Virendra Saran - (1.) THANVIR has filed this appeal] from jail against the judgment and order dated 8.5.1990 of Sri D. C. Srivastava Sessions Judge, Basti passed in S. T. No. 195 of 1988. The learned Sessions Judge has convicted the appellant under Section 20 (b) (ii) of N. D. P. S. Act and sentenced him to undergo ten years R. I. and fine of Rs. one Lac. In default of payment of fine the appellant has been directed to undergo three years further R. I.
(2.) I have heard the appellant in person and learned Additional Government Advocate and have perused the record. According to the case of the prosecution, on 7.4.1989. Constable Paras Nath Tewari and Constable Radhey Shyam were deputed on patrol duty in Barhni. At about 12 O'clock in the day, they received information that one man is coming with Charas in his possession. The constables collected Ram Sajan P.W. 2 and Jhinkan alias Jhinak P.W. 3 from the way and they waited in front of Barhni Railway Station. At about 3 p.m. they saw the appellant coming and the appellant was accosted, arrested and searched. From the possession of the appellant a bag (Ext. 1) containing about 2 kg. Charas was recovered. The charas was in the shape of cakes and one of such cake was taken for the purpose of chemical examination and it was sealed. Remaining quantity of Charas was also sealed and recovery memo Ext. Ka-1 was prepared at the spot. Thereafter the accused along with recovered substance was brought to the police station and a formal F.I.R. was registered. I have gone through the recovery memo in which there is not even a whisper that the appellant was given option of being searched before a Gazetted Officer or before a Magistrate. The learned State Counsel has submitted that the provisions of Section 50 of the N. D. P. S. Act in this regard are not mandatory but simply directory. Even if the provisions of the above section are held to be directory, in the circumstances of the present case, I am of the view that prejudice has been caused to the appellant because of the non-compliance of Section 50 N. D. P. S. Act. The arrest in the present case has been made by the Constables and the quality of the evidence produced by the prosecution in the case is far from satisfactory. There are numerous contradictions in the evidence of the witnesses which go to show that everything is not well with the prosecuiton case. According to P.W. 1 constable Paras Nath Tiwari, the informant met him near the Railway Station and he in the company of police informer and public witnesses went to the Railway Station. P.W. 2 Ram Sajan has stated that at about 3 p.m. he was taking tea at stall of Shesh Nath and Jai Karan was present there. He further stated that police constables were also there. He further stated that they chased the accused coming from the side of Nepal. This was not the stand taken by the police constables. It is also noteworthy that P.W. ? 2 Ram Sajan said that the bag containing the charas was taken to the police outpost where charas was weighed. If charas was weighed at the police out-post, the prosecution story regarding sealing of the charas on the spot is belied. The learned trial Judge has characterised this important contradiction in the prosecution evidence as minor. P.W. 3 Jhinak was given another story that he and the Constables were at the stall when a Nepali came and Constables wanted to check up his bag and it was then that the Nepali started running away and was chased and was captured. He gave a lie to the prosecution case and stated in the cross-examination that arrest was made on 7.4.1988 and that he was taken to the police out-post on 9.4.1988 and it was on 9.4.1988 that his thumb impressions were obtained on the recovery memo. Thus the cross-examination shows that the recovery memo came into existence not at the time of incident but after two days of the so called recovery. In this way entire prosecution story stands discredited.
(3.) IN view of what has been discussed, I find that the prosecution has miserably failed to prove its case against the appellant. I am in deep anguish to find that the appellant is in Jail since 1988. It appears that the appellant being poor man was defended by an amicus curie who could not point out the relevant points to the learned trial Court. The appeal is hereby allowed. The conviction and sentence passed against the appellant are set aside. The appellant is in Jail. He shall be released forthwith unless wanted in any other case. The fine if paid shall be refunded to the appellant. Let record be sent back to the trial court forthwith. Appeal allowed.;