L. Mohapatra, J.
1. This appeal is directed against the judgment and order of conviction passed by the learned Sessions Judge. Puri convicting the appellant Under Section 21 of the Narcotic Drugs and Psychotropic Substances Act and sentencing him to undergo imprisonment for 10 years and pay fine of rupees one lakh.
2. The case of the prosecution is that on 1.8.1999 at about 2.30 P.M. the Officer-in-Charge of Town Police Station. Puri received information that the appellant was selling drugs near Puri Singhasthan Kaibartya Sangha and on receipt of such information he entered the same in the Station Diary as Entry No. 10 on that date. Thereafter, the Officer-in-Charge passed the information to the Town Inspector, Puri. a Gazetted Officer and requested him to proceed to the spot to witness search and seizure along with other Police Officers. When the O.I.C. reached at the spot, he found the appellant surrounded by Police party on suspicion and the appellant disclosed his identity and was also identified by witnesses. Thereafter, the O.I.C. explained the appellant his intention to search him on suspicion of possession of narcotic drugs and on being given a choice, the appellant offered to be searched in presence of an Executive Magistrate or Gazetted Officer and also agreed to be searched in presence of the Town Inspector, Puri who is a Gazetted Officer. Thereafter, the personal search of the appellant was taken and one small polythene packet containing brown sugar was found kept in the right side waist concealed in a napkin. The appellant having failed to produce any authority supporting possession of narcotic drugs, the same was seized and on weighment, it was found to be 2 grams and 300 miligrams. Thereafter, the seizure of packet containing signature/ L.T.I. of the appellant and the witnesses to seizure was prepared and copy of the same was made over to the appellant. The brass adal used in sealing was left in zima of a witness and the appellant was arrested after explaining him the ground of arrest. Thereafter, on a written report of the O.I.C, the case was registered and investigated by S.I. of Police. The seized brown sugar was also sent for chemical examination and thereafter on completion of investigation, charge-sheet was submitted for commission of offence Under Section 21 of the N.D.P.S. Act.
3. In order to bring home the charge, the prosecution examined six witnesses. P.W. 1 is a witness to the occurrence. P.W.2 is the goldsmith who weighed the seized brown sugar. P.W.3, is the then A.S.I. of Police. Town Police Station who was also a witness to the seizure. P.W. 4, is the O.I.C., P.W.5, is the Town Inspector, Puri in whose presence recovery and seizure was made and P.W.6. is the S.I. of Police who investigated the case. The appellant in his defence denied the entire occurrence and stated that a false case has been initiated against him.
4. On consideration of the evidence adduced; on behalf of the prosecution and relying on the evidence of P.Ws. 4, 5 and 6, the learned Sessions Judge, found the appellant guilty of the charge and convicted him. So far as compliance of mandatory provision such as Sections 42, 50 and 55 of the Act are concerned the learned Sessions Judge categorically found that all the mandatory provisions had been complied with prior to and at the time of search and seizure.
5. Mrs. B. Dash, learned counsel appearing for the appellant challenged the findings basically on two grounds, (1) there was non-compliance of Section 42 of the Act which is mandatory in nature and such non-compliance is fatal to the prosecution case and (2) there is also non-compliance of Section 50 of the Act and therefore such mandatory provision having not been complied with prosecution case is not to be accepted. Learned counsel for the State on the other hand, referring to the evidence on record, submitted that there has been sufficient compliance of the aforesaid two provisions of the Act and therefore, there is no reason for this Court to interfere with the impugned judgment.
6. In order to decide the first ground of challenge, it is necessary to look into the evidence of P.Ws. 4. 5 and 6. P.W.4, is the O.I.C., of Puri Town Police Station who received the information and made the station diary entry. The said witness in his evidence has stated that on 1.8.1999 at about 2.30 P.M. he got reliable information that the appellant was standing under a banana tree near Puri Singhasthan Kaibartya Sangha at Mangaghat and was in possession of brown sugar. He also got information that the appellant was standing there for the purpose of selling brown sugar to customers. Thereafter, he informed the fact to the T.I., Puri who is a Gazetted Officer and requested him to proceed to the spot. He also, along with P.W.3, S.I. of Police and Constable P.K. Das left for the spot. On the way he requested independent witness P.W.I and one Lokanath Misra to accompany them. At the spot the appellant was detained and after arrival of T. I. he ascertained about the identity of the appellant and disclosed that he was suspecting the appellant to be in possession of brown sugar and expressed his intention to search him. On being asked by this witness, the appellant is said to have given his consent-in-writing to be searched in presence of T.I., Puri in absence of any Magistrate. This witness has also stated that after giving personal search, the appellant was searched and a polythene packet containing brown sugar was found and upon weighment without the polythene wrapper, the brown sugar was found to be 2 grams and 300 miligrams. Thereafter, he prepared the seizure list, sealed the seizure packet in a paper wrapper and complied with the other formalities of seizure. This witness has also stated that, witnesses and accused-appellant signed on the seizure list and the sealed packet whereafter the copy of the seizure list was handed over to the appellant. Ext. 6 is the notice of personal search on which the accused is supposed to have given his consent to have been searched by the T.I. who was examined as P.W.5. This witness (P.W.4) has not stated anything as to whether intimation was given to the superior officer as provided in Section 42 of the Act. P.W.5 is the T.I. and P.W.6 is the Investigating Officer. The Investigating Officer in his examination in Chief has stated that during investigation, he examined the witnesses, visited the spot and copy of the station diary entry No. 10 dated 1.8.99 regarding prior information of the narcotic drugs dealing by the appellant was sent by him to the S.P., Puri, Deputy S.P., Puri and T.I., Puri. This witness though has stated that such information was given to the S.P. and two other superior officers, he has not stated the date on which such information was given. Section 42 of Sub-section (2) of the Act provides that 'Where an Officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior.' Though P.W.6 in his evidence stated that he had given information about the station diary entry to his superiors, he has not stated as to whether the same was sent within seventy-two hours of receiving the information or not. The intimation given to the S.P. has also not produced before the Court and therefore, in absence of any evidence from the side of the prosecution that such information was given within seventytwo hours of receipt of the information about involvement of the appellant in pending drugs, it is difficult to accept the submission of the learned counsel for the State that there was compliance of Section 42 of the Act. It was the duty of the prosecution to state the date and time of receipt of information as well as the date of information given to the superior in order to prove compliance of Section 42 of the Act.
7. The apex Court in the case of 'Beckodan Abdul Rahiman v. State of Kerala reported in 2002 AIR SCW 1780' has held as follows :
'Keeping in the mind the grave consequences which are likely to follow on proof of possession of illicit articles under the Act, namely the shifting of the onus to the accused and severe punishment to which he becomes liable, the Legislature has enacted and provided certain safeguards in various provisions of the Act including Ss. 42 and 50 of the Act. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards.'
In this case as discussed earlier there is no evidence on record to show that the information said to be given to the superior officer was within 72 hours of the date and time of entry of the station diary made pursuant to reliable information received by the O.I.C. Since there is non-compliance of Section 42 of the Act. as held in the case of State of Punjab vrs. Balbir Singh reported in AIR 1994 Supreme Court 1872, the trial is vitiated.
8. So far as the second ground of attack is concerned, P.W.4 though has stated in his evidence in detail the manner in which the search and seizure was conducted, it is required to see the evidence of other witnesses. P.W. 1 is an independent witness to the seizure. This witness in his evidence has stated that he does not know if the Police seized anything in his presence . and he had given his signature on blank paper which has been exhibited as Ext. 1. Ext. 1 is the seizure list. He has also denied the suggestion that in his presence brown sugar was seized from the appellant. P.W.3 is the A.S.I. of Police attached to the Town P.S. He was one of the members of the raiding party. In his evidence he has nowhere stated that P.W.4 had given a choice to the appellant as to whether the appellant would like to be searched in presence of the Magistrate or a Gazetted Officer and that the appellant expressed his willingness to be searched in presence of a Gazetted Officer. This witness is completely silent about the compliance of Section 50 of the Act. P.W. 5 is the Gazetted Officer in whose presence search and seizure was made. Though in his evidence he has stated that in response to offer of P.W.4, the appellant expressed his willingness to be searched in his presence, in cross- examination he has stated that P.W.4 gave a written notice to the accused regarding offer for exercise of choice to be searched in presence of Magistrate or a Gazetted Officer and the answer of the accused was reduced to writing in that notice by P.W.4. He has also stated that at the spot, the accused told that he was unable to write or sign. P.W. 6 who is the I.O. has stated in cross-examination that in his presence the accused had not signed on any paper. He has also stated that the consent letter of the accused is in his handwriting. He has also stated that he scribed it on the dictation of the O.I.C. but he has not left any endorsement on the consent letter indicating the same. He had denied the suggestion that O.I.C. had scribed the consent letter. From the above evidence, the following discrepancies appear to be there in the evidence of the prosecution which are in my view very material for the purpose of proving search and seizure. P.W.4 in his deposition stated that on being asked by him, the accused gave his consent in writing to be searched in presence of T.I.. Puri in the absence of any Magistrate and Ext. 6 is the notice given by him on which the consent of the accused was recorded. P.W.5 in his evidence has stated that P.W.4 gave a notice in writing to the accused and the consent of the accused was written by P.W.4. This evidence of P.W.5 has been contradicted by P.W.6. This witness in his evidence has stated that he had scribed the Ext. 6 under the dictation of P.W.4. This witness has also stated that P.W.5 told him that the accused himself gave his consent in writing. This witness who is the I.O. in the case has also stated that'P.W.5 had not stated before him that P.W.4 had told the accused regarding identity of P.W.5 and that P.W.5 identified himself as T.I. of Puri, a gazetted officer. In this connection. Ext.6 which is said to be a consent given by the accused be looked into. On bare perusal of Ext. 6, it appears that the notice as well as the consent stated to have obtained from the accused are in the handwriting of the same person. At the bottom of the document the L.T.I. of the appellant had taken but there is no endorsement in the entire document to show that the L.T.I appearing on Ext. 6 is that of the appellant. Though the learned counsel for the State submits that the signature of the O.I.C. appears below the consent of the accused, there is no endorsement at all to show that the L.T.I. appearing on the document is that of the appellant. Nobody has also certified that the L.T.I. appearing in the document is that of the appellant. It. is therefore, difficult to accept the contention of the learned counsel for the State that the appellant had given a written consent to be searched in presence of P.W.5.
9. In this connection, reference may be made to the case of State of Punjab v. Balbir Singh reported in AIR 1994 Supreme Court 1872. The Apex Court in the aforesaid decision held that on prior information, the empowered officer or authorised officer while acting Under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a Magistrate as provided thereunder. The Apex Court further held that it is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires failure to take him to the gazetted officer or the Magistrate would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. The Apex Court further held that it is an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a Magistrate. Thus the provisions of Section 50 are mandatory. Similar view has also been taken by this Court in the case of Radha Krishna Singhari v. State reported in Vol. 79 (1995) CLT 904 as well as in the ease of Abhimanyu Jena v. State reported in Vol. 84 (1997) CLT 507. There being no dispute that the O.I.C., P.W.4 had prior intimation that the appellant was involved in selling brown sugar and was standing at a place for the purpose, there should have been compliance of Section 50 of the Act. From the evidence adduced on behalf of the prosecution, it is difficult to accept the claim of P.W.4 that there was compliance of Section 50 as discussed earlier. P.W.3 who is the A.S.I. of Police and was the member of the raiding party is completely silent about compliance of Section 50 of the Act. P. Ws. 1 and 2 in whose presence the seizure is claimed to have been made is not only silent about the compliance of Section 50 but also has completely denied any seizure in his presence. P.W.5 who is the T.I. though claimed that the consent was written by the informant-P.W.4, P.W.6 the I.O. in his evidence has stated that notice Ext. 6 was written by him on the dictation of the I.O. (P.w.4). On perusal of the document Ext. 6 a doubt arise as to whether there was compliance of Section 50 or not. As discussed earlier the thumb impression alleged to be made by the appellant appearing on Ext. 6 is not certified by any Officer to be that of the appellant. In view of the discussions made above, I hold that there is non-compliance of Section 50 of the Act also.
10. Since I have already held that there has been non-compliance of Section 42 as well as Section 50 of the Act which are mandatory in nature, the trial is vitiated as decided by the Apex Court in the case of State of Punjab v. Singh reported in AIR 1994 Supreme Court 1872 (supra).
11. Accordingly, the judgment and order of conviction passed- by the learned Sessions Judge is set aside and the appeal is allowed. If the appellant is not required in any other case, he may be set at liberty forthwith.