GUPTA, J. - (1.) THIS appeal arises out of the judgment of learned Addl. Sessions Judge No. 1, Chittorgarh dt. 31. 10. 95 whereby the learned Judge convicted the appellant for the offence u/sec. 8 read with 18 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter to be referred to as `the Act') and sentenced him to to 10 years R. I. and a fine of Rs. 1 lakh, in default of payment of fine to undergo 2 years further R. I.
(2.) BRIEF facts of the case are that on 1. 11. 93 at about 2. 15 P. M. P. W. 14 Uma Kant Bhatt the then Dy. Superintendent of Police, Begun received a secret information, that one person is sitting in the waiting room at the bus stand with one Maroon colour ragajine bag containing opium. It was also learnt that the said person is waiting for his companion to arrive. This information was noted down as Memo Ex. P-12, and a copy was sent to the Superintendent of Police vide Ex. P-13 and he proceeded with requisite force to the bus stand, there he found the appellant sitting with the bag. The prosecution case further is that the name of the accused was asked, then he was given a notice in writing u/s. 50 of the Act, and on his opting for being searched by the party itself, he was searched, and on the search of the bag it was found to be containing two bags tied with jute string containing black colour substance which was smelt and tasted by the party and found to be opium. On weighment each bag weighed 1 kg. Thereafter samples was extracted from each of the bag and the remainder was again duly sealed. The accused police station, Begun. After completing investigation, including obtaining necessary reports from the Forensic Laboratory confirming the substance recovered to be opium, the challan was filed. The accused denied the charges and desired to be tried. The prosecution examined in all 14 witnesses and exhibited 13 documents while the defence did not examine any witness but got exhibited 3 documents Ex. D-1, D-2 and D-3 being the alleged memo of notice u/sec. 50 of the N. D. P. S. Act, memo of search of the house of Bhanwarlal situated at Rampuria, and the statement of Jawan Singh recorded during investigation. Out of the prosecution witnesses P. W. 1 Shyam Singh, P. W. 2 Narayan Lal, P. W. 5 Yashwant Singh and P. W. 9 Gulam Samdani are the members of the team going to Bus Stand with P. W. 14 Uma Kant Dy. S. P. and have testified the team to have reached the Bus Stand, Begun and have then testified the proceedings taken on the spot. P. W. 3 Roop Kishore is produced for the purpose of establishing the sample remaining intact, inasmuch as he received the sample, entered in Malkhana Register and delivered it to the Malkhana Incharge. He has also d3posed to have sent the sample for forensic analysis with constable Jawan Singh. P. W. 4 Shanker Das is the Malkhana Incharge in whose custody the sample and the remaining opium remained intact. P. W. 12 Jawan Singh has been produced as a person carrying the sample from Malkhana Incharge Shankerlal and delivered it to Forensic Laboratory, Jaipur in intact condition. P. W. 6, 7, and 8 being two Bothlals were and for what purpose they were produced. Be that as it may. P. W. 10 was produced as Motbir of Ex. P-3 Site Inspection Note but then he has turned hostile. P. W. 11 Bhojraj is a Motbir who was called as an independent witness to witness the proceedings taken at the Bus Sand. He has also testified the proceedings taken at the Bus Stand. P. W. 13 Mangilal is another Motbir of the proceedings who has turned hostile and supported the prosecution when cross examined by the learned Public Prosecutor. Then P. W. 14 Uma Kant Bhatt is the Dy. S. P. mentioned above who had completed all the proceedings upto submitting of the First information Report against the accused Rooplal, along with the recovered goods. In his statement u/sec. 313 Cr. P. C. the appellant denied all the allegations as false, and has taken the stand that he has been falsely implicated. He claimed to be labourer at Kashya Mines and while returning when he was standing at Bus Stand, Begun he was arrested by preparing a false case. While answering question no. 10 as to why do the prosecution witnesses depose against him, the answer given was, to be under the temptation of money and reward. We that as it may. The learned trial court negatived the argument of the accused side, placed implicit reliance on the statement of P. W. 14 Uma Kant and found, that the provisions of Sec. 42 of the Act have been complied with, requirements of Sec. 50 are proved to have been complied with, by holding that since he himself was a gazetted officer, and since the accused was ready to have himself searched by Uma ant Bhatt, it was not necessary to afford him an option to get searched by gazetted officer. And since the accused was given option to get himself examined in presence of Magistrate, whereupon he conceded in writing to be searched by Uma Kant, the provisions of Sec. 50 are complied with. Regarding absence of signatures of Motbirs on the notice u/sec. 50 being Ex. D-1, it was held that it is not necessary that the notice should be given in the presence of Motbirs, or to mention their names and description. The learned trial court also relied upon the statement of P. W. 1, 2, 5 and 9 being the eye witnesses, and witnesses of giving option. The learned trial court also proceeded to hold the provisions of Sec. 55 to be directory and having not adversely affected the prosecution. Likewise regarding compliance of Sec. 57 also it was held that no evidence has been led about these provisions being complied with, but then these provisions have been held directory. It was also noticed that investigation in the case was conducted by Roop Kishore who was a person junior to Uma Kant Bhatt and his subordinate, and as such it would have been better if the investigation would have been got conducted by some other senior officer. But then proceeded to hold that it has not adversely affected the trial. The learned trial court also relied upon the linking evidence, despite the fact that the learned Judge noticed many infirmities like Ex. 6a being the copy of the entry about sending the sample for chemical analysis as it does not contain any recital about the sample having been sent with constable Jawan Singh. Likewise learned Judge also noticed absence of same seal on Ex. P-6. However by relying upon the evidence of Roop Kishore, Shanker Das and Jawan Singh the prosecution was believed. That apart the learned Judge also believed the evidence of smelling and testing the substance, and on that basis it being opium. In the result the appellant was convicted as above.
(3.) THE learned counsel for the appellant assailing the impugned judgment, instead of rasing many points, has argued with all vehemence that in this case the mandatory requirements of Sec. 50 of the Act have not at all been complied with, and thereby entire prosecution is bad and the appellant is entitled to be acquitted. Elaborating the argument, the learned counsel took me through the relevant parts of the statements of P. W. 1, 2, 5, 9 & 14 so also P. W. 11, and the relevant parts of the memo/ notice Ex. D-1, and also to Ex. P-1 being the seizure memo, for the purpose of showing the recitals inrespect of compliance of Sec. 50. By taking me through all these oral as well as documentary evidence the learned counsel contended that it is not at all established on record that any option was at all given to the appellant as required by Sec. 50 of the Act, and the document Ex. D-1 is a mere concoction. It is also contended that even even the document Ex. D-1, the oral evidence that has been produced by the prosecution, is so materially discrepant that it does not establish as a fact that the appellant was at all given any option as contemplated by Sec. 50. Learned counsel placed reliance on Namdi Francis Nwazor vs. Union of India (1) Prakash Singh vs. State of Raj. (2), Ahmed vs. State of Gujarat (3), State of Punjab vs. Baldev Singh (4), Koluttumottil Razak vs. State of Kerala (5) and Kalu Singh vs. State of Rajasthan Learned P. P. on the other hand supported the impugned judgment and controverted the contention of the learned counsel for the appellant, contending that the requirements of Sec. 50 have been fully complied with in the present case, and therefore, the appeal is liable to be dismissed. I have considered the rival submissions and have gone through the record. ;