Criminal Appeal No. 727-MA of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 727-MA of 2007 DATE OF DECISION: 25.11.2008 *** State of Haryana ..APPELLANT VS. Daya Ram ..RESPONDENT CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Tarun Aggarwal, Sr. DAG Haryana Mr. Mukesh Yadav, Advocate for the respondent. *** ARVIND KUMAR, J. The State of Haryana has sought leave to file an appeal against the judgment dated 25.7.2007 passed by Special Judge, Rewari, by dint of which the trial court acquitted the respondent from the offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (for brevity, the Act). According to the prosecution allegations, on 31.10.2004 the police party headed by SI Charan Singh apprehended the respondent on account of suspicion, while they were present at Kalaka Chowk, Rewari in connection with the investigation of the case under Section 25 of the Arms Act. On search of the accused 500 grams of Charas wrapped in a polythene was recovered and during search suspecting some narcotic substance, an offer was given to him for his search in the presence of some Gazetted Officer. It is further alleged by the prosecution that since the respondent reposed confidence in the police party, therefore, SI Charan Singh conducted the search and out of the recovered Charas two samples of 10 grams each were separated and sealed. The remaining contraband was sealed and taken into police possession. The respondent was arrested and thereafter on completion of usual formalities of investigations, final report Criminal Appeal No. 727-MA of 2007 2 was filed in the Court against the respondent for the trial. After commitment of the challan, the trial court framed charges under Section 20 of the Act against the respondent. During the trial, the prosecution examined as many as eight official witnesses. When examined u/S 313 Cr.P.C., the case of the respondent was of total denial and false implication. The learned trial court, on appreciation of evidence led by the prosecution, held that the prosecution has failed to connect the accused with the alleged recovery and accordingly, as said above, acquitted him of the charge framed. I have heard learned counsel for the parties and have gone through the judgment of the trial court and this Court is in total agreement with the findings recorded therein. There has not been complete compliance of Section 50 of the Act ibid. The language of Section 50 of the Act obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. Finding a person to be in possession of article which are illicit under the provisions of NDPS Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to punishment which can extend to 20 years rigorous imprisonment and a fine of Rs.2 lacs or more. It is, therefore, necessary that the courts dealing with offences under the NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the concerned officer that he had a right to choose to be searched before a Gazetted officer or a Magistrate. In the instant case, the offer is partial so much so it is given for search in presence of a Gazetted Officer and not a Magistrate. Thus, the learned Trial Court following the dicta of the Hon'ble Supreme Court in the case of Vinod Vs. State of Maharashtra 2003(3) RCR (Criminal) 243 has rightly held that the offer being partial, it cannot be said that the provisions of Section 50 of the Act were fully complied with and thereby caused prejudice to the respondent-accused. Even a perusal of impugned judgment reveals that the recovery had already been affected from the respondent prior to serving of the Notice under Section 50 of the Criminal Appeal No. 727-MA of 2007 3 Act, which also runs contrary to the mandatory provisions of the Act. There is yet another staggering circumstance, which has shaken the very foundation of the prosecution case. The case of the prosecution hinges only upon the testimonies of official witnesses and there is no independent corroboration to it. Admittedly, recovery was affected from a public place, but no independent witness was joined at the time of alleged recovery and seizure. Non-joining of independent witnesses, despite availability, casts a shadow of doubt on the prosecution version and the manner in which the alleged recovery was effected from the respondent- accused. Moreover, in the instant case the factor taken into consideration is that the sample was taken on 31.10.2004 whereas it was sent to Forensic Science Laboratory, for its examination on 5.11.2004 i.e. after a delay of about 5 days, without there being any plausible explanation by the prosecution in this regard. In the case of Desraj Vs. State of Punjab, 2005 (3) RCR (Criminal) 334 , when there was delay in sending the samples to the Laboratory for analysis, it has been held that it has caused dent in the prosecution version. That apart, the trial court also noticed major discrepancies crept into statements of the recovery witnesses. The trial court adequately and rightly dealt with all these points before passing the order of acquittal. In view of the discussion made above, the impugned judgment is neither perverse nor there is any error of law. This Court is not inclined to grant the leave asked for and accordingly the application is dismissed. (ARVIND KUMAR) November 25,2008 JUDGE Jiten