R.C. Deepak, J.
1. This is a criminal appeal against the judgment and order of the then Additional District and Sessions Judge, Maharajganj dated 25.1.2001 in Special Case No. 79 of 1994 convicting and sentencing the accused appellant under Section 8/20B(ii) N.D.P.S, Act to 10 Years Rigorous Imprisonment and a fine of Rs. 1 lac and in default of payment of fine he shall further undergo 3 years R.I.
2. The prosecution case briefly stated is that on 20.6.1990 the informant in the case Tribhuvan Singh Rathore, the then Station Officer of P.S. Nautanwa district Maharajganj was on patrol duty accompanied by Police Constable Yogendra Nath Shukla and Police Constable Sujauddin, at about 9:30 in the night, he received an information from an informer that accused Beni Prasad alongwith another having Charas were coming from Nepal and they would enter the territory of India through Tumohanua Ghat, if efforts were to be made, the Charas would be recovered. Relying upon this information he took public witnesses named Basir Ahmad and Dashrath from Kasba Nawtanwa and stepped by road leading to Dumohanua Ghat, ambushed in a bush situated on the northern side of the Christian School, at about 10.20 two persons were seen coming from the side of Nepal. As they came nearer they were directed to stop. They tried to run away but apprehended on spot, on being interrogated, both disclosed their identities as Beni Prasad and Deep Shanker Upadhyay, Both persons were searched. A leather bag containing 1 kg. Charas covered with a plastic and Rs. 93,300 was recovered from the possession of Beni Prasad while 1 kg. Charas was also recovered from a plastic bag from the possession of Deep Shanker Upadhyay besides Rs. 10 note.
3. The said recovered articles were taken into the custody of the police and the separate samples were taken from the said Charas and sealed. Regarding the money recovered, the abovenamed persons disclosed that they had gone to Nepal to purchase Charas, but could not get it in sufficient quantity. The recovery memo as Ext. Ka-1 was prepared on the spot in the light of the torch and the signatures of the arrested accused persons were obtained on the recovery memo, on the basis of this recovery memo the First Information Report marked as Ext. Ka-3 was registered against them at 11.20 p.m. at P.S. Nautanwa and an entry was also made in the General Diary Ext. Ka-2. The accused persons were arrested and they were told why they were arrested.
4. The investigation into the case was immediately entrusted to Sub-Inspector Gorakh Prasad who after completion of the investigation into the case, submitted charge-sheet against the accused persons. Ultimately separate charges were framed against each of them.
5. To prove its case the prosecution examined Tribhuvan Singh Rathore (P.W. 1), Suryanath Yadav (P.W. 2), Gorakh Prasad, Investigating Officer (P.W.3) and also filed certain documents. P.W. 1 and P.W. 2 are the witnesses of the fact whereas P.W. 3 is formal one. The accused pleaded not guilty. He has stated that he has been falsely implicated in the case on account of enmity. He has also examined Rajdev Mishra (DW-1) in support of the defence version that he was arrested from his house.
6. In trial Court convicted the appellant and awarded the sentence against which the present appeal has been filed, as already referred to above.
7. I have heard Mr. P.C. Srivastava, learned counsel for the accused-appellant, learned A.G.A. for the State and perused the entire record.
8. The charge framed against the accused appellant is reproduced as under: (Vernacular matter omitted)
9. A perusal of the above charge would show that there is no indication therein as to who caught hold of the accused appellant, who made the search on him, who recovered the articles (Charas) from his possession and who arrested him and who ultimately prepared the fard in respect of the articles alleged to have been recovered from him. The charges are indefinite, uncertain, vague and ambiguous. The evidence on a point/fact not clearly and specifically mentioned in a charge is useless and meaningless. No conviction and sentence can be passed on such vague and ambiguous charge, as reproduced above, in the instant case.
10. Even if it be assumed for a moment, but not admitted for the sake of argument that there is no vagueness or ambiguity in the charge framed against the accused appellant. The question is who caught hold of him and where the police constable Surya Nath Yadav (PW-2) has categorically stated that he had not caught hold of either of the accused persons. Tribhuvan Singh Rathore (PW-1) is unable to recollect whom he had caught hold. Therefore, there is no evidence not to speak of convincing and reliable evidence on the point of alleged catching hold of the accused appellant. The statement of Tribuvan Singh (PW-1) shows that there were two parties formed on the alleged place of occurrence and that both the members of the parties were on both the sides of the road running east-west towards Dumohanua Ghat but Surya Nath Yadav (PW-2) has categorically stated that all the eight persons including the informant had been together at one and the same place. Moreover, the site plan Ext. Ka-4 does not also support the statement of Tribuvan Singh Rathore (PW-1) on the above aspect of the case or on the point of the case where he concealed himself. This is so because he has stated that he alongwith other had concealed towards south of the Sonouli Road but there is nothing as such in the site plan Ext. Ka-4.
11. The mandatory provision of Section 50 of the NDPS Act. Section 50 reads as under:-
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.
2. If such registration 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.
12. The First Information Report is conspicuously silent on the point that the accused appellant had been informed of his right of search before a Gazetted Officer or Magistrate. The statement of Tribhuvan Singh(PW-1) and Surya Nath Yadav (PW-2) in this regard are after-thoughts and cannot be relied upon. The provision of the above Section is mandatory. The non-compliance with the same entitles the accused appellant to be acquitted. This is what has been emphatically argued by the learned counsel for the accused appellant. He has relied upon a case reported in 2002 (81) ECC 8 (SC) : (2002) 44 All Cri C 3077: (2002 Cri LJ 2529) (SC) : Beekodan Abdul Rahman v. State of Kerala wherein the Hon'ble Supreme Court has observed as under (Para 5):
'We are of the firm opinion that the provisions of Sub-section (2) of Section 4 of the Act and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted.'
13. The recovery fard is alleged to have been prepared in the light of a torch. There is not an iota of evidence to indicate whose torch it was and who had actually been holding it, putting it on throughout the alleged preparation of the recovery fard. Therefore, the statements of Tribhuvan Singh (PW-1) or Surya Nath Yadav (PW-2) stand neither here nor there on the point of the fard /recovery alleged to have been prepared at the alleged place of occurrence. Tribhuvan Singh (PW-1) has stated that he had weighed the Charas on the spot. His assertion is in the following words; 'GHATNASTHAL PAR MAAL KA TAUL MAINE SWAYAM KIYA THA'. But Surendra Nath Yadva (PW-2) has categorically contradicted the above statement of Tribhuvan Singh (PW-1) when he (Surya Nath Yadav) states that the recovered charas was not weighed at all on the spot 'Baat Baatkhare se charas taula nahi gaya tha.' Therefore, the statements of Tribhuvan Singh (PW-1) and Surya Nath Yadav (PW-2) cannot be relied upon.
14. The samples of the Charas alleged to have been recovered/seized from the possession of the appellant is alleged to have been taken and sealed on the alleged place of occurrence but surprisingly enough the sealed packets do not bear the signature of the accused appellant.
15. In view of what has been observed hitherto above, it is crystal clear that the prosecution case and the evidence suffers from various factual and legal infirmities, vagueness and ambiguity, therefore, the appeal should be allowed and is accordingly allowed. The judgment and order dated 25.1.2001 passed by the trial Court, referred to above, are set aside. The appellant is acquitted of the offence under Sections 8/20B(ii) NDPS Act for which he was convicted and sentenced by the trial Court. He is in jail. He shall be set at liberty forthwith. If not wanted in any other case.