JUDGMENT
S.K. Phaujdar, J.
1. The present appeal is directed against the judgment and order dated 12-8-1994 passed by the IIIrd Additional Sessions Judge, Bijnor, in Special S.T. No. 2 of 1993. By the impugned order, the learned trial court found the appellants guilty under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hence forth to be described as the Act. The Appellant was sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- and, in default thereof, to a further period of simple imprisonment for three years.
2. According to the prosecution story, Sri Bhagwan Sharma, S.O. Rehar, District Bijnor, along with other police officials had come out on a round on 11-10-1992. On the way another police Sub-Inspector met them with his team and the two groups were discussing about informations concerning terrorists when they saw a person coming from the side of Pilidam. He had a bag with him and on seeing the police, he clasped closed to his person. The police officials suspected that he was carrying something forbidden. He was stopped and was confronted and before anything more could be done, he started begging apology stating that his bag contained dhora (Opium straw). The S.O. Bhagwan Sharma, then told him that he had the option to get him searched before a gazetted officer. The man indicated that he had full confidence on these police officers and asked them to search his person. The local people who were passing nearby were asked to be present during search but they refused to participate to avoid trouble. The man gave out his name as Nisan Singh and disclosed his parentage and residence. On search, he was found carrying in his right hand a rexine bag and it was containing powdered opium seeds weighing about 6 kg. in a black polythene bag. The S.O. smelt it and got the same smelt by others. It was smelling like opium seeds. The accused could not show any licence for keeping the material with him. He begged apology again. A search memo was prepared at the spot. The material was subsequently examined and was found to be opium straw, as per the report of the chemical examiner.
3. During trial, the witnesses examined were the S.O. Bhagwan Sharma (PW 1), S.I. of police Devendra Kumar Sharma (PW 2), R.C. Singh, S.I. of Police (PW 3) and constable Hamid Khan (PW 4). The accused was examined under Section 313, Cr.P.C. and he denied the allegations of seizure from him and alleged false implication. The learned counsel for the appellant not only challenged the factum of recovery, but also pointed out different defects in the prosecution story by way of non-compliance of the specific provisions of the Act concerning seizure and follow-up procedures.
4. The FIR spoke of detection at the initial stage when the man was seen moving suspiciously. On challenge, he allegedly made a confession and he was offered the option to be searched before a gazetted officer. He agreed to be searched by the police officer himself and from him the incriminating article was recovered from one black polythene bag kept inside the rexine bag. The seizures list that was prepared at the spot contains almost similar allegations. There is nothing in the seizure list, however, to indicate that the signature of the accused were obtained on it. There is, however, an endorsement that a copy of the seizure-list was given to him. The evidence on this point may be seen. Here also PW 1 stated that the man disclosed that he was carrying opium straw and he was offered the choice of being searched by gazetted officer. The evidence of PW 1, however, varies from the seizure-list to the extent that in the seizure-list only one bagful of opium straw was mentioned weighing about 6 kilos and in evidence the material has been described to have been found in 6 polythene bags of one kilo each. These 6 bags were identified after a sealed packet was opened in the court. He was cross-examined on this discrepancy and there is no explanation why in the FIR and in the seizure-list 6 separate packets of opium straw were not mentioned. His evidence discloses that in the list no signature of Nisan Singh was obtained to indicate his presence during search. He also accepted that he got 6 kilos of the material seized packed in a white cloth and got it sealed. He did not keep any sample from it for chemical examination. PW 2 also spoke of recovery of 6 polythene bags containing one kilo each of the opium straw powder. In his examination-in-chief, however, this witness described the material seized as powdered charas. This witness was the man who explained to the accused that he had the option to be searched in presence of a gazetted officer. He stated that he had explained that a gazetted officer meant the CO., S.P. or the doctor before whom the accused could have demanded a search. This suggests that the accused was not given any option to get himself searched before a Magistrate. His cross-examination indicates that before searching the accused, they had not given their own search to avoid the possibility of false implication. He also could not explain why the recovery of 6 separate bags of one kilo each of opium straw powder was not mentioned in the seizure list. He also did not take any sample and the whole bundle was sealed together. The seal with which the bundle was sealed belonged to this S.I. but the sample of the seal was not kept in record. This seal was kept with the S.O. Search and seizure took about 45 minutes and local people had assembled there. The S.I. allegedly requested them to be witnesses, but they denied. There us, however, no indication if the names and addresses of any of those persons were recorded by the S.I. or any other police officer. According to the PW 3, the sealed bundle of the material seized was sent for chemical examination through constable Hamid Khan. The Investigating Officer did not get the bundle weighed. At a later stage, this witness states that samples were sent through the CJM and samples were taken in pursuance of the court. According to PW 4, the constable, the material was firstly sent to the chemical examiner through the CJM on 17-11-1992 and again on 30-11-1992, the samples were taken in presence of the CJM and only the sample was sent to the chemical examiner. This suggests that the first sealed bag must have been opened for taking sample and there is no evidence that it was sealed again and, if so, by whom.
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5. The learned counsel challenged the factum of search and seizure and of the legality thereof as well. He relied upon several case laws to illustrate his points. Before taking up the case laws cited by the learned counsel, it is necessary to indicate the law concerning search and seizure and the follow up actions, as required under the Act. Section 15 of the Act provides for punishment for contravention in relation to poppy straw and state that whenever any person, in contravention of any provision of this Act or any rule or order, transports, imports inter-State, exports inter-State, sales, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of poppy straw shall be punished with rigorous imprisonment. The prosecution is, therefore, duty bound to prove commission of any of the acts mentioned above and also to prove that the material seized was poppy straw. On the point of seizure, Section 50 of the Act gives the conditions under which search of persons shall be conducted. Under this section, when a search is about to be made, the officer making the search shall, if the person to be searched so requires, take him without unnecessary delay to the nearest gazetted officer or to the nearest magistrate. Section 51 provides that the provisions of the Cr.P.C. shall apply in so far as they are not inconsistent with the provision of this Act to search and seizures made under this Act. Section 52A requires that when any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of a police station, he shall prepare an inventory of such narcotic drug or psychotropic substance indicating its description, quality, quantity, mode of packing, marks, and other identifying particulars and shall make an application to magistrate for taking, in his presence, photograph of the substance or allowing him to draw samples of the substance and for certifying correctness of the list of the sample taken. This section also makes it incumbent upon the magistrate to allow such application when it is made. Section 55 requires that once an officer-in-charge of police station takes charge of any narcotic drug, it will be kept under his safe custody under his seal.
6. The case law relied upon by the learned counsel may now be seen. Reliance was placed on the judgment of the Supreme Court in the case of State of Punjab v. Balbir Singh, as reported in 1995 All India Judicial Interpretation on Crimes 112. In this judgment, the Supreme Court interpreted Section 50 and stated that it is obligatory for the officer concerned to inform the accused his right that he could get himself searched before a gazetted officer or a magistrate. The Court interpreted the terms “if the person to be searched so requires” and opined that these words did cast a duty upon the officer about to make the search to intimate the person to be searched that if he so required he would be taken to the nearest gazetted officer or the nearest magistrate for the purpose of making search in their presence. It was observed that this was a valuable right given to the person to be searched in the presence of gazetted officer or a magistrate if he so required. Since such a search would impart more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused to afford such an opportunity to a person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. In the case at our hand, the material indicates that the only offer that was made to him was that the accused could get himself searched before a gazetted officer and it was not stated that he had an equal right to get himself searched before a magistrate. Learned AGA submitted that the magistrate is a gazetted officer and the offer by the police officer to the accused to get himself searched before a gazetted officer must be deemed to mean that he could have well chosen a magistrate even for search in his presence. This interpretation as given by the learned AGA, in my view, may not be acceptable as the Act itself gives two categories of persons before whom the search could have been made at the requisition of the accused and these two categories were gazetted Officers mentioned in Section 42 and the nearest magistrate. Had the legislature desired that the term gazetted officer would cover a magistrate as well, there was no necessity to mention the term magistrate in Section 50. Normally, one should not interpret any word in a legislation as superfluous. Moreover, it was not any gazetted officer that was meant under Section 50 and under the interpretation of the Supreme Court, the accused had a right to chose his forum of search and it was the duty of the police officer to inform him of his right indicating both the forums. The learned counsel placed before me a decision of the Delhi High Court in the case of Mukesh v. The State, as reported in 1994 (3) Crimes 337. Here also, in a case of alleged possession of a narcotic drug, a police officer, before making the search, had informed the accused that he could get himself searched before a gazetted officer and no mention of the magistrate was there and it was held that the accused was not fully informed of his right and he was entitled to acquittal for the failure on the part of the police officer to protect the right of the accused.
7. The learned counsel also relied upon another Supreme Court decision in the case of Walsala v. State of Kerala as . The appellant in this case was convicted for having been in possession of Brown Sugar. It was not proved that the seized substance was sent to the chemical examiner. Although this was purely a question of fact but it was an important link to establish the guilt of the accused and the Supreme Court set aside the conviction orders of the trial court and the High Court as they had not examined this aspect in the proper perspective. It was observed, “no doubt, the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the Court cannot convict.”
8. Coming to the facts of the case at our hand, it is found that the very fact of the alleged seizure is hit by the provision of Section 50 as the accused was not told about his valuable right of being searched in presence of magistrate. The very factum of recovery is also not free from doubt in the sense that in the seizure list and the FIR six kilos of Dhora were allegedly seized and there is no indication that it was in six different packets of one kilo each but in evidence this theory has been introduced. There is nothing on record to indicate if the material was over weighed. There is no explanation for this discrepancy. On the point of taking sample, evidence is not free from doubt as the material was allegedly seized at the spot and no sample was taken. The link evidence is missing as how and by whom the sample were taken and were sent to the chemical examiner. No evidence has come to show if any inventory was sent to the magistrate immediately after the search and seizure.
9. It is true that trafficking in narcotic drugs has grown up in menacing proportions but that does not mean that a court of law would allow deviation from the procedure laid down and would convict on evidence which is doubtful. It is the golden rule of the criminal jurisprudence, and we are yet to deviate from it that an accused is presumed to be innocent unless his guilt is proved. ‘Proved’ always means ‘proved’ according to law. It is also an accepted principle of law that the higher is the punishment for an offence, the court would require the more strict proof before convicting an accused and depriving him of his liberty.
10. In the present case, the prosecution has led doubtful evidence on the point of recovery, and has also failed to abide by the legal necessities as required under the NDPS Act. The accused is, therefore, entitled to both the benefit of doubt and of the failure of the prosecution to follow the procedural safeguards allowed to the accused.
11. The appeal accordingly stands allowed. The judgment, conviction and sentence is set aside. The appellant is acquitted. He must be set at liberty forthwith unless required to be detained in any other case.