- (1.) ONKARESHWAR Bhatt, J. This appeal has been preferred by appellant, Ashok Kumar alias Lala, against judgment and order dated 28-10-1994 passed by the then IInd Additional Sessions Judge, Kanpur Nagar in Sessions Trial No. 196 of 1994. The appellant has been convicted under Sections 18/20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, and sentenced to undergo ten years rigorous imprisonment and to pay a fine of rupees one lac and in default of payment of fine one year further rigorous imprisonment has been awarded.
(2.) SMT. C. L. Satsangi, learned Counsel of the appellant and Sri G. S. Bisaria, learned A. G. A. appearing for the State have been heard. On 9-11-1993 Sub-Inspector Yogendra Nath Singh PW-2 was posted at police station Sachendi in Kanpur Nagar. He was on night patrol duty and in search of a suspected criminal. Alongwith him constable, Suraj Singh PW-1 and three other constables were present. They were going from Bhimsen Railway Station crossing towards the bazar and were in Ram Singh Ka Purwa when they saw the appellant coming infront of them. On seeing the police party the appellant tried to run away, but he was apprehended by the policy party. Sub-Inspector Yogendra Nath Singh told that he will be searched. Thereupon the appellant said that Jhola (bag) which he is carrying contains charas. The Sub-Inspector informed him that his search can be made before a Magistrate or a Gazetted Officer to which he declined. Then search of Jhola was carried out and 400 Grams charas and 26 Purias wrapped in paper also containing charas were recovered. From the right hand pocket of the pant of the appellant a sum of Rs. 61/- was recovered. A recovery memo was prepared on the spot. On analysis the sample of charas which was taken on the spot was found to be charas. The appellant denied the alleged recovery and has stated to have been falsely implicated in this case.
(3.) IT has been contended that compliance of Section 50 of the Act has not been made, which vitiates the trial. The facts of the case show that apprehension of the appellant and recovery of contraband from his possession took place without any prior information. The facts of the case show that Sub-Inspector Yogendra Nath Singh PW-2 without any prior information, as contemplated under the provisions of the Act, had arrested and searched the appellant in normal course of investigation into suspected offence as provided under the provisions of the Code of Criminal Procedure and it was during that search that the contraband was found. Moreover, the charas was found from the Jhola which the appellant was carrying and not from his personal search. Section 50 of the Act is attracted only when personal search is to be made. This view has been laid down in the case of State of Punjab v. Balbir Singh, 1995 (1) JIC 382 (SC) :1994 634. For proving the fact of recovery of the contraband from possession of the appellant constable Suraj Singh PW-1 and Sub- Inspector Yogendra Nath Singh PW-2 have been examined. Undoubtedly, they are police officials. It has come in their evidence that at the time of apprehension of the appellant and preparation of the recovery memo three or four persons of public had come. Neither the names of these public witnesses are mentioned in the recovery memo nor has been stated by the two witnesses of fact. However, it is well-settled that the testimony of a witnesses is not to be doubted or discarded merely on the ground that he happens to be a police official. In the recovery memo it is mentioned that the money which was recovered and the seized on charas were sealed in one bundle while sample of the contraband charas of about 22 Grams was sealed separately. This means that two separate bundles were prepared on the spot. The G. D. by which the case was registered on 9-11-1993 at 11. 30 p. m. shows that two bundles were deposited in the Malkhana. However, according to Sub-Inspector Yogendra Nath Singh PW-2 three bundles were prepared on the spot. One bundle contained 400 Grams of charas and 26 Purias, second contained sample of 22 Grams of charas and the third bundle contained Rs. 61. This anomaly remained unexplained. Moreover, it is not clear from the evidence on record that sample of charas was taken from which contraband because one contraband charas weighed about 400 Grams while the other was wrapped in 26 Purias. According to the prosecution case recovered contraband was deposited in the Malkhana of the police station. Sub-Inspector Yogendra Nath Singh PW-2 stated that on the second day, which will be 10-11-1993, he produced the appellant and the seized articles before the Circle Officer and the seized article stood deposited in the Malkhana of the police station. How Sub- Inspector Yogendra Nath Singh procured it on the next day is not clear. According to Section 55 of the Act it is an officer incharge of the police station who shall take charge of it and keep in safe custody the articles seized under this Act. Sub-Inspector Yogendra Nath Singh does not say that the officer incharge of the policed station had delivered the seized article to him for being produced alongwith the appellant before the Circle Officer on the next day. If it is correct that Sub- Inspector Yogendra Nath Singh produced the seized article before the Circle Officer on the next day, then there is no evidence on record to show when that article was again deposited in the Malkhana of the police station. PW-4 Dinesh Mohan Khatta is the Investigating Officer of the case. He has stated that sample of contraband was sent by him for chemical analysis through constable Jagdish Narain PW-5. He has stated that so long the articles remained in his possession its seal remained intact. From the evidence it is not clear that the officer in charge of the police station has handed over the sample of charas to him. It is also not clear as to when he took possession of the sample of charas. From the evidence on record it is not clear that the sample which is alleged to have been sent for analysis was really taken from the contraband alleged to have been seized from possession of the appellant. It is doubtful if the sample which was sent for analysis was really one which is alleged to have been seized from possession of the appellant. There is one more feature of the case worth noticing. Specimen of the seal which was sent alongwith sample for analysis bore the seal of 'tiwari UPP'. As mentioned above, Sub-Inspector who is alleged to have seized the contraband from possession of the appellant is Sub-Inspector Yogendra Nath Singh and the Sub- Inspector who is alleged to have sent the same to the Chemical Examiner is PW-4 Dinesh Mohan Khatta. How the sample seal sent alongwith sample of the contraband had specimen signature of 'tiwari UPP' remains a mystery.;