S.B.CR.APPEAL NO. 198/98 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT The State of Raj. Vs. Manzoor Alam S.B. Criminal Appeal No. 198/1998 S.B.CRIMINAL APPEAL UNDER SECTION 378 Cr.P.C. AGAINST THE JUDGMENT DATED 30.7.97 PASSED BY SHRI R.P. AUDICHYA, SPECIAL JUDGE NDPS ACT CASES AND ADDITIONAL SESSONS JUDGE NO. 2 KOTA IN SPECIAL SESSIONS CASE NO. 97/94 WHEREBY RESPONDENTS HAVE BEEN ACQUITTED. DATE : August 29, 2008. PRESENTS HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.BK Sharma, Public Prosecutor for the State. Mr.Sanjay Mehrishi, for the accused-respondent. BY THE COURT:- Reportable Challenge in this appeal is to the judgment dated 30 July, 1997 whereby, the Special Judge, N.D.P.S. Act Cases, (Additional Sessions Judge, No. 2,) Kota, acquitted the accused-respondent Manzoor Alam in the offence under Section 8 read with Section 21 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act 1985'). 2. The prosecution story as woven is like this:- That on 13 March, 1993 at about 4:45 am, S.H.O. Police station Bheemganjmandi, Kota PW-5 Durganarayan Purohit received an information that one person named Manzoor Alam was S.B.CR.APPEAL NO. 198/98 2 selling smack near a wine shop, situated in Bajariya. Having found the information reliable, Shri Durganarayan along with other police personnel reached the spot. Seeing the police, Manzoor Alam endeavoured to slip from there, but the police party nabbed him who identified himself to be Manzoor Alam S/o. of Makboor Alam. Durganarayan took his search and found one small pack in the right pocket of his trouser containing grey coloured powder i.e. smack which was 1 gm 250 ml.gm. in weight. S.H.O., Bheemganjmandi seized the said smack vide recovery memo Ex.P/1, arrested the accused vide memo Ex.P/2, prepared site plan Ex.P/3, lodged the FIR Ex.P/7, recorded the statements of witnesses, sent the sample of smack for chemical examination and after usual investigation sent the accused for trial to the Court. 3. The accused was indicted for the offence under Section 8 read with Section 21 of Act 1985, who pleaded not guilty and claimed trial. The prosecution has examined only 5 witnesses to prove its case. The accused in its S.B.CR.APPEAL NO. 198/98 3 explanation under Section 313 of Cr.P.C. Claimed innocence. On completion of trial the accused-respondent was acquitted of the charge as indicated hereinabove. 4. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, learned counsel for the accused- respondent and with their assistance scanned the relevant material available on record. 5. Learned Public Prosecutor has contended that from the evidence of PW-1 Khuman Singh, PW-2 Murlidhar and PW-5 Durganarayan Purohit, recovery of smack weighing 1 gm 250 mlgm is proved beyond reasonable doubt and no reason is found to disbelieve their testimony. So far as the compliance of the provisions of Sections 50 and 57 of the Act 1985 is concerned, the Investigating Officer has made the strict compliance thereof and the learned trial court has not appreciated the evidence of prosecution witnesses properly, as such the impugned judgment deserves to be set aside and the accused-respondent be convicted. 6. Per contra, the learned counsel for the accused-respondent has urged that the judgment of acquittal rendered by trial court S.B.CR.APPEAL NO. 198/98 4 is based upon sound reasoning and it calls for no intervention. However, assigning one more additional ground of acquittal, he has drawn my attention to the provisions of Section 50 of the Act 1985 and contended that PW-5 Durganarayan took the search of the accused on March 13, 1993 and Sub-section 5 of Section 50 has been incorporated in the Act 1985 on October 2, 2001. Thus on March 13, 1993, PW-5 Durganarayan was not empowered to take the search of the accused Manzoor Alam. Since the search of the accused was taken by the incompetent officer who was not empowered by the Act, it caused serious prejudice to the accused resulting in failure of justice and on this ground alone the accused deserves acquittal. He has cited the case of Anil & Ors. vs. Union of India & Ors. 2004(3) RCC 1483 in support thereof. 7. At this juncture I deem it appropriate to have a close look at Section 50 of the Act of 1985 which reads as under:- “S.50. Condition under which search of person shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. S.B.CR.APPEAL NO. 198/98 5 (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3)The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4)No female shall be searched by any one excepting a female. (5)When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6)After a search is conducted under sub- section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 8. Section 50 has been introduced with the obvious intent to avoid any harm to innocent persons and to avoid raising of allegation of planting or fabrication by prosecuting authorities. It mandates that if a person to be searched so requires, the officer who is about to search him under the provisions of sections 41 and 42 shall take such person S.B.CR.APPEAL NO. 198/98 6 without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The Gazetted Officer or the Magistrate before whom any such person is brought, shall, if he sees no reasonable ground for search, forthwith discharge the person. Requirement of section 50 may be summarised thus:- (i)It is mandatory for the officer conducting search and seizure to inform the suspect his right to be searched in presence of the Magistrate or Gazetted Officer. (ii)It is mandatory for the officer conducting search and seizure to follow the mandate of sub-section (3) and to inform the suspect that Gazetted Officer or the Magistrate, if sees no reasonable ground for search, shall discharge the person. 9. Now adverting to the notice Ex.D/1, recovery memo Ex.P/1 and information Ex.P/6, I find that the respondent was informed that he could be searched in the presence of either Magistrate or a Gazetted Officer and if he agreed he could be searched by the officer himself. The written notice Ex.D/1 bears the signature of the accused-respondent Manzoor Alam. Obviously, the accused-respondent was not informed that the Magistrate or Gazetted Officer, if sees no reasonable ground for search shall discharge the respondent. S.B.CR.APPEAL NO. 198/98 7 10. Secondly, prior to incorporation of sub section (5) in Section 50, the authorised officer himself could not search the suspect, but with effect from October 2, 2001 the authorised officer in an emergent situation may effect the search and seizure subject to the checks provided in sub section (6). These amended provisions are not applicable to the search and seizure effected on November 6, 1997 in the instant case. By effecting search and seizure by himself the Seizure Officer flouted the mandate of section 50. Looking to his convenience the officer made attempt to stretch the mandatory provisions and illegally gave additional option to effect search and seizure by himself. 11. In the case on hand, the accused- respondent was not fully informed of his right to be searched before the Magistrate or Gazetted Officer who in the absence of reasonable ground for search had power to discharge the respondent. Since the respondent was not fully made aware of his right and PW-5 Durganarayan himself played a role of a Gazetted Officer and Magistrate by effecting search and seizure, the respondent could not have been convicted. The accused had the right to choose his forum and if he was not S.B.CR.APPEAL NO. 198/98 8 completely informed of his right he was not expected to exercise his option. 12. Thirdly, the prosecution has not examined any independent witness in this case. All the three witnesses namely, PW-1 Khuman Singh, PW-2 Murlidhar and PW-5 Durganarayan are police officers and their statements have not been corroborated by any independent witness. Albeit, PW-2 Murlidhar, Head Constable was asked to procure two independent witnesses but he reported back that none was prepared to be an independent witness in this case. The manner in which the entire proceedings with regard to search, seizure and arrest of the accused has been executed, casts doubt about the credibility of the police officers. The entire proceedings with regard to search, seizure and arrest of the accused has been drawn by PW-5 Durganarayan in one instance and it does not seek any corroboration from any independent witness. Hence, in the absence of any corroborative evidence, it is not found safe to hold the accused-respondent guilty on the basis of the evidence of police witnesses only. The learned trial court has rightly appreciated the prosecution evidence and the finding of acquittal arrived at by him is found to be cogent and well merited. The impugned judgment S.B.CR.APPEAL NO. 198/98 9 does not suffer from any infirmity and I fully concur with it. 13. For these reasons, the State appeal being devoid of merits stands dismissed. The accused-respondent is on bail, he need not surrender in the Court and his bail bonds are ordered to be discharged. (MAHESH BHAGWATI, J.) Mak/ 23