1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT Union of India Vs. Budhu Ram S.B.Criminal Appeal No. 530/1997. DATE OF JUDGMENT :- July 17, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI None present, for the appellant. Mr.Kartar Singh Faujdar, for respondent. BY THE COURT Challenge in this appeal is to the judgment dated 28th July, 1997 whereby the Special Judge, N.D.P.S., Act cases (Sessions Judge, Kota) did not find the accused respondent Budha Ram guilty in the offence under Section 8/18 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “Act, 1985”) and thus acquitted him. 2. The prosecution story succinctly runs as under: That PW/7 Nand Lal Rai, Inspector of Narcotics Department, Kota is alleged to have inspected a Roadways Bus No. MP-07-1850 on 8th March, 1992 at 2.00 P.M., near Khanna Agricultural Farm situated at Kota-Bundi road. The bus was plying from Ujjan to Puskar. It 2 is further alleged that inside the bus, one person was sitting on Seat No.35 in a suspicious state. He was carrying a bag in his lap. On asking, he identified himself to be Budha Ram S/o Narain. It is further alleged that when the bag was searched, a black elastic substance wrapped in a shawl was found therein. Having tasted and smelt the substance, it was found to be opium. It was one Kg. in weight out of which two samples each of 24 Grams were taken and duly sealed. Having prepared the inspection report Ex.P/1, he arrested the accused vide memo Ex.P/2 and drew other necessary memos. Shri Nand Lal Rai lodged the report Ex.P/7 whereupon investigation commenced. After completion of investigation, the Narcotics Department filed challan against the accused. 3. The learned trial Court framed a charge in the offence under Section 8/18 of the `Act, 1985' and read over the same to the accused who pleaded not guilty and claimed trial. The prosecution has examined seven witnesses to prove its case. The accused claimed innocence and submitted that the search officer did not give him any option to this effect as to whether he wanted to give his search to any gazetted officer or to the Inspector. He has further claimed that he has been falsely implicated in 3 this case. On completion of trial, the accused respondent was not found guilty and acquitted as indicated hereinabove. 4. None has appeared on behalf of Union of India. On 7.5.2008 also when the case was called out, none appeared on behalf of the appellant. Since the instant appeal has been pending since 5.11.1997, heard the arguments advanced by learned counsel for the accused respondent and with his assistance, I have scanned the prosecution evidence and relevant material available on record. 5. Having reflected over the memo of appeal, it is found that the appellant -Union of India has assailed the impugned judgment of the lower court on the following grounds:- (i) That the learned trial Court has erroneously held that the compliance of mandatory provisions of Section 50 of Act, 1985 was not made by PW/7 Nand Lal Rai whereas the compliance of this mandatory provision is fully proved from the seizure memo Ex.P/1 and F.I.R., Ex. P/7. (ii) That Section 50 of the Act, 1985 is not mandatory in nature and it nowhere requires to give any option in writing to the accused. (iii) That in the instant case, the accused 4 was travelling in the bus and he was found having a bag in his lap and since the accused was searched and arrested in normal course of investigation, in view of all these circumstances, it was not possible to comply with the provisions of Section 50 of Act, 1985 and thus the provisions of Section 50 did not attract. The prosecution has relied upon the case of State of Punjab Vs. Balveer, AIR 1994 SC 1872. (iv) The seals on the packets were found intact and tallied with fascimile of seal forwarded to Neemach Opium Factory. (v) The learned trial Court has not properly appreciated the evidence of the prosecution witnesses and did not consider the evidence of PW/7 Nand Lal Rai by which the alleged offence against the accused stands proved beyond reasonable doubt. 6. On the other hand, the learned counsel for the respondent has urged that the judgment of the lower Court is just and proper. There is no infirmity in the finding recorded by the trial Court and the impugned judgment does not require interference by this Court, hence the appeal deserves to be dismissed. 7. It is well settled that provisions of Section 50 of the Act, 1985 are mandatory in nature. PW/7 Nand Lal Rai, who is the Investigating Officer of this case, has clearly stated that the accused was sitting on Seat 5 No.35 in a suspicious condition and carrying one bag. He asked the accused verbally as to whether he wanted to be taken search from a gazetted officer or a Magistrate, thereupon he declined and stated that he was prepared to give his search to the Inspector only. When the accused agreed to give search only to him, then only he took the search. 8. 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 could take him to the gazetted officer or the Magistrate as the case may be. 9. In the instant case, the Investigating Officer is not found to have made any such requisition. The Investigating Officer did not 6 prepare any report to this effect that an option was given to the 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. 10. So far as the recovery of said 1 Kg. Opium from the possession of accused is concerned, both the driver and the conductor of the bus have not been made the witnesses in this case. Out of the two independent witnesses, the prosecution has not examined one witness Kanahiya Lal and the second witness PW/4 Shri Prem Singh has not supported the prosecution story and he has been declared hostile. At the first instance, the Driver or the conductor of the bus have not been made the witnesses and the persons who have been made witnesses do not support the prosecution case, hence in view of these circumstances, the recovery of said opium from the possession of accused becomes doubtful. Moreso, the specimen seal on separate paper was also not sent for F.S.L. 11. In the case of Bala Ram Vs. State of Raj., 1993 (1) WLN 257, this Court has held that: 7 “No evidence that specimen seal on separate paper was sent to F.S.L., Recovery witnesses declared hostile. Non-compliance of mandatory provisions, the prosecution has not proved the case beyond reasonable doubt and conviction is set aside.” 12. In the instant case, one independent witness Kanahiya Lal has not been examined and the other independent witness PW/4 Prem Singh has not supported the prosecution case and has turned hostile. The Investigating Officer did not send the specimen seal also on a separate paper along with F.S.L. letter Ex.P/8; the compliance of mandatory provisions of Section 50 of Act, 1985 has also not been made. Hence, in view of these infirmities, the finding of acquittal arrived at by the learned trial Court is found to be cogent, just and proper. The learned trial Court has critically examined the evidence of prosecution witnesses and discussed the case law threadbare. I do not find any infirmity in the impugned judgment. The judgment is well merited with which I fully concur and in my firm view, the impugned judgment does not call for any intervention. 13. For these reasons, the instant appeal filed by Union of India being devoid of merits stands dismissed. (MAHESH BHAGWATI),J /gandhi