S.C. Jain, J.
(1) Facts giving rise to this appeal are that on 9.1.1988, at 7.30 a'm.,S.I. Ramesh Duct of New Delhi Railway Police Station along with Sho Jai Narain was on patrolling duty near the parcel gate Ajmeri Gate. Asi Budh Raj met them and he also joined them. In the meanwhile, a secret information was received that a boy who was wearing black pant and grey jarsy having charas for sale was sitting in the park near bus stand of route No. RL-7. On receipt of this information. S.I. organized a raiding party under the supervision of Sho and requested four or five persons to join the raiding party but none agreed. Ultimately, one public person Sat Pal resident of 1260 Sham Nagar, Rajpura, District Patiala (Punjab) who happened to pass through the parcel gate was stopped and asked to join the raiding party who readily agreed. At 7.30 a m. the raiding party, reached the park near the bus stand and nabbed the appellant Satish from the park. He was informed that he was suspected to be in possession of charas and if he so wanted his search could be taken before a gazetted officer or a magistrate, but he declined. The search of the accused resulted in recovery of a polythene packet containing charas from the right side peeked of his black pant. Charas was weighed and it was found to be 500 grams out of which 10 grams was taken as sample. Both the sample and remaining charas was converted 206 into two separate packet staled with the seal of JN. Cfsl form was filled in at the spot and the seal of Jn was affixed thereon and the seal was handed over to Sat Pal. A Ruka was sent, on the basis of which Fir was regisered. The accused was arrested and the simple and the remaining charas was deposited in Malkhana. During investigation the sample was s.ent to the Cfsl and on receipt of positive test report of charas, challan was submitted in the Court. The Addl. Sessions Judge found the accused guilty for an offence punishable under Section 20 of the Ndps Act and he convicted and sentenced the appellant to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh and in case- of default of payment of fine to further undergo rigorous imprisonment for two years.
(2) Aggrieved, this appeal has been filed by the appellant through the Supdt. Jail, as he has been in jail throughout. On the request of the appellant Mr. Anjana Gosain, advocate, was appointed as amices curiae to pursue the appeal filed by the appellant through jail.
(3) In this case, the prosecution besides relying upon the testimony of police officials, has relied upon the testimony of public witness Sat Pat. who proved the factum of recovery of charas from the appellant. Sat Pal, Public Witness 5, deposed that on 9.1.1988, he had gone to New Delhi Rly Station in order to board a train for Rajpura but when he was at the parcel gate of the Riy Station, three or four police officials met him and requested him to join raiding party because they had some information about some person being in possession of charas and he joined the raiding party and thereafter the appellant wss found. sitting on the Patri at the bus stand of route No. RL-7. The police officer nabbed him and they asked him whether he wanted to be searched in the presence of a gazetted officer or a magistrate. The petitioner declined and he was searched by the police. According to this witness, from the right side pocket of his pant charas was recovered which on weighment was found to be 500 grams out of which 10 grams was separated for sample. Both the sample and the remaining charas was sealed and the seal after use was given to him On the request of the Sho he stayed in Delhi so that he could return the seal on the next day. On the request of the App the witness was declared hostile and on his cross examination by the App he could not tell that initial on the seal which was affixed on the two packets. He also denied that in his previous statement to the police he had stated that the seal bearing the initial Jn was used. He also denied that any person from the public was present when he joined the raiding party or that the accused was apprehended on the pointing out of that person. In his cross-examination by the counsel for the appellant he stated that 5 to 7 persons were present at the bus stand when the appellant was apprehended but the police did not ask any one to join the raiding party at the time of taking the search According to him the S.I, was having the weighing scale and the weights in his bag. He had the weights ranging from ten grams to one kilo.
(4) Scrutinising the statement of this public witness Sat Pal, upon which prosecution has placed much reliance, I find that his presence on the spot at that time is most doubtful and he is not a reliable witness. This public witness was about to board a train for Rajpura, Punjab, where he was allegedly residing. Not only did this witness agree to miss the particular train but even agreed to postpone- his journey by two days in order to be able to return the seal to the SHO* 207 According to this witness he was about to catch a train for Rajpura, Punjab, when he was asked by the police officials to join the raiding party. This version stands contradicted by the statement of Head constable Charan Singh, PW4, who in his cross-examination stated that Sat Pal had unbearded a train and was going to his house when they asked him to join the raiding party. It is the prosecution version that the secret informer led the raiding parly near the spot where the appellant was allegedly sitting and he was apprehended on the pointing out by the informer, but according to Sat Pal no informer was with the police party, nor the accused was apprehended on the pointing out by that person. According to this witness, the appellant when he was apprehended was found sitting on the Patri at the bus stand, whereas according to Jai Narain Sho, the accused was present in the park.Sat Pal also gave wrong description of the clothes which the appellant was wearing at the time of apprehension. According to Sat Pal, the appellant was wearing a full sleeve shirt and no woolen cloth at the relevant time, whereas according to the Head constable Charan Singh. PW4 the appellant was wearing grey pullover and black pant. According to Sat Pal the I O. was having the weighing scale in his bag along with weighs, whereas the Sho stated that the weight scale was not with the I.O. but was sent for from the police station Regarding the receipt of secret information there is also contradiction in the statements of witnesses examined by the prosecution. Jai Narain, PW6. stated that the secret information was received by Ramesh Dutt, Head constable Charan Singh stated that the secret information was received by Jai Narain SHO. Sat Pal denied about the presence of any informer.
(5) In view of the contradictions in the statements of the witnesses examined by the prosecution it has to be seen whether the prosecution has succeeded in establishing the charge against the appellant beyond any reasonable doubt. Besides examining Sat Pal (Public Witness 5) prosecution has examined H.G. Chander Pal Singh (Public Witness 1), ASi Jamail Singh (Public Witness 2), HCV.S. Tyagi(PW3), Hc Charan Singh (Public Witness 4), Inspector Jai Narain (Public Witness 6) S.I Ramesh Dutt (Public Witness 7). PW4.. PW5, PW6. andPW7, are the witnesses of recovery, whereas the other witnesses are formal witnesses. While appreciating the evidence of a witness approach must be whether the evidence of the witness, read as a whole, appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of the evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defense may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases.
(6) Keeping in view the principles of evidence, the contradictions pointed 208 out by the counsel for the petitioner in the present case are very much material and they go to the root of the case. When all these discrepancies are considered jointly they add up to show the case of the prosecution as false.
(7) Compliance of Section 50 of the Ndps Act has also not been made in this case, as is apparent from the evidence on record. According to the statement of S.I. Ramesh Dutta (Public Witness 7) and Sho Jai Narain (Public Witness 6) an offer was made to the 'accused if he desired he could be searched in the presence of an ACP. It shows that the 1.0. and the Sho asked only whether the appellant wished to be searched in the presence of an ACP. This offer could no be said to be compliance of Section 50. Section 50 of the Ndps Act contemplates. that if the accused so desire, he could be taken before a gazetted officer or a magistrate for his search. No doubt, Acp is a gazetted officer but it does not mean that the accused be afforded a limited option of search before an ACP. The searching officer should have told the accused of his right of being searched before a gazetted officer or a magistrate and not limited to an Acp (Astt Commissioner of Police).
(8) Regarding the deposit of the case property, there is also a lacunae in the prosecution case. PW6 stated that the case property was deposited in the Malkhana at the Police Station of Delhi main and he returned to New Delhi Rly. station. The entry in the register shows that the case property was deposited at New Delhi Rly. police station. Thus, there are serious contradictions as to- where the case property was deposited. From whatever way we may look, the prosecution has not been able to substantiate the case against the present appellant warranting his conviction under Section 20 of the Ndps Act. Keeping in view the stringent punishment under the Act, interest of justice makes it incumbent upon the Court to ensure that before conviction is recorded no element of doubt creeps in.
(9) In these circumstances, it would not be safe to accept the evidence of the prosecution witness as trustworthy to hold that the appellant was found in possession of the contraband and thereforee the Addl Sessions Judge was in error in holding the appellant guilty of offence punishable under Section 20 of the Ndps Act and the sentence will have to be set aside and the appeal has to be allowed. The order of conviction and sentence is set aside. The appellant shall be released forthwith if not required in any other case. The fine, if recovered, be refunded to the appellant. Appeal allowed.