1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT The State of Raj. Vs. Kachhu @ Siraj Mohd. ors. S.B.CR. APPEAL NO.226 OF 1997 UNDER SECTION 378(I)(III) CR.P.C. AGAINST THE JUDGMENT DT. 22.9.1995. DATE OF JUDGMENT ::: July 17, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. B.K.Sharma, PP, for the State. Mr. P.R.S. Rajawat, for the accused respondents. BY THE COURT Challenge in this appeal is to the judgment dated 22nd September, 1995 whereby the accused respondents Kachhu @ Siraj Mohd., Jagga @ Jagdish and Purilal have been acquitted by the Sessions Judge, Jhalawar in the offence under Section 8 read with Sec. 21 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “Act, 1985”). 2. The prosecution story is woven like this: That on 11th February 1994 PW/15 Shri Ram Singh was posted as Station House Officer at Police Station, Jhalara-Patan District Bundi. At about 2.15 PM he obtained an information from his informer that the accused persons Kachhu and Jagga Chamar were staying in the house of Puri Lal since 10th February, 1994 who were in possession of sufficient quantity of smack and they 2 had been preparing small packets thereof for sell. Shri Ram Singh entered this information in Rojnamcha and took down this information in memo Ex.P/15. Having received this information, Shri Gordhan Lal Meena Addl.S.P. reached the Police Station. From there Addl.S.P. Shri Gordhan Lal Meena accompanied by other Police Officers reached Jarail and took the search of the house of Purilal where other accused persons Kachhu and Jagga were found preparing the small packets of smacks. During search, one empty steel thali was found lying in between Kachhu and Jagdish, and inside thali nine match-sticks were lying along with other articles being used for smoking smack. on search, the total quantity of smack weighing 33 grams was recovered from their possession. The Investigating Officer thereafter, during the individual search, recovered six small packets of smack weighing 2.500 grams from the possession of accused Kachhu, five small packets of smack weighing 1.800 grams from the pocket of trousers worn by Jagga @ Jagdish and four small packets of smack weighing 1.700 grams from the pocket of trousers, the accused Purilal was wearing. After undergoing the entire process of investigation, the police sent all the three accused persons namely Kachhu, Jagdish and Purilal for trial in the Court. 3. All the three accused persons were read over the charge for the offence under Section 8 read with Section 21 of the Act of 1985 who pleaded not guilty and claimed trial. In order to further its version, the prosecution has examined as many as 3 fifteen witnesses. The accused respondents in their explanation under Section 313 of Cr.P.C claimed innocence. On completion of trial the learned Sessions Judge, Jhalawar acquitted the accused respondents as indicated hereinabove. 4. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, learned counsel for the accused respondents and with their assistance, scanned the relevant material available on record. 5. The learned Public Prosecutor appearing for the State, while reiterating the grounds of appeal as enumerated in the Memo of Appeal, has contended that the compliance of the mandatory provisions of Section 50, 42 (1) (2) and 57 has been strictly made by the Investigating Officer and the lower court has erringly disbelieved the testimony of the witnesses. There is no reason to disbelieve the testimony of PW/1 Suraj Prakash, PW/9 Shafiq Mohd., PW/10 Chhote Lal, PW/11 Jai Prakash and PW/14 Shri Gordhan Lal Meena and from their evidence the recovery of the said contraband smack is found to be proved from their possession. Hence, the impugned judgment deserves to be set aside and accused respondents are liable to be convicted. 6. Per contra, the learned counsel for the accused respondents has simply submitted that the impugned judgment of the learned trial Court is perfectly just and cogent and does not suffer from 4 any infirmity, as such, the State appeal deserves to be dismissed and the impugned judgment of the learned trial Court should be confirmed. 7. Having reflected over the memo of appeal, and submissions of learned Public Prosecutor it is found that the learned trail court did not believe the testimony of the witnesses of the police department and held that the compliance of the Provisions of Sections 42, 50 and 57 of the Act 1985 has not been made by PW/14 Shri Gordhan Lal Meena, Addl.S.P. The learned trial Court has also held that the prosecution has miserably failed to establish the recovery of said smack from the possession of the accused respondents beyond reasonable doubt and thus acquitted them. 8. It is well settled that provisions of Section 50 of the Act, 1985 are mandatory in nature in the light of the judgments rendered by the Hon'ble Apex Court in the case 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 5 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 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/14 Shri Gordhan Lal Meena is found to have taken the search of all the three accused persons Kachchu, Jagga and Purilal and recovered the smack as detailed in recovery memo Ex.P/2. The consent letter Ex.P/1 reveals that an option to take 6 the search of their person and the search of the house was given vide this one letter Ex.P/1 only to all the three accused persons who all found to have merely put their signatures. No consent is found to have been taken and recorded on Ex.P/1. Hence, it is not proved from memo Ex.P/1 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, a copy of the information Vide Ex.P/15 is not found to have been sent to his immediate official superior within a period of 72 hours thereof. It is found that an information received by PW/14-Shri Gordhan Lal Meena, Addl.S.P. Was taken down in writing vide Ex.P/15. He was required to send a copy thereof to his immediate official superior within a period of 72 hours. PW/14 Shri Gordhan Lal Meena, Addl.S.P. has been subjected to a very lengthy cross examination on this score and he has deposed that he had sent the copy of the information to his superior officers which is ex.P/28. The learned trial Court has critically examined this aspect and has held that the carbon copy Ex.P/28 is undoubtedly not the copy of memo Ex.P/15. Ex.P/28, in fact, relates to the information with regard to the search, recovery, seizure and the arrest of the accused sent to 7 S.P.Jhalarwar. This information Ex.P/28 is found to be the compliance of the provisions of Section 57 of Act, 1985 but no copy of memo Ex.P/15 is found to have been sent by Shri Gordhan Lal Meen Additional S.P to his immediate official superior. 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. Similarly, in the case of Shri Juveda Khatun Vs. State of Karnataka 1991 Cr.Law Journal 1392, the provisions contained in Section 57 have been held to be mandatory in character and failure to comply with the mandatory provisions of Section 57 would result in the prejudice to the accused. But in the instant appeal, the compliance of this provision is found to have been made by Shri Gordhan Lal Meena as the copy of the information Ex.P/28 reached the office of S.P.Jhalarapatan on 12th February, 1994 at 3.00. 13. Apart from the police personnel, the prosecution has examined PW/1 Suraj Prakash, PW/6 Ram Lal, PW/7 Girdhari, PW/8 Mohan Lal and PW/13 Ramesh. PW/1 Suraj Prakash is the resident of Ditya Khedi. As per his statement, he went to Jarail to take some labourers. He saw the police officers there. There was a big crowd of the people of that village and they had surrounded the house of Purilal. This witness has been subjected to a very lengthy cross examination but his presence on the 8 spot is found to be doubtful as neither he belongs to village Jarail nor he has furnished the probable reply with regard to his presence at the place of occurrence. Rest of the three independent witnesses PW/6 Ram Lal, PW/7 Girdhari and PW/13 Ramesh have not supported the prosecution case and turned hostile. It is well settled that unless it is demonstrated that the police witnesses are not truthful, their evidence cannot be discarded but what is necessary is that the evidence of police witnesses who are interested, required close and cautious scrutiny and careful examination before accepting the same. 14. In the case of Mansha Ram Vs. State of Madhya Pradesh, 1994 (2) 346, the uncorroborated testimony of the police officials was not found convincing and could not be accepted. In the instant appeal also, the manner in which PW-4 Shri Gordhan Lal Meena, Additional S.P., has flouted the mandatory provision of Section 50, 42 and 57 of the Act of 1985 and the way in which other police witnesses have supported the statements of PW-14 Shri Gordhan Lal Meena, it is not safe to convict the accused persons on the basis of uncorroborated testimony of the police witnesses. In the instant appeal, not only that the compliance of the mandatory provisions of Sections 42, 50 and 57 of the Act, 1985 has not been made by the PW-14 Shri Gordhan Lal Meena, but the independent witnesses also have not supported his case. Duty is cast upon the prosecution to establish the guilt against the 9 accused persons beyond reasonable doubt but the prosecution has failed to fasten the guilt upon them. 15. Having pondered over the prosecution evidence in its entirety, the contradictions in material particulars and discrepancies in the statements of the witnesses is also found to have crept into which casts doubt about the veracity of the statements of the Police witnesses. 16. The learned Sessions Judge has critically examined the statements of prosecution witnesses in great details and has properly appreciated their evidence. The learned trial Court has rightly held that the compliance of the mandatory provisions of Section 42, 50 and 57 of the Act, 1985 has not been made by PW/14 Shri Gordhan Lal Meena Add.S.P. Which has unequivocally vitiated the trial of the case on hand. The impugned judgment of the trial Court is cogent and well merited and 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. 17. For these reasons, the State appeal being devoid of merits stands dismissed. The impugned judgment dated 22.9.1995, vide which the accused respondents have been acquitted in the offence under Section 8 read with Section 21 of 'Act 1985' is confirmed. (MAHESH BHAGWATI),J. PCG