JUDGMENT
S.C. Mital, J.
1. This appeal is directed against the judgment of conviction of the appellant Chhagan Lal under Section 8/18, Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) by learned Additional Sessions Judge No. 1, Chittorgarh vide his judgment dated 31-1 -96 in Sessions Case No. 176/93.
2. Briefly stated the prosecution case is that the appellant was travelling in a Roadways bus RNP 605 from Pratapgarh on 11-8-89. The bus arrived at Octroi Post No. 2, Chittorgarh at about 10.30 A. ML, which was stopped for checking by Shri Parmanand Acharya, Sub-Inspector, Office of Opium Officer, Chittorgarh Division 1, The appellant was sitting on Seat No. 37 and he was interrogated on suspicion by Inspector Shri Parmanand Acharya. Shri Parmanand Acharya wanted to take search and, therefore, the appellant was informed his right under Section 50 of the Act for taking search in the presence of a Magistrate or a Gazetted Officer. He gave his consent for taking search by Shri Parmanand Acharya, Sub-Inspector and he found 10 gms. of opium in the pocket of his ‘Kurta’ and 4Kg. 10 gms. contraband opium in a plastic bag wrapped in a quilt. Two samples containing 25 gms. contraband opium each were taken and sealed on the spot in the presence of the motbirs. Necessary documents with regard to the search and other formalities were prepared, the statement of the appellant Ex. P. 13 was also recorded and after completing the investigation and on the report of the Public Analyst that the samples contained contraband opium, challan was filed against the appellant.
3. The appellant denied the charges framed against him under Section 8 read with 18 of the Act and stated in his statement under Section 313, Cr. P.C. that he had no opium in his possession. He did not give any statement to the Inspector Shri Paramanand Acharya. His signatures were forcibly obtained on the papers. The learned Additional Sessions Judge after completing the trial and hearing the arguments found it proved on the basis of the evidence on record that contraband opium was recovered from the possession of the appellant as alleged by the prosecution. Accordingly the appellant was convicted and sentenced as stated above.
4. The learned Counsel for the appellant has advanced number of arguments about non-compliance of the mandatory provisions of Section 42 and Section 50 of the Act and also the lacuna of samples not keeping intact until these were received at the Forensic Science Laboratory. It was also contended that there are material contradictions in the statements of the witnesses and available independent witnesses have not been examined, therefore, the prosecution has failed to prove that any contraband opium was recovered from the appellant.
5. The learned Public Prosecutor has submitted that the prosecution has proved its case beyond reasonable doubt. It was not necessary for the prosecution to comply with the provisions under Sections 42 and 50 of the Act and by the chain of link evidence it has been established that the samples were kept sealed and intact and were deposited in the same condition for chemical analysis.
6. I shall first discuss the contention on behalf of the appellant about non-compliance of the mandatory provisions contained in Sections 42 and 50 of the Act because if compliance has not been made of these mandatory provisions then the whole trial and conviction stand vitiated and on this count alone the conviction of the appellant cannot be sustained.
7. I have perused the statements of material witnesses Shri Parmanand Acharya (P. W.5), Sub-Inspector, Jwala Singh (P.W.4), Bhikam Singh (P.W.3) Constables and Hasan Khan (P.W.2) Driver of the bus. It is revealed from the above statements that there was no prior information against appellant about carrying contraband opium while travelling in the bus. Parmanand Acharya (P. W.5) has deposed that he accompanied by constables had gone for checking of contraband opium on Nimbahera-Neemach Road Octroi Post No. 2 and checked the bus in which the appellant was travelling and sitting on seat No. 37. He was interrogated and on suspicion appellant’s search was taken. In the above circumstances, I agree with the contention of the learned Public Prosecutor that there was no prior information and, therefore, the question of following the mandatory provisions of Section 42 did not arise. In view of this the contention about non-compliance of Section 42 is untenable.
8. The next important point for consideration arises that whether the compliance of mandatory provisions of Section 50 has been made in this case. I am unable to agree with the learned Public Prosecutor that such compliance was not necessary, because the opium is alleged to have been recovered in a public place i.e. in the Roadways Bus as defined in Section 43 of the Act. In the instant case, the prosecution alleges the recovery from the pocket of the ‘Kurta’ of the appellant and also from a plastic bag wrapped in a quilt and kept under the knees by the appellant. The alleged article was in the personal possession of the appellant while he was sitting in the bus and I am of the view that the provisions of Section 50 very much apply in this case. Section 50 lays down that when duly authorised officer want to search any person under the provisions of Section 41, Section 42 or Section 43 then he shall take such person if so requires, without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The words “if such person so requires” necessarily mean that the authorised officer shall inform the person before taking search of his right to be taken to the nearest Gazetted Officer or the Magistrate, because on being asked by the authorised officer only such person can give his option. It is, therefore, incumbent on the authorised officer to inform before search to the person that he can opt to give search in the presence of the authorised officer or if so requires can be taken to the nearest Gazetted Officer or the Magistrate. It is necessary to so inform even if the search of a person is to be taken at a public place. It is a statutory and a salutary provision to ensure that the recovery being effected remains without any suspicion or doubt. The recovery made on search in the presence of a Gazetted Officer or a Magistrate shall remove all reasonable doubt and the prosecution case is likely to be accepted fairly by the Court. In the instant case, the prosecution case is that the pocket of the ‘Kurta’ and the quilt in possession of the appellant was searched by the Sub-Inspector. It is also stated by Shri Parmanand Acharya and other witnesses that the petitioner was told about his right to have the presence of the Gazetted Officer, or a Magistrate at the time of his search, but he gave his consent for search by the Sub-Inspector Shri Parmanand Acharya. The prosecution case has not been supported by Driver Hasan Khan (P.W.2) and the Conductor Mohd. Hussain has not been examined, the testimony of Bhikam Singh (P.W.3), Jwala Singh (P.W.4) and Parmanand Acharya (P.W.5) has to be closely scrutinised and properly appreciated in the light of the recovery memo Ex. P.3 ‘and F.I.R. Ex. P. 8. The prosecution has not produced any written memo as no such memo was prepared with regard to the compliance of Section 50 of the Act. True it is that Section 50 does not mention any need to prepare the memo in writing, but if prepared it becomes an important piece of evidence to establish this important fact. On considering the oral testimony, I find that Bhikam Singh (P.W.3) has not been able to give any reason for non-mentioning of the fact in Ex. P3 recovery memo that the appellant was told, if he so required, to have the presence of a Gazetted Officer. Jwala Singh (P.W.4) has not stated in chief examination that before taking search the appellant was informed of his option for the presence of the Magistrate or a Gazetted Officer at the time of search. On the other hand he has stated about the fact of taking search and sealing of the samples on the spot and thereafter according to him the Sub-Inspector asked the appellant whether he wanted the presence of a Gazetted Officer while preparing the Panchnama. He states :
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It is clear from the above version that no option was offered to the appellant as required in the mandatory provisions of Section 50 of the Act before taking search. The sequence of the writing in Ex. P. 3 also casts serious doubt about the compliance of the mandatory provisions of Section 50 of the Act. After taking the search, taking and sealing the samples it has been written in Ex. P.3 that the appellant was asked to state whether he wanted search to be taken before a Magistrate or a Gazetted Officer. Ex. P.8 F.I.R. also suffers from this infirmity.
9. In view of the above discussion of the oral and documentary evidence produced by the prosecution, I am of the view that the prosecution has failed to establish by cogent and reliable evidence that the compliance of the mandatory provisions under Section 50 of the Act was made at the time of the search. The statements of Sarva Shri Parmanand Acharya (P.W.5), Jwala Singh (P.W.4) and Bhikam Singh (P.W.3) are not reliable in this respect. The learned Counsel for the appellant has placed reliance on several judgments, but suffice it to refer 1995(1) Excise & Food Adulteration Reports (Supreme Court) 16 : 1994 AIR SCW 4393 (Ali Mustaffa Abdul Rahman Moosa v. State of Kerala), wherein their Lordships of the Supreme Court have held that provisions of Section 50 are mandatory and non-compliance is fatal. In the present case also I have come to the conclusion that the prosecution has failed to prove the compliance of the mandatory provisions of Section 50 of the Act and the conviction of the appellant is vitiated, which cannot be sustained. In the end, it is, therefore, now not necessary to deal with the other contentions put forward on behalf of the appellant.
10. Consequently the appeal is accepted. The impugned judgment dated 31-1-1996 convicting and sentencing the accused-appellant is hereby set aside and the appellant Chhagan Lal is acquitted of the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He shall be released forthwith, if not required in any other case.
