Full Judgment
1. The Criminal Appeal is filed by the accused in S.C. No. 32 of 1994 on the file of the Additional Sessions Judge-cum-Special Judge, Vizianagaram who by judgment and order convicted the accused under Section 8(c) read with Section 20(b)(i) of N.D.P.S. Act of 1985 and sentenced him to suffer rigorous imprisonment for a period of five years.
2. The accused was charged that on 11-9-1994 at about 5 p.m. near the railway gate situated about two furlongs on the north-west of Kothavalasa railway gate was found carrying one plastic bag containing 4 Kgs. of Ganja without any licence and such possession of Ganja is an offence punishable under section 8(c) read with Section 20(b)(i) of N.D.P.S. Act.
3. The case of the prosecution in brief is that on 11-9-1994 at about 5.00 p.m. while the Excise S.I., examined as P.W. 2, along with the Excise Inspector examined as P.W. 4, P.W. 1 and their staff were patrolling near Kothavalasa Railway Gate, the accused was found carrying a plastic bag. On seeing them, the accused attempted to run away. P.W. 2 stopped the accused and examined the contents of the bag in the presence of P.Ws 1, 3 and 4 and found 4 Kgs. of Ganja. P.W. 2 arrested the accused, seized the bag M.O. 1 and took samples M.Os. 2 and 3 from M.O. 1 in the presence of P.Ws 1, 3 and 4 and drafted Ex. P. 1 mediators report. Basing on Ex. P. 1, P.W. 2 registered a crime. P.W. 2 sent the sample to the Analyst, who sent a report Ex. P. 4 confirming the sample as of Ganja. The accused was remanded and a case was booked against him under Section 8(c) read with Section 20(b)(i) of N.D.P.S. Act.
4. The prosecution, in order to sustain the case, examined four witnesses and marked Exh. P. 1 to P. 4 and M.Os. 1 to 3 in its behalf. After the prosecution evidence is closed, the accused was examined under Section 313 of Cr.P.C. and he pleaded not guilty. However, the trial Court found the accused guilty of committing the offence under Section 8(c) read with Section 20(b)(i) of N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of five years. Aggrieved by the conviction and sentence ordered, the present appeal is filed.
5. Smt. Parvati Tirumalesh, learned Counsel appearing on behalf of the appellant-accused contended that the mandatory requirement contemplated under section 50(1) of N.D.P.S. Act is not complied with by procuring the presence of a Gazetted Officer before the alleged Ganja is seized from the accused. The learned Counsel submitted that non-compliance of the requirement as contemplated under section 50(1) is fatal to the prosecution case and on that ground alone, the appellant-accused is entitled for acquittal. Reliance is also placed on a decision of the Supreme Court in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, 1995 SCC (1) Cri 564 : (1995 Cri LJ 2662).
6. The learned Public Prosecutor on the contrary sought to sustain the judgment of the Court below by contending that P.W. 3, a Gazetted Officer was present at the time of collecting samples M.Os. 2 and 3 and that itself is sufficient to hold that the seizure was effected in the presence of a Gazetted Officer and it amounts to sufficient compliance.
7. The evidence of P.W. 3 has been scrutinised by me carefully in the light of the submissions made by the learned Public Prosecutor to know as to whether the requirement contemplated under section 50(1) of the N.D.P.S. Act has been complied with or not. That is to say, whether the accused has been informed of his right to seek the presence of a Gazetted Officer or a Magistrate before seizing the narcotic drug from the body of the accused person and whether the presence of the Gazetted Officer or a Magistrate was secured and in their presence the seizure was effected even though there was no such request made by the accused person.
8. The learned Public Prosecutor has contended that P.W. 3 is a Gazetted Officer and was present while M.Os. 2 and 3 were prepared from the Ganja seized, for sending the same to Analyst. P.W. 3 who is the Gazetted Officer has deposed to the fact that the accused was not searched before him. The evidence of P.W. 3 further indicates that he did not notice the seizure of M.O. 1 Ganja from the accused. P.W. 2 deposed he did not inform the accused as to his right to be searched in the presence of a Gazetted Officer. He further deposed that the seizure of M.O. 1 from the person of the accused was not effected in the presence of a Gazetted Officer. To another suggestion, P.W. 3 deposed that he did not even inform the accused that he is a Gazetted Officer. In view of the categorical evidence of P.Ws. 2 and 3, I am inclined to hold that the requirement contemplated under sub-section (1) of Section 50 of the N.D.P.S. Act has not been complied with by requisitioning the presence of the Gazetted Officer or a Magistrate before effecting the seizure of the narcotic drug from the person of the accused. The evidence on this aspect being negative, I hold that failure on the part of the prosecution to comply with the requirement as provided under sub-section (1) of Section 50 of the said Act is fatal to the case of the prosecution which shall entitle the accused for acquittal. Accordingly, the conviction and sentence imposed by the trial Court on the accused is set aside. Consequently, the accused is set at liberty if not required in any other cause.
9. In the result, the Criminal Appeal is allowed.
10. Appeal allowed.