1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT The State of Rajasthan vs. Ram Kishore & Ors. (S.B. CRIMINAL APPEAL NO. 400/1998) DATE OF JUDGMENT ::: September 11, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. B.K.Sharma, PP, for the State. Mr. Sital Das, for the accused respondents. Reportable BY THE COURT: Challenge in this appeal is to the judgment dated 7 December, 1996 whereby the learned Sessions Judge, Jaipur has acquitted the accused-respondents Ram Kishore and Radhey Shyam in the offence under Section 8 read with Section 22 of Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “Act, 1985”). 2. That the accused persons Radhey Shyam and Ram Kishore are alleged to have been found in possession of one bag Post-Chura, one bag of Post-Doda and one bag of Churabhang on 28 February 1996. It is alleged that PW-4 Shri Chhitar Singh, S.H.O. Police station Chaksu conducted the raid in a shop situated near Dargah, Tonk Road, Chaksu wherein two persons were found, who identified themselves to be Ram Kishore and Radhey Shyam. On search, one bag of Post Chura, one bag of Post Doda and one bag of Bhang Chura was found lying therein. Appellants had no licence to keep the same in their shop hence they were seized vide memo Ex.P/3 and samples were taken from each bag and sealed accordingly. Having registered the FIR, the case 2 was investigated, accused were arrested, statements of the witnesses were recorded, necessary memos were drawn and after usual investigation the appellants were sent for trial to the competent court. 3. The appellants were indicted for the offence under Section 8 read with Section 22 of the Act 1985, who pleaded not guilty and claimed trial. The prosecution examined in all six witnesses to prove its case. In their explanation under Section 313 of Cr.P.C., the appellants claimed innocence. On completion of trial, the learned trial court acquitted the accused-appellants as indicated hereinabove. 4. Heard the learned Public Prosecutor appearing for the State, learned counsel for the accused respondents and with their assistance, scanned the material available on record. 5. The learned Public Prosecutor appearing for the State, has contended that the compliance of the provisions of Section 50 and section 42 (2) of the Act of 1985 has been made by the Seizure Officer, but the learned trial court has committed an error in disbelieving the statements of the prosecution witnesses. He has further contended that from the evidence of PW-4 Shri Chhitar and PW-5 Pradeep Mohan Sharma, it is well proved that one bag of Doda Chura weighing 12 kg., one bag of Doda-Post weighing 5 kg. and one bag of Bhang Chura weighing 12 kg. were found in their exclusive possession and the learned trial court has failed to properly appreciate their evidence, hence the criminal appeal be accepted and the accused-respondents be convicted for the alleged offences. 6. Per contra, the learned counsel for the accused respondents has contended that the impugned judgment of the lower court is cogent 3 and well merited. It does not suffer from any infirmity, as such the state appeal being devoid of force may be dismissed. 7. Having reflected over the submissions advanced by both the parties and weighed the evidence on record, it is noticed that PW-4 Shri Chhitar Singh while making search did not make the compliance of the provisions of Section 50 and Section 42 (2) of 'Act 1985' as the provisions of Section 50 and Section 42 (2) of Act 1985 are mandatory in nature and the non- compliance thereof vitiates the trial. 8. It is well settled that provisions of Section 50 of the Act, 1985 are mandatory in nature as repeatedly held vide judgments rendered by the Hon'ble Apex Court in the cases of Mohinder Kumar Vs. State of Panaji, AIR 1985 SC 1157; State of Punjab Vs. Labh Singh 1997 Cr.L.R. (S.C.) 76; Ali Mustfa Vs. State of Kerala, AIR 1995 SC 244 and State of Punjab Vs. Balveer, AIR 1994 SC 1872. It is found mandatory to give a notice in writing to the accused and ask him if he so required, he could be taken to the nearest gazetted officer of any of the departments mentioned in Section 42 of the Act, 1985 or to the nearest Magistrate. Sub-section (2) of Section 50 contemplates that if such requisition is made, the officer could detain the accused until he could take him to the gazetted officer or the Magistrate as the case may be. 9. In the case of Beckodan Abdul Rahim Vs. State of Kerala (2002) 4 SCC 229, the Hon'ble Apex Court has held that the safeguards mentioned in Section 50 are intended to serve a dual purpose to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted 4 by the empowered officer. Section 50 has been introduced with the obvious intent to avoid any harm to innocent persons and to avoid raising of allegation of planting of fabrication by prosecuting authorities. It is now well settled by the catena of judgments of the Hon'ble Supreme Court as also this Court, that the provisions of Section 50 are mandatory in nature and the empowering authority is required to make strict compliance thereof. The Hon'ble Supreme Court has also held that if any gazetted Officer happens to be a member of the raiding party and he takes the search of the accused and recovers the contraband article, it will not be taken to be the strict compliance of the mandatory provisions of Section 50 of the Act of 1985. 10. In the instant case, the Investigating Officer PW/4 Shri Chittar Singh is found to have taken the search of the accused persons Radhey Shyam and Ram Kishore and recovered the Doda Post, Doda Chura and Bhang Chura as detailed in recovery memo Ex.P/3. The arguments of the learned Public Prosecutor that the search was taken in the presence of PW-5 Pradeep Mohan Sharma who himself was a gazetted Officer, is not tenable. For the reason that Pradeep Mohan Sharma was himself a member of the raid party. Hence, it is not proved that an option was given to each accused in writing. Thus, the finding of the learned trial Court to this effect that the compliance of mandatory provisions of Section 50 of Act, 1985 has not been made by the Investigating Officer is perfectly just and legal with which I fully agree. 11. Now, turning to the compliance of the Provisions of Section 42 (1) & (2) of the Act, 1985, it is noticed that memo Ex.P/7 contains this fact that a copy is being sent to the 5 immediate official superior but as to whether, in fact, a copy was sent within a period of 72 hours to the immediate official superior or not, is not proved from the evidence available on record. It is for the prosecution to prove beyond reasonable doubt that the compliance of provisions of Section 42 of the Act 1985 was strictly made by the Search and Seizure Officer. The prosecution has miserably failed to prove that the copy of Ex.P/7 was sent to the immediate official superior within a period of 72 hours as required under Section 42 (2) of the Act 1985. The Hon'ble Supreme Court in catena of judgments has reiterated and held that the provisions of Section 42 of Act 1985 are mandatory in nature and non-compliance thereof vitiates the trial. 12. It is also noticed that the independent witnesses PW-3 Ramnarayan Sharma and PW-6 Dhanna Lal have not supported the prosecution case and turned hostile. Even the FIR of this case does not stand proved. 13. In view of this fact that the independent witnesses have not supported the prosecution case and the Seizure and Search Officer has not made the strict compliance of the mandatory provisions of Section 50 and Section 42 (1)(2) of the Act 1985, the evidence of the police officers cannot be believed and their evidence cannot become the basis of conviction of the accused persons. 14. In the case of Mansha Ram Vs. State of Madhya Pradesh, the uncorroborated testimony of the police officials was not found convincing and could not be accepted. In the instant appeal also, the evidence of police officers does not inspire confidence. Their testimony does not seem to be credible and merely on the basis of 6 uncorroborated evidence of the police officers the respondent cannot be convicted. 15. The learned trial court has based the acquittal of the accused-respondents on these two grounds only that the mandatory provisions of Section 50 and Section 42(2) of Act 1985 were not complied with. The impugned judgment is cogent and well merited. It suffers from no infirmity. I am in unison with the finding of acquittal arrived at by the learned trial Court and thus it calls for no interference. 16. For these reasons, the State appeal being devoid of merits stands dismissed. The accused-respondent is on bail, he need not surrender the Court. His bail bonds stands discharged. (MAHESH BHAGWATI),J. Mak/-