GARG, J. - (1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 30. 1. 1999 passed by the learned Special Judge, NDPS Cases, Hanumangarh in Sessions Case No. 52/97 by which he convicted the accused appellant for the offence under Sec. 8/15 of the narcotic Drugs and Psychotrophic Substances act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced him to undergo ten years rigorous imprisonment and to pay fine of Rs. one lac, in default of payment of fine, to further undergo RI for six months.
(2.) THE facts giving rise to this appeal, in short, are as follows:- On 3. 10. 1996 at about 5. 40 PM, PW 7 Rajpal Singh, SHO Police Station Sangaria District Hanumangarh received a secret information from mukhbir to the effect that two persons, namely, Dalip Singh (present accused appellant) and Devilal (for Devilal, a separate case was made and the learned Special Judge, NDPS Cases, Hanumangarh though his judgment and order dated 26. 2. 1999 acquitted him for the offence under Sec. 8/15 of the NDPS Act) used to deal in the business of illegal transportation of doda post and they had just come alongwith doda post in their attaches and would cross bridge of Sadul Branch for Bolawali and they should be checked as their attached contained doda post. That information was reduced into writing by PW 7 Rajpal Singh and the same is Ex. P/14. THErefore, P. W. 7 Rajpal Singh alongwith other police officials including PW 2 Bhan Singh, PW 6 Mahaveer Singh and PW 3 Narain Singh proceeded in a Government Jeep towards the spot and near Government Hospital Sangaria, they took two motbirs, namely, PW 4 Subhash and PW 5 Karm Singh and both were given notices and they are Ex. P/8 and Ex. P/12 respectively for becoming motbirs and they gave their consent to become motbirs and joined the raiding party and at about 6. 10 PM they reached near the bridge of Sadul Branch and they saw two persons with attached and seeing the police, they tried to run away, but they were apprehended and on being asked, one person told his name as Devilal and another person told his name as Dalip Singh (present accused appellant) and on suspicion that his attache contained doda post, PW 7 Rajpal Singh asked the accused appellant Dalip Singh whether he wanted to be searched before the Gazetted Officer of Magistrate or before PW 7 Rajpal Singh himself and upon this, accused appellant gave his consent and the fard of consent is Ex. P/9 and, thereafter, his attache was checked and inside attache, there was a polythene bag and in it, there was doda post for which he was asked whether he has any valid license or not and upon this, he told that he had no such license. Thus, he has committed the offence u/sec. 8/15 of the NDPS Act. THEreafter, the doda post was weighed and its weight was found to be 9 kgs. , out of which two samples of 500 grms. were taken for the purpose of chemical analysis and sealed separately on the spot and marked as A and B and the remaining doda post was kept in the attache and sealed separately on the spot and marked as C. THE fard of search and seizure and arrest memo was prepared on the spot by PW 7 Rajpal Singh and the same is Ex. P/6. THE fard of specimen impression of Seal is Ex. P/5. PW. 7 Rajpal Singh chalked out regular FIr and the same is ex. P/19. PW 7 Rajpal Singh handed over the recovered articles and samples to the Malkhana Incharge PW 3 Narain Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/7a. THEreafter, on 27. 10. 1996 PW 3 Narain Singh gave one sample marked A to PW 1 Lal Singh for depositing in FSL, Jaipur and PW 1 Singh for depositing in FSL, Jaipur and PW 1 Lal Singh deposited the sample in FSL Jaipur on 28. 10. 1996 and obtained receipt Ex. P/2. THE FSL report is Ex. P/21, where it was reported that the sample contained in the packet marked A gave positive test for the presence of chief constituents of opium, hence the sample was of dried crushed capsules of opium poppy. After usual investigation, police submitted challan for the offence under Sec. 8/15 against the accused appellant in the Court of Session, Hanumangarh. On 13. 6. 1997, the learned Special Judge, NDPS Cases, Hanumangarh framed charge for the offence under Sec. 8/15 of the NDPS Act against the accused appellant. THE charge was read over and explained to the accused appellant. he denied the charge and claimed trial. During trial,t he prosecution in support of its case examined as may as seven witnesses and got exhibited some documents. THEreafter, statement of the accused appellant under Sec. 313 Cr. P. C. was recorded. In defence, one witness was produced by the accused appellant. In defence, it was submitted by the accused appellant that he was license holder to keep the doda post upto 7 kg. and he has produced his license Ex. D/2a. After conclusion of trial, the learned Special Judge, NDPS Cases, Hanumangarh through his judgment and order dated 30. 01. 1999 convicted the accused appellant for the offence under sec. 8/15 of the NDPS ACt and sentenced him in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts against him for the offence under sec. 8/15 of the NDPS Act. Aggrieved from the said judgment and order dated 30. 1. 1999 passed by the learned Special Judge, NDPS Cases, Hanumangarh, this appeal has been filed by the accused appellant. In this appeal, the learned counsel appearing for the accused appellant has made the following submissions:- 1. That PW 7 Recovery Officer did not comply with the mandatory provisions of Sec. 50 of the NDPS Act as he did not give proper notice to the accused appellant telling therein his right to be searched before the Magistrate or Gazetted Officer and he merely took the consent of the accused appellant to be searched by himself and, therefore, such type of consent is not the compliance of Sec. 50 of the NDPS Act and, therefore, the findings of the learned Special Judge that compliance of Sec. 50 of the NDPS Act has been made in the present case are liable to be set aside and the accused appellant is entitled to acquittal on this ground alone. 2. That in the present case, from the evidence oral was well as documentary produced by the prosecution, it clearly appears that the link evidence is self-contradictory, as according to Malkhana Register Ex. P/7a, sample which was to be sent to FSL, Jaipur was taken out from the malkhana on 27. 10. 1996 and the same was handed over to PW 1 Lal Singh on the same day and PW 1 Lal Singh deposited the same in the FSL, Jaipur on 28. 10. 1996 and obtained receipt Ex. P/2 and on 29. 10. 1996, the receipt Ex. P/2 was handed over by him to PW 3 Narain Singh, who was at that time Malkhana Incharge, but from the forwarding letter Ex. P/4 from SP, Hanumangarh to FSL, Jaipur, it appears that sample was received by SP Office from SHO on 26. 10. 1996 through letter Ex. P/20 and, thereafter, on the same day i. e. on 26. 10. 1996 through letter Ex. P/4, the same was sent to FSL, Jaipur through PW 1 Lal Lal Singh. Since in Malkhana Register Ex. P/7a there is no entry that the sample was taken out form Malkhana on 26. 10. 1996, therefore, the case of the prosecution that sample was taken out form Malkhana on 27. 10. 1996 has become doubtful. Apart from this, when the sample was taken on the spot, its weight was 500 grms. , but in FSL report Ex. P/21, its weight was found to be 400 grms. In these circumstances, it cannot be said that seal put on the sample remained intact and the possibility of tampering with the sample cannot be ruled out. (3) That there was joint secret information about two persons, namely, accused appellant Dalip Singh and one Devilal and two cases were registered separately and similar type of evidence was recorded, but it is surprising that the learned Special Judge, NDPS Cases, Hanumangarh on the same evidence acquitted another accused Devilal through his judgment and order dated 26. 2. 1999 while the present accused appellant was convicted by the same Special Judge through his judgment and order dated 30. 1. 1999 and he had produced the certified copy of that judgment and order and he has stressed upon that some suitable action be taken against the Special Judge, NDPS Cases, Hanumangarh, who has delivered two judgments of different nature on the same evidence. Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Hanumangarh. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. Point No. 1 Before examining this point, legal aspect of Sec. 50 of the NDPS Act has to be mentioned here. Object and purpose of Sec. 50 of the NDPS Act
(3.) THE purpose of informing a suspect that search could be taken in the presence of a Gazetted Officer was to ensure that there was safeguard against planting any incriminating article. These provisions have been made in order to protect the interests of the citizens from irregular and illegal invasion on his liberty by the authorities as well as in the interest of the State to secure the evidence bearing upon the commission of the crime and necessary to enable to justice to be done shall not be withheld from the course of law on merely formal or technical grounds. The object of making it peremptory on the part of the officer so as to ensure that the officer, who is charged with the duty of conducting the search, to conduct it properly and not to harm or wrong, such as planting of offending drugs by any interested party and to prevent fabrications of any evidence. ;