Judgment:
R.L. Anand, J.
1. This is a criminal appeal filed by Amarjit Singh, and has been directed against the judgment and order dated 8.4.1999 passed by the Court of Addl. Sessions Judge. Ferozepur, who convicted the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lakhs; in default of payment of fine, the appellant was directed to undergo RI for one year.
2. The brief facts of the case are that on 14.1.1998 ASI Bachan Singh was on patrol duty along with ASI Lal Singh, HC Jaswinder Singh and other police officials. They were proceeding from village Kot Ise Khan to village Cheema in a Govt. Canter. When, at about 9.25 a.m. they reached near the canal bridge in the area of village Cheema, they noticed the accused coming from the opposite side carrying a white fertilizer bag on his head. The appellant on seeing the police party turned towards his left along the canal bank, however, on the basis of suspicion, he was apprehended. The I.O. told to the accused that he wanted to take the search of the bag and whether the appellant was interested to give the search before a Gazetted Officer or a Magistrate. The accused told to the I.O. that he would like to be searched in the presence of a Gazetted Officer, upon which a wireless message was sent to the DSP. Zira, but he was not found in his office and he was stated to be out of station in connection with V.V.I.P. duty. The I.O., then requested Harbans Singh, DSP, Headquarters, to reach at the spot, who reached at the spot at about 11 a.m. DSP Harbans Lal told to the accused about himself that he was a Gazetted Officer and was posted as DSP, Ferozepur Headquarters, and that the gunny bag in his possession was to be searched. The DSP, again, gave an option to the accused if he wanted to get the search conducted before some Magistrate. The accused, however, opted for his search before the DSP, regarding which a memo was prepared, which was thumb marked by the accused and attested by the DSP, ASI Lal Singh. PW-2 and ASI Bachan Singh. PW-3. Thereafter, the search of the fertilzer bag was conducted, which was found to contain poppy husk. The police tried to join independent witness on the spot but none was available. 250 Grams of poppy husk was separated by way of sample and the remaining poppy husk weighed 13 kgs. which was put in the same gunny bag, Ex. MO-1. The sample of the poppy husk and the remaining poppy husk in the fertilizer bag were separately sealed by the I.O. with his own seal bearing inscription 'BS'. He also prepared a specimen seal, Ex. P-2, of the seal. The DSP also sealed the sample, the fertilizer bag and Ex. P-2 with his own seal bearing inscription 'HL'. The entire case property was taken into possession vide recovery memo Ex. P-3, which was attested by the DSP, ASI Lal Singh and HC Jaswinder Singh. On further search, of the appellant a sum of Rs. 50 was recovered, which was also taken into possession. Ruqa, Ex. P-7, was sent to the police station for the registration of the case, on the basis of which formal FIR was recorded. Grounds of arrest were supplied to the accused before effecting his arrest regarding which Memo, Ex. P-5, was prepared. On return to the police station, the entire case property and the accusec were produced before the SHO, who re-sealed the case property with his own sea bearing inscription 'AS' and the case property was taken into custody vide memo Ex. P-10. The sample of poppy husk was sent to the office of the Assistant Chemica Examiner who vide his report, Ex. P-11, found the contents as poppy heads.
3. On the completion of the investigation of the case, the appellant was challaned in the Court of the trial Judge, who vide order dated 29.4.1998, charge-sheeted the appellant under Section 15 of the Act. The charge was read over and explained to the accused, who pleaded not guilty and claimed a trial.
4. In order to substantiate the charge, the prosecution examined DSP Harbans Lal, PW-1, ASI Lal Singh, PW-2 and ASI Bachan Singh, I.O. PW-3, besides Constable Dalbir Singh, PW-4, Inspector Anokh Singh, PW-5 and SI Dalbir Singh, PW-6. Finally the prosecution tendered into evidence the report of the Chemical Examiner.
5. On the closure of the prosecution evidence, the statement of the accused was recorded under Section 313, Cr. PC and all the incriminating circumstances, appearing in the prosecution evidence were put to the appellant. The appellant denied those circumstances and stated that he was innocent and has been falsely implicated in this case.
6. When called upon to enter defence, the appellant examined Constable Kewal Singh, DW-1, and closed and case.
7. The learned tiral Court, however, relied the story of the prosecution and rejected the defence version and for the reasons given in the judgment, convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal which I am disposing of with the assistance rendered by Shri R.S. Pains. Advocate, on behalf of the appellant and Shri S.S. Randhawa, DAG, Punjab, appearing on behalf of the State, and with their assistance have gone through the record of this case.
8. Two useful arguments were raised by the counsel for the appellant. The first contention of Mr. Bains was that there was non-compliance of Section 50 of the Act on the part of the I.O. when he did not record the statement of the accused at the first instance when he stated that he wanted to give the search in the presence of a Gazetted Officer. The counsel submitted that it is the case of the prosecution itself that earlier the accused was interrogated under Section 50 of the Act in order to find out whether he wanted to give the search in the presence of a Gazetted Officer or a Magistrate. The accused made a statement that he wanted to give the search before a Gazetted Officer. The I.O. did not at that time, record the statement of the accused before despatching a wireless message to call DSP, Zira. The second submission of the counsel for the appellant is that it is not believable that the police tried to associate an independent witness at the spot but none was available. The counsel submitted that the occurrence has taken place at about 9.30 a.m. The police party remained at the spot for sufficient long time. So much so, the police party even awaited the arrival of the DSP Harbans Lal. Still, no efforts were made to associate any independent witness so as to lend credence in the mind of the Court about the genuineness of the recovery. On these two above premises, Mr. Bains submitted that it can be safely concluded that the prosecution case is not proved beyond a reasonable doubt.
9. On the contrary the learned Counsel for the State submitted that hardly any prejudice has been caused to the appellant because the search has been conducted in the presence of a DSP, who arrived at the post. If the formal statement under Section 50 of the Act has not been recorded by the I.O. at the first instance, the accused is not going to be prejudiced because DSP Harbans Lal would be the last person to join hands with ASI Bachan Singh.
10. I am not in a position to accept the contentions raised by the counsel for the State. Section 50 is mandatory. It has been introduced into the Act for the benefit of the person to be searched. It deals with procedure of search. When a section deals with procedure and contemplates a particular set of procedure, it has to be adopted in that very manner and in no other manner. It is the case of the prosecution itself that the accused earlier made a statement before the I.O. that he wanted to be searched in the presence of a Gazetted Officer. In these circumstances, it was obligatory on the part of the I.O. to record the statement of the accused. The I.O. has not done so. He directly flashed a wireless message for DSP, Zira without complying with the procedure. If DSP, Zira had arrived at the spot, in that situation also, the statement of the accused was not recorded by the I.O. If DSP Harbans Lal, has turned up and enquired from the accused about his option to be searched before a Gazetted Officer or a Magistrate, it will not ratify the defect which has alrady taken place in the procedure. The police party remained at the spot for a sufficient time. The recovery is from a public place. Several persons must have passed by the side of the police party but nobody has been associated in the investigation, creating a clear doubt about the genuineness of the present recovery. In such like cases when the punishment is very stringent, it is obligatory on the part of the prosecution to prove the charge against the accused beyond reasonable doubt by leading cogent, reliable and satisfactory evidence, leave no chance for the Court to formulate an opinion that the recovery might be a planted one.
11. Resultantly, this Court is of the considered opinion that the prosecution has not been able to prove the charges beyond reasonable doubt.
12. In view of the above, I accept this appeal, set aside the judgment and order of the trial Court and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to the rules. The information regarding the acceptance of this appeal be sent to the Superintendent Central Jail, Ferozepur, so that the appellant should be set at large forthwith, if not required in any other case.