Judgment:
ORDER
Shambhoo Singh, J.
1. This appeal is directed by the State against the judgment dated 1.2.1991 passed by llnd A.S.J. Mandsaur in S.T. No. 194/90 whereby the respondents were acquitted of the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short 'the Act').
2. The prosecution case, in brief, is that on 18.12.1989 at village Titrod R.S. Jhala S.H.O. P.S. Sitamau who was patroling, received information at about 11.15 p.m. that two persons would be transporting opium on motor-cycle from Rahimgarh to Suwasra. He prepared information Panchnama Ex. P. 15 and reached Basai Tiraha (junction of three roads) Sub-Inspector R.L. Mukati (P.W. 3) and constables Manoharlal, Madholal & Shambulal (P.W. 2) also came there. The police party lied in wait near the bridge of Chambal river. At about 5.45 a.m. the respondents came on motor-cycle from Rahimgarh. The police officer gave indication to stop the motor-cycle but Nathulal who was driving the vehicle, did not stop. R.S. Jhala followed by his motor-cycle and near bridge the respondent's motor-cycle struck against the toll tax barrier and Nathulal fell down and was caught. Pillion rider Heeralal, who was having a bag in his hand, threw the bag and ran away but he was apprehended. S.H.O. R.S. Jhala informed the respondents vide memo Ex. P. 7 about their right of being searched in presence of Magistrate or gazetted officer and thereafter search was taken. From the possession of Nathulal, from his motor-cycle's dockey (M.P.O. 4017) 10 kg. & 60 gms. of opium and from the bag of the respondent Heeralal 9.750 gms. of opium was seized vide seizure memo Ex. P. 2 and P. 1 respectively. R.S. Jhala weighed the seized article and drew two samples from each bag of opium and prepared panchnama Ex. P. 2. Thereafter the seized opium and the samples were sent to F.S.L. Sagar. The chemical examiner vide his report Ex. P. 19 opined that the samples contained opium. After completion of investigation, challan was filed. The respondents pleaded not guilty and false implication. The learned trial Judge acquitted the respondents. Hence, this appeal by the State.
3. Shri G. Desai Learned Dy. A.G. for the appellant State, submitted that the learned trial Judge committed error in disbelieving the prosecution evidence. He contended that the learned trial Judge also fell in error in holding that there was no compliance of Section 50 of the Act. On the other hand, Shri Manish Manana, LC for the respondents, supported the impugned judgment and submitted that the independent witnesses did not support the version of R.S. Jhala and R.M. Mukati, A.S.I. clearly admitted in cross-examination that the respondents were not informed that they had a right to be searched in presence of a Magistrate or a gazetted officer. He further submitted that this is not a fit case where in appeal against acquittal interference can be made.
4. I considered the arguments advanced by learned Counsel for both sides and perused the record. S.H.O. Sitamau R.S. Jhala (P.W. 6) deposed that on receiving information on 18.12.1989 from an informant that two persons were going to bring opium on motor-cycle from Rahimgarh, he prepared Ex. P. 15 and thereafter he came on Basai Tiraha. He stated that after a while A.S.I. R.M. Mukati, constable Manoharlal & Madhavlal also came there and they lied there in wait for the respondents. He testified that at about 6.45 a.m. in the morning on 19.12.1998 the respondents came on motor-cycle from the side of Rahimgarh. He gave indication to stop the motor-cycle but the motor-cyclist did not stop. He followed them and after going a while the motor-cycle struck against toll tax post barrier and the respondents fell down. Nathulal was apprehended on the spot. Heeralal tried to run away, but he too was caught. He stated in para 17 of his deposition that he gave notice Ex. P. 7 under Section 50 of the Act. The respondents put their signatures on this memo. He did not state that he informed the respondents that they had a right to be searched before a Magistrate or a gazetted officer. The independent witnesses Hari Narayan PW1 and Shambhulal (P.W. 2) also did not state that the respondents were informed of their right. R.M. Mukati, A.S.I. (P.W. 3) clearly admitted in cross-examination in paragraph 28 of his deposition that the respondents were not informed that they had a right to be searched before a Magistrate or a gazetted officer. It is thus, clearly proved that the compliance of Section 50 of the Act was not made. It is true that panchnama Ex. P. 7 states that the respondents were informed of their right to be searched before Magistrate or gazetted officer but there is no evidence that it was read over to the respondents. It appears that this panchnama was prepared later on and the signatures of the respondents were taken thereon None of the witnesses stated that R.S. Jhala informed the respondents that they had a right of being searched before Magistrate or gazetted officer. Thus, there was violation of Section 50 of the Act and the trial vitiated. State of Punjab v. Balbir Singh : 1994CriLJ3702 .
5. Shri Desai, learned Dy. A.G. argued that the respondents Heeralal had thrown the bag and ran away from the spot therefore, the question of compliance of Section 50 of the Act did not arise. The argument is not acceptable. A.S.I. R.L. Mukati (P.W. 3) admitted in para 25 of his deposition that Heeralal threw the bag and ran away from the spot. But he was apprehended and was made to lift the bag (which he had thrown). It is thus, clear that before search, the bag was in the hands of respondent Heeralal. As the bag was on the person of Heeralal, therefore, compliance of Section 50 of the Act was essential. The motor-cycle was in possession of Nathulal and it was searched in his presence. Therefore the compliance of the provisions of Section 50 were essential. State of Punjab v. Jasbir Singh and Ors. : 1996(54)ECC79 Ali Mustaffa Abdul Rahman Moosa v. State of Kerala 1994 (8) SCC 569, Namdi Francis Nwazor v. Union of India and Anr. : (1998)8SCC534 , Mohinder Kumar v. The State Panaji Goa : 1995CriLJ2074 .
6. There is also non-compliance of Section 42 of the Act. R.S. Jhala deposed that he received the information from the informant at 11 p.m. in the night and prepared panchnama Ex. P. 15 but he stated that he did not send this information to his superior as he had no means to send the information to his superior but from the statement of A.S.I. Mukati it is clear that police party had two motor-cycles with them and information could be sent to the superior officer by one motor-cycle. The seizure was made about 6.45 in the morning and, therefore, S.H.O. R.S. Jhala had. ample time to comply with the provisions of Section 42 of the Act. The non-compliance of Section 42 makes the seizure suspect. The defence of the respondents is that the police found the contraband articles lying on the ground as unclaimed property and when respondents passed from that place they were apprehended and beaten badly.
7. The learned trial Judge found the prosecution witnesses not reliable. In appeal against acquittal, the view taken by the trial Judge has to be accepted as he had an added advantage of watching the demeanour of prosecution witnesses which the appellate Court did not have. Even if two views are possible, the view adopted by the trial Court has to be accepted. The learned trial Judge discussed the prosecution evidence in detail and assigned reasons for not putting reliance on the testimony of the prosecution witnesses. The finding recorded by the trial Court is not perverse. It has not left any material from consideration. As held above, the prosecution failed to prove the compliance of Section 50 of the Act, therefore, the trial is vitiated. In my opinion, the respondents have rightly been acquitted of the offence under Section 8/18 of the Act.
8. This appeal is without substance and is hereby dismissed. The bail-bonds of the respondents are cancelled.
Appeal dismissed.