B.R.ARORA, J. - (1.) THIS appeal is directed against the judgment dated November 21, 1990, passed by the Additional Sessions Judge, Rajsamand, by which the learned Additional Sessions Judge convicted and sentenced the accused-appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
(2.) THE incident which led to the prosecution and trial of the accused Narain Lal took place on September 23, 1989, when the accused was found alongwith a white bag containing 2. 400 kgs. of opium in a bus No. RRY 2951, which was coming from Pardi to Deogarh side. Bhanwar Singh, Assistant Sub-Inspector of Police, who was the Incharge of Police Station, Deogarh, received an information from a 'mukhbir' that accused Narain Lal is carrying opium and is travelling by bus No. RRY 2951, which was coming from Pardi to Deogarh. Bhanwar Singh, A. S. I. , alongwith Head Constable Dalpat Singh, Constable Bhagwat Singh and Constable Bhanwar Singh reached Anjana Circle (CHAURAHA) after recording the information in the 'rojnamcha'. After reaching Anjana circle at about 10. 05 a. m. the bus No. RRY 2951 coming from Pardi side, was got stopped by Bhanwar Singh, A. S. I. Accused Narain Lal was found on the last seat of the bus near the seat of the Conductor of the bus and was carrying a bag in his hand. Assistant Sub Inspector Bhanwar Singh asked Narain Lal to come down from the bus. THE accused came down from the bus. Three other persons Bhanwar, Hema and Sohan were asked to come down from the bus. THEreafter the bus proceeded. An information was given to the Deputy Superintendent of police PW 11 Bhanwar Singh who reached Deogarh at about 3. 30 p. m. and searched the accused, weighed the opium recovered from the accused Narain Lal and took two samples of 30 grams each, recorded the statements of the witnesses and prepared the site inspection note. THEreafter the accused, alongwith the sealed packets, was taken to Police Station, Deogarh. A case was registered under Sec. 8/18 of the Narcotic Drugs and Psychotropic Substances Act and the sample was sent to Forensic Science Laboratory for examination. After examination, it was found that the sample was containing morphine and it was opium. THE police, after necessary investigation, presented the challan against the accused and the accused-appellant was tried by the learned Additional Sessions Judge, Rajsamand, who, after trial, convicted the accused Narain Lal under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'the Act') and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo one year's rigorous imprisonment. It is against this judgment, passed by the learned Additional Sessions Judge, Rajsamand, convicting and sentencing the accused Narain Lal that the accused-appellant has preferred this appeal. Heard learned counsel for the appellant and the learned public Prosecutor. It is contended by the learned counsel for the appellant that in the present case, the complainant and the investigating officer is the same person, which goes to the route of the matter and vitiates the entire trial. He has also, submitted that the compliance of the mandatory provisions of Sections 50, 55 and 57 of the Act has not been made in the present case and on account of the non compliance of the mandatory provisions of the Act, the whole trial stands vitiated. It was, also, argued by the learned counsel for the appellant that the link-evidence to the effect that the articles recovered from the appellant remained in sealed condition from the time they were seized till the same reached to the Forensic Science Laboratory and were examined. It was, also, argued by the learned counsel for the appellant that the A. S. I. Bhanwar Singh arrested the accused appellant, who was not competent to arrest the accused, and it has, also, prejudiced the case of the accused-appellant and the appellant therefore, deserves to be acquitted. Lastly, it was argued that according to the prosecution witnesses, the sample, which was taken from the articles alleged to have been recovered from the appellant, was weighing 30 grams while the sample, which was examined at the Forensic Science Laboratory was weighing 45 grams, which also, shows that it was not the same sample which was taken from the article alleged to have been recovered from the accused-appellant. The learned Public Prosecutor on the other hand, has supported the judgment passed by the learned Additional Sessions Judge, Rajsamand. I have considered the rival submissions raised by the learned counsel for the parties. . Before I considering the contentions raised by the learned counsel for the parties, 1 would like to see the nature of the evidence produced by the prosecution. The prosecution has produced three sets of witnesses. The first set of witnesses contains the police personnels viz. , PW 1 Ganpat Singh PLC, who, at the relevant time, was posted at Police Station, Deogarh, and PW 6 Bhanwar Singh, A. S. I. , who was the Incharge of the Police Station, Deogarh, and who received the information from some 'mukhbir' that the accused-appellant Narain Lal, who is coming in a bus from Pardi, is carrying opium with him and after receiving this information, PW 6 Bhanwar Singh A. S. I. and Ganpat Singh alongwith Bhagwat Singh and Bhanwar Singh Constables, went towards Anjana Chauraha, stopped the bus. and asked the accused-appellant Narain Lal, who was sitting in the bus, to come-down : arrested him and, also, asked the three witnesses to come-down from the bus. Then, there is the evidence 6f Chandan Singh, who was the Head Constable at Police Station, Deogarh, and was, also, the Malkhana Incharge and who registered the First Information Report, kept the articles in the Malkhana and gave the articles to PW 9 Ram Deo Constable, who was, also, posted at Police Station, Deogarh, for taking the sample to the Forensic Science Laboratory for examination. The second set of witnesses, produced by the prosecution includes PW 2 Hema, PW 3 Sohan and PW5 Bhanwar Lal, who were, also, the passengers travelling in the same bus in which the accused was travelling and who were asked to witness the recoveries etc and were asked to remain present there by PW 6 Bhanwar Singh. There is, also, the evidence of PW 4 Babu Khan, who was going on a moped and passed through the road at that time and who was asked to witness the recoveries. PW 7 Mangi Lal is the driver and PW 10 Mohd. Idrish was the Conductor of the bus No. RRY 2951, in which the accused was travelling. All these witnesses, produced by the prosecution, have not supported the prosecution case and they were declared hostile. The third set of witnesses consists of Bhanwar Singh, Deputy Superintendent of Police, who was called by Bhanwar Singh A. S. I. to investigate the matter and who conducted the investigation. He arrested the accused and after his arrest, made a search and seized the articles, prepared the site plan etc. and ultimately presented the challan. The accused, in defence, produced DW 1 Sohan Lal. This is all the evidence which has been produced by both the parties.
(3.) SECTION 50 of the Act specifies the conditions under which search of a person (accused) shall be conducted and it enjoins a duty upon the Officer, who is about to search a person, to take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in SECTION 42 or to the nearest Magistrate and make a search in the presence of the gazetted officer empowered under SECTION 42 or SECTION 43 of the Act, or before the nearest Magistrate. The provisions of section 50 of the Act have been made with an intention to act as a safe-guard against the vexatious search and unfair dealings. The provisions have, also, been incorporated in order to protect and safe-guard the interests of an innocent person. If a person is searched before a gazetted officer or before a Magistrate, as the case may be, then it will provide a weapon to the law-enforcing agency against the common allegation that the opium has been planted by the Investigating agency. In the present case, the appellant was neither asked by the investigating officer whether he wanted himself to be searched before a gazetted officer or the nearest Magistrate nor was the search conducted by Bhanwar Singh, A. S. I. in the presence of any gazetted officer or before the nearest Magistrate. In making the search, the investigating officer has, therefore, contravened the provisions of section 50 of the Act. As the Investigating Officer, in the present case, failed to comply-with the mandatory requirements of section 50 of the Act, it vitiates the whole trial and the accused-appellant, therefore, deserves to be acquitted on this score alone. Apart from the illegal search and non-compliance of the provisions of Section 50 of the Act, there is another infirmity in the prosecution case. The evidence produced by the prosecution, also, does not prove beyond reasonable doubt, that the seals on the samples taken from the article alleged to have been recovered from the appellant, remained intact since the time it was seized and sealed till it reached the Forensic Science Laboratory for examination and examined. PW 11 Bhanwar Singh, Deputy Superintendent of Police, who was the investigating officer, has nowhere stated that he deposited the sealed samples in the Malkhana. The prosecution has produced PW 9 Ramdeo Constable, who had taken the samples for F. S. L. examination and Chandan Singh, Head Constable, who, at the relevant time, was the Malkhana Incharge. PW 8 Chandan Singh has stated that the sealed recovered opium was given by the Deputy Superintendent of Police to him as he was the Malkhana Incharge and on September 23, 1989,/ and he gave this sample on September 27, 1989, to the Constable Ramdeo for F. S. L. Examination in a sealed - chit condition. Ramdeo Constable returned those samples on September 29, 1989 to him and at that time it was in sealed - chit condition and again took the sample on October 2, 1989 from Chandan Singh. PW 9 Ramdeo has stated that he took the sample on September 27, 1989 from Chandan Singh H. C. and he received a letter on September 29, 1989 from the Office of the Superintendent of Police, Udaipur, addressed to the Forensic Science Laboratory, Jaipur, and he deposited the sample in the Office of the Superintendent of Police and again got the sample from the Office of the Superintendent of Police Udaipur, on September 29,1989. There is contradiction in the statements of Ramdeo and Chandan Singh H. C. Ramdeo Constable stated that he kept the sample in the Malkhana of the Office of the Superintendent of Police, Udaipur, while Chandan Singh stated that Ramdeo returned the same and he again gave them to Ramdeo. There is a discrepancy on this point and no evidence is coming on the point that where the sample remained between Septemder 27, 1989 to September 29, 1989. This creates a doubt in the prosecution case, which stands further fortified from the fact that according to the prosecution witnesses the samples, which were taken from the article seized, were weighing only 30 grams while the samples, which were examined by the F. S. L. Jaipur, was weighing 45 grams including the container. It has not come in evidence as to what was the weight of the container. It appears that it was not the same sample which was taken from the article which is alleged to have been recovered from the accused - appellant. All these circumstances create a doubt in the prosecution case, particularly when the evidence of the police personnels is not sup-orted by the independent witnesses. In this view of the matter, the prosecution has failed to prove the case against the accused - appellant Narain Lal beyond reasonable manner of doubt. 10. In the result, this appeal, filed by the appellant, is allowed. The conviction and sentence, passed by the learned Additional Sessions Judge, Rajsamand against the accused -appellant under Section 18 of the Narcotic Drugs and Pscy-chotropic Substances Act, are set-aside. The accused- appellant Narain Lal is in jail. He may be released forthwith if not required in any other case. . ;