1. The learned Additional Sessions Judge, Barmer has convicted the appellants Saffiya and Nathiya of offence under section 20(ii) of the narcotic drugs & psychotropic substances act, 1985 (hereinafter referred to as 'the act') and has sentenced each one of them to undergo R.I. for 20 years and to pay a fine of Rs. 2,00,000/-each and in default to undergo further R.I. for one year each. Aggrieved, Saffiya and Nathiya have come in appeal.

2. Briefly stated, the prosecution story is that on 28-2-87 PW5 Hamir Singh was posted as S.H.O., Police Station, Sheo. That day he was informed by the Superintendent of Police, Barmer that the latter had been informed by an informer that Nathiya and Saffiya were proceeding on two camels with contraband 'charas'. Upon this information from the Superintendent of Police, Barmer, Shri Hamir Singh along with Dy. S. P. Govind Narayan, Head Constables Bijraj Singh and Heera Ram, Head Constable of C.I.D. Umaid Singh and other police officials, namely, Girdhari Singh, Tajmal Singh, Kishan Singh and Pratapdan proceeded in Govt. jeep in search of the two persons towards village Dholakiya. In this connection, Hamir Singh before proceeding to Dholkiya, recorded a report (Ex.P.12) in the daily 'Rojnamacha' of the Police Station. When the police party reached near the northern outskirt of village Dholkiya, foot marks of two camels were seen proceeding towards village Mungeria. The police party continued to proceed in the direction to which the foot marks led. On the outskirt of village Mungeria, the police party met PW6 Shyam Singh, an ex-police official, who was asked to accompany them. The police party along with Shyam Singh went towards sand dunes which lay at a distance of about 1 km. in the north from village Mungeria. There, the police party spotted two persons going on camels. The two camels and riders were surrounded and taken into custody. Each camel was carrying a 'pilan'. Upon enquiries, one of the camel rider gave out his name as Nathiya while other accused as Saffiya. The police party found that three bags were being carried on the camel which Nathiya was riding. Four bags were being carried by the camel which Saffiya was riding. The police party got the bags unloaded. In the bags recovered from the camel of Nathiya 150 packets were found and from the bags carried by the camel of Saffiya 151 packets were found. Hamir Singh got opened the packets and after smelling them, found them to contain contraband charas. The two appellants were asked to produce licence or permit about the possession of the aforesaid contraband but they failed to produce any. Shri Hamir Singh, thereupon, prepared recovery memo Ex.P.1, site plan Ex.P.12 and legand (sic) of the site plan Ex.P.2. He arrested Saffiya vide arrest memo Ex.P.3 and Nathiya vide arrest memo Ex.P.4. He also prepared a memo Ex.P.14 regarding the foot marks which had led to the apprehension of the appellants.

3. The prosecution story is that the police party took the accused persons to Police Station, Sheo. The S.H.O. got the packets of contraband charas, weighed and took out samples from the various packets and sealed back the packets as also the samples recovered by him vide memo Ex.P.5. The bags which contained the packets were marked 1 to 7 and each of the packet was also marked by Shri Hamir Singh. He further prepared recovery memo in respect of the two camels vide Ex.P.6 and Ex.P.7. The 'pilans' of the two camels were handed over to custom officials vide Ex.P.17.

4. Hamir Singh deposited the recovered bags containing the packets sealed by him as also the parcels of samples in the 'malkhana' of the police station and entries were made in the 'malkhana' register. The bags of the packets as also parcels of the samples remained in custody of PW1 Bijraj Singh who forwarded 31 parcels of samples to the office of S.P., Barmer with PW2 Moola Ram. PW2 Moola Ram took the sealed parcels of samples to the office of the S.P., Barmer the same day, where they were handled by PW7 Bhabhut Singh. Bhabhut Singh prepared a forwarding letter of the parcels Ex.P.21 and handed over the parcels to Moola Ram along with forwarding letter. Moola Ram, thereafter, took those parcels to the State Forensic Science Laboratory, Jaipur and delivered them on 11-3-87 vide Ex.P. 10.

5. It appears that on 11-3-87 PW3 Sohan Ram, Inspector, Border Custom Department, Barmer obtained some more samples from the sealed packets contained in the seven bags, which were kept in the custody of malkhana of Police Station, Sheo vide Ex.P.11. The prosecution story is that after recovering such samples original packets were re-sealed and the samples recovered by Sohan Raj were also sealed separately.

6. The prosecution story is that the State Forensic Science Laboratory, Jaipur (hereinafter referred to as SFSL) found all the 31 samples to contain charas. Upon such material, the police filed a challan against two appellants in the court of the Addl. Munsif & Judicial Magistrate, First Class for offence under Section 20(II) of the Act. The learned Addl. Munsif & Judicial Magistrate committed the two appellants to stand trial to the court of the learned Addl. Sessions Judge, Barmer.

7. The learned Additional Sessions Judge framed necessary charges against the two appellants on 31-8-87. Both the appellants pleaded not guilty and claimed trial. At the trial the prosecution examined PW1 Bijraj Singh, PW2 Moola Ram, PW3 Sohan Ram, PW4 Heera Ram, PW5 Hamir Singh, PW6 Shyam Singh and PW7 Bhabhut Singh. The prosecution exhibited in support of its case as many as 21 documents.

8. In the statement recorded under Section 313, Cr.P.C., both the accused denied the charges and stated that they had been falsely implicated. The appellants examined DW1 Kana Ram and DW2 Insan. The learned trial Judge after hearing both the sides held the appellants guilty as stated above and sentenced them as mentioned already.

9. In the present case, the learned counsel for the appellants has challenged the correctness and legality of the findings of the trial Judge and has further urged that the judgment of the learned trial Judge is not sustainable in law. It is urged that the Investigating Officer in this case was the selfsame person, who is said to have recovered the alleged contraband charas from the appellants. He could not have legally investigated into the offence and since investigation has not been made by an independent agency, the entire investigation is bad and consequently the trial and conviction passed upon such investigation is illegal. His next contention is that the appellants in this case were not at all informed by Shri Hamir Singh that they had a right to be produced before a Gazetted Officer or the nearest Magistrate as required by Section 50 of the Act. It, is submitted that non-compliance of the said mandatory provision of Section 50 of the Act has seriously prejudiced the appellants in their defence. It is further urged that the Investigating Officer in this case did not comply with the mandatory provisions of Ss. 52 and 57 of the Act which has again vitiated the investigation. It has been pointed out that in the present case, according to the prosecution itself, the F.I.R. of the offence was recorded by Hamir Singh after he had reached the police station, yet Ex.P.1, Ex.P.2, Ex.P.13, Ex.P.14 and the memos of arrest Ex.P.3 and Ex.P.4 recite the number of the F.I.R. This shows that these documents were prepared after the F.I.R. had been recorded, which falsifies the entire prosecution story. It is next urged that the prosecution has not placed on record the result of examination of the samples which were recovered by PW3 Sohan Raj which also creates doubt about the veracity of the prosecution story In this very context, it has been urged that once the bags containing contraband charas had been placed in the malkhana of Police Station, Sheo, the S.H.O. was not entitled to open them and give the samples to the Custom Inspector without the orders of the Magistrate concerned. In this way Section 55 of the Act has also been violated. It is urged that in all 301 packets are said to have been recovered from the possession of the two appellants but samples were allegedly taken only from 31 packets, which also has resulted in prejudice to the appellants. It is urged that in this case, the possibility that the bags might have been recovered from the camel backs without riders and police might have later on connected the two camels with the appellants, has not been ruled out. It is pointed out that on his own showing, the Investigating Officer obtained confirmation Ex.P.20 about the ownership of the camels from the concerned Sarpanch. Had the appellants been really apprehended as alleged, this confirmation was unnecessary. The Investigating Officer has really tried to connect the appellants with the two camels carrying contraband by obtaining Ex.P.20. It is, therefore, submitted that the appellants deserve to be acquitted of the charge under Section 20(II) of the Act.

10. Learned Public Prosecutors have opposed this appeal strenuously and submit that the prosecution has succeeded in proving the guilt against the appellants beyond reasonable doubt. It is urged that though the various provisions of the Act are mandatory, yet substantial compliance of such provisions has been made and, therefore, no interference need be made in the judgment of the learned trial Court.

11. I have considered the rival contentions and have perused the record of the trial court. One glaring feature of the case is that PW5 Hamir Singh was the person who is said to have recovered the contraband charas from the two appellants. It is surprising that he himself investigated into the offence. Justice and fair play require that the investigation should have been carried out by an independent officer, who was not in any way a party to the recovery proceedings. This principle is no longer res integra. In the case Ronald Markas Goonthar v. State of Rajasthan, 1988 Cri LR (Raj) 678, it was observed:--

When S. H. O. seizes drugs and sends F.I.R. to Police Station, it is expected that investigation should be by any other agency, may be of superior rank.

In the case Rana Ram v. State of Rajasthan, S.B.Cr. Appeal No. 380/89, decided on August 11, 1989, it was observed:--

The learned counsel for the appellant argued that Padamsingh, the S.H.O., was the person who caught the appellants, recovered the opium and who was the investigating officer in this case. He should not have investigated the matter, because he was a witness to the recovery. This is an infirmity in the prosecution case. Padamsingh should have handed over the investigation of this case to some other police officer.

It was held:--

The arguments of the learned counsel has great substance. S.H.O. Padamsingh, who had recovered the opium in this case and lodged the report, should not have investigated the matter. This is an infirmity in the prosecution case.

In Bhagwan Singh v. The State of Rajasthan, AIR 1976 SC 985 : (1976 Cri LJ 713), the Supreme Court has held (Para 5):--

Investigation by a Head Constable who was himself the person, to whom bribe was alleged to have been offered and who lodged the F.I.R. as informant or complainant. This was an infirmity which was bound to reflect on the credibility of the prosecution case.

This principle was followed in Banshi Lal v. State of Rajasthan, S. B. Cr. Appeal No. 45/90, decided on 21-2-90 by Hon'ble Mr. Justice S. M. Jain, as he then was. In that case the appeal of the appellant was accepted on this very short ground viz. that the case had been investigated into by the very person who had made recoveries and hence the investigation was bad in law, and the conviction and sentence of the appellant for the offence under Section 8/18 of the Act were set aside. I am, therefore, of the view that in this case, the investigation suffers from the basic infirmity, inasmuch as the officer recovering the contraband charas was the self-same person who had investigated into the case; the investigation was basically bad and reflects upon the credibility of the investigation. The Director General of Police would do well to issue proper instructions to all Investigating Officers in the State to ensure that this basic principle is not flouted while conducting investigation.

12. In the present case, the F.I.R. Ex.P. 16 was admittedly recorded at 1 p.m. on 28-2-87 i.e. after the police party had reached the police station after making the recoveries. But, the recovery memo Ex.P.1 bears the number of the F.I.R. The same is true of Ex.P.2, Ex.P.3 and Ex.P.4. If the F.I.R. was registered after the alleged recoveries had taken place and after the accused-appellants had been apprehended, then these documents could not have recited the number of the F.I.R. at all. The prosecution has not explained this grave and serious discrepancy. The possibilities are that either F.I.R. had been recorded prior to the alleged recoveries and arrest or that the F.I.R. number was inserted in these documents after the F.I.R. had been registered. Both ways, it seriously reflects upon the varacity of the prosecution story and creates a good deal of doubt if recoveries had been made in the manner alleged by the prosecution. PW5 Hamir Singh was under a duty to explain this discrepancy but he has not cared to do so. PW1 Bijraj Singh, who is said to have accompanied Hamir Singh during the seizure proceedings has categorically admitted that the police party had gone back to police station after recovery memos, site plan, Fard Halat Moka had been prepared. If it is so, the number of F.I.R. recited in these documents was definitely a later interpolation which discredits the prosecution case.

13. Now I may deal with the contention that mandatory provisions of Section 50 of the Act were not complied with. This section reads as follows:--

50. Condition under which search of persons shall be conducted.--(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 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 Section 42 or to the nearest Magistrate.

(2) If such 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).

(3) 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 that search be made.

(4) No female shall be searched by anyone excepting a female."

A bare reading of this section goes to show that when any person is to be searched, if such person so requires, the officer about to search has to take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. This provision necessarily implies that the officer making search must inform the person to be searched of his right to be taken to the nearest Gazetted Officer or to the nearest Magistrate. I am fortified in my view by a catena of rulings of this Court. In Bhanwar Singh v. State of Rajasthan, (1990) 1 WLN 710, this very question cropped up. Dealing with the similar contention raised before it Hon'ble Mr. Justice V. S. Dave observed as follows:--

Similarly in Section 50 when the officer authorised under Section 42 is about to search any person without any necessary delay to the nearest gazetted officer of any of the department mentioned in Section 42 or to the nearest Magistrate if the person so requires. The officer, therefore, is obliged to inform the accused before a search is made that if he desires he can be taken to the nearest gazetted officer of any department for effecting the search.

The learned Judge went on to observe:--

This is not a ritual or idle formality to be performed or to append a note at the end of the search memo that the accused has not desired to be taken to the gazetted officer. The right to effect the search to the officer mentioned in Section 42 is only available when he has informed the accused of his right, This is further clear from the words mentioned in Sub-section (2) of Section 50 wherein a right is given to the gazetted officer or the Magistrate before whom such person is brought to forthwith discharge that person if he sees no reasonable ground for search but otherwise he shall direct that the search be made. A composite reading of Sub-sections (1) and (3) leaves no room of doubt to give the interpretation that the person to be searched has to be asked if he requires to be taken to the nearest gazetted officer of any department mentioned in Section 42 or to the nearest Magistrate.

This very view was taken in Prithvi Raj v. State, 1989 Raj Cri C 474, by Hon'ble Mr. Justice G. K. Sharma, as he then was. It was observed:--

So, as per Section 50 of the Act, it was the duty of the Officer-in-charge to have brought to that person's knowledge after the seizure, search and arrest of the person, the provisions of this section, and should have asked him whether he desired to be produced before a Gazetted Officer or a Magistrate; and if he so desired, then, it was the duty of the Officer-in-charge to have produced him before a Gazetted Officer or before the nearest Magistrate. In the present case, the police officer who had seized the article and arrested the person, had not brought to the notice of that person the provisions of Section 50 of the Act nor had he asked him whether he desired to be produced before a Gazetted Officer or before the nearest Magistrate. So, this was a clear violation of Section 50 of the Act.

The similar view was taken in Chhoteylal v. State of Rajasthan, 1989 Cri LR (Raj) 156 and Biram v. State of Rajasthan, 1988 Cri LR (Raj) 718. In the present case Hamir Singh does not state that he had complied with the provisions of Section 50 of the Act in the manner indicated above. This was a serious flaw which goes to the root of the case and discredits the prosecution story.

14. In the present case, Hamir Singh claims to have recovered three bags from one camel and four bags from the other containing contraband charas, vide Ex.P.1. It does not appear that he sealed the two bags on the spot. Recovery memo Ex.P.1 does not carry any specimen seal impression. The ground given for not sealing the bags is stated to be that weights and scales were not available for weighing the goods and material for sealing was not available. The two reasons mentioned in Ex.P.1 are not convincing. Hamir Singh has admitted in his statement that he has been informed on 28-2-87 itself by the S.P. that the informer had informed the latter that Nathiya and Saffiya were carrying contraband charas on two camels. Even after having received this positive information, he did not carry the necessary equipment for sealing the contraband passes one's comprehension. In Mohammed v. State of Rajasthan, (1989) 2 Rajasthan LR 147 : (1990 Cri LJ NOC 154), the recovery proceedings were doubted on this very score that no explanation was coming forward as to why scales and weights were not taken by the police party while going to the spot when they had prior information about accused-appellants coming with the Heroin for the purpose of sale. The Investigating Officer was expected to carry his necessary kit for sealing the bags when he had definite information about the contraband charas being taken by the accused-appellants. This aspect also makes the prosecution story open to doubt.

15. According to the prosecution the accused persons, the two camels and the bags of contraband were taken to the police station and there the bags were weighed and samples were taken. According to the prosecution there were in all 301 bags but it is surprising that only 31 samples were taken. Why samples could not be taken from the other bags has not been explained at all. Bags from which samples were not taken, cannot be said to contain contraband because there would be no evidence on record to show that their contents were in fact charas as claimed by the prosecution.

16. It may be noticed that the memo Ex.P.5 pertaining to weighment of the bags and taking of the samples bears the seal of Police Station, Sheo. It is not the personal seal of the S.H.O. himself. Section 55 of the Act requires the Officer-in-Charge of the Police Station to affix 'his' seal to the articles and the samples taken by him. Legislature never contemplated that the articles or the samples recovered "under the provisions of the Act may be sealed with the general seal of the Police Station; which could be in possession of any constable or any other officer of the Police Station. I am supported in my view by the judgment in Bhanwar Singh's case, (1990 (1) WLN 710), wherein a similar view was taken. In that case the recovery memo Ex.P.2 did not carry the seal of the officer-in-charge but carried the seal of the Police Station itself. It was held that there was no proper compliance of Section 55 of the Act. There is yet one infirmity in this case. 31 samples said to have been recovered by Hamir Singh are alleged to have been sent to SFSL, Jaipur along with letter Ex.P.21. The specimen seal with which the samples are said to have been sealed was not sent along with Ex.P.21 or at any rate does not find place on record of the learned trial court. In absence of such specimen seal having been sent, it is difficult to hold that self-same samples had been sent to the SFSL, Jaipur which had been recovered by Hamir Singh. In Prithvi Raj's case, (1989 Raj Cri C 474), a similar contention was raised. The learned single Judge dealt with the contention as follows:--

From the record, it is proved that it was sealed. The evidence is that a sealed packet was sent to FSL for examination; and the report of the FSL is Ex.P.6, which indicates that a sealed-packet on which the seal was intact was received for examination. This recovery memo (Ex.P.2) contains a specimen of the seal which was affixed on the packet which was sent to FSL for examination; but, a specimen of the seal was not sent to FSL. The report (Ex.P.6) does not mention about the specimen of the seal, which was affixed on the sealed packet. The report is that a sealed packet was received and thereon, the seal was intact. Which was the seal which was affixed on the packet, has not been proved. There is nothing on the record to suggest that the specimen of the seal that was affixed on the packet, was sent to FSL, along with the sealed-packet. Simply affixing a seal on the recovery memo (Ex.P.2) is not sufficient compliance of Section 55 of the Act. No doubt, a specimen seal was affixed on the recovery memo (Ex.P.2), but, a separate specimen of this seal should have been taken on a separate paper, and it should have been produced in the court along with the other papers submitted with challan. That specimen of seal also should have been sent to FSL along with the sample, so that, the Director FSL could have examined the specimen seal with that on the sealed packet, and he could have come to a conclusion that the seal on the sealed-packet was intact. Unless such specimen seal was sent to the FSL, it cannot be said that the seal on the packet containing the substance, had contained that very seal which was affixed on the packet. Thus, a suspicion is created about the genuineness of the seal and about the specimen of the seal; and when a doubt is created, it affects the whole prosecution case.

In the present case, as already stated above, memo Ex.P.5 does not contain a specimen of the seal but as pointed out earlier Ex.P.21, with which 31 samples are said to have been sent to FSL does not carry any specimen seal on it. The report of the FSL is in a cyclostyled form and it mentions that

"the packet(s) thirty one in numbers enclosed with in white cloth cover kept in an unwealed card board box which were properly sealed bearing impressions which tallied with the specimen seal impression forwarded."

It does not indicate as to what that specimen seal impression was. The seal impression does not accompany Ex.P.19.

17. There is one more curious aspect of the matter. If all the 31 parcels of samples had been sent to the SFSL, Jaipur for chemical examination, then how could those 31 parcels have come back to the court and could have been identified in the court by Hamir Singh. Hamir Singh in his examination-in-chief has stated ^^teZu ds isdsV vkfVZdy 1 yxkk;r gS** The learned Public Prosecutor points out that the samples after having been used in the SFSL might have been sent back to the police station which might have forwarded them to the court. He refers in this connection to the report of the SFSL which inter alia states

"the remnant(s) of the exhibit(s) is/are being returned separately in the same container(s) and cover(s) along with the labels received in it duly sealed."

In this connection he has referred to a document appearing on the record of the trial court at page B2/1 which shows that the Addl. Munsif & Judicial Magistrate, First Class. Barmer sent 31 samples to Addl. Sessions Judge, Barmer. May be it is so, but unfortunately, there is no evidence on record to show that the samples were taken back from the SFSL to the court. Moreover, this document at page B2/1 of the trial court speaks of parcels carrying 30 gms. of charas each. According to the prosecution initially samples of 30 gms. were taken from each of the 31 packets. Some of it from each sample must have been used for chemical examination. It is surprising how each sample of parcel should have contained 30 gms. after such user. This again creates a doubt regarding the prosecution story.

18. There is one more interesting feature of the case. According to the prosecution P.W. 3 Sohanraj, Inspector, Border Custom Department, Barmer obtained samples from the seven sealed bags on 11-3-87. A memo Ex. P.11 is said to have been prepared in this connection. Ex. P. 11 recites that one of the samples was taken for the purposes of sending to Chemical Examiner, Delhi. It is not known as to what happened to this sample. The prosecution has not placed on record the report of the Chemical Examiner, Delhi and it can be safely assumed that had the report been produced, it would not have been favourable to the prosecution. The matter does not rest here. The learned counsel for the appellants submits that the D.H.O. was not entitled to allow the Inspector to take such samples from the bags kept with him without orders of the Magistrate. He submits that there is violation of Section 55 of the Act in this regard, This section reads as follows:--

55. Police to take charge of articles seized and delivered.-- An Officer-in-Charge of a police station shall take charge and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.

A bare reading of this section goes to show that all articles seized under the Act have to be kept in the safe custody 'pending the orders of the Magistrate.' No orders of the concerned Magistrate have been placed on record to show that his permission was taken prior to the opening of the bags kept in the police station. This again casts serous doubt about veracity of the prosecution story.

19. If the Investigating Officer really recovered one camel each with contraband from each one of the appellants, then it is surprising as to why the Investigating Officer needed confirmatory letter Ex. P. 20 from the Sarpanch about the ownership of the two camels. In the facts and circumstances of the case, particularly when some of the documents have been interpolated to carry the number of the FIR, the possibility that the two camels might have been apprehended with the contraband without the two appellants, and the names of the appellants might have been ascertained later on as owners of the camels, and then they might have been arrested, is not ruled out beyond shadow of reasonable doubt.

20. In view of what I have stated above, I find that the prosecution case suffers from serious infirmities and the conviction of the appellants recorded by the learned trial Judge cannot be maintained.

21. I, therefore, accept this appeal and acquit the appellants Saffiya and Nathiya of offence Under Section 20(II) of the Act and set aside the sentences passed upon them. The appellants shall be released forthwith if not required in any other case.