SINGH, J. - (1.) THIS appeal has been filed under Section 374 Cr. P. C. against the judgment dated 4. 4. 2000 delivered by learned Special Judge, NDPS Act Cases, Jodhpur by which each of the three appellants herein have been convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as "the Act") and awarded minimum sentence of 10 years' rigorous imprisonment alongwith a fine of Rs. 1,00,000/ -.
(2.) BRIEF facts are that PW-1 Shri Kalyanmal Meena Dy. S. P. who was Circle Officer of Jaisalmer on 1. 4. 1999 at 3. 45 P. M. received a secret information at his office that three persons named Sardar Singh, Rajmal and Moolchand are likely to hand over charas to some persons at Damar Road between Baramsar and Baisakh. Mr. Kalyanmal got the above secret information recorded in his rojnamcha at Sr. No. 31 which is Ex. P/1 and simultaneously informed the Superintendent of Police on telephone who was also having his office nearby and in the same building. He similarly also informed in writing about the above information to the Superintendent of Police. Thereafter two independent witnesses viz. PW-3 Ramesh and PW-4 Kishan Singh were also called. Similarly services of PW-11 Ajay Singh Rathore, Sub Divisional Magistrate, Jaisalmer were also requisitioned. Upon their coming the raiding party started towards the place of occurrence on a police gypsy jeep at about 4. 25 P. M. and got the jeep secluded behind the jal trees and got the members of the party deputed at sundry places. After some time three persons were seen coming from Baramsar side on a scooter which was being driven by a person wearing white dress. Two persons were pillion riders. The scooter stopped nearabout jal trees and all the three got down. At that juncture PW-2 Narpatdan ASI called out that these were the three persons who are mentioned by mukhbir. Upon this one of the accused persons shouted that police gypsy is standing there and thereafter all the three started running away holding one bag each in their hands. At this the police party chased and caught hold of them alongwith bags in their hands. Thereafter a joint notice Ex. P/3 under Section 50 of the Act was given to all the three persons asking them that if they want their search can be conducted before a Magistrate or any Gazetted Officer. The above notice was given in presence of PW-11 Ajay Singh Rathore. SDM. All the three accused persons voluntarily stated that they can be searched by PW-1 Kalyanmal Dy. S. P. in presence of SDM. Thereafter the personal search was conducted and the bag which was with Sardar Singh was having two polythene packets inside weighing 1830 grams whereas the bag with Rajmal contained 920 grams and with Moolchand was 750 grams. All the packets were having charas and they were not having any licence to carry the same. Therefore, the above quantity was confiscated and two samples from each packet weighing 60 grams each were taken out, seized and sealed there and then. The remaining material was also seized and sealed then and there. In presence of Ramesh and Kishan Singh attesting independent witnesses as also in presence of PW-11 Ajay Singh Rathore SDM and the members of the raiding party. A seizure memo Ex. P/4 was also prepared there and then. Scooter was also seized vide Ex. P/6. Site plan map Ex. P/5 was also prepared there and then. All the three accused were put under arrest vide memos Ex. P/7 to Ex. P/9 and thereafter usual investigation was conducted. The samples so seized and sealed were sent to the Forensic Science Laboratory, Jaipur in sealed condition whereupon examination vide report Ex. P/19 they were found containing charas. The learned trial court relying upon the testimony of PW-1 Kalyanmal Dy. S. P.-cum-Circle Officer as also PW-11 Ajay Singh Rathore SDM and other witnesses of the raid party has convicted and sentenced the appellants as stated above. Mr. Garg as also Mr. Mehta learned counsel for the appellants have taken me through the evidence of the prosecution and tried to bring home that there is a total non-compliance of the mandatory provisions of Section 50 of the Act. Nowhere it has been indicated in notice Ex. P/3 that accused appellants were informed of their RIGHT to be searched before a Magistrate or a Gazetted Officer. Similarly, a joint notice has been given to all the three accused persons which is contrary to the mandatory provisions of the Act and the trial has been vitiated. In support of above contention a judgment of our own High Court reported as Prakash Singh vs. State of Rajasthan (1), was relied upon. With regard to a joint notice to all the three accused persons Paramjit Singh & Anr. vs. State of Punjab (2), Single Bench Judgment of Punjab and Haryana High Court was relied upon. In Prakash Singh's case (supra) neither it was mentioned that the notice was given under Section 50 of the Act nor it was mentioned that the accused has a choice to be searched before a Magistrate. In the notice the accused was informed that Shri Vikram Singh PW- 12 Gazetted Officer was also with the raiding party and in such circumstances compliance of mandatory provisions of Section 50 of the Act was not found sufficient among others infirmities. Similarly, in Paramjit Singh's case (supra) 41 kg. of poppy husk was recovered from the search of tractor trolly and a joint notice under Section 50 of the Act was given to both the accused appellants that if they desire search could be made in presence of a Gazetted Officer or a Magistrate. The trial court acquitted one of the accused and convicted the other one. Upon appeal, the learned Judge of the Punjab and Haryana High Court in the facts and circumstances proved in that case was of the opinion that offer must have been given to each of the accused individually and, therefore, compliance of mandatory provisions of Section 50 (1) of the Act was not made. There were other infirmities in the case also as no genuine attempt was made to get the services of independent witnesses before the search was conducted and keeping in view the afore stated infirmities the testimonies of the official witnesses were not found of sterling worth. In the matter at hand as soon secret information was received by PW-1 Kalyanmal it was put in black and white in Ex. P/1 which is daily diary of the police station and immediately thereafter the information was sent in writing to Superintendent of Police, Jaisalmer vide Ex. P/2 through Hathi Singh Constable No. 895 and an endorsement to this effect was also found mentioned in case diary Ex. P/1 Similarly, Superintendent of Police, Jaisalmer was also informed on telephone about the above information and was requested that Sub Divisional Magistrate Ajay Singh Rathore may also be sent to the police station to witness the search. Jaisalmer being a district adjoining to International Border of Pakistan and there being many cases of narcotics coming from the neighbourer country it was just thought proper to keep a person of the rank of Sub Divisional Magistrate to bring veracity in the search and seizure to be conducted thereafter. The learned counsel tried to assail Ex. P/3 which is joint notice to all the three accused persons under Section 50 of the Act in which it has been specifically mentioned that in presence of Ajay Singh Rathore, SDM Jaisalmer the three accused persons were told that whether they wanted to be searched before a Magistrate or any Gazetted Officer. Upon it, all the three accused stated to PW-1 Kalyanmal Dy. S. P. that they have no objection to be searched by him in presence of SDM Jaisalmer who was present there and then. All the three accused appellants have signed at Ex. P/3. The contents of Ex. P/3 are also mentioned in seizure memo Ex. P/4 that before conducting the personal search of the accused persons they were given option that they can be searched before a Magistrate or a Gazetted Officer and that Kalyanmal Circle Officer was himself a Gazetted Officer and Ajay Singh Rathore SDM was also Gazetted Officer present there and if accused persons desire they could be searched in their presence also. Thereupon all the three accused persons gave consent that search of their person can be conducted by Kalyanmal Circle Officer in presence of Ajay Singh Rathore SDM. Time and again the emphasis of the learned counsel of the appellants was that accused persons should have been informed that they had a right under Section 50 of the Act and option to be searched before a Magistrate or a Gazetted Officer. None of the accused persons were informed about that right. Though Ex. P/3 does not indicate that before search any of the accused were informed about that right, yet the compliance of Section 50 of the Act was made by informing the accused appellants that they are to be searched for a narcotic material and if they desire the search can be conducted before a Magistrate or a Gazetted Officer. Thereupon the accused persons desired that they can be searched by Circle Officer in presence of SDM who was present there. Thereafter the personal search was conducted.
(3.) EVEN assuming that before search none of the accused were informed that they have a right under Section 50 of the Act yet that by itself will not vitiate the trial as per the Constitutional Bench pronouncement of State of Punjab vs. Baldev Singh (3), which has subsequently been relied upon in Abdul Rahim Ibrahim Mansuri vs. State of Gujrat (4), Ahmad vs. State of Gujrat (5) and Kolutumotil vs. State of Kerala (6), among others. At the most it may cause some prejudice to the accused persons and if the above prejudice is not sufficient enough to throw the case over board the accused appellants can be convicted. Object of framing Section 50 of the Act was to prevent fabrication of any evidence and false concoction of innocent persons in serious offences of N. D. P. S. Act in which the minimum sentence was 10 years' rigorous imprisonment alongwith fine of Rs. 1,00,000/ -. Keeping in view the afore stated object in mind not only the trial court but I have also made all possible endeavours to carefully scrutinise the evidence ocular and documentary available on the file as to whether there was any possibility of false fabrication. PW-1 Kalyanmal Circle Officer was vigilant enough to record the secret information so received in Ex. P/1 and also to inform S. P. Jaisalmer on telephone there and then as also to inform the S. P. Jaisalmer in writing vide Ex. P/2 before proceeding to lay a trap. Similarly, PW-1 Kalyanmal was vigilant enough to associate with himself the services of PW- 11 Ajay Singh Rathore who was SDM Jaisalmer who has been sent to the police station by the S. P. Jaisalmer as requested by PW-1 Kalyanmal. The above facts bear testimony not only in Ex. P/1 but also from the deposition of PW-1 Kalyanmal and PW-11 Ajay Singh Rathore. Both these witnesses have been cross examined at length but they could not be contradicted by any of their previous statements or any of the seizure memos nor anything substantial could be elicited affecting their testimony adversely and has been rightly held of sterling worth by the trial court. I do not find any infirmity in their statement and their testimonial value has been rightly found to be of sterling worth. The next contention of the learned counsel for the appellants was that there were material contradictions between the evidences of the prosecution witnesses interse which renders their testimony not of sterling worth yet the trial court has found them wholly reliable. Though both the learned counsel for the appellants has taken me through the prosecution evidences but inspite of extensive cross examination no material contradictions could be pointed out in any of the prosecution witnesses vis-a- vis their statements recorded under Section 161 Cr. P. C. Had that been so, atleast some contradictions could have been pointed out to the prosecution witnesses while they were under cross examination. Though Ex. D/1 was marked in police statement of PW-1 Kalyanmal yet no portion of it was confronted to him. The solitary omission pointed out was that in Ex. D/1 it has not been written that seizure memo was prepared at the site. Except that nothing was pointed out in cross examination of this witness that either he has exaggerated his version in the court or he has deposed anything contradictory from his previous statement. ;