R.L. Anand, J.@mdashShri Ramphal alias Makkar son of Shri Gian Chand. resident of village Farmana, Police Station, Kharkhoda, District Sonepat has filed the present criminal appeal and it has been directed against the judgment dated 3.8.2001 and order dated 7.8.2001 passed by learned Addl. Sessions Judge (Special Judge), Sonepat, who recorded conviction against the appellant u/s 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentenced him to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,50,000/- and in default of payment of fine to further undergo Rigourous imprisonment for a period of three years for allegedly having been found in possession 620 grams of Charas without any licence or permit.
2. The story of the prosecution is that on 12.1.2000 SI Mam Chand along with other police officials was present at bus stand Farmana in connection with detection of crime when he received a secret information to the effect that Ramphal alias Makkar was indulging in the business of selling Charas and that he was selling Charas while sitting in front of his house at a cot and if a raid was conducted, he could be apprehended and Charas could be recovered. On this information SI Mam Chand prepared a raiding party and went towards the house of Ramphal and when the police party reached near the house of the appellant along with Satpal PW, it was noticed by the Investigating Officer that the appellant was sitting on a cot and on seeing the police party he tried to throw away a white polythene packet but he could not be successful and was apprehended along with the polythene packet. On opening of the packet it was found that it contained Charas and on weighment it cam to 620 grams. SI Mam Chand served a notice upon the appellant to the effect that the appellant was in possession of more contraband and apprised him of his right to be searched by a Gazetted Officer or a Magistrate. In reply the appellant reposed confidence in the Investigating Officer. On further search of the appellant, nothing was recovered from his possession. The Investigating Officer separated 20 grams of Charas from the bulk by way of sample and the sample and remainder were separately sealed by using seal bearing inscription ''SC and the same were taken into possession vide recovery memo. The appellant could not produce any licence or permit for the possession of Charas, resultantly ruqa was sent to the police station for registration of a case. The Thanedar completed other formalities of the case at the spot and on return to police station the case property was deposited with the Moharrir Head Constable with the seals intact. The sample of Charas was sent to the office of Director, Forensic Science Laboratory, Madhuban, who declared the contents as Charas and on completement of the investigation of the case the appellant was challaned u/s 20 of the Act in the Court of Area Magistrate, who supplied the copies of the documents to the appellant as required under the law.
3. A charge u/s 20(b) of the Act was framed against the appellant on 19.5.2000. It was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.
4. In order to prove the charge, the prosecution examined PW 1 SI Ram Kishan, who simply deposed that on 12.1.2000 when he was posted in Police Station. Kharkhoda, SI Mam Chand produced the accused and two sealed parcels along with the witnesses. He verified the investigation and fixed his own seal on the case property and directed the Munshi to keep the case properly intact. PW2 is HC Rajpal, who deposed that on 12.1.2000 on receipt of ruqa Ex. PA he recorded the formal FIR Ex.PA/1. He also despatched the special report of this case to the higher police officer and Ilaqa Magistrate through Constable Satbir. He further deposed that on the same day SI Mam Chand had deposited two sealed parcels bearing seals of R.K. and SC. He sent the sample of the Gharas to the Director, Forensic Science Laboratory, Madhuban through Constable Satbir on 3.2.2000. He deposited the sample with the Forensic Science Laboratory on the same day. He further staled that till the case property and the sample remained with him he did not tamper with the same nor allowed anybody to tamper with the same. PW3 is Constable Satbir, who simply deposed that MHC Rajpal had handed over to him one sealed parcel for its onward transmission to the Director, Forensic Science Laboratory, Madhuban and he deposited the same with the office of the Director on the same day and he did not tamper with the case property nor allowed anybody to tamper with the same. PW4 AS1 Subhash Chander is a witness of recovery. He deposed the story of the prosecution as unfolded by PW5 SI Mam Chand and deposed that he recovered 620 grams of Charas from the possession of said Charas. The statements of PW4 and PW5 shall be discussed by us in the subsequent portion of this judgment. The prosecution gave up independent witness Satpal on the plea that he has been won over by the appellant. Finally, the prosecution tendered into evidence the report Ex. PG of the office of Director. Forensic Science Laboratory. Madhuban and closed the case.
5. The statement of the appellant was recorded u/s 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. He denied those circumstances and stated that he has been falsely implicated in this case.
6. When called upon to enter into his defence the appellant did not lead any evidence.
7. The documentary evidence which has been placed on record by the prosecution is ruqa Ex. PA which was sent by SI Mam Chand to Police Station, Kharkhoda OH the basis of which formal FIR No.5 dated 12.1.2000 u/s 20 of the Act was registered. Ex. PB is the notice which was given to the appellant and Ex. PC is the statement of the appellant which was recorded by SI Mam Chand and it is attested by AS1 Subhash Chand and Satpal. Ex. PD is the recovery memo, Ex. PE is the rough site plan of the place of arrest and recovery. Ex. PF is the memo of arrest, while Ex. PG is the report of the Forensic Science Laboratory.
8. The learned Special Judge for the reasons given in the impugned judgment convicted the appellant u/s 20 of the Act and he was sentenced in the manner as stated above and aggrieved by his conviction and sentence the present appeal.
9. We have heard Mr. S.S. Toor, Advocate on behalf of the appellant, Mr. Sanjay Vashist, Deputy Advocate General. Haryana and with their assistance have gone through the record of the case.
10. The case of the prosecution as set forth in the trial Court has been unfolded by PW5 SI Mam Chand who deposed that on 12.1.2000 he was posted in CIA Staff. Sonepat. On that day, he along with police party was present at bus stand of village Farmana where PW Satpal met them. He further stated that he was having a talk with Satpal when he received a secret information that Ramphal alias Makkar has been indulging in the sale of Charas and if a raid is conducted he can be apprehended red handed. He prepared the raiding party and went to the house of the appellant and found that a person inside the gate of his house was sitting on a cot. On seeing the police party he got up and tried to throw the articles but with the help of his companions that person was apprehended by him and thus he was not successful, in throwing the article. The witness further stated that during the checking of the polythene he found that it contained 620 grams of Charas. Resultantly, he served a notice Ex. PB upon the appellant that he was having a doubt upon the appellant that he might have some more contraband and, therefore, he would like to search his person. He further enquired from the appellant whether the latter wanted to given search before a Gazetted Officer or a Magistrate. Vide statement Ex. PC the appellant declined to be searched in the presence of a Gazetted Officer or a Magistrate by reposing confidence in the witness. From the personal search of the appellant nothing was found. SI Mam Chand further deposed that he separated 20 grams of Charas from the bulk and made a sealed parcel thereof and the remaining Charas was separately sealed. He further deposed that he sent ruqa Ex. PA to the police station for the registration of the case and recorded the statements of the witnesses and on return to police station he produced the case property before SI Ram Kishan who verified the investigation of this case and fixed his own seals on the case property and it was ordered to him to deposit the case property with seals intact with the Moharrir Head Constable.
11. The statement of PW5 SI Mam Chand has been corroborated in all material particulars by PW4 ASI Subhash Chander, who also deposed that the appellant was apprehended when he tried to throw the polythene. During the checking of the polythene it was found that the polythene contained the Charas.
12. The story of the prosecution and the judgment and order of the learned trial court have been vehemently assailed by the learned counsel appearing on behalf of the appellant, on the ground that the mandatory provisions of Section 50 of the Act in this case have not been complied with, as a result of which the appellant is entitled to be acquitted. The learned counsel for the appellant submitted that the alleged compliance of Section 50 is subsequent to the recovery of Charas because is the case of PW5 SI Mam Chand and PW4 ASI Subhash Chander that after the alleged recovery of Charas, the appellant was served with a notice u/s 50 and a query was put to him that the Investigating Officer suspects more contraband from his person. He submitted that before taking the search of the polythene, the Investigating Officer did not serve any notice u/s 50 of the Act. The compliance of Section 50 is mandatory as held by the Hon''ble Supreme Court in various judgments.
13. On the contrary, the learned counsel appearing on behalf of the State submitted that in the present case the provisions of Section 50 of the Act are not applicable because the Charas has been recovered from a polythene bag and not from the person of the appellant and in this view of the matter the submission raised by the learned counsel for the appellant is not tenable. In support of his contention the learned counsel for the respondent relied upon a judgment of the Hon''ble Supreme Court reported as
14. We have considered the rival contentions of the parties and are of the considered opinion that the prosecution has not been able to prove the charge beyond reasonable doubt against the appellant who is entitled to acquittal. Section 50 of the Act lays down that when any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such persons without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. For our purposes we have to examine whether the search in the present case is a search from the person of the appellant or not. It was submitted by the learned counsel appearing on behalf of the State that the present search is not from the person of the appellant but from the polythene which was in the hand of the appellant and, therefore, the provisions of Section 50 will not be attracted in the present case. We are not convinced with the submission raised by the learned counsel for the respondent. If a critical analysis is made of the language of Section 50, it would show that the legislature wanted that before a search of any person is taken, Section 50, which has given a right upon the person to be searched, should be complied with by the Investigating Officer. This right has been given with a purpose by the legislature because in the case of successful conviction the accused is supposed to undergo a minimum sentence of 10 years if the quantity recovered is heavy. We all know that it is the ultimate principle of criminal jurisprudence that stricter the punishment heavier is the proof. In such like cases, the legislature has provided a very deterrent punishment and in these circumstances we have to be very careful and cautious that the prosecution has been able to comply with all the ingredients of Section 50. It is the story of the prosecution that the Investigating Officer received a secret information that the appellant was indulging in the sale of Chains and at that time Satpal PW was present with the police party. The Investigating Officer SI Mam Chand did not try to associate any other'' person but for Satpal with whom he was talking incidently and per chance at the bus stand of village Farmana. Satpal has not been examined by the prosecution on the usual plea that he has been won over the accused. In these circumstance, we are dependent upon the statements of two witnesses. The so-called notice u/s 50, which was served upon the appellant, in our opinion, will not serve any purpose to the prosecution because if the contents of Ex. PB, the notice allegedly given u/s 50, is read in detail, it would show that it was served after the alleged recovery of the Charas. It has been specifically mentioned in the notice Ex. PB that the Investigating Officer suspects that the appellant might be in possession of more Charas. Therefore, the notice Ex. PB was allegedly served upon the appellant in the presence of Satpal who has not been examined by the prosecution. Ex. PC. which is the statement of the appellant, would show that he has categorically stated that he does not want to give search in the presence of a Gazetted Officer or a Magistrate because he is not in possession of any Charas. Even the recovery memo Ex. PD, which was prepared by the Investigating Officer at the spot, would show that the notice u/s 50 was served after the alleged recovery of the Charas weighing 620 grams.
15. The real point for determination still remains with us whether the alleged recovery of the Charas will be considered as recovery from the person of the appellant or not. The circumstances proved on the record are that Charas was in the shape of a bulk. Meaning thereby it was in one lot. It was wrapped in a polythene. It is generally done by the bootleggers lest the contents of the contraband may not stick to a paper causing wastage of the contraband which in the market has a monetary value. It is not the case of the prosecution that the appellant was carrying a Jhola or Thela on his biocides a bag or Jhola or Thela hanging on the handle of his bicycle. In that context it was observed by the'' Hon''ble Supreme Court that such recovery from a Jhola or bag etc. would not be considered a recovery from the person of an individual. But in the present case, as per the prosecution, the accused was carrying Charas wrapped in a polythene and he was carrying it in his hand. In these circumstances, a very restricted meaning to the word "person" cannot be given. Let us further develop this point. If this very Charas is found in the pocket of the trousers worn by the appellant or in the dub of the appellant, in such a situation there was no difficulty to hold by us that the recovery was effected from the person of the appellant. A very restricted meaning as sought to be given by the learned counsel for the State cannot be given in the facts of the present case.
16. To proceed further, we are of the opinion that a reasonable doubt has already been created in the present case when the prosecution at the first instance has not examined Satpal PW in the Court and secondly the directory provisions of Section 51 of the Act have also not been complied with. It was a case of raid sought to be directed against the appellant in his house. In these circumstances, it was desirable on the pan of the Investigating Officer to have associated some person from the locality of the appellant in the police party. The police party must have remained at the spot for a sufficient long time. The assistance of some Lumberadar, Sarpanch, Member Panchayat, Chowkldar "or neighbour could be well taken by the Investigating Officer who could attest the recovery memos allegedly prepared by the investigating Officer at the spot. Section 51 lays down that the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act. to all warrants issued and arrests, searches and seizures made under this Act. No doubt, the provisions of Section 51 are directory in nature but non-compliance of the provisions of Section 51 and in view of the fact that PW Satpal has not supported the case of the prosecution, we are of the opinion that a serious prejudice has been caused to the appellant making the story of the prosecution doubtful. It is true that a conviction can be based on the statement of police officers but in the present case when the Investigating Officer has ample opportunity to take the assistance or an independent witness from the village of the appellant and he has not taken such assistance, this conduct on the part of the Investigating Officer cast a reasonable doubt and suspicion in the mind of the court about the genuinity of the present recovery. It is the case of the prosecution that the appellant was indulging in the trade of Charas and he was a previous convict. Therefore, the Investigating Officer in his anxiety to get a success has not resorted to the association of the independent witness. The chances are equal that due to his previous conviction this time again he might have been involved in a case u/s 20 of the Act. We have already stated above graver the charge stricter the proof. For any reasonable doubt the benefit of the same shall go to the accused and not to the prosecution. Therefore, we are of the considered opinion that the present is a case where the infirmities have crept in the investigation of the case.
17. In this view of the matter, we allow this appeal, set aside the judgment and order of the trial court and acquit the appellant of the charge framed against him. He shall be set at liberty forthwith if not wanted or convicted in any other case. "
18. The case property stands confiscated to the State and shall be destroyed according to rules.
