B.R. Arora, J.@mdashThis appeal is directed against the judgment dated November 13, 1988, passed by the Additional Sessions Judge, Barmer by which the learned Additional Sessions Judge convicted and sentenced the accused u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. PW 5 Jalam Singh, Station House Officer, Police Station, Barmer, on August 9, 1987, received an information through some ''MUKHBIR'' that a mohammedan person R/o Karime Ka Paar (Pakistan) was bringing smuggled heroin to Barmer, but in the way, on account of some disturbances, he had hidden the heroin in some sand-dune nearby the road. Accused Hasti and Arjun Singh came to know regarding this and, therefore, they have taken some polythene bags containing heroin from that place where the same was hidden by that mohammedan person and they were in search of some customer to sell that heroin. After recording this information in the ''ROJNAMCHA Ex. P-11, Jalam Singh, S.H.O., alongwith Baktawar Singh L.S.C., Sagat Singh FC, Maluka Ram Constable and Tansingh Driver, went on a jeep No. RJC 4131, and went to the Dhani of accused Arjun Singh and Hasti. When they reached on the Eastern side of the Dhani of Narain Singh, two persons were sitting there, who, after seeing the police party, tried to run away, but the police party caught hold of them and on enquiry, they disclosed their names as Hasti and Arjun Singh. Hasti at that time, was carrying a green polythene bag and Arjun Singh was carrying a bundle (GATHARI). They were searched before Baktawar Singh and Narpat Singh and on search, two polythene bags containing heroin were recovered from Hasti and three polythene bags containing about 300 Kgs. of heroin were recovered from Arjun Singh. Samples were taken from these five polythene bags and thereafter these five samples and the five polythene bags were separately sealed. Thereafter they came to Police Station, Barmer, recorded the First Information Report and after conducting the investigation, presented the challan against the accused appellants in the Court and the accused-appellants were tried by the learned Additional Sessions Judge, Barmer, for the offence u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ''the Act''). The prosecution, in support of its case, produced six witnesses and the accused, in his defence, examined one witness DW 1 Sansingh. The learned Additional Sessions Judge, after trial, found the accused-appellants guilty u/s 21 of the Act and sentenced both the accused-appellants to under go fifteen 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, Barmer, convicting and sentencing the accuscd-appellants that the accused-appellants Arjun Singh and Hasti have preferred this appeal.
3. Heard learned Counsel for the appellants and the learned Additional Advocate General.
4. It is contended by the learned Counsel for the appellants that the compliance of the mandatory provisions of Sections 50, 55 and 57 of the Act has not been made, which vitiates the whole trial. He further argued that the investigating officer and the complainant in this case is the same person and no site-plan was prepared at that very time and, therefore, the whole trial vitiates and the appellants deserve to be acquitted. The learned Counsel for the appellant further argued that the recoveries made by the Station House Officer Jalam Singh is fague-recovery as in Ex. P: 7, and Ex. P. 8, the number of First Information Report has not been given and Ex. P.5 and Ex. P-6 do not contain the seal impression. He has, also, argued that while sending the samples for F.S.L. examination, no specimen seal impression was sent by the Superintendent of Police, Barmer, alongwith the samples. He has, also, argued that the samples received by the Forensic Science Laboratory varies in weight from the samples alleged to have been recovered and sealed. It is further contended that while making the recoveries, no independent witness from the locality was called. Lastly, it was contended that from the evidence produced by the prosecution it appears that all the recovery memos etc. were prepared at the Police Station itself and were not prepared at the site, which, also, creates a doubt on the prosecution case and the appellants, therefore, deserve to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned lower court and he has further submitted that substantial complaince of the provisions of Sections 50, 55 and 57 of the Act has been caused to the accused-appellants and the appellants failed to show that any prejudice has been caused to them due to the so-called non-compliance of the provisions of Sections 50, 55 and 57 of the Act. He has further submitted that the illegality in the search itself will not vitiate the trial if no prejudice has been caused to the accused-appellants.
5. Before dealing with the arguments raised by the learned Counsel for the parties, I would like to consider the matter of evidence produced by the prosecution. PW 1 Mangi Lal was the Head Constable posted at Police Station, Sadar, Barmer, on August 10, 1987, to whom five packets of heroin and four samples packets weighing 30 grams each were given by the Station House Officer Jalam Singh to deposit the same in the Malkhana. As he was the Malkhana Incharge, he made an entry of these packets and kept them in the Malkahana of Police Station, Sadar, Barmer. On August 27, 1987 he gave four sample packets to Prema Ram F.C. for taking them to Forensic Science Laboratory, Jaipur. He has further stated that the articles remained with him since August 10, 1987 to August 27, 1987 in a sealed condition. PW 2 Jeetu Singh was the Constable, who was posted in the Office of the Superintendent of Police Barmer, and before whom F.C. Prema Ram brought four samples which he returned to him in the same condition and took the samples from Prema Ram. He, on the basis of these samples, prepared a forwarding letter for Forensic Science Laboratory and all these letters were sent in the presence of PW 3 Prema Ram. PW 3 Prema Ram is Police Constable, who, on the relevant day, was posted in Police Station, Sadar, Barmer, and who took the sealed sample-packets to the Forensic Science Laboratory, Jaipur. He has, further, stated that the samples remained in the sealed condition with him. PW 4 Baktawar Singh was the Police Constable, who was posted at Police Station, Sadar, Barmer. According to him, on August 9, 1987, at about 10.00 or 10.30 a.m., the Station House Officer Jalam Singh PW 5, received an information through the ''MUKHBIR'' and after receiving the information, he alongwith LSC Sagat Singh, FC Maluka Ram and driver Tansingh, went on the jeep in the ''AAGORE'' of Barmer and searched the Dhanis of Hasti and Arjun Singh accused-appellants. On enquiry, it was revealed that the accused were hiding themselves. A search was made, but the accused were not available. Next day, in the morning, the ''MUKHBIR'' was contacted and again the police party went towards the Dhani of accused Arjun Singh and in a house, situated in the Eastern side of the Dhani of Arjun Singh, both the accused appellants Hasti and Arjun Singh were found hiding themselves. Seeing the police party, they tried to run away but were apprehended by the police party. Both the accused-appellants were carrying heroin, which was seized and sealed. Samples were taken which were, also, scaled. He is, also, the witness of the recovery memos Ex. P-5 and Ex. P-6. The accused were thereafter arrested and were brought to the Police Station. After reaching Police Station, the scale and the measuring weights were brought and the recovered articles were weighed which weighed about 960 grams. The samples weighing 30 grams each of the heroin were, also, taken, which were kept in an iron-case and were sealed. The other two bags were, also seized and sealed. This witness was cross-examined by the counsel for the accused and in the cross- examination, he has admitted that they did not return to Police Station and, also, did not slay at any other place but they remained in the jungle the whole night. He has, also, admitted that at the place where the accused-appellants were apprehended, there are number of Dhanis and people used to reside in those Dhanis but nobody, except Narpat Singh, was produced as a Motbir witness. The Dhani of Motbir Narpat Singh is situated at a distance of about 8 kms. He has, also, admitted that two/three Dhanis, which are situated near the place where the accused were arrested, are inhibited by some persons and those persons were also, present in those Dhanis at the relevant time. The statement of PW 5 Jalam Singh, S.H.O., is almost the same as that of PW 4 Baktawar Singh. He, after receipt of the information from the ''MUKHBIR'' recorded it in the ''ROJNAMCHA'' proceeded towards Arjun Singh''s Dhani, arrested the accused-appellants, recovered the articles from the accused-appellants, came to the Police Station, prepared to search memo, scaled the articles and deposited the same in the Malkhana. He has admitted that the bag (THELA) Ex. P-2 does not bear any seal. He has, also, admitted that on Ex. A-9 the description of the case has been given on a paper, which is affixed on the article by paper-pins and which can be removed. Similar is the case with the other articles. The particulars of the case over the articles have been affixed by the investigating officer by paper-pins. He has further admitted in the cross-examination that the seal affixed on Ex. A-3, Ex. A-8, Ex. A-9 and Ex. A-10 is his personal seal. He has, also, admitted that there is no seal affixed on Ex. A-4. He has, also admitted that he did not take any sample from Ex. A-4 and did not seal Ex. A-4, also. He has, also, admitted that he did not prepare the site plan from where the heroin was recovered. He has, also, admitted that he did not call any Motbir as it was not required. He has, also, admitted that near the place of the incident, there are number of Dhanis and the Motbirs from those Dhanis were not called because these Dhanis were situated at some distance. Though two/three Dhanis were situated near the place of incident and the persons were there but he did not call any person from these Dhanis because Narpat Singh Motbir was, also, there who witnessed the incident and the other witnesses of the recovery are the police personnels. PW 6 Narpat Singh was the witness to the recoveries but he has not supported the prosecution case and has been declared hostile. DW 1 Shan Singh has been produced by the accused to show the inimical relations between Narpat Singh and the accused and the relationship of Narpat Singh with the Station House Officer Jalam Singh (the investigating officer). Though number of grounds have been raised by the learned Counsel for the appellants but the present appeal can be decided only on the point regarding the non-compliance of the provisions of Section 50 of the Act, which deals with the personal search of the accused. Section 50 of the Act prescribes procedure after arrest and when he is about to search any person, casts a duly on the investigating officer u/s 42 or 43 of the Act and if such person requires to take him to the nearest gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate, then he will lake such person immediately before such gazetted Officer or the nearest Magistrate. If the gazetted Officer or the Magistrate, as the case may be, before whom any person under Sub-section (1) of Section 50 of the Act has been brought, if he sees reasonable ground direct that the search may be made before the gazetted Officer or the nearest Magistrate but where he sees no reasonable ground for such search then to forth with is charge such person. The provisions of Section 50 of the Act are mandatory in nature and require that when a particular act is to be done in a particular manner or form, then it should be done in accordance with that procedure. These provisions have been made in order to protect the interests of the citizen from irregular and illegal invasion on his liberty by the authorities as well as in the interest of the State to secure that the evidence bearing upon the commission of the crime and necessary to enable the justice to be done, shall not be with-held from the course of law on merely former or technical ground. The Investigating Officer PW 5 Jalam Singh did not inform the accused-appellants before making the search that if they so liked the search may be made before the gazetted Officer mentioned in Section 42 of the Act or before the Magistrate, nor did he take the accused-appellants before the gazetted Officer or the Magistrate and the search was not conducted before him. Even the Station House Officer did not call the independent witnesses, which were available near the place from where the accused-appellants were apprehended and no recovery was made in the presence of the independent witnesses. The Station House Officer even did not prepare the site plan nor made the recovery memos etc. at the place of the occurrence, but he took the articles and the accused to the Police Station and prepared all the memos etc. at Police Station. PW 5 Jalam Singh, S.H.O. who is the Investigating Officer, also, invented in novel way to seal the articles and he himself admitted that the same can be removed by taking out the paper-pins. Such type of recoveries made by the prosecution, were not made in the presence of the independent witnesses & even the description was not given on the articles so seized and such type of recoveries do not inspire any confidence and make the case of the prosecution highly improbable and vitiates the whole trial. As there is total non-compliance of the provisions of Section 50 of the Act, which are mandatory in nature, the trial of the accused-appellants stands vitiated.
6. In the result, this appeal, filed by the accused appellants, Arjun Singh and Hasti, is allowed and the accused-appellants are acquitted of all the charges levelled against them. The accused-appellants are in jail. The may be released forthwith if not required in any other case.
