Full Judgment
R.R. Yadav, J.
1. Instant appeal has been filed against the judgment dated 6-11-1995 passed by learned Special Judge, N. D. P. S. Act cases, Udaipur in Sessions Case No. 94/95 whereby he convicted the appellant for offence punishable under Sections 8/18 of the N. D. P. S. Act and sentenced him with ten years R. I. and a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo two years R. I.
2. The brief facts leading up to this appeal briefly stated are that on May 19th, 1995 at about 7.40 p.m. Parbat Singh, S. H. O., P. S. Hathi Pole, Udaipur received a credible information that the appellant possessed opium and would be available at Mohta Park. Having received the aforesaid credible information P. W. 5 Parbat Singh recorded aforesaid information in Rojnamchaat 7.40 p.m. and proceeded alongwith A. S. I. Vikram Singh P. W. 1, A. S. I. Shakti Singh P. W. 2, Head Constable Shyam Lai P. W. 6 and Constable Bhagwat Singh, Ravindra Singh, Bhanwarlal Gopal Lal and two motbirs Survir Singh P. W. 9 and Lai Singh P. W. 10.
3. At about 8.15 p.m. appellant was searched and 300 grams of opium was found in his possession. A sample of 20 grams was taken in a separate packet and was sealed and rest of the opium was also sealed separately.
3A. Thereafter FIR No. 17/95 Ex. P/7 was lodged and the appellant was arrested on the spot. Sample was sent for chemical examination to the F. S.L. Jaipur. The F.S.L. report is Ex.P/11 according to which the sample contained 1 : 61 per cent morphin.
4. The police after completion of investigation submitted the charge sheet before the learned Special Judge, N. D. P. S. Act cases at Udaipur who framed charges against the appellant under Sections 8/18 of the N. D. P. S. Act on 26-7-1995.
5. The accused appellant pleaded not guilty and claimed trial.
6. The prosecution in support of the case against accused appellant examined P. W. I Vikram Singh, P. W. 2 Shakti Singh, P. W. 3 Kesar Singh, P. W. 4 Richhpal Singh, P. W. 5 Parbat Singh, P. W. 6 Shyamial, P. W. 7 Suresh Kumar, P. W. 8 Ishwar Lal, P. W. 9 Survir Singh and P. W. 10 Lal Singh.
7. The statement of the accused was recorded under Section 313, Cr. P. C. by the learned Special Judge, N. D. P. S. Act cases, Udaipur and the appellant was stated that he has been falsely implicated in the case by the police. It is also staled by the accused appellant that he has nothing to do with the alleged recovered opium and claimed himself to be innocent. He did not examine any witness in support of his defence.
8. A close scrutiny of the original record summoned from the Court of learned Special Judge, N. D. P. S. Act Cases, Udaipur reveals that all the independent four witnesses viz. P. W. 3 Kesar Singh, P. W. 8 Ishwar Lal, P. W. 9 Survir Singh and P. W. 10 Lal Singh have been declared hostile by the prosecution agency.
9. I have heard the learned counsel for the appellant as well as learned Public Prosecutor at length and carefully gone through the material available on record.
10. Main thrust of the argument of the learned counsel for the appellant before me is that in this case the provisions of Section 50 of the N. D. P. S. Act have not been fully complied with. In support of his aforesaid argument the learned counsel for the appellant placed reliance on a decision rendered by learned Single Judge of this Court in the case of Badrilal v. State of Rajasthan, SB Cr. Appeal No. 156/93, decided on 31-1-1996. He also placed reliance on another decision given by learned Single Judge of this Court in the case of Veeru Lal v. State of Rajasthan, SB Cr. Appeal No. 344/93, decided on 22-9-1995.
11. Learned Public Prosecutor refuted the aforesaid argument of the learned counsel for the appellant and submitted before me that the evidence collected in a search in violation of Section 50 of the N. D. P. S. Act does not become inadmissible in evidence. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act; According to him though notice under Section 50 of the N. D. P. S. Act Ex. D/1 has not given option to the accused appellant to be searched by a Magistrate also but this is a mere irregularity and yet weight should be given to Ex. D/1. In support of his aforesaid argument the learned P. P. placed reliance on a decision rendered by the Apex Court in the case of State of H. P. v. Pirthi Chand reported in 1996 SCC (Cri) 210 : (1990 AIR SCW 422).
12. In rejoinder the learned counsel for the appellant argued that the case of State of H. P. (supra) relied upon by the learned P. P. is not applicable to the facts and circumstances of the present case as it relates to discharge of accused at the stage of taking cognizance of an offence on the ground of non-compliance of Section 50 of the N. D. P. S. Act and not of conviction of an accused.
13. Learned counsel for the appellant conceded that the notice 'given to the accused appellant under Section 50 of the N. D. P. S. Act Ex. D/1 asking from the accused for giving his option to be searched by the Gazetted Officer may be sufficient for framing of charge even if the expression 'Magistrate' is not mentioned in Ex. D/1 but it is not sufficient for recording a finding of guilt especially when two independent recovery witnesses i.e. PW 9 and PW 10 produced by the prosecution have been declared hostile by the prosecution. According to the learned counsel for the appellant in the light of the depositions of P. W. 9 and P. W. 10 the weight which is to be attached to the notice under Section 50 of the N. D. P. S. Act Ex. D/1 will go to the root of the credibility of prosecution story.
14. I have given my thoughtful consideration to the rival contentions raised at the Bar. In my considered opinion in the case on hand before finding the accused appellant to be in possession of contraband article under the N. D. P. S. Act the Court has to visualise the stringent provisions contemplated under the N. D. P.S. Act which renders an accused liable to be punished which can extend to 20 years R. I. and a fine of Rs. 2 lacs or more.
15. Looking to the stringency of the provisions under the N. D. P. S. Act a Court of justice should be very careful to see while dealing with offences under N. D. P. S. Act that it is established to its satisfaction that the accused has been informed by the officer concerned that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. I consider it necessary to emphasize that the accused must be made aware of this fact or protection granted by the statute under Section 50 of the N. D. P. S. Act and unless cogent evidence is produced to show that he was made aware of such right or protection there would be no question of presuming that the requirement of Section 50 of the N. D. P. S. Act were complied with.
16. In the present case a close scrutiny of the statement of P. W. 5 search officer leads towards an irresistible conclusion that he himself has admitted that he had not made a reference in notice given to the accused under Section 50 of the N. D. P. S. Act Ex. D/ 1 indicating that he has option to be searched by a Magistrate also. Thus the omission of expression 'Magistrate' in Ex. D/1 is admitted by P. W. 5 search officer himself. It is further admitted by P. W. 5 in his deposition that he did not make entry in the notice Ex. D/1 to the effect that accused appellant has option as of right to be searched by a Gazetted Officer or by a Magistrate. The statement of P. W. 5 was also recorded under Section 161, Cr. P. C. which is marked as Ex. D/3. In his statement under Section 161, Cr. P. C. no explanation has been given for the omission of the aforesaid facts in the notice under Section 50 of N. D. P. S. Act Ex. D/1. Ex. P/1 search memo and Ex. P/2 seizure memo also do not indicate about the full option given by P. W. 5 to the accused appellant under Section 50 of the N. D. P. S. Act.
17. From the aforesaid discussion it is crystal clear that the appellant was given only one option to be searched in presence of a Gazetted Officer. The option to be searched in presence of Magistrate was not given to the accused appellant. It is further evident from Ex. D/1 that the S. H. O. P. W. 5 has not written in notice Ex. D/1 given to the accused appellant under Section 50 of the N. D. P. S. Act that he has a statutory right to be searched by a Gazetted Officer or by a Magistrate.
18. For the reasons stated above in the present case the provisions of Section 50 of the N. D. P. S. Act have not been complied with. In my considered opinion non-compliance of mandatory provisions contemplated under Section 50 of the N. D. P. S. Act are fatal for the prosecution.
19. Learned Public Prosecutor submitted that under Section 50 of the N. D. P. S. Act the option given by P. W. 5 to the accused appellant to be searched by a Gazetted Officer is to be deemed to be sufficient compliance of Sec. 50 of the N. D. P. S. Act and it was not at all necessary to given option to the accused appellant to be searched by a Magistrate. According to learned P. P. the omission by search officer P. W. 5 in notice Ex. D/1 to the effect that accused appellant has option as of right to be searched by a Gazetted Officer or by a Magistrate is mere irregularity and it has no bearing on the merit of prosecution story.
20. The aforesaid argument of the learned P. P. is not acceptable to me in as much as it must be taken to be settled law that wherever in an enactment two expressions are used, it must be held that both the expressions are used purposely by the legislature. If the aforesaid argument of the learned P. P. is accepted then the expression 'Magistrate' used under Section 50 of the N. D. P. S. Act will become redundant which is not permissible under any school of rule of interpretation having penal consequences.
21. In my considered opinion having regard to the grave consequences and the stringent provisions of the N. D. P. S. Act visiting to the accused with severe punishment the legislature has enacted the safeguard contained under Section. 50 of the N. D. P. S. Act which has to be followed religiously by the search officer. To obviate any doubt as to the possession of the contraband article under the N. D. P. S. Act the accused is entitled to be searched in presence of a Gazetted Officer or a Magistrate. The provisions in this regard under Section 50 of the N. D. P. S. Act are mandatory and language thereof obliges an officer concerned to inform the person to be searched to the effect that he is entitled as of right about the search to be conducted in presence of a Gazetted Officer or a Magistrate.
22. In the present case from the deposition of P. W. 5 search officer as well as from Ex. D/1, Ex. P/1 and Ex. P/2 it is evident that there is flagrant violation of Section 50 of the N. D. P. S. Act. Two independent prosecution witnesses of recovery P. W. 9 and P. W. 10 have not supported the factum of recovery of opium from the possession of accused appellant. Both these witnesses have been declared hostile by the prosecution itself.
23. My aforesaid view is fortified from the ratio decidendi of two decisions rendered by two learned Single Judges of this Court sitting singly in the cases of Badrilal (supra) and Veerulal (supra).
24. The decision rendered by Apex Court in case of State of H. P. (1996 AIR SCW 422) (supra) relied upon by the learned P. P. is not applicable to the facts of this case. The case of State of H. P. (supra) relates discharge of accused at the stage of taking cognizance of an offence on the ground of non-compliance of Section 50 of the N. D. P. S. Act. The standard of proof for taking cognizance or framing charge is not the same for recording a finding of guilt and convicting an accused under the N. D. P. S. Act. If material on record is sufficient to raise presumption about the guilt of an accused then in such a situation cognizance can be taken and charge can be framed against an accused under N. D. P. S. Act but it is not sufficient to convict an accused under the said Act. Before recording a finding of guilt against an accused under N. D. P. S. Act the burden of proof of the prosecution shall not be deemed to have been discharged merely by proving that prosecution story may be true but prosecution is required to prove that it must be true. There is large gap between may be true and must be true which is to be travelled by prosecution agency by unimpeachable evidence. Mere suspicion howsoever grave it may be is not sufficient to convict an accused under N. D. P. S. Act while mere suspicion where a Court has reason to believe about the guilt of an accused is sufficient to take cognizance or frame charge against him under the said Act.
25. No points other than discussed above have been argued before me by the learned counsel for the parties.
For the reasons stated above the conviction of the accused appellant under N.D.P.S. Act and the sentence imposed upon him for the same is hereby set aside and the instant appeal is allowed. The appellant shall be released forthwith if not wanted in any other case.