1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER State of Rajasthan Vs. Kumari Vyasa Sharma SB CRIMINAL APPEAL NO.71/1998. Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 17th September, 2008. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. B.K. Sharma PP for the State. Mr. Sanjay Gangwar for the respondent. BY THE COURT: This criminal appeal under section 378 of the Code of Criminal Procedure as been filed against the judgment dated 8.8.1997 passed by the learned Sessions Judge, Ajmer whereby he has acquitted the accused-respondent for the offence under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (in short, the NDPS Act) in Sessions Case no.10/1996. Briefly stated the facts for the disposal of this case are that on a written report Ex.P-7 lodged by the Dy.S.P. (Rural), Ajmer in the police station Pushkar on 5.11.1996, a case under section 8/20 of the NDPS Act was registered. It was alleged in Ex.P-7 that an information was received on telephone by the SHO, Pushkar that a lady 21 years of age wearing red and yellow printed salwar suit was wandering in Pushkar and was having with her contraband material in plastic bags. This information was received 2 at 11.30 a.m. and thereafter a lady head constable was taken to the place regarding which the information of the accused was given. The police party apprehended the accused and disclosed their identity and also stated that they had an information that she was having contraband material with her. The accused was searched in the presence of SDM who was also intimated about the information. It was also alleged that the accused was informed that her search could be taken either by the Dy.S.P. or S.D.M. present at the spot. The accused gave consent that she may be searched before the SDM Smt. Roli Singh. Search was taken by a lady head constable of a plastic bag which she was holding in her left hand. On opening the plastic bag, charas was found. On weighing net weight of charas was found to be 210 gms. Two samples of 20 gms. each were taken at the spot. Samples were sealed and also the remaining charas 170 gms. was seized. On completion of investigation, charge-sheet under section 8/20 of the NDPS Act was filed against the accused-respondent and the matter came up for trial. The learned trial court on 16.1.1997 framed charge against the accused-respondent under section 8/20 of the NDPS Act to which the accused denied and claimed trial. In all seven witnesses were produced and some documents were tendered in evidence. After close of the prosecution evidence in the statement recorded under section 313 Cr.P.C., the accused stated that she had come to Pushkar for 'darshan' of Brahma temple. In the temple one person met her and asked to 3 accompany him. Subsequently, it was known that it was Budhram and she was apprehended by the police and brought at the police station and a false case has been lodged against her. It was also stated that no recovery was effected from her bag. The learned trial court after hearing both the sides found that PW-7 Kesar Singh was having an information about the contraband material with the accused and he recorded the information and the same was sent to S.P., Ajmer vide Ex.P.10. The learned trial court further found that PW-5 Inderjeet Singh has effected recovery and he did not make any search of the accused, therefore, it was not sufficient compliance of Section 42(1) of the NDPS Act. The learned trial court further found that in the instant case compliance of Section 50 of the NDPS Act has not been made in the manner in which it was required to be made. The learned trial court further found that the compliance of section 57 of the NDPS Act was not mandatory and its non-compliance was not fatal considering the entire facts and finding discrepancies in the prosecution evidence, acquitted the accused from the charge under section 8/20 of the NDPS Act vide judgment and order dated 8.8.1997. Hence, this appeal. It has been contended by the learned Public Prosecutor that the learned trial court has misread the evidence and the accused was searched before PW-4 Roli Singh who is an IAS officer and was at the relevant time SDM, therefore, it cannot be said that the compliance of section 50 was not made. It is also 4 contended that the learned trial court committed an illegality in considering non-compliance of section 42 of the NDPS Act. On the other hand, it has been contended that the learned trial court has properly appreciated the matter and recorded its finding on the basis of the material available on record, therefore, the order of acquittal passed by the learned trial court requires to be maintained. I have considered the submissions made before me. In the instant case, the incident is dated 5.11.1996. The accused was apprehended by the raiding party on some information. In this regard the relevant evidence brought on record requires to be discussed briefly at this place. PW-2 Budhraj, at the relevant time was an ASI, CID Zone Unit, Pushkar District Ajmer. He has stated that he received a secret information about the accused while he was at Varah ghat, Pushkar. He has also stated that mukhbir who gave information showed the accused from a little distance. He stated that at 11.25 a.m., he sent the information to the police station, Pushkar and it was directed to him by Kesar Singh, SHO, Pushkar to keep watch on the accused and after an hour Inderjeet Singh, Dy.S.P. along with Balraj Khonsla, two head constables and a constable came there. He has further stated that he pointed out to the Dy.S.P. where the accused was and he was apprehended by the raiding party. He has also stated that Dy.S.P. also instructed Kan Singh constable to arrange the independent witness but 5 nobody agreed to become independent witness and in the mean time, Smt. Roli Singh also came there. He has also stated Kishan Kanwar, lady head constable took search of the accused. On search of the plastic bag, a small plastic bag was found which was containing charas. The net weight of the charas was 210 gms. Two samples of 20 grm. each were taken from the recovered charas. The recovered charas was sealed in a separate packet. Samples were also sealed in separate packets. Recovery memo Ex.P-2 and site plan ex.P-3 were prepared. In the cross-examination, he states that he did not reduce the information received from mukhbir in writing. He has stated that when he received the information he was not at Varah ghat but was at a little distance from there. He has further stated that he was not aware as to what was written in the notice given to the accused in relation to search. Another witness is Kishan Kanwar. She has stated that Dy.S.P. asked the accused about her search to be taken either by the higher official or by Dy.S.P. and at that time SDM came there and accused gave her consent for her search. She has stated that she had signed recovery memo Ex.P-2 and memo of arrest of accused Ex.P-4. In the cross-examination she has admitted that in the notice it was written that the search was either to be taken by a higher official or by Dy.S.P. She has stated that the place where the accused was searched there was several houses and shops. Smt. Roli Singh has been examined as PW-4 in this case. She has stated that on 5.11.1996 on the way Inderjeet Singh 6 Dy.S.P. met her and told that he had an information about the lady having drugs with her. Thereafter, she along with Inderjeet Singh and Kesar Singh reached at the place where the already accused was with the police persons. She has stated that at that time Dy.S.P. asked about the search to be taken in the presence of her to which the accused agreed. She has also admitted his signatures on notice Ex.P-5 in relation to consent of the accused. On the search of bag of the accused some black liquid material was found which was about 200-250 gms. and two samples were taken. In the cross-examination, she has stated that no information was received by her at Ajmer till 1.30 p.m. she started from Ajmer. She also stated that Inderjeet singh and Kesar Singh met her on the day first time at about 2.00 p.m. PW-5 Inderjeet Singh has stated that he received information of the accused having some drugs by Kesar Singh SHO at about 11.30 a.m. while he was in his office on telephone. He stated that on receiving telephonic information, he started from the office and reached at bus stand, Pushkar. In the cross- examination, the witness was confronted with his police statement about the notice issued under section 50 of the NDPS Act. In relation to over-writings made on firds, the witness replied that over-writings were made at the time when firds were prepared. PW-6 Heera Singh in the capacity of head constable on 14.11.1996 took two sealed packets from head constable Laxman Singh and the same were delivered in FSL, Jaipur after 7 getting prepared a letter from S.P. office, Ajmer. PW-7 is Kesar Singh. He has stated that he in the capacity of SHO, Pushkar received a telephonic information which was given by Budhraj ASI in relation to accused having contraband material with her at 11.25 a.m. on 5.11.1996. On the basis of the above information, memo Ex.P-10 was prepared which bears his signatures. In detail, report was sent to S.P. vide Ex.P.11. He has stated that he along with Balraj Khosla ASI, Hameed Khan constable and other persons reached at bus stand, Pushkar and waited there for the Circle Officer. When the Circle Officer reached at the spot, he was informed about the information which was with him. He has stated that at spot search was taken. In the cross-examination, he has admitted that the material which was seized was with him for 8 days and thereafter it was deposited in malkhana. He has also stated that why delay was made in depositing the contraband material recovered in the malkhana, the witness said that he could not say why the contraband material recovered was deposited in malkhana after 8 days. A perusal of the statements of the witnesses and the memos prepared at the spot indicate that in this case compliance of section 50 of the NDPS Act has not been made properly because it appears from the cross-examination conducted from PW-5 Inderjeet Singh that at spot two notices were given namely Ex.P-5 and Ex.P-6. In his police statement Ex.D-4 and in the report lodged in the police Ex.P-7 there is no mention as to 8 whether any notice under section 50 of the NDPS Act was given to the accused. The witness was confronted with his police statements Ex.D-4 and D-7. It further appears from the statement of PW-2 Budhraj that the accused was simply asked about her consent. In the cross-examination about the contents of the notices, he stated that he could not say what was written there unless the notice is shown to him. Another witness, head constable Smt. Kishan Kanwar has stated that the Dy.S.P. asked the accused whether she was willing to give search before the Dy.S.P. or by some higher official and at that time SDM came there. In the statement PW-4 Smt. Roli Singh has stated that Dy.S.P. asked the accused when she reached at the spot as to whether she was willing to get her search taken in the presence of the SDM. The notice Ex.P-6 nowhere makes a mention of the option of the Magistrate. It further appears that there are material contradictions about the information received and given to the higher officials. Another important aspect of the matter is that net weight of sample was 20 gms. each and after taking sample of 20 gms. it was packed in a white cloth cover and sent to FSL. FSL report is Ex.P-18. The weight of sample marked 'A' along with polythene was 18 gms. Ex.P-18 FSL report further shows that sample was received on 14.11.1996. The samples were drawn on 5.11.1996 then how the weight of the sample reduced to 18 gms. when its net weight was 20 gms. This creates doubt about the 9 sample taken from the spot and sent to the FSL. How the weight could be 18 gms. along with polythene packet when it was sent 20 gms. to the FSL. Further important aspect of the matter is that in the cross-examination of PW-5 it has come that the material seized was deposited after a delay of 8 days in the malkhana and the same has reached after 9 days in the FSL and for 8 days delay PW-7 could not reply why it was kept with him. The learned trial court has considered the evidence in detail and found that the compliance of section 42 as well as section 50 of the NDPS Act has not been made in the manner prescribed under the Act. In view of the above discussed position of facts and finding that the weight of the sample has also been found less than what it was sent to FSL and was kept for 8 days by PW-5, then in the over all circumstances of the case, it cannot be said that the learned trial court has committed illegality in appreciating the evidence or the evidence has been misread. The contentions of the learned Public Prosecutor that the learned trial court committed illegality in appreciating the evidence and acquitting the accused requires to be rejected. In view of the fore-going discussion, there appears no merit in this appeal and the same is liable to be dismissed. In the result, the appeal stands dismissed. (S.P. PATHAK),J. 10