Judgment:
N.K. Jain, J.
1. Both these appeals arise from the judgment dated 31-10-1995 passed by VIth Addl. Sessions Judge, Indore, in S.T. No. 426/1994, convicting accused appellants Dineshchandra s/o Shankarlal, Dineshchandra s/o Ramchandra and Yusuf s/o Fakhruddin, under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act') and sentencing them each to undergo 10 years' RI and pay fine Rs. 1.00 lac and in default of payment of fine to suffer additional RI for one year.
2. In short the case of the prosecution before the Trial Court was that on 31-5-1994, around 8.15 pm., on barrier No. 8, A.B. Road, Mhow, Ramesh Kumar Sharma, Inspector, Central Narcotics Bureau, Neemuch, accompanied by two panch witnesses and other staff members, stopped a passenger bus bearing Registration No. MP09 S 684 coming from Indore and going to Mumbai. Accused applicants who were sitting in the said bus on three different seats were taken out along with their bag and baggages and after compliance with the provisions of Section 50 of the NDPS Act, a search of their belongings was conducted. It is said that 2.250 Kilograms of Brown Sugar kept in four plastic bags was recovered from an attache carried by accused appellant Dineshchandra s/o Shankarlal. A sample of the contraband was drawn, seized and sealed duly. On analysis at Government Opium and Alkaloid Works, Neemuch, it was found to be an Opium derivative i.e., Diacetyl Morphine. The respondent-Department after other investigation charge-sheeted the accused persons for trial which ended into their conviction and sentence as aforesaid.
3. I have heard Mr. Vivek Singh, learned counsel for appellant Yusuf; Mr. Z.A. Khan, learned counsel for appellant Dinesh s/o Ramchandra; Mr. A. Salim, learned counsel for appellant Dineshchandra s/o Shankarlal; and Mr. G. Desai, learned counsel for respondent-Department.
4. So far as appellant Yusuf and Dineshchandra s/o Ramchandra arcconcerned, it may be stated at the outset that no narcotic or psychotropic substance was recovered either from their person or from their luggage. The only circumstance alleged or proved against them is that they were travelling with co-accused Dineshchandra s/o Shankarlal on a common ticket purchased by them jointly. I am afraid, this by itself was not sufficient to connect them with the contraband seized from co-accused Dineshchandra s/o Shankarlal. As per prosecution's own showing the contraband was seized from an attache carried by Dineshchandra s/o Shankarlal and lock of which was opened by Dineshchandra himself. No proper evidence is also led to show that all the three accused persons had purchased the said ticket jointly. Manoj Kumar (P.W. 1) examined in this behalf has not been able to give any particulars in this regard. In any case both these appellants Dineshchandra s/o Ramchandra and Yusuf were entitled to benefit of doubt and consequent acquittal.
5. This leaves me with the conviction of appellant Dineshchandra s/o Shankarlal. Prosecution examined Inspector Ramesh Kumar Sharma (P.W. 6), Inspector Jagdish Chandra Shrivastava (P.W. 7) and panch witness Narayan (P.W. 2) to depose of the said search and recovery from appellant Dineshchandra s/o Shankarlal. While Narayan turned hostile to the prosecution and did not support its case against the appellants, the other two witnesses Ramesh Kumar Sharma and Jagdish Chandra Shrivastava testified that this accused Dineshchandra s/o Shankarlal was found carrying an attache kept underneath his legs in the said bus, that he was taken off the bus along with his attache, carried to a nearby Naka and was searched. The lock of the attache was opened by the accused himself using a key kept in his pocket and the said contraband, the Brown Sugar weighing 2.250 Kgs, was seized and after drawing sample thereof it was packed and sealed duly.
6. Mr. A. Salim, learned counsel for appellant has assailed the aforesaid evidence mainly on two grounds : (1) that there was no compliance of Section 50 of the Act; and, (2) that the evidence is interested in nature and is not supported by any independent evidence.
As against it, Mr. G. Desai, learned counsel for respondent has supported the impugned conviction and submitted that it was a chance recovery (not based on any prior information) and thus there was no occasion for compliance of Section 50. It was further pointed out that it was not a search of person of the appellant and for this reason also Section 50 was not attracted.
7. Although Inspector Ramesh Kumar Sharma and Jagdish Chandra Shrivastava have deposed that the aforesaid recovery was made during a general checking but the facts as unfolded at the trial leave no manner of doubt that both these Inspectors were acting on some prior tip-off and it was not a mere chance recovery. They not only stopped a running bus but picked up only three out of various passengers travelling in the bus. Under the circumstance it requires no intelligence to say that the accused appellants were caught and searched on the basis of some prior information. In any case having suspected these three persons and reasons to believe that they are possessed of somenarcotic drug, the Officer conducting the search was obliged to adhere to the mandatory provision of Section 50 of the NDPS Act.
8. The contentions that it was not a search of person but of his luggage and, therefore, Section 50 was not attracted, also cannot be sustained. This issue stands concluded by a Larger Bench decision of the Supreme Court in the cases of Namdi Francis, 1998 SCC (Cr.) 1516. It was clarified 'that if a person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act'. Similar view was taken All Mustaffa, 1995 SCC (Cr.) 23, where the accused was found sitting with a bag in the first class waiting room of a railway station. Also see Kaniram, 2000 (3) Crimes 329 (MP).
9. Coming to the evidence on the point it is rather curious to read statement of Inspector Ramesh Kumar Sharma who in para 2 has clearly stated that after recovery of the contraband as aforesaid, the accused appellants were asked by him whether they want to be searched in presence of a Magistrate or a Gazetted Officer. It was further stated that the accused persons declined the said offer and three separate panchnamas (Exs. P-9 to P-11) were prepared to evidence the same. This is no compliance of Section 50. The offer for search before the Magistrate or Gazetted Officer should be made before the search and seizure. In the instant case, there was only empty formality made by the Inspector regarding compliance of Section 50 of the Act. Needless to say that compliance of Section 50 is mandatory in nature and non-compliance thereof has rendered the search illegal.
10. I feel inclined to accept the contention of Mr. Salim that the evidence of Ramesh Kumar Sharma and Jagdish Chandra Shrivastava inspired little or no confidence. While their statements are contradictory on many material points, they are not corroborated by any independent evidence. While panch witness Narayan (P. W. 2) has not supported the prosecution story, other panch witness has not been examined in evidence. No explanation is furnished for non-examination of the said material witness which not only gives rise to an adverse inference but also renders the evidence of two Inspectors unacceptable.
11. From the foregoing discussion it therefore, inevitably follows that the charge under Section 8/21 of the NDPS Act was not established against any of the appellants and their conviction and sentence are liable to be set aside.
12. These appeals thus succeed and are allowed and the impugned conviction and sentence are set aside. All the three appellants are acquitted of the said charge under Sections 8/21 of the NDPS Act. Appellant Dineshchandra s/o Shankarlal is in jail and he be set at liberty forthwith, if not required in any other case. Bail bonds of other two appellants shall stand discharged.
13. Criminal Appeals allowed.