1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: S.B. CRIMINAL APPEAL NO.62/2004 (Opa Ram Vs. State of Rajasthan) S.B. CRIMINAL APPEAL AGAINST THE JUDGMENT DATED 06.01.2004 PASSED BY THE LEARNED SPECIAL JUDGE, N.D.P.S. CASES, JODHPUR IN SESSIONS CASE NO.63/2002. DATE OF JUDGMENT : 19th August, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. M.L. Bishnoi, for the appellant. Mr. O.P. Rathi, Public Prosecutor. BY THE COURT : 1. This appeal is directed against the judgment dated 06.01.2004 passed by the learned Special Judge, N.D.P.S. Cases, Jodhpur, whereby, he convicted accused appellant Opa 2. Ram for offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced him to undergo ten years rigorous imprisonment and to pay a fine of Rs.1 lac, in default of payment of fine to further undergo one year's rigorous imprisonment. 2. Facts leading to this appeal are that on 30.5.2002, at 6.15 pm, Shri Madho Singh, S.H.O., Police Station Udaimandir, Jodhpur received a secret information that one person with opium milk in a brown bag is sitting at Public Park. This information was recorded by the S.H.O. at 6.30 pm and proceeded at the place in the government jeep with driver Bhagirath. He also informed Head Constable Mahaveer Singh of Out-post, stadium to reach at the Public Park. On reaching at 6.40 pm, on the main gate of Public Park, Head Constable Mahaveer Singh with constable Bhanwar Singh No.95 and constable Bhanwar Singh No.681 also accompanied him at the site. He gave requisition to constable Bhanwar Singh No.681 to call two independent motbirs, but on account of non availability of independent motbirs, both the constables were made motbirs, and they found one person walking towards opposite direction. He was stopped and asked for the search. Upon receiving his consent, search was conducted. Sukhdeo Jangid, the Circle Officer also reached on the spot and in his presence, the search 3. was conducted, wherein, 2.450 kilogram opium milk in one polythene bag and 950 grams of opium milk in another bag was found, for which, he was having no licence. Samples were taken and sent for chemical examination. Thereafter, challan was filed against the accused appellant under Section 8/18 of the Act. He was charged accordingly, for which, he pleaded not guilty. Prosecution examined ten witnesses. Statement of accused appellant was recorded under Section 313 Cr.P.C. He led no defence. After hearing the arguments, the learned trial Judge convicted the accused appellant as indicated above. 3. Learned counsel for the accused appellant has questioned the legality of conviction and sentence purely on the basis of search being conducted in violation of Section 50 of the Act. According to him, it is surprising that independent motbirs were not available at the place like Public Park in the evening time when large number of people are walking. According to him, only police constables were made motbirs and there is a material infirmity in the statements of Madho Singh, SHO and Mahaveer Singh, Head Constable with regard to the seizure of the scooter. According to him, the Gazetted Officer i.e. the C.O. came later on and the whole proceedings have been manipulated to falsely implicate the accused appellant. 4. 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial court. 5. Having re-appreciated the evidence, it appears that Madho Singh PW-1 has stated in his examination in chief that he sent constable Bhanwar Singh No.681 for calling the independent motbirs vide Ex.P-6 and he reported that no motbirs were available on the spot. In my view, this is a strange version of the S.H.O. that independent motbirs were not available at Public Park, where, large number of people are making evening walk. Why the independent motbirs were not available, the best evidence in this regard would have been of constable Bhanwar Singh No.681 to whom requisition Ex.P.6 was given, but he has not been examined by the prosecution. It appears that he has been deliberately withheld. This circumstance clearly indicates that while conducting the search of a person as referred under Section 50 of the Act, the compliance of sub-section (5) of Section 50 has not been made, which says that if the Gazetted Officer or Magistrate is not available and the person may be parting with the possession, the search can be conducted as provided for under Section 100 Cr.P.C. Sub-section (4) of Section 100 Cr.P.C. reads as under : “Before making a search under this 5. Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search any may issue an order in writing to them or any of them so to do.” 6. By virtue of this Section, it is incumbent upon the Searching Officer to call two or more independent and respectable inhabitants of the locality, whereas, in the present case, constable Bhanwar Singh No.681 made an endorsement on Ex.P-6, which is the letter of the S.H.O. that no person is prepared to be a motbir. Firstly, this Bhanwar Singh has not been examined by the prosecution and secondly, it can hardly be believed that nobody was prepared to be a motbir when called upon by the Searching Officer on a place like Public Park, where numerous persons are walking, specially when the search is conducted of a narcotic drugs like opium from a person who is neither well known nor so powerful that no person is prepared to be witness against him. So called Gazetted Officer of the Police Department Sukhdeo Jangid PW-8 reached at the spot when raiding party of Udaimandir Police Station was already there and no option was given to the accused appellant for search under Section 50(1) of the Act as stated by Mahaveer Singh, PW-2 in 6. his cross examination. Even in statement Ex.D-7, the C.O. PW-8 has not said that he asked accused appellant about consenting for search, which is supported from the testimony of constable Bhanwar Singh PW-3 in his cross examination. This witness has also said that many persons were walking on the footpath of public park, but they did not agree to become motbirs. 7. This serious infirmity creates heavy doubt on the story of the prosecution with regard to the compliance of Section 50 of the Act. When a personal search is conducted, Section 50 is mandatory provision and this safeguard is to protect a person against false acquisition and also the credibility of the search conducted by the Searching Officer. 8. This non compliance of Section 50 of the Act further fortifies from the fact that Madho Singh PW-1 has stated that accused appellant was sitting on the loan of Public Park and he found one R.C. of Scooter No.HR 23/9620 in his bag, whereas, Mahaveer Singh, Head Constable who has accompanied the Searching Officer has stated that the Scooter was seized on the spot, but in the recovery memo Ex.P-10, there is no seizure of the scooter. In the recovery memo Ex.P-10, it is stated that R.C. of Scooter No.HR 23/9620 was taken into possession. In this situation, which scooter was seized as stated by Mahaveer 7. Singh PW-2 is not clear from the evidence of prosecution. These above two infirmities as pointed out by learned counsel for the accused appellant have not been countered by the learned Public Prosecutor and the learned trial court has also not assigned any reason in the impugned judgment. 9. The present Act is a social legislation and provides for making provisions stringent for the control and the regulation of operations relating to narcotic drugs and psychotropic substances and punishment provided for is also severe. Legislature has accordingly made various provisions before and after conducting the search and some of the provisions are mandatory in nature and non compliance of which is fatal to the prosecution. Here in the present case, the theory of the scooter and non compliance of Section 50 of the Act as discussed above has vitiated the entire search proceedings, which does not inspire any confidence, for which, accused appellant is entitled to be benefited. 10. Consequently, this appeal is allowed. The judgment dated 6.1.2004 passed by the learned Special Judge, N.D.P.S. Cases, Jodhpur, convicting the accused appellant for offence under Section 8/18 of the Act and sentenced him for ten years' rigorous imprisonment and to pay a fine of Rs.1 lac, in default of 8. payment of fine to further undergo one year's rigorous imprisonment is set aside. Accused appellant Opa Ram is in jail, he shall be released forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. ms rathore