S C Jain, J.:— Raju Parshad Gupta, hereinafter referred to as the appellant, was convicted by the Addl. Sessions Judge for an offence punishable under section 20 of the ndps act for having in his possession 18 kgs charas without any licence or permit and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh and in default of payment of fine to further undergo rigorous imprisonment for one year by his judgment dated 31.3.1990

2. In brief the prosecution version is that on 6 6.88, at 2.20 p.m a secret information was received at police station New Delhi Rly Station that a person was sitting near the latrine at the end of platform 10-11 at New Delhi Railway Station and he was in possession of charas. This information was reduced into writing in daily diary at SI No. 15-A (Ex. PW8.A) and it was passed on to Jai Narain SHO of police station New Delhi Railway Station At the instance of the SHO a raiding party was arranged by SI Ram Singh which included SI Rishi Pal Rana, HC Abhimanyu constable Darshan Singh, ASI Prem Nath Gupta and a witness from public Gopi Ram Jain. At 2.45 p.m, on the pointing of the informer the appellant who was sitting on a bedding, was apprehended at platform 10-11 near the latrine at New Delhi Railway Station. The secret information was conveyed to him and he was asked whether he would like to be searched before a gazetted officer or a megistrate but he declined to be searched in that way Head Constable Abhimanyu was instructed to inform Shri Ganga Sarup ACP Railway, and to request him to come to the spot The ACP Ganga Sarup reached the spot at 3.30 p.m and he interrogated the accused and satisfied himself that the accused had in fact charas with him. The olive green coloured holdall, which the accused was having was opened and on checking was found containing a bag of similar colour wrapped in a blanket. The bag was tied with a ‘Sutli’ and on opening it was found containing charas in the shape of ‘Dallies’ wrapped in ‘Momi’ papers. There were four packets in all. On weighment the charas was found to be 18 kg in all. 50 grams was separated from each of the four packets as samples and another set of 50 grams was taken from each packet to determine the purity. The samples and the residue were put in Pulandas and sealed with the seal of ‘JN’ belonging to the SHO Jai Narain There were 12 Pulandss in all. These pulandas as also the hold all, bag and blanket were seized. The case property and the samples were deposited in the Malkhana of the police station. The samples were sent to the CFSL and from the report of CFSL (Ex.PW8.E) it transpired that the sample on examination exhibited positive test of charas. Challan was put in the court and the appellant was charged with the offence punishable under section 20 of the ndps act.

3. In support of its version, the prosecution examined as many as eight witnesses indulging SI Ran Singh IO The defence of the appellant is that it is a false case and the witnesses have deposed falsely. He came from District Aarah, Bihar, in connection with the business of his brother who was running a cloth shop there. He was present a New Delhi Railway Station, as he wanted to go back to Bihar and he wanted to know whether ticket for his return journey was available and he was making enquiry at the station. He was having Rs. 3300/- besides a suitcase. When he was making enquiry a person aged between 30 and 40 years approached him and he told that he could managed a reserved ticket provided Rs. 400/- is paid to him. As he was to go back, he paid Rs. 400/- to that person, but he did not turn up though he waited for him and when he was searching for him, be spotted him near the corner of a taxi stand and he apprehended him and asked him to either give him a ticket or refund the money and on that a scuffle took place and the appellant took him to the police station where he was falsely implicated in this case.

4. Learned counsel for the appellant challenged the judgment of the the learned Addl. Sessions Judge on various counts. His first contention is that Gopi Ram Jain (PW2) a witness from the public is not at all reliable witness. He has been used by the police officers of the same police station in other cases also under NDPS Act, namely in FIR No. 984/88 State v. Rakesh under section 20 of the ndps act. Even otherwise he did not support the case of the prosecution on all material particulars. Similarly, ACP Ganga Sarup (PW4) also did not support the case of the prosecution, as mentioned in the challan As per prosecution version the accused was searched in his presence and recovery of charas was made in his presence, but he emphatically stated that when he reached the sdot charas had already been recovered from the accused and this witness was declared hostile and was cross-examined by the APP. He categorically denied the suggestion that while in his office, he had received a telephonic message from HC Abhimanyu that the police bad apprehended a person near the latrine on platform No. 10-11 at New Delhi Rly Station and that there was a secret information that the said person was having charas in his possession. He stated in oo uncertain terms during the cross-examination that he had received the information that charas had been recovered.

5. Apart from this, the learned counsel submitted that there are several other indications in the present case on the basis of which it can be said that the police party which apprehended the appellant dealt with the case in a very casual manner and did not comply with the provisions of various Sections of the NDPS Act Section 42 of the said Act provides that it information is received from any person in respect of the offence punishable under Chapter IV of the said Act, the officer who receives the said information must takedown the said information and he shall forthwith send a copy of the same to his superior officer. The learned counsel also submitted that from the record it is clear that there was also no compliance of section 50 of the ndps act. He was not given an opportunity of being searched before the gazetted officer or a magistrate According to the learned counsel, if the statement of these two witnesses, Gopi Ram and ACP Ganga Sarup is taken out from the record, nothing remains on the record to prove the prosecution case. According to the learned counsel almost all the witnesses have contradicted themselves on material points and it establishes the fact that the appellant has been implicated in this false case and no recovery whatsoever was effected from him. Even compliance of Section 55 and 57 has not been made. According to the learned counsel the mere fact that huge quantity of 18 kgs of charas was allegedly recovered does not mean that the appellant is guilty of the said offence. Plantation cannot be ruled out even in cases of huge recovery.

6. It is well settled that the provisions of Section 42 to 55 are mandatory in nature. These provisions are substantive and not a mere formality. Non-compliance and non observance of the provisions of law would be enough to vitiate the prosecution case. section 50 of the ndps act provides that when any officer duly authorised under Section 42 is about to search any person under the provision of Section 41 and 42 or 43 he shall take such a person without any unnecessary delay to the nearest gazetted officer or the nearest magistrate. If such a requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the magistrate referred to in Sub section (1) and the gazetted officer or the magistrate before whom any such person is brought shall if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct search to be made, The provisions as contained in Section 50 must be taken as imperative requirement on the officer intending to search and take the persons to be searched before a gazetted officer or a magistrate. Failure to do so can be constructed as prejudice to the accused which may in circumstances warrant his acquittal.

7. In this case, through the mouth of the police officers who have been examined as prosecution witnesses evidence is tried to be led before the court that the appellant was asked as to whether he wanted to be searched in the presence of a gazetted officer or a magistrate and he declined the ofifieer. But this evidence is contradictory and is not corroborative. PW1 Jai Narain, SHO’ has stated that after the apprehension of the accused, the accused was questioned if he had charas in his possession but he kept mum. He was further informed that since he was suspected of having charas in his possession his search can be arranged before a gazetted officer or a magistrate. The accused did not reply He asked the headconstable Abhimanyu to inform the ACP Rly who came there at 3.30 p m The ACP was apprised of the facts and he then made enquiries from the appellant after disclosing his identity and ASI Ran Singh was ordered to take search of the holdall which was in possession of the appellant. One bag tied with ‘sutli’ was found wrapped in the blanket and charas was recovered from the bag which on weighment was found to be J8 kgs.

8. This version given by Jai Narain, PW11, has not been corroborated by Ganga Sarup, ACP, who appeared as PW4. According to him before he reached there, the police had already made the search and the charas had already been recovered Gopi Ram Jain, the public witness, has nowhere stated that the accused before his search was asked whether he would like to be searched before a gazetted officer or a magistrate. According to him after the apprehension of the accused from platform No. 10 and 11 on New Delhi Rly Station, he was taken to the police station along with the holdall because the police wanted to search him in the presence of an officer. His version is quite different from that given by other witnesses Head constable Abhimanyu and SI Ran Singh, IO, however, stated that after apprehension of the accused he was told that his search was to be carried out and therefore, a gazetted officer or a magistrate of ACP could be made available but he declined to avail the opportunity. Therefore, from the contradictory statements of the witnesses examined by the prosecution in this regard it is apparent that there is no compliance of the mandatory provision of section 50 of the ndps act in this case. This evidence led through the mouth of the police officers is an afterthought. It is an attempt made by the prossecution to fill in the lacuna which was present in this case. It is obvious because the public witness Gopi Ram PW2 as well as ACP; Ganga Sarup (PW4) did not make any reference to this fact. It is, therefore, clearly a lame attempt made by the prosecution through some of the police officials. I have no doubt that the accused was not informed about his right provided under section 50 of the ndps act.

9. No doubt, it is true that the testimony of a witness is not to be doubted or discarded merely because he happens to be a police official but is equally well recognised rule of caution that the court should look for independent corroboration to the testimony of the official witnesses in such cases. Once the evidence of public witness Gopi Ram is rejected, the prosecution necessarily has to fall upon only on the evidence of police witnesses in this case, even the ACP Ganga Sarud, PW4, a senior police officer has not supported the prosecution case on all material particulars inasmuch as the accused was not searched in his presence, nor any recovery of charas was made in his presence. No offer of being searched before the gazetted officer or a magistrate was made to the accused in his presence. In these circumstances, it would be not safe to accept the evidence of the police witnesses as trustworthy to hold that the accused was found in possession of contraband and, therefore, the learned Addl. Sessions Judge was in error in holding the accused guilty of offence punishable under section 20 of the ndps act in the result, the con viction of the appellant for the offence under section 20 of the ndps act and the sentence awarded thereunder will have to be set aside and the appeal is to be allowed. The order of conviction and sentence for the offence punishable under section 20 of the ndps act is set aside, The appellant shall be released in any other case, Fine, if recovered, be refunded to the appellant. Appeal allowed