Alok Singh, J. -
(1.) IN the present appeal filed by the appellant against the judgment and order dated 07.11.2008 passed by Special Sessions Judge, Champawat in Special Session Trial No. 01 of 2007 is being assailed whereby learned trial court has held the appellant guilty for the offence punishable under Section 8/20 of N.D.P.S. Act and order dated 11.11.2008 whereby appellant was sentenced to undergo ten years R.I. and to pay fine of Rs. 1,00,000/ -, failing which to undergo additional imprisonment of two years for an offence punishable under Section 8/20 of N.D.P.S. Act. Brief facts of the present case inter alia are that on 12.10.2006, Vinod Kumar Pant (P.W. 1) along with Constable Jai Veer Singh (P.W. 2), Constable Ganesh Singh, Constable Mahinder Giri, Constable Deshraj was on patrolling duty in a police gypsy; at about 09:30 p.m. P.W. 1 and his associates could see the appellant walking on the KACHA road towards the canal gate; having seen the police party, appellant started behaving abnormally; on this police personals asked him to stop; appellant started running and on being chased, appellant was apprehended; due to night, there was no movement on the road, therefore, no public witness was available; appellant was asked as to why he was behaving abnormally and as to why he has started running; appellant started apologizing and has told the police personals that he was carrying CCHARAS and his name is Janak Chaulane S/o. Gotha Chaulane R/o. Ward No. 8 Tilachor, Thana Gadda Chauki, Nagarpalika Canchanpur, Tehsil Mahendra Nagar, District Kanchanpur; On this Vinod Kumar Pant (P.W. 1) S.S.I., told the appellant that Magistrate is available in the Tanakpur, therefore, if he wish, his search could be made in the presence of the Magistrate or the Gazetted Officer. On this appellant told the police personals that he had complete faith on the police party, therefore, he could be searched by the police party; after making consent note, search was made on the person of the appellant; on search, two plastic bags were recovered from his pocket wherefrom about 1.500 kg of CHARAS -was recovered; appellant was formally arrested after telling him that he has committed an offence punishable under Section 8/18/20 of N.D.P.A. Act. CHARAS, so recovered, was kept in the seal cover under the seal and signature of Vinod Kumar Pant (P.W. 1) and sample seal was also prepared; seizure memo and arrest memo were also prepared on the spot. Thereafter appellant and CCHARAS so recovered was brought to Thana and chick F.I.R. was lodged. Investigation was handed over to Chandan Giri (P.W. 6). Chandan Giri (P.W. 6) having investigated the matter submitted the chargesheet against the appellant.
(2.) DURING the trial S.S.I. Vinod Kumar Pant (P.W. 1), Constable Jai Veer Singh (P.W. 2), Constable Hemand Kumar (P.W. 3), Constable C.P. Prakash Ram (P.W. 4), H.C.P. Bhoopal Singh (P.W. 5), S.H.O. Chandan Giri (P.W. 6) were examined. Statement of the appellant was also recorded under Section 313 of Cr.P.C. in the statement recorded under Section 313 of Cr.P.C. appellant has stated that he had quarrel with Constable Jai Veer Singh (P.W. 2) about four days before the arrest, therefore, he was falsely implicated and arrested on 10.12.2006. In the present case, the very important question has emerged as to whether in the present case exact and definite compliance of the provisions of Section 50 of the N.D.P.S. Act was made or not.
(3.) THE Hon'ble Apex Court in State of Delhi v. Ram Avtar @ Rama reported in : (2011) 12 SCC 207 in paragraph Nos. 26, 27, 28 and 30 has held as under: - -
26. The High Court while relying upon the judgment of this Court in the case of Baldev Singh and rejecting the theory of substantial compliance, which had been suggested in the case of Joseph Fernandez, found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression 'duly ' used in Section 50 of the Act connotes not 'substantial' but 'exact and definite compliance'. Vide Ex. P.W. -6/A, the appellant was informed that a Gazetted Officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside.
27. R is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja, the theory of 'substantial compliance' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non -compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.
28. To secure a conviction under Section 21 of the Act, the possession of the illicit article is a sine qua non. Such contraband article should be recovered in accordance with the provisions of Section 50 of the Act, otherwise, the recovery itself shall stand vitiated in law. Whether the provisions of Section 50 of the Act were complied with or not, would normally be a matter to be determined on the basis of the evidence produced by the prosecution. An illegal search cannot entitle the prosecution to raise a presumption of validity of evidence under Section 50 of the Act. As is obvious from the bare language of Ex. P.W. -6/A, the accused was not made aware of his right, that he could be searched in the presence of Gazetted Officer or a Magistrate, and that he 5 could exercise such choice. The writing does not reflect this most essential requirement of Section 50 of the Act. Thus, we have no hesitation in holding that the judgment of the High Court does not suffer from any infirmity.
30. We are also unable to appreciate how the provisions of Section 50 of the Act can be read to support such a contention. The language of the provision is plain and simple and has to be applied on its plain reading as it relates to penal consequences. Section 50 of the Act states the conditions under which the search of a person shall be conducted. The significance of this right is clear from the language of Section 50(2) of the Act, where the officers have been given the power to detain the person until he is brought before a gazetted officer or a Magistrate as referred to in sub -section (1) of Section 50 of the Act. Obviously, the legislative intent is that compliance with these provisions is imperative and not merely substantial compliance. Even in Ali Mustaffa Abdul Rahman Moosa this Court clearly stated that contraband seized as a result of search made in contravention to Section 50 of the Act, cannot be used to fasten the liability of unlawful possession of contraband on the person from whom the contraband had allegedly been seized in an illegal manner.;