A.S. Nehra, J.
1. This appeal is directed against the judgment dated 19-2-1987 passed by Additional Sessions Judge, Faridkot, by which Gurdev Singh, appellant, has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- (One Lakh) or in default of payment of fine to undergo further rigorous imprisonment for three years.
2. The prosecution story in brief is as under:-
On 12-1-1986 the police party headed by Darshan Singh AS1 was on patrol duty and they were going from Abohar road to the link road leading to village Kandu Khera. When the police party reached about one furlong from the main road, the accused was seen coming from the opposite side. On seeing the police party, he tried to retreat but he was apprehended on suspion and on his search opium weighing 10 Kgs, was recovered from the gunny bag which the accused was carrying on his head. 10 Grams of opium was separated as sample and it was sealed in a match-box with the seal 'DS'. The remaining opium was sealed in the tin Ex.Pl with the same seal. The case property was taken into possession vide memo Ex.PC. The ASI sent ruqa to the police Station and on the basis thereof formal first information report Ex.PE/1 was recorded by Anokh Singh ASI. On his return to the Police Station, the ASI deposited the case property intact with the MHC Gurdeep Singh. After completing the investigation of the case and on receipt of the report of the Chemical Examiner, the accused was challaned and sent up for trial to the court.
3. The prosecution to prove its case examined constable Mukhtiar Singh PW1, HC Gurdip Singh PW2, HC Gurmukh Singh PW3, ASI Darshan Singh PW4 and SI Raghbir Singh PW5. Affidavits Ex.PA and Ex.PB of Mukhtiar Singh constable and Gurdip Singh MHC respectively and the report of the Chemical Examiner Ex.PG were tendered into evidence.
4. In his statement under Section 313, Cr. PC, the accused denied the alleged recovery of opium and took the following plea :-
I am innocent. I was falsely implicated in this case. On 8-1 -1986 a case under Section 324, IPC was registered against me at P. S. Lambi for allegedly causing injuries to one Jita, brother of one Mehar Din Wrestler 'Rustme Hind' and since then I was in police custody and at the instance of complainant in that case 1 was falsely implicated in the present case. No opium was recovered from me.
In defence Sarwan Kumar, Ahlmad of the court of Sub Judge 1st Class, Gidderbaha, was examined as DW1 and certified copy of the order Ex.DA was produced.
5. Darshan Singh ASI PW4 stated that on 12-1 -1986, he along with Head Constable Gurmukh Singh and other constables was going for patrol duty on cycles on the G. T. Road, Dabwali-Abohar; that when they reached the Link Road leading to Village Kanda Khera and went for furlong ahead from the G. T. Road, the accused was seen coming from the opposite direction and that on noticing the police party, accused tried to retreat but he was apprehended on suspicion. He further deposed that after giving him his own search to the accused, he took the search of the accused and recovered 10 Kgs. of opium wrapped in a glazed paper from the gunny bag which the accused was carrying on his head; that out of the opium recovered, 10 grams of opium was separated as sample which was sealed in a match-box with the seal DS; that the remaining opium weighing about 9-900 grams was separately sealed in the tin Ex.Pl which was also sealed with the seal 'DS' and the case property was taken into possession vide memo Ex.PC. He further deposed that regarding the personal search of the accused, a separate memo Ex.PD was prepared and that ruqa Ex.PE was sent to the Police Station on the basis of which formal first information report Ex.PE/1 was recorded by ASI Anokh Singh. He further deposed that on his return to the Police Station, he deposited the case property with the MHC Gurdeep Singh. Gurmukh Singh PW3 has corroborated the statement of Darshan Singh ASI PW4. He is the attesting witness of the recovery memo Ex.PC. Sub Inspector Raghbir Singh PW5 deposed that he verified the investigation of the case and then challaned the accused, vide report under Section 173 of the Code of Criminal Procedure.
6. I have heard the learned counsel for the parties and perused the record of the case with their help. .
7. Learned counsel for the petitioner has contended that the provisions of Section 50 of the Act are mandatory in nature and non-compliance of the provisions of Section 50, ibid has vitiated the trial of the petitioner. In support of his argument, he has relied upon the latest judgment of the Apex Court in State of Punjab Versus. Balbir Singh 1994 (1) Crimes 753 : (AIR 1994 SC 1872) wherein it has been held as follows at page 1888 of AIR:-
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. 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. After being so informed whether such person opted for such a course or not would be a question of fact.
8. While dealing with other material aspects the apex court finally concluded as follows :-
(1) If a police officer without any prior information as contemplated under the provisions of the N.D.P.S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. PC and when such search is completed at that stage Section 50 of the N.D.P.S. Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered should inform the empowered officer who should thereafter proceed in accordance with the provisions of the N. D. P. S. Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the N. D. P. S. Act.
2. Under Section 41(1), only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise Only empowered officers or duly authorised officers as enumerated in Sections 41(2), and 42(1) can act under the provisions of the N. D. P. S. Act. If such arrest or search is made underthe provisions of the N. D. P. S. Act by any one other than such officers, the same would be illegal.
(2-B) Under Section 41(2), only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.
(2-C) Under Secton 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in wirting. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an 'empowered' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. PC fails to strictly comply with the provisions of Sections 100 and 165, Cr. PC. including the requ irement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. PC namely Sections 100 and 165, Cr. PC and if there is no strict compliance with the provisions of Cr. PC then such search would notper se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(6) The provisions of Section 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Section 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
9. In view of the above decision, I hold that the mandatory provisions of Section 50, of the Act have not been complied with by the prosecution thereby vitiating the trial. As a result, this appeal is allowed and the conviction and sentence of the appellant are set aside and he is acquitted of the charge. The appellant is ordered to be released forthwith.