Deo Narayan Thanvi, J.@mdashThese are the two Criminal Appeals arising out of the judgment of the learned Addl.Sessions Judge, Banner dated 29.05.1989, whereby he convicted both the accused appellants viz; Parasmal and Jabal u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred-to as "the Act" and sentenced each of them to undergo fifteen years'' RI and to pay a fine of Rs.two lacs and in default, to further undergo two and half years'' RI.
2. Facts leading to these appeals are that on 19.08.1987, the SHO, Police Station Sadar, Barmer, during investigation of FIR No.29/87 came to know that accused Jabal was carrying heroin. Upon this, he after informing the Superintendent of Police, Barmer, constituted a trap party and left for the search. Accused Jabal was found carrying ten bags on the sand-dunes situated between Danta and Derasar. The police party reached on the spot on the information of ''mukhbir''. One bag was opened, wherein brown powder was found, which was tasted to be of heroin. Each of the bags was found containing one kilogram of heroin. Thirty grams of which was kept in polythene bag, sealed and marked as Ex.A1 for sending it for chemical examination. Accused Jabal was arrested on the same day vide Ex.R7 at 3.00 P.M. The sample was sent for chemical examination and as per the report of the FSL, Ex.R11, the sample marked ''A'' gave positive test for the presence of Dieacetyl Morphine. During investigation, another accused appellant Paras Mal was also arrested on 25.08.1987 vide Ex.P1. After investigation, both the accused appellants were chargesheeted u/s. 21 of the Act. Learned trial Judge framed charge against the accused appellants to which both pleaded not guilty. The prosecution examined 7 witnesses. The statements of the accused were recorded u/s. 313 Cr.P.C. and they produced three witnesses in their defence. After hearing, the learned trial Judge convicted and sentenced the accused appellants as above.
3. I have heard learned counsel for the parties and also perused the record of the case.
4. It is contended by the learned counsel Mr.Suresh Kumbhat and Mr.Mridul Jain appearing for the accused appellants that in this case, the mandatory requirements of Sections 42 and 50 of the Act have not been complied with, which requires a police officer, who receives any information regarding commission of an offence under this Act to send the same to the Superior Officer, probably because the Act was brought into force in the year 1985 and this incident is of 1987. According to the learned counsel, there was sufficient time available with the police party to have received the warrant from the concerned magistrate when they were already investigating into the FIR No.29/87 against accused Hasti and Arjun Singh and during investigation of that case, it was found that the said heroin was carried by Jabal for selling it through accused Paras Mal. According to him, at that time, Chandan Singh was also sitting there but he has not been examined. Therefore, both the learned counsel have urged for acquittal of accused appellants.
5. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court.
6. I have gone through the evidence of investigating Officer Jalam Singh, PW7, who seized the heroin vide Ex.P6. A perusal of his statement makes it clear that he has nowhere stated that compliance of sections 42 and 50 of the Act has been made. It is undoubtedly clear that the person authorized may enter-into, search seize and arrest, without warrant or authorization, a person, who is found to be carrying the contraband article but his personal knowledge or information, which is the basis of his belief, must be taken down in writing. Undisputedly, there is no memo prior to the recovery of heroin Ex.P6 that any such information was taken down with regard to the ground of his belief by the investigating officer Jalam Singh, PW7. Thus, there is a breach of Section 42(1) of the Act. That apart, the provision of sub-section (2) of Section 42 has also not been complied with by sending a copy of such information in writing to the superior officer. Even after registration of the case and search, the copy thereof has not been sent to the immediate superior officer within seventy two hours as required under sub-section (6) of Section 50 of the Act. Both these provisions are mandatory in nature and non-compliance of these provisions have resulted in vitiating the trial. The finding of the learned trial Court that no question was asked to the investigating officer Jalam Singh, PW7 as to why this compliance was not made by the defence, is contrary to law. Under the Act, there is no provision that such burden lies on the accused. The compliance of both the mandatory provisions was obligatory on the part of the investigating officer and its non-compliance cannot be a ground of benefit to the prosecution by shifting the burden on the accused. That apart, the independent motbir witnesses have not supported the recovery. However, the contention of the learned counsel that the seal of the investigating officer himself was not put on the recovery memo is immaterial because compliance of Section 57 of the Act is not mandatory but directory in nature.
7. In view of the discussion made above, I am unable to agree with the finding of guilt arrived at by the learned trial Judge by convicting both the accused appellants u/s. 21 of the Act.
8. Consequently, both these appeals are allowed. The conviction & sentence passed against accused appellants Parasmal and Jabal by the Addl.Sessions Judge, Barmer vide his judgment dated 29.05.1989 with fifteen years'' RI alongwith a fine of Rs.two lacs and in default, to further undergo two and half years'' RI is quashed and set aside and they are acquitted of the said charge. The amount of fine, if deposited, may be refunded to the accused appellants. They are on bail, their bail bonds shall stand cancelled automatically.
