K.S.KUMARAN, J. - (1.) MAHENDER Singh, son of Shankar Lal, resident of village Sarwarpur (hereinafter referred to as the appellant) was charged under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and was accordingly convicted and sentenced to undergo rigorous imprison­ment for ten years, to pay a fine of Rs. one lac and, in default to further undergo rigorous imprisonment for two years by the learned Additional Sessions Judge, Bhiwani. Aggrieved by the same, he has come forward in this appeal.
(2.) THE case of the prosecution is that on 18.1.1986, Sub-Inspector Hari Singh of Police Station Siwani along with the police party and Matu Ram (PW1) was on patrol duty in a Police jeep. When they reached Sainiwa Railway Station at about 1.30 p.m. they parked the jeep near Dharamshala and started patrolling along the railway line. They noticed the appellant coming from the side of Jhupa along the line with a gunny bag on his head. On seeing the police party, he tried to retrace and sat in a ditch. On suspicion, he was apprehended. The gunny bag was opened in which there was a tin containing 8 kgs. of opium from which 50 gms. of opium was taken as sample and the residue was kept in the tin (Ex. P1). After sealing the sample and the residue separate­ly, the seal was handed over to Matu Ram PW 1, and the sample and the residue opium were taken into possession under a memo which was attested by Matu Ram PW 1 and others, Ruqa (Ex. PB) was sent to the Police Station on the basis of which the FIR (Ex. PB/1) was recorded. At the trial before the learned Additional Sessions Judge, the appellant pleaded not guilty to the change framed under Section 18 of the Act and also pleaded false implication. On the prosecution side, Matu Ram (PW 1) and Hari Singh Yadav (PW 2), the then Sub-Inspector, were examined (apart from marking the affidavits of a Constable which are not very material for the purposes of our consideration). Relying upon the evidence let in by the prosecution, the learned Additional Sessions Judge convicted and sentenced the accused as mentioned above against which this appeal has been filed. We have to see whether the conviction of the accused can be sustained. One of the points raised by the learned Counsel for the appellant in this appeal is that the provisions of Section 50 of the Act were not complied with strictly before the alleged search of the appellant and the alleged seizure of opium. He contends that the provisions of Section 50 are mandatory and non-compliance with the same would vitiate the conviction itself. The learned Counsel for the appellant contended that before ever the appellant herein was allegedly searched, he should have been given the opportunity to be taken to a Gazetted Officer or a Magistrate and that was not done in this case and, therefore, the alleged search and seizure are illegal. Admittedly, in this case the appellant herein was not offered to be taken before a Gazetted Officer or a Magistrate. The learned Counsel for the appellant in this connection relied upon the decision of the Hon'ble Supreme Court in AH Mustaffa Abdul Rahman Moosa v. State of Kerala, 1995 (1) EFR 16 (SC): 1995 JIC 500 (SC), support of his connection. But the facts of the case relied upon by him are different from the facts of the present case. In the case cited by the learned Counsel for the appellant, the Sub-Inspector of Police received reliable information that a foreigner having Charas in his possession was sitting at the Quilon Railway Station, went to the platform where a constable was on patrol duty. Then both went to the 1st Class Waiting Room, found the accused (appellant) sitting there with a bag on suspicion, questioned him and the accused (appellant) took out a small packet of Charas from his bag and handed it over. On further questioning and search, three big packets of Charas from the bag, which was in the possession of the accused-appellant, were also seized in the presence of the witnesses who were present at the spot itself. The accused-appellant, in the case before the Supreme Court, contended that in view of the provisions contained in Section 50 of the Act, it is obligatory for the officer to inform the person of his right, to be searched before a Magistrate or a Gazetted Officer, and that if he so requires he would be produced before a Gazetted Officer or a Magistrate for a search being conducted before them. This contention put forward by the accused-appellant in that case was accepted by the Hon'ble Supreme Court holding that the provisions of Section 50 of the Act are mandatory and non-com­pliance with the same would vitiate the conviction. It was so held, because the Sub-Inspector of Police had prior reliable information about the person on the Railway Station being in possession of Charas, and finding that no offer was made by the authorised Police Officer that the appellant-accused therein, if he requires so, will be taken to a Gazetted Officer or a Magistrate. A contention was raised on behalf of the State that it was for the appellant to require him to be taken to a Gazetted Officer or a Magistrate, and when he had not made such a request, it was not necessary to do so. Hon'ble Supreme Court held that the accused-appellant should be made aware of hjis right to be searched before a Gazetted Officer or a Magistrate and when no such offer had been made and when the search was conducted by the authorised officer himself, the conviction is vitiated. It was in those circumstances that the conviction and sentence were set aside by the Hon'ble Supreme Court. But in the present case, we find from the evidence of Matu Ram (PW 1) as well as Sub-Inspector Hari Singh Yadav (PW 2) that the Police had no prior intimation but were on patrol duty, and while they were going on patrol along the railway line, they happened to see the appellant in this case coming with a gunny bag on his head. They suspected him and searched him and, on search, it was found that he was in possession of opium. In such circumstances, the contention of the appellant that the provisions of Section 50 of the Act have not been complied with and, therefore, the conviction in vitiated cannot be accepted. In such cases the necessity to comply with the provisions of Section 50 of the Act does not arise. This view is also supported by the decision of Hon'ble Supreme Court in State of Punjab v. Balbir Singh, 1994 (1) EFR 516 (SC): 1995 JIC 382 (SC), wherein it was held that if a Police Officer even if he happens to be an empowered Officer effecting arrest or search during normal investigation into an offence, the necessity for complying with Section 50 of the Act does not arise only when he finds a narcotic drug after search he is expected to carry out investigation in-accordance with the provisions of the Act from the stage onward. Therefore, in the present case, when it is not shown that the Police Officer had prior intimation about the appellant herein being in possession of a narcotic drug, and when the police party had searched him on suspicion but happened to find in his possession narcotic drug, it cannot be stated that the non-compliance with Section 50 of the Act will vitiate the conviction.
(3.) ANOTHER contention put forward by the appellant is that Matu Ram (PW 1) who is alleged to have witnessed this search and seizure of the narcotic drug from the appellant, is not an independent witness, but a stock witness of Siwani Police Station, and, therefore, his evidence is unreliable. Matu Ram (PW 1) in his evidence stated that when he was present at the Bus Stand Siwani, he was taken by the Police to village Saini was, and after parking the Police jeep near the Dharamsala, they went along the railway line and saw the accused coming from the southern side with a gunny bag on the head. He further stated that the appellant was carrying 8 kgs. of opium from which 50 gms. was taken as a sample that the sample and the residue were separately sealed that the seal was handed over to him and that the sample and the residue were taken possession of by the Police under recovery memo attested by him. In cross-examina­tion he admitted that there were several persons present at the Bus Stand Siwani, that he knew a few Police officials of the said Police Station prior to this occurrence that he was a witness in a case under the Arms Act titled 'State v. Iddan of Police Station Siwani and also in another case of the said Police Station with regard to Charas. The then Sub-Inspector (PW 2) also stated in his evidence that there were several persons passing on the road at the time when Matu Ram (PV 1) was asked to join the police party. This apart, Matu Ram (PW 1) also stated that there were several passengers sitting at the Railway Station and the police did not ask any of them to join the investigation. Although, the then Sub-Inspector (PW 2) stated that no person was present in the Dharamsala and at the Railway Station, it is contrary to the evidence of PW 1. From these we can find that though there wee several persons at Bust Stand Siwani from where PW 1 was asked to join the investigation, the Police did not ask anyone else than PW 1 to join the investigation. PJV 1, it is clear, must be a stock witness of this Police Station as otherwise there was ho need to choose him at Siwani Bus Stand itself (while the alleged occurrence took place in a different village) and that too from among several other persons who were present at the Bus Stand of Siwani. The fact that the Police chose him from among the several persons present at the Bus Stand Siwani itself shows that he is not an independent witness, especially when it is evident that he has been a witness in two other cases of the same Police Station. In the circumstances, his evidence, in my opinion, is unreliable as he cannot be termed as an independent witness of the locality. The learned Sessions Judge while dealing with this aspect of the case has relied upon a decision reported as State of Punjab v. Rameshwar Dass, 1975 Cr.LJ 1630 and has extracted the relevant portion of the judgment where it was pointed out that in order to discard the evidence of a witness on the ground that he appeared as a prosecution witness in eight to ten cases, it was not elicited from him the details of the case where he appeared as a witness, the number of cases and in which years he appeared as a witness whether those cases pertained to a particular Police Station only or more than one Police Stations, and so it was held in those circumstances, the evidence of such a witness cannot be discarded. The learned Additional Sessions Judge has also commented that PW 1 Matu Ram deposed that he has only been cited as a witness but has appeared in the Court as witness only in the instant case, and that in the other two cases, he has not been examined in Court. But neither the decision relied. Upon by the learned Additional Sessions Judge nor the above observations can help prosecution in this case. When it is evident that this witness is known to the officials of he Siwani Police Station, when he has already been cited as a witness in two cases of the said Police Station, one under the Arms Act and the other under the NDPS Act, and when he was chosen from among several persons who were at the Bus Stand, it is clear that he is a stock witness as otherwise it was not necessary to pick him up at Siwani Bus Stand itself. So, his evidence it unreliable. ;