The Judgment of the Court was delivered by

G.K Sharma, J.:— S.B Cr. (Jail) Appeal No. 253/88 has been preferred from jail and S.B Cr. Appeal No. 227/88 has been preferred by Biram as representative appeal. Both these appeals arise from the same judgment of Sessions Judge, therefore” they are disposed of by this common judgment.

2. On 26-6-87, Ram Chandra, S.H.O, Police Station, Raipur received a secret information that three persons are taking opium with them and the details of these persons were also given by the informant. On the basis of this information, the Police-party consisting of Ram Chandra Station House Officer one Head Constable and some Constables reached at the spot for which they received the information. They hide themselves behind the trees. After some time they saw two persons coming from the side of Kotri and when they reached near them, they were surrounded. Mangilal and Poor Singh also arrived there and in their presence search was taken and both the accused were found in possession of opium. Accused Biram was found in possession of opium weighing 3.500 Kg and accused Ram Singh was found in possession of opium weighing 4.650 Kg. The opium was recovered and the samples were taken and were sealed at the spot. The accused were arrested. The samples were sent to the Forensic Science Laboratory (F.S.L) for examination and the report of the F.S.L is Ex. P9. After completing the usual investigation the Police submitted challan against both the accused persons. The trial Court framed charge against both the accused-persons u/s. 8/18 of the Narcotic Drugs & Psycotropic Substances Act (N.D.P.S) Act. Both the accused pleaded not guilty and claimed trial.

3. The prosecution has examined 9 witnesses to establish the case. One defence witness was also examined by the accused-persons, After concluding the trial the learned Session Judge found the case established against both the accused-persons and he convicted and sentence them as mentioned above.

4. The learned counsel for the appellants argued that the two motbirs i.e Poor Singh & Mangi Lal have not supported the case of the prosecution and both have been declared hostile. It was argued that the evidence of the prosecution witnesses is not corroborative to each other but it contradicts on material points. There is discrepancy and contradictions in the statements of the witnesses about the presence of the motbirs i.e Poor Singh & Mangi Lal. There is also difference in the statement of the witnesses with regard to calling the scale (Taraju) for weighing the opium. In this light the statements of the witnesses were read over to me and I find that there is difference between the statements of all the witnesses with regard to bringing the scale from the village. Another important aspect is that according to the S.H.O the scale was called through one person but he does not know the name of that person. The person who brought the scale has not been examined So this discrepancy also has bearing on the merit of this case. It is not necessary to repeat the statements of all these witnesses on these two points but it is suffice that the argument advanced by the learned counsel on these points is correct and I have gone through the statements of the witnesses and found that there is discrepancy and contradictions in the statements of the witnesses. There is also difference in the statements of the witnesses regarding the presence of the person who brought the scale. Two types of statements have been given in this aspect Some say that the person who brought the scale left the place immediately after handing over the scale to the SHO. Some witnesses have stated that he remained there till the opium was weighed. All this creates suspicion on the factum of recovery of the opium and taking sample at that moment. Hence, the recovery which has not been corroborated by the motbirs and the only evidence remains there is of Police officer and that evidence is contradictory so it creates suspicion about the recovery of the opium according to the prosecution story. It was also argued that from the statement of Madan Lal (PW 7) who was the Incharge of the malkhana it appears that the samples were sent to Forensic Science Laboratory (F.S.L) on 13-7-87 but the samples were returned with some objection by the F.S.L and on 16-7-87, the samples were again sent to F.S.L after removing the objection. He has only stated that he sent the sealed packets. But in the statement he has not stated that the seal was intact and in the same condition which was on the sealed packets when he received the samples to be kept in the malkhana and in the same condition the seal being intact, the samples were handed over to the Constable Zahid Ali for sending them to the F.S.L While keeping the samples in the malkhana he should mention in the register of malkhana that the seal was of such specimen, but in the malkhana register Ex P. 7 no description of the seal has been mentioned. So it cannot be said that what was the seal which was affixed at the time of recovery. Mere stating that the sealed packets were received and the same were sent to F.S.L does not fulfill the duty of the Investigating Officer to clarify and remove the doubt regarding which seal was affixed and what was the specimen of the seal It might be possible that the seal can be removed at any time or can be affixed at any time. It was the duty of the Investigating Officer to get the entry of the specimen of the seal in the malkhana register and while sending the sample to F.S.L, the S.H.O or the Investigating Officer should send the specimen of the seal on a separate paper so that the F.S.L would be able to compare the seal on the samples as well as on the paper. It was the duty of the F.S.L to submit the report along with that specimen seal so that the Court may consider that the seal which was affixed at the time of the recovery and the seal which was on the packets when it was in the malkhana and the seal which was on the samples which were sent to F.S.L were intact and they were not tempered with. This is a lacuna in this case and no explanation has been given to this lacuna.

5. Another important aspect is that the F.S.L after some observation returned the packets and they were again sent to F.S.L on 16-7-87. The packets were taken out from the malkhana on 13-7-87 an 1 they remained out of malkhana upto 16-7-87. Where these samples were kept? Whether during these three days the seal remained intact and was not tempered with? There is nothing on the record about this. It was the duty of the prosecution not to keep any suspicion or doubt in their case specially under Narcotic Act which have become so stringent and punishment is so severe. But I find that not only in this case but in so many cases where I bad remarked that the investigation of the case under Narcotic Act are not done in a proper way. efficiently and correctly. Therefore, there is nothing on the record to show that the seal remained intact and this lacuna gives suspicion and benefit of suspicion is always given to the accused.

6. In (1) State of Raj v. Daulat Ram, (1980) 3 SCC 303 : AIR 1980 Supreme Court 1314, their Lordships have observed with regard to custody of samples and while dealing that case it was observed as under:—

“Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tempered with the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tempered with during the period in question a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage.”

7. Similarly, in the case of (2) Jesa Ram v. The State of Raj., 1988 RCC 30, it has been observed (hat the burden lies on the prosecution to prove that the seal affixed on the article at the time of recovery was intact.

8. It was also argued that there is clear violation of Sec 50 of the Act, 1985. Sec. 50 of this Act says that “When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Sec. 42 or the nearest Magistrate.”

9. Thus, it is clear that before taking search the officer who is authorised to take search should ask the person, if he required to be taken before the nearest Magistrate mentioned in Sec. 42. Thus search should not be taken unless the condition of this Sec. is fulfilled. The words “If such person required” are very significant.

10. In the present case there is nothing on the record to show that the condition of Sec. 50 of the Act are fulfilled. The S.H.O has not stated in his statement that he had asked or he had brought to the notice of the accused-persons about the conditions of Sec 50 of the Act. It means that the mandatory provision has not been followed.

11. As Narcotic Act has provided a very severe punishment and the minimum punishment awarded for this offence is 10 years and a fine of Rs. 1,00,000/-, the legislature has deliberately made such provisions and has given some safeguards to the accused-persons so that they may not be harassed unnecessarily. Therefore, u/s. 50 of the Act this right has been given to the accused-persons for asking them whether they want to take themselves to a Gazetted Officer or to a nearest Magistrate and this mandatory provision should have been followed. I am supported in this view by a case of (3) Hakam Singh v. Union Territory, Chandigarh, 1988 Cr. Law Journal 528. In this case it has been observed as under:—

“Held, mandatory provisions had been ignored altogether while recovering crushed poppy heads from appellant and this had caused material prejudice to him.

Recovery of 1.5 kg. of crushed poppy heads had led to the conviction of the appellant for which he has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- or in default of payment of fine to undergo further rigorous imprisonment for 5 years and the same has been challenged in this appeal.”

12. Another argument advanced is with regard to Sec. 57 of the Narcotic Act. This Sec. lays down that “Whenever any person makes any arrest or seizure under this Act he shall within forty-eight hours next after such arrest or seizure make a full report of all the particulars of such arrest or seizure to his immediate official superior.”

13. In the present case no such report has been forwarded by the S.H.O to his superior officer immediately after the arrest of the accused-persons and seizure of the opium. There is nothing on the record to satisfy this Court that Sec 57 of the Act has been complied with by the Investigating Officer. Mr. Gupta cited the case of (4) Ratan Lal v. State, 1987 (2) Crimes 29. In this case it has been observed as under:—

“That apart, there is nothing to indicate that the provisions of section 57 of NDPS Act have been complied with. Under the provisions of this section a full report as to the particulars of arrest and seizure has to be submitted to the immediate superior officer within 48 hours. There is nothing to indicate that this has been done. Besides that, the most fatal lapse on the part of the prosecution is that they failed to get the seized material and the samples preserved for examination of CFSL sealed with the seal of SHO before it is deposited with him for safe custody as envisaged by section 55 of the NDPS Act.”

14. In the present case also there is nothing to indicate that the provisions of Sec. 57 of the NDPS Act have been complied with. No report has been sent regarding arrest and ???eizure and this is fatal which lacks on the part of the prosecution.

15. It was also argued by Shri Gupta that in this case no site-plan has been prepared by the S.H.O In this respect he has relied on the Rajasthan Police Rules, 1965. Clause (1) of the Rule 6.13 says that “In all important cases two plans of the scene of the offence shall be prepared by a qualified police officer or other suitable agency; one to be submitted with the charge-sheet or final report and the other to be retained for departmental use.” So according to this Rule it was the duty of the Investigating Officer to prepare the site-plan. In all important cases the site-plan should be prepared by the Investigating Officer. A case under the Narcotic Act is also an important one and if was incombent on the Investigating Officer to prepare the site-plan according to the guidelines given in the Police Rules. Apart from this Rule otherwise also it is necessary for the Investigating Officer to prepare the site-plan. This rule helps the Court to come to a correct conclusion and judge the testimony of the witnesses. In the present case where the Police-party was sitting biding themselves, where the accused-persons were first seen and at what place the motbirs were standing; all these aspects are very important So this is also a lacuna which is very important lacuna and fatal to the entire prosecution case. In view of my above observation I do not agree with the finding of the learned trial Court and the conviction and sentence cannot be maintained.

16. As a result, the appeals are accepted. Both the accused are not found guilty for the offence u/s. 8/18 NDPC Act and they are acquitted. Their convition and sentence are set aside. Both the appellants are in jail. They be set at liberty forthwith, if not required in any other case.