done. They live away from the locality and they have specifically stated that their signature was obtained on blank paper. As per the prosecution version the raiding party had prior information of Heroin being taken. They too had authorisation under Section 42 of the Act (only for one person), it was duty on their part to have arranged a magistrate/Gazetted Officer for conducting the search from localities and also to have arranged witnesses which they failed to do. As such provision of Section 50 of the Act which is mandatory has not been complied with. Though the written consent has been obtained by the appellant that he had no objection and was willing to get search by the Police Officer but that consent does not bear any signature of the witnesses and even though it was claimed that there were four independent witnesses who taken to the place of occurrence but this consent letter does not bear their signature. It also does not bear even signature of a police witness which creates doubt in genuinity of this consent letter. On this point he has relied on the decision of the Apex Court: reported in 1999 (V) S.C.C. 172 State of Punjab v. Baldeo Singh in which it was held that the court must be satisfied that due compliance of Section 50 of the Act has been done. The independent witnesses P.Ws. 1, 2, 3 and 6 claim that nothing was recovered in their presence and also their signature was obtained on plain paper at Thatheri Bazar and not at the place of occurrence. The I.O. has also accepted that they do not belong to the locality where the search was conducted. As such their presence at the place of occurrence does not seem to be plausible more so they were businessmen. As such it was submitted that the mandatory provision of Section 50 of the Act has not been properly complied with and the police has simply obtained the signature in duress on a paper by the appellant showing his consent to be searched by the Police Officer. That, too without any witness or any proof. Thus the prosecution according to learned Counsel has failed to comply with this mandatory provision. The denial of independent witnesses to have seen the recovery process and making of samples with due signature of witnesses also becomes doubtful. As such compliance of Section 55 of the Act has also not been properly done and even genuinity of the sample sent for test becomes doubtful.
7. It was further submitted that in case of Narcotic Drugs the court should be very specific that there should be a proof link between the seizure making of samples and sending it for chemical examination to ensure that the substance which has been actually recovered and seized has actually been sent for chemical examination. There should be no doubt and there should be no lacuna in any link so mentioned. It was pointed but that there are catena of judgment on this point in which it was held that any missing link would discard the case of the prosecution. Since there is severe punishment in these cases and the court must see that all the mandatory provisions have been strictly complied with. The learned Counsel has also pointed out that apart from these lacuna in the prosecution case the alleged recovery is of 50 gram of Narcotic Substance is much less than the commercial quantity notified in government circular. As per the circular 150 gram is said to commercial quantity for Heroin and it is alleged that only 50 gram of Heroin has been alleged to have been recovered from the possession of the appellant. Not only that the quantity so recovered has been properly weighed or not is also doubtful which would be apparent from the deposition of P.W. 4 who admitted that he has taken the weight of the sample but weight of sample was not mentioned nor weight of remanent was mentioned by him. Even P.W.8 has admitted that weight of the sample was not mentioned in forwarding letter. These all shows that there is no proper proof of quantity of seized Heroin and even it was recovered as alleged, it was in very small quantity and for that quantity of recovery sentence of 7 years is too much compared to maximum sentence under this provision being 10 years of rigorous imprisonment. It was lastly submitted that the appellant has remained in jail for last 2 1/2 years, he deserves leniency while awarding sentence.
8. In this case none of the independent witnesses have supported the case even though the I.O. in his deposition has claimed that he got the statement of these witnesses recorded and they all supported the case of the prosecution during the investigation. But as have been raised their presence at the place of occurrence is doubtful specially these witnesses are businessmen and their presence away from their house and their shops at that busy hour is not very convincing. On the place of search the police could have got witnesses why it chose to select persons from another localities. That apart they have denied, there presence and also specially stated that their signature was obtained on a plain paper at another place and they saw nothing. No recovery was made in their presence. It has also been pointed that the authority under Section 41(1) of the Act was not for the appellant. However, this point is not vital to help the appellant because as per the story there was no prior information that the appellant was also carrying some Narcotic substance and it was not possible for the raiding party to obtain the authority in hurry. However, other mandatory provisions of Sections 50 & 55 of the Act are vital and have to be complied rigorously. In this case recovery is shown to have made from the person of the appellant and they had prior knowledge that Narcotic drugs is being carried, it was their duty to have arranged the Magistrate or Gazetted Officer which they did not do. They simply obtained consent to fill-up the lacunae but the consent letter does not have any signature of the appellant on the seizure and search and they could sign or even a police witness could sign over it to prove its genuinity. But it does not bear any signature on it. The samples which were taken are alleged to have taken out also bore the signature of the witnesses but they denied that the sample was taken out in their presence.
9. In view of these lacuna I am of the view that the prosecution has not conducted, the investigation complying all the provisions. Not only that the main allegation of the prosecution is that the appellant and his family was in regular business in Heroin and according to the Government Notification No. S.O. No. 1055(R) dated 19.10.2001 the commercial quantity has been declared as 250 gram and a person with 50 gram. The. Heroin seized cannot be said to be in full-fledged business of Heroin. Even otherwise the case against the appellant has not been proved beyond all reasonable doubt and he deserves acquittal only for non-compliance of Sections 50 and 55 of the Act. Accordingly, the appellant deserves benefit of doubt and is acquitted of the charges levelled against him. It has been stated that the appellant is in jail. His is directed to be released forthwith, if not wanted in any other case.
In the result, this appeal is allowed.