ORDER
Sunil Kumar Garg, J.
1. This appeal has been filed by the accused-appellant against the judgment and order dated 19-11-1999 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. (118/92) (24/94) 88/97 by which he convicted the accused appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’) and sentenced him to undergo ten years rigorous imprisonment and to pay fine of Rs. one lac. In default of payment of fine, to further undergo R.I. for six months. By the same judgment, the learned Special Judge acquitted two other accused Pramod Kumar and Maskoor.
2. The facts giving rise to this appeal, in short, are as follows :–
P.W. 1 Pramod Kumar Sinha, Inspector, in the Office of District Opium Officer, Bhilwara lodged a complaint Ex. P/21 in the Court of Session, Bhilwara stating inter alia that on the directions of the District Opium Officer, Bhilwara, a Raiding Party under the leadership of P.W. 1 Pramod Kumar, was constituted and this raiding party apart from him consisted of P.W. 2 Rajaram, Mohd. Rehan Kuresi, P.W. 3 Jagdish Prasad Sharma, P.W. .4 Mohan Chand and P.W. 5 Raghunath Pandey and on 11-3-1992 at about 11.00 a.m. they reached Chungi Naka No. 2, Bhilwara for the purpose of checking to prevent smuggling of contraband articles and at about 2.00 p.m. a Truck bearing No. UP-12/8596, came there, which was coming from Chittorgarh and going towards Bhilwara and on suspicion it was stopped for checking and in that Truck, three persons were sitting and the person, who was sitting on the Driver seat told his name as Pramod Kumar and the Khalasi of the said Truck told his name as Maskoor and the third person, who was sitting in the Cabin told his name as Baburam (present accused appellant) and these three persons were asked whether they wanted to be searched before Magistrate or Gazetted Officer and upon this, they desired that may be searched by the members of the raiding party and two motbirs, namely, P.W. 6 Shambhoo Singh and P.W. 7 Budhi Prakash were also called and, thereafter, the search of these persons was taken by P.W. 3 Jagdish Prasad Sharma and on search, two plastic bags containing black substance were recovered from the accused appellant Baburam and on being tasted, it was assessed that it was nothing, but contraband opium and these two plastic bags were marked as A/1 and A/2 and on further search, two more plastic bags were recovered and they were marked as B/1 and B/2 and thus, in all four plastic bags were recovered on the spot and they were weighed and the total weight of the opium contained in these four packets was found to be 2 kg. 300 grms. The opium contained in these four bags were mixed and two samples of 24 grms. each were taken for the purpose of chemical analysis and they were sealed on the spot. The fard of search and seizure Ex. P/1 was prepared on the spot by P.W. 1 Pramod Kumar. The specimen seal impressions were taken on Ex. P/2. The accused appellant was arrested through arrest memo Ex. P/3. The Truck in question was seized through seizure memo Ex. P/6. The information about search and seizure was sent to District Opium Officer, Bhilwara by P.W. 1 Pramod Kumar through Ex. P/8. Thereafter, one sample was sent to the Government Opium and Alkaloid Works, Neemuch for chemical analysis through letter Ex. P/25 and the receipt of depositing sample at Neemuch is Ex. P/22. The report of the Government Opium and Alkaloid Works, Neemuch is Ex. P/23, in which it was reported that the sample was found by qualitative/quantitative analysis to be opium within the meaning of Section 2XV of NDPS Act, 1985.
After usual investigation, complaint was filed in the Court of Session, Bhilwara.
On 8-10-1993, the learned Special Judge, NDPS Cases, Bhilwara framed charges for the offence under Section 8/18 of the NDPS Act against the present accused appellant and on 29-4-1995, charges for the offence under Section 8/18 read with 28 of the NDPS Act were framed against two accused, namely, Pramod Kumar and Maskoor. The charges were read over and explained to the accused persons. They denied the charges and claimed trial.
During trial, the prosecution in support of its case examined as many as seven witnesses and got exhibited some documents. Thereafter, statements of the accused appellant and other accused persons under Section 313, Cr. P.C. were recorded. In defence, no evidence was produced by the accused persons.
After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 19-11-1999 acquitted two accused persons, namely, Pramod Kumar and Mashkoor, but convicted the present accused appellant for the offence under Section 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding inter alia that the prosecution has proved its case beyond all reasonable doubts against him for the offence under Section 8/18 of the NDPS Act.
Aggrieved from the said judgment and order dated 19-11-1999 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant.
3. In this appeal, the learned counsel appearing for the accused appellant has made the following submissions:–
1. That mandatory provisions of Section ‘ 50 of the NDPS Act have not been complied with in the present case. There is no mention of compliance of Section 50 of the NDPS Act in Ex. P/1 recovery memo, Ex. P/3 to Ex. P/5 arrest memos of accused appellant and others and ocular evidence is not satisfactory and no separate memo to make compliance of Section 50 of the NDPS Act has been made and in these circumstances, it cannot be said that compliance of mandatory provisions of Section 50 of the NDPS Act has been made in its letter and spirit and on this ground alone, the accused appellant is entitled to acquittal.
2. That in this case, Malkhana Incharge has not been produced and article No. 1 shows the date of seizure of contraband and samples to be 12-8-1992 while article No. 2 shows the date of seizure as 17-8-1992 and thus, these two articles do not relate to the contraband articles recovered in this case. The explanation which has been accepted by the learned Special Judge that statements of two prosecution witnesses, namely, PW 4 Mohan Chand and PW 5 Raghunath Pandey pertained to some other case and they have wrongly mentioned these dates in the present case, is totally wrong and on this ground alone, the accused appellant should have been acquitted.
Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him.
4-5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Bhilwara.
6. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
Point No. 1.
7. Before examining this point, legal aspect of Section 50 of the NDPS Act has to be mentioned here.
Object and purpose of Section 50 of the NDPS Act
8. The purpose of informing a suspect that search could be taken in the presence of a Gazetted Officer was to ensure that there was safeguard against planting any incriminating article.
9. These provisions have been made in order to protect the interests of the citizens from irregular and illegal invasion on his liberty by the authorities as well as in the interest of the State to secure the evidence bearing upon the commission of the crime and necessary to enable the justice to be done shall not be withheld from the course of law on merely formal or technical grounds.
10. The object of making it peremptory on the part of the officer so as to ensure that the officer, who is charged with the duty of conducting the search, to conduct it properly and not to harm or wrong, such as planting of offending drugs by any interested party and to prevent fabrications of any evidence.
11. The provisions of Section 50 of the NDPS Act have been made with the intention to act as a safeguard against the vexatious and unfair dealings. The provisions have also been incorporated in order to protect and safeguard the interest of an innocent person. If a person is searched before a Gazetted Officer or before a Magistrate, as the case may be, then it will provide a weapon to the law enforcing agency against the common allegation that the opium has been planted by the investigating agency. It also provides a protection to the law enforcing agency.
12. The rational behind this provision is manifest. A search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the proceedings. It would, varily strengthen the prosecution .
13. The Hon’ble Supreme Court in K. Mohanan v. State of Kerala, 2000 SCC (Cri) 1228 has held as under :–
Narcotic Drugs and Pshychotrophic Substances Act, 1985, Section 50 — Before subjecting a person to search, the officer concerned must inform him of his right to be searched before a gazetted officer or a Magistrate and failure to do so would cause prejudice to such person — Where before conducting the search the police officer concerned merely asking the accused appellant whether he was required to be produced before a gazetted officer or a Magistrate for the purpose of the search but not informing him about his right in that behalf under the law, held, mandatory requirement of Section 50 not satisfied. — If he had been told about his right, what would have been the answer given by the accused cannot be gauged at this distance of time –This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied ‘ with. In view of non compliance with Section 50, . the evidence of search spoken to by the police officer who had conducted the search cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article.
14. In Ahmed v. State of Gujarat 2000 (9) JT SC 416 : 2000 Cri LJ 4008 it has been held as under at page 4012; of Cri LJ:–
Sections 50, 41, 42 — Compliance –Search taken by a “gazetted officer” — If the accused still has the right to be informed about his right to be searched before a gazetted officer or Magistrate. Accused himself wanting to be searched before gazetted officer or Magistrate — Request declined Held that there was infraction of Section 50. Even if the officer searching the accused himself is a gazetted officer, right of accused cannot be denied.
15. From perusing the above two rulings of the Hon’ble Supreme Court, it becomes crystal clear that the officer concerned must inform accused of his right to be searched before Gazetted Officer or Magistrate and failure to do so would cause prejudice to such person. Merely asking accused whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of the search, but not informing about his right in that behalf under the law, it would mean that mandatory requirement of Section 50 of the NDPS Act has not been satisfied.
16. The Hon’ble Supreme Court in so many cases has held that the provisions of Section 50 of the NDPS Act are mandatory in nature and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial.
17. Keeping the above legal position in mind, the present case is being examined.
18. So far as applicability of Section 50 of the NDPS Act in the present case is concerned, it may be stated here that as the contraband opium was recovered on personal search of accused appellant, therefore, provisions of Section 50 of the NDPS Act would be applicable in the present case.
19. The next question that arises for consideration is whether in the present case, compliance of mandatory provisions of Section 50 of the NDPS Act has been made or not.
20. Whether compliance of Section 50 of the NDPS Act has been made or not is a question of fact and for that evidence has to be looked into.
21. PW 1 Pramod Kumar Sinha, who conducted the search and seizure in the present case, has stated in his examination-in-chief that all the three accused persons including present accused appellant were asked whether they wanted to be searched before the Magistrate or Gazetted Officer and upon this, they, gave their consent that they could be searched by the members of the raiding party. In cross examination, this witness admits the following facts :
(1) That before search, he did not prepare any parcha under the provisions of Section 50 of the NDPS Act.
(2) That on the same day i.e. on 11-3-1992, the information was given to the District Opium Officer.
(3) That accused persons were searched by two persons and, thereafter, the work of preparing fards was done by him.
(4) That it is correct to say that accused persons were not searched by him, but on his directions, they were searched by his men.
(5) That he did not take the consent of the accused persons separately.
(6) That in the FIR Ex. P/8, which was sent by him to District Opium Officer, it was not mentioned that accused persons, were asked whether the wanted to be searched before the Magistrate or Gazetted Officer.
(7) That Ex.P/3, Ex. P/4 and Ex. P/5, which are arrest memos of accused appellant and other accused, the fact that that they were asked whether they wanted to be searched before the Magistrate or Gazetted Officer was not mentioned.
22. PW 3 Jagdish Prasad is another witness, who was with the raiding party and he states that accused appellant Baburam was first asked to get down from the Turck and then he was asked whether he wanted to be searched before the Magistrate or the Gazetted Officer and, thereafter, as per the directions of PW 1 Pramod Kumar, his search was made.
23. Thus, this witness says that only accused appellant was asked whether he wanted to be searched before the Magistrate or Gazetted Officer, while PW 1 Pramod Kumar says that all the three accused persons were asked whether they wanted to be searched before the Magistrate or Gazetted Officer.
24. The motbir witnesses, namely PW 6 Shambhoo Singh and PW 7 Budhi Prakash have been declared hostile.
25. So far as the documentary evidence is concerned, as admitted by PW 1 Pramod Kumar himself, the fact that accused appellant and other accused were asked whether they wanted to be searched before Magistrate or Gazetted Officer is not found in Ex.P/3, Ex. P/4 Ex.P/5 and Ex.P/8 and Ex.P/8 is the information, which was given by PW 1 Pramod Kumar to the District Opium Officer just after the search and seizure.
26. In Ex. P/1, it is stated that all the three accused persons, who were sitting in the Truck, were asked whether they wanted to be searched before the Magistrate or Gazetted Officer and upon this, they gave their consent that they could be searched by the members of the raiding party.
27. In my considered opinion, looking to the above evidence, it cannot be said that compliance of Section 50 of the NDPS Act in its letter and spirit has been made in the present case. From the statement of PW 1 Pramod Kumar and Ex.P/1 fard of search and seizure, it appears that PW 1 Pramod Kumar Sinha himself did not ask the accused persons individually, but they were asked jointly by the members of the raiding party whether they wanted to be searched before the Magistrate or Gazetted Officer and upon this, they gave their consent that they could be searched by the members of the raiding party. No separate fard for compliance of Section 50 of the NDPS has been made nor consent of the accused persons was taken in writing. Apart from this, the fact that accused persons including present accused appellant were asked whether they wanted to be searched before the Magistrate or Gazetted Officer was not mentioned in the FIR Ex. P/8, which was given by PW 1 Pramod Kumar Sinha to the District Opium Officer just after the search and seizure. In arrest memos Ex.P/3 to Ex. P/5 , there was no mention of this fact. Furthermore, the search of the accused persons was not conducted by PW 1 Pramod Kumar Sinha himself but it was got conducted by his men. The fard of search and seizure was prepared by PW 1 Pramod Kumar Sinha on 11 -3-1992 at about 2.00 p.m. and in arrest memo of accused appellant Ex. P/2, the same time is mentioned and similarly, in other arrest memos of accused person also the same time is mentioned. This also shows that compliance of mandatory provisions of Section 50 of the NDPS Act has not been made in strict sense by PW 1 Pramod Kumar Sinha and he just made mere formality by writing few words in the fard of search and seizure Ex. P/1. The manner in which the search of the accused persons was got conducted clearly goes to show that PW 1 Pramod Kumar was not serious and he has taken the matter so lightly where stringent minimum punishment has been provided.
28. The Court is aware that option under the provisions of Section 50 of the NDPS Act can be given to accused orally, but the evidence to this effect should be satisfactory and convincing one and the fact that accused gave consent must be clear. Since in the present case, no separate fard was prepared for giving notice under Section 50 of the NDPS Act nor fard of consent was prepared separately and simply mentioning some words in the fard of search and seizure Ex. P/1 clearly go to show that it was nothing but a mere formality and it appears that actually no option under the provisions of Section 50 of the NDPS Act, was given to the accused appellant before making his search. Had option would have been given to the accused appellant before making his search, separate fard of either giving notice or consent must have been prepared by PW 1 Pramod Kumar Sinha and this fact would have been mentioned by him in the FIR Ex. P/8, which was sent by him to the District Opium Officer just after the search and seizure.
29. For the reasons stated above, it is concluded that compliance of Section 50 of the NDPS Act has not been made in the present case and the finding of the learned Special Judge on this count are liable to be set. aside.
Point No. 2
30. From the fard of search and seizure Ex.P/1, it appears that the two samples of 24 grams each were taken, but there is no mention of the fact that they were marked either A/1, B/1, C/1, D/1 etc.
31. PW 1 Pramod Kumar Sinha states in his statement that on 12-3-1992, one sample was sent to Neemuch Factory through Ex. P/9. He has further stated in his Court statement that one packet of sample and one packet of article seized have been brought by Aaftaf Ahmad. Sub-Inspector and they have been marked as Article 1 and sample 2. In cross examination, he admits that sample to Neemuch Laboratory was not sent by him, but it was sent by the Malkhana Incharge and the Malkhana Incharge on that day was Ravindra Nath Yadav, District Opium Officer. However, Ravindra Nath Yadav has not been produced in this case.
32. PW 2, Rajaram is the person, who took the sample and deposited in the Neemuch Factory. He states that on 12-3-1992, one sample was given to him by PW Pramod Kumar Sinha for depositing in the Neemuch Factory after taking it from Malkhana through letter Ex. P/25 which bears his signatures. He further states that he took the sample to Neemuch Factory, but he was not having the necessary amount that was to be deposited, therefore, he returned back with the sample to Bhilwara and since there were holidays, he kept the same with him upto 16-3-1992 and he deposited the sample at Neemuch Factory on 16-3-1992 and got the receipt Ex. P/23. He further states that sample register Ex.P/24 bears his signatures. In cross examination, this witness admits that he took sample from PW 1 Pramod Kumar Sinha and when he came back from Neemuch, he did not deposit it in the Malkhana and kept the same with him in Almirah.
33. PW 1 Pramod Kumar has clearly admitted in cross-examination that the Malkhana Incharge was Ravindra Nath Yadav and he did not send the sample to Neemuch Factory and it was sent by Malkhana Incharge. But, PW 2 Rajaram says otherwise.
34. As already stated above, Ravindra Nath Yadav has not been produced in this case.
35. PW 4 Mohan Chand is another witness, who was with the raiding party and he admits in cross examination that Article 2 does not bear chit and it is correct to say that Article 1 bears the date of seizure as 12-8-1992 and similarly Article 2 bears the date of seizure as 17-8-1992 and on the spot, the fards were prepared by PW 1, Pramod Kumar Sinha.
36. PW 5, Raghunath Pandey is another witness, who was with the raiding party and he admits in cross examination that Article 2 does not bear the chit and it is also correct to say that on Article 2 date of seizure is 17-8-1992 and on Article 2 beneath the signatures of PW 2 Rajaram, the date mentioned is 17-9-1992.
37. The FSL report is Ex. P/23, which shows that one sample was received, but it was not marked as A/1, B/1, C/1, etc.
38. After analysing the above evidence, the learned Special Judge came to the conclusion that no doubt from the statements of PW 4 Mohan Chand and PW 5, Raghunath Pandey, different dates are coming in picture on Article 1 and Article 2, which were produced in Court, but he accepted the argument of the learned Special Public Prosecution that these dates were mentioned by PW 4, Mohan Chand and PW 5, Raghunath Pandey wrongly and they have mentioned the dates of another case. In my considered opinion, these findings of the learned Special Judge cannot be accepted, as these witnesses have categorically stated in cross examination that Articles A-1 and A2, which were produced before the Court, bear dates of seizure. In these circumstances, to say that these articles were the same articles which were recovered from the present accused-appellant cannot be accepted.
39. Before proceeding further, it may be stated here that for getting an offender contravening provision of the NDPS Act and rules made thereunder, punished, it is very essential to establish that the article alleged to have been recovered or seized and in relation to which the offender is sought to be punished, is narcotic drug or psychotrophic substance. To show that such article is narcotic drugs or psychotropic substance, chemical examination of such
icle is necessary. It is further necessary to show that sample sent for chemical examination was the same which had been taken from the article recovered or seized and that the same sample reached the Chemical Examiner and it was not tampered with during the period between the time of taking of the same and its reaching the hands of the Chemical Examiner. This can be done by establishing that the sample was sealed properly and by leading evidence of the persons by whom the sample came to be handled after its having been taken and its delivery to the Chemical Examiner.
40. It may further be stated here that for showing that sample was not tampered with after it was taken and till it reached the hands of the Chemical Examiner, it is necessary for the prosecution to produce evidence as to where the sample was kept after it was taken, by whom it was handled in the malkhana, by whom it was taken to the Chemical Examiner. Persons handling the sample in Malkhana and carrying the same to the Chemical examiner should be examined as witnesses in the Court. Any possibility of tampering with the sample has to be excluded. Failure to rule out possibility of its being tampered with may be fatal to the prosecution case.
41. In the present case, the person, who was Malkhana Incharge at the relevant time, has not been produced and from the statement of PW 1 Pramod Kumar Sinha, it is also clear that Article 1 and Article 2 were not deposited in the Malkhana of the Court, but they were brought on 6-8-1996 by one Aftaf Ahmad, S.I. when PW 1, Pramod Kumar Sinha was being examined in Court and Aftaf Ahmad has not been produced, who could have said where these Article 1 and Article 2 were kept. Apart from this, PW 2, Rajaram took, the sample on 12-3-1992 for depositing it in the Neemuch Factory for chemical analysis, but he deposited the same in Neemuch Factory on 16-3-1992 and he kept the sample with him for four days and he did not deposit it in the Malkhana. Furthermore, there are contradictory statements as to who gave the sample to PW 2, Rajaram for depositing it in the FSL, as PW 1 Pramod Kumar Sinha says that sample was given to PW 2, Rajaram by the Malkhana Incharge, Ravindra Nath Yadav, while PW 2, Rajaram says that he took the sample from PW 1, Pramod Kumar Sinha. In these circumstances, evidence of Malkhana Incharge and entries of Malkhana Register become material and for want of them, case of the prosecution that sample and articles remained in proper custody and proper form cannot be accepted and the possibility of tampering of sample and the articles produced in Court cannot be ruled out. Besides this when Article 1 and Article 2 alleged to have been recovered from the accused appellant on the spot bear different dates of seizure, it cannot be concluded that these articles were the same which were recovered from the accused appellant and thus, the whole prosecution case comes under the shadow of doubt and the accused appellant is entitled to benefit of doubt.
42. For the reasons stated above, the findings of the learned Special Judge convicting the accused appellant for the offence under Section 8/18 of the NDPS Act are liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled to acquittal.
Accordingly, the appeal filed by the accused appellant Bau Ram alias Babulal is allowed and the judgment and order dated 19-11-1999 passed by the learned Special Judge, NDPS Cases, Bhilwara are set aside and the accused appellant is acquitted of the charge framed against him. Since he is in jail, he be released forthwith, if not required in any other case.