Babu Khan vs State

R.C. Chopra, J.—The appellant challenges his conviction and sentence u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ''the Act'' only) by the learned Trial judge in case F.I.R. No.418/1997 registered at Police Station Vivek Vihar. Vide orders dated 7th November, 1988, the appellant was convicted and on the same date, he was sentenced to undergo RI for ten years and pay a fine of Rs.1 lac. In default of payment of fine, he was ordered to undergo further RI for one year.

The facts relevant for the disposal of this appeal, briefly stated, are that on 12th October, 1997, a secret information was received at about 7.45 A.M. upon which a raiding party was organized by PW6, Inspector B.R. Mann. At about 8.30 A.M. the appellant was spotted coming front he side of Railway track towards B-Block of Vivek Vihar. On the pointing out of the informer, the said person, who was appellant herein, was apprehended. A notice u/s 50 of the Act was issued to him. He declined to be searched in presence of a Gazetted Officer or a Magistrate. Upon his personal search, 10 grams of smack was recovered. Two grams was taken out as sample and then two separate parcels were prepared. The seals of the I.O. Mahabir Singh as well as S.H.O. PW6 were fixed on the parcels. After use, the seal was handed over to the public witness, PW1 Anil Chadha. CFSL Form was prepared. The case property was deposited in Malkhana. In due course, the case property was sent to CFSL and on receipt of the report that it was smack, a challan was filed against the appellant.

The Trial Court framed a charge against the appellant to which the appellant pleaded not guilty. The prosecution examined as many as 7 PWs in support of its case. PW1, Anil Chadha, was also examined in regard to the recovery of the smack from the appellant but he gave a different description of the contraband recovered from the appellant by saying that the smack which was being shown to him in Court was in the form of Tikki but at the time of recovery it was in the form of brown colour powder. He was cross-examined by the learned A.P.P. and in answer to a question he stated that he was not in a position to say as to whether it was same or not.

The learned Trial after considering the evidence on record held the appellant guilty u/s 21 of the Act and as such passed the impugned order of conviction and sentence.

I have heard learned counsel for the appellant and learned counsel for the State.

Learned counsel for the appellant, who is though Delhi Legal Services Authority, has vehemently argued that the impugned conviction and sentence of the appellant is vitiated on the ground that the recovery of smack in question from appellant is not free from doubt as the notice u/s 50 of the Act was not proper. He submits that in the notice (Ex.PW6/A), the appellant was not informed that he had a right to be searched before a Gazetted Officer or a Magistrate and the words used in (Ex.PW6/A) were "G.O." only. According to him, it was not proper compliance of Section 50 of the Act and as such the appellant is entitled to acquittal. He also points out that the thumb impression of the appellant on (Ex.PW6/A) clearly indicates that the appellant is an illiterate person and as such the Investigating Officer was under a heavy duty to explain to him about his right u/s 50 of the Act and make him understand that they had a right to be searched before a Gazetted Officer or a Magistrate. It is also submitted that the reply given by the appellant in response to (Ex.PW6/A) was not at all recorded and as such it does not stand proved beyond reasonable doubt that the appellant had declined the offer of being searched before a Gazetted Officer or a Magistrate. In support of his submissions, learned counsel for the appellant relies upon the decision of the Supreme Court in State of Punjab Vs. Baldev Singh, etc. etc., and Beckodan Abdul Rahiman Vs. State of Kerala,

Learned counsel for the State, on the other hand, argues that Section 50 of the Act was properly complied with and as such it cannot be held that there was any default on the part of the Investigating Officer to serve a notice u/s 50 of the Act upon the appellant.

A perusal of (Ex.PW6/A) shows that the Words "Gazetted Officer" were nowhere used in the notice and only "G.O." was mentioned therein. Not only this, even PW6, Inspector B.R. Mann admitted in the cross-examination that they had informed the appellant that if he wished, he could be searched in the presence of a G.O. or a Magistrate. PW7 had also stated that the word used was "G.O." Section 50 of the Act is mandatory as it is aimed at ensuring that no person is falsely implicated in a case under the Act which provides very severe punishments for the offenders. Since it is shown on record that in notice the word "G.O." only was used, the oral evidence that the accused was informed that he could be searched before a Gazetted Officer cannot be accepted. The prosecution therefore has not established proper compliance of Section 50 of the Act which makes recovery of contraband from the appellant highly suspect. This inference gets strengthened from the testimony of PW1, public witness, who found that contraband being produced in Court was in the form of "Tikki" whereas at the time of recovery it was in powder form.

Under the circumstances, this Court has not hesitation in holding that Section 50 of the Act was not property complied with as no proper notice was served upon the appellant. The reply of the appellant was also not recorded on the notice to establish that he was declining the offer being made to him through Ex.PW6/A. The recovery of contraband from the appellant is, therefore, not established beyond reasonable doubt. The impugned conviction and sentence of the appellant thus is liable to be set aside.

The appeal stands accepted. The impugned conviction and sentence of the appellant is set aside and he is ordered to be released, if not required in any other case.

Crl.M.Nos. 630/2001, 2091/2001 & 5170/2004.

Dismissed as infructuous.