K.K. Srivastava, J. - This is an appeal filed against the judgment and order dated 17.12.194 passed by Sh. M.M. Bhalla, Additional Sessions Judge, Hoshiarpur convicting the appellant Pall son of Bikar Ram, resident of Meghowal, District Hoshiarpur, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him to suffer 10 years rigorous imprisonment and to pay fine of Rs. 1 lakh and in default of payment of fine to undergo further rigorous imprisonment for one year.
2. The facts giving rise to this appeal may briefly be narrated as under:
3. Inspector Nirmal Singh PW 2 accompanied by ASI Dev Raj, HC Prem Lal and other police officials were present in the area of Tuto Majara on the bridge of the choe. SI Nirmal Singh received an information from some informer that the appellant was selling Poppy Husk Powder in his village and that he could be apprehended. A raid was organised immediately. Coming upon this information SI Nirmal Singh sent a ruqa to the Police Station for registration of the case. A formal F.I.R. Ex PA was recorded at the Police Station. MHC Ashwani Kumar PW 4, SI Nirmal Singh, PW 2 accompanied by ASI Dev Raj and other police officials proceeded towards the village of the appellant. SI Nirmal Singh tried to include witnesses from locality to witness the raid and search but no one was ready to be included in the raiding party. SI Nirmal Singh found the appellant standing at the door of his house. The appellant was arrested and interrogated. On interrogation he made disclosure statement (Ex. PB) about concealing four bags of poppy husk powder under the pali cover in the corner of inner room of his house and offered to get the same recovered. ASI Nirmal Singh gave an offer to the accused Pall that search could be made, if he so desired, in the immediate presence of a Gazetted Police Officer/Magistrate. The accused-appellant, however, stated in his statement (Ex. PC) that he had full confidence in the search conducted by ASI and he did not desire that search be made by the Gazetted Police Officer/Magistrate. Accordingly, the appellant Pall led the police party inside the house and the inner room from where four bags of poppy husk were recovered. The recovery memo was prepared. The four bags of poppy husk were marked Ex. P1 to Ex. P4 and each contained 40 kgs. of poppy husk powder. The recovery memo is Ex. PD which was duly attested by the witnesses present there. The seal after its use was handed over to HC Prem Lal. DSP Yurinder Singh was informed by a wireless message and he also reached the spot. The four bags of Poppy husk powder recovered alongwith accused were produced before the DSP who got open the seal of the four gunny bags and collected samples of 250 grams from each bag and the remaining contents weighing about 39 kgs and 750 grams in each bag were then duly sealed by the DSP with the impression "YS". All the bags and sample parcels were taken into possession vide memo Ex. PE and handed over to SI Nirmal Singh who in turn deposited the same with seals intact with MHC Ashwani Kumar at the Police Station. The samples were sent for analysis of the Chemical Examiner who sent its report Ex. PH. The accused-appellant was duly interrogated and he was challaned. The learned trial Judge framed charge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act against the appellant who pleaded not guilty to the charge and claimed to be tried.
4. The prosecution examined ASI Dev Raj (PW-1), Inspector, Nirmal Singh (PW-2) and Yurinder Singh, the then DSP (PW-3), MHC Ashwani Kumar (PW-4) and Constable Jasbir Singh. (PW-5).
5. The statement of the accused-appellant was recorded under Section 313 of the Code of Criminal Procedure who denied the prosecution evidence against him and stated that he had been falsely implicated in the case. The accused was given an opportunity lead evidence in defence which was, however, not led.
6. The learned Additional Sessions Judge, after hearing the learned counsel for the parties, believed the prosecution evidence and found the charge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act duly proved against the appellant and, consequently, convicted him thereunder and sentenced him as mentioned in the earlier part of this judgment.
7. Feeling aggrieved against the conviction and sentence, this appeal was filed.
8. I have heard the learned counsel for the appellant and learned Assistant Advocate General for State of Punjab-respondent. I have been taken through the evidence of the prosecution witnesses and the documents on record as also the judgment of the learned trial Judge.
9. The learned counsel for the appellant argued that in this case there is a clear and categorical breach of compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act read with Section 42 of the said Act. It has been contended that no sincere and genuine efforts were made by the Inspector Nirmal Singh to include witneses of public and he did not observe the compliance of Section 100(4) of the Code of Criminal Procedure inasmuch as the officer conducting the search did not call upon two or more independent respectable inhabitants of the locality. He has further submitted that the evidence of the prosecution regarding disclosure statement and consequential recovery of four gunny bags of Poppy husk powder was not made in accordance with the provisions of Section 27 of the Evidence Act.
10. So far as the first submission of the learned counsel for the appellant is concerned, it has considerable substance in the instant case. SI Nirmal Singh is said to have received the secret information about the accused- appellant selling Poppy husk powder in his village and acting upon that information, he proceeded to the house of the appellant to search the premises and had also informed the DSP about it. SI Nirmal Singh instead of waiting for a Gazetted Police Officer that is the DSP, first of all arrested the appellant and interrogated him when he is said to have suffered the disclosure statement and, therefore, the appellant led him and other members of the police party to go inside his house and recovered four gunny bags from the corner of inner house. It is relevant to note that SI Nirmal Singh had no reasonable basis in law to arrest the accused at the door of his house prior to conducting of the search of his house as the accused-appellant had by that time not committed any offence. The offence would be committed when he was found in illegal, unauthorised possession of the poppy husk powder. The accused-appellant could not be legally in the custody of the Police Officer at the time when he is said to have suffered the disclosure statement. Section 27 of the Evidence Act lays down two important ingredients for its applicability and these are that the information must be received from a person accused of any offence, in the custody of a Police Officer, and it is thereafter that in consequence of such information when any fact is deposed to as discovered, then so much of such information whether, it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved against such person. The appellant was not accused of any offence at the time when his statement was recorded by SI Nirmal Singh and he could not have been arrested because he had not committed any offence. Therefore, Section 27 of the Indian Evidence Act could not be availed of by SI Nirmal Singh and resultantly the alleged discovery, as a consequence of the information received from the appellant could not be made admissible under Section 27 of the Indian Evidence Act. SI Nirmal Singh, thus, could not in law bank upon the disclosure statement and consequential recovery of the four gunny bags containing poppy husk powder. It was incumbent upon the SI Nirmal Singh to ensure the presence of a Gazetted Police Officer/Magistrate before the search ought to have been conducted. The statement of the accused Ex. PC is of no help to the prosecution as it appears to be a mere formality completed by the SI Nirmal Singh only to show that the appellant had desired the search to be made by the SI himself and that he did not desire to be searched by the Gazetted Police Officer/Magistrate. Even the perusal of the statement Ex. PC recorded by ASI Nirmal Singh will go to show that the appellant was described as an accused. Apart from it, if the appellant himself did not desire that the search be made by a Gazetted Police Officer or a Magistrate, then there was absolutely no need for summoning the DSP Mr. Y. Singh.
11. The Deputy Superintendent of Police-Yurinder Singh, PW-3, visited the place of occurrence, after SI Nirmal Singh had already got the four gunny bags recovered and sealed with his seal. The Deputy Superintendent of Police got those bags and took out sample of 250 grams each from the four gunny bags and resealed with his own seal and kept the said seal with him. The subsequent action of the Deputy Superintendent of Police in putting his seal on the gunny bags recovered would not be taken to be the compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. Section 50 of the Narcotic Drugs and Psychotropic Substances Act, inter alia, lays down as under,
50.
"Conditions under which search of person 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."
Under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, the officer mentioned under Section 50(1) in the instant case has to be a Police Officer and a Gazetted Police Officer has the requisite authority under Section 50(1) of the N.D.P.S. Act to have the accused searched in his immediate presence.
12. Since the search was made by SI Nirmal Singh himself and he got four gunny bags of Poppy husk powder recovered which were sealed with the seal of SI Nirmal Singh, the subsequent action of the Deputy Superintendent of Police would not cure the inherent defect and would not make the recovery legal, and within the scope of Section 50 NDPS Act.
13. Under these circumstances, the non-compliance of the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act would go to root of the matter and render the recovery contrary to the provisions of law.
14. So far as the next submission of the learned counsel for the appellant is concerned, no independent witness of the locality was included in the police party and this is a lame excuse made by the police party that no body was prepared to join the raid and the same ground being not valid and illegal is not acceptable. There is thus breach of Section 100(4) of the Code of Criminal Procedure. Apart from it, as submitted by the learned counsel for the appellant, there is difference in the date of the sending of the sample for analysis. The requisite form sent by Nirmal Singh mentioning the date August 25, 1993 is Ex. PG whereas as per the evidence of MHC Ashwani Kumar, Ex. PJ in the form in which the date was mentioned as 26.8.1993. This difference in dates also makes the whole case to appear as suspicious. In view of what has been discussed above, the prosecution has failed to bring home the charge to the accused and the learned trial Judge committed an error in law in finding the charge established beyond the shadow of reasonable doubt against the accused. The appeal is thus allowed and the conviction and sentence of the appellant as ordered by the learned trial Judge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act are set aside and the appellant is given benefit of doubt and is acquitted.