JUDGMENT Mukteshwar Prasad, J.
1. Two accused Darbari and Keshavraj filed this appeal against the judg-ment and order dated 10-3-95 passed by Sri M. P. Gupta, the then Additional Sessions Judge, Gorakhpur in S. T. No. 188 of 1992 whereby he convicted both the accused under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act') and sentenced each of them to undergo rigorous imprisonment for a term of ten years and to pay a fine of rupees one lac in default in payment of fine, they were ordered to suffer further rigorous imprisonment for a period of two years.
2. In brief, the facts of the case which led to the prosecution of the appellants are as under:
3. P.W. 3 S.I. Ram Nagina Singh and P.W. 4 constable Shanker Prasad were posted as Station Officer and constable respectively of P. S. Nichlaul (Maharajanj) in the month of December, 1989. On 8th December, 1989, the Station Officer reached Jhulnipur Barrier by a Government vehicle (jeep) driven by constable Bal Chandra Yadav.The Mukhbir informed him that at about 9-00 p.m., two persons coming from Nepal would go towards Nichnaul after crossing Amripur Bridge. Believing this information to be correct the Station Officer collected H.C. Rajan Mishra and three constables, including Shanker Prasad. He picked up to two public witnesses Ram Prasad and Ishaque also in the way. He accompanied by Mukhbir, police force and public witnesses reached Amripur Bridge and the entire force concealed themselves. At about 9-15 p.m. two persons arrived there. Mukhbir pointed out towards them whereupon they were intercepted. They tried to run away but both were apprehended towards south of Amripur Bridge.
4. On enquiry, they disclosed their names as Darbari and Keshavraj. They were searched upon and from their personal search Charas weighing about 250 grams kept in bags were recovered. Both were found carrying Charas in bags. The arresting officer kept the recovered Charas in the bags of the accused and sealed the bags on the spot. He took out samples of Charas and samples were also sealed. A seizure memo was prepared on the spot and signatures of the witnesses and police constables were obtained. A copy of Fard was given to both the accused.
5. Both the accused alongwith recovered Charas were brought to the police station where they were detained in the lock-up and Charas was deposited in the Malkhana. Head constable Kameshwar Singh prepared Chik report on the basis of seizure memo at 11 -00 p.m. on the same night. An entry was made in the G. D. at serial No. 34.
6. The case was investigated by S.I. Brij Raj Singh. He started investigation, interrogated the witnesses and prepared a site-plan on 9-12-89. Samples were sent to Forensic Science Laboratory, Lucknow for chemcial examination and both samples were found to be Charas. After completing investigation, the I.O. submitted two charge-sheets against the accused.
7. Both the accused were charged under Section 60 of the Excise Act and Section 20 of the N.D.P.S. Act on 9-9-92. They pleaded not guilty to the charges and claimed to be tried.
8. At the trial, the prosecution examined P.W. 1 Ram Prasad and P.W. 2 Ishaque, who are public witnesses and had signed the seizure memo also. P.W. 3 S.I. Ram Nagina Singh is the arresting officer and proved seizure memo, P.W. 4 constable Shanker Prasad had also accompanied the arresting officer on the fateful night and is a witness of fact and P.W. 5 H. C. Kameshwar Singh had prepared Chik report.
9. Both the accused in their statements given under Section 313, Cr.P.C. totally denied their arrest and recovery of Charas in the manner and from the place, as alleged by the prosecution, and pledged their false implication on account of enmity. They, however, led no evidence in defence.
10. After close analysis and scrutiny of the evidence on record led by the prosecution learned trial Judge found both the accused guilty of the offence punishable under Section 20 of the Act and convicted and sentenced them as noted above. Hence this appeal.
11. I have heard learned counsel for the appellants at length, learned A.G.A. and have gone through the record carefully.
12. Learned counsel for the accused appellants has assailed the judgment under appeal mainly on the grounds that both the public witnesses who were allegedly associated with the arrest and recovery turned hostile and did not support the prosecution version. The Charas, which was allegedly recovered was not weighed and no sample of Charas was, in fact, taken out on the spot. There has been no compliance of the provisions of Section 50 of the Act and no link evidence was produced in the trial Court. The investigating officer was not examined by the prosecution. It was also contended that recovered Charas was not produced in the Court and the prosecution could not establish by reliable evidence that sample which was taken out on the spot was actually sent for chemical examination.
13. Learned counsel for the appellants has placed reliance on the decisions of the Apex Court in State of Punjab v. Baldev Singh, 1999 (4) JT 595 : (AIR 1999 SC 2378); Smt. Krishna Kanwar alias Thakurdeen v. State of Rajasthan (2004 (48) ACC 610) : (AIR 2004 SC 2735) State of Orissa v. Kanduri Sahoo, 2004 (1) SCC 337, (2004 (48) ACC 265 : AIR 2004 SC 833 : 2004 Cri LJ 842); Valsala v. State of Kerala 1994 Cri LJ 1 : (AIR 1994 SC 117) and Koluttumottil Razak v. State of Kerala (2001 (43) SCC 170.
14. On the other hand learned counsel for the State has supported the judgment and has urged that Court below committed no illegality in convicting the appellant and the appeal is liable to be dismissed.
15. I have considered the respective contentions of the parties and what I feel is that the trial Court was not justified in convicting the appellants for possessing Charas. First of all, I find that mandatory provisions of Section 50 of the Act were not complied with by the arresting officer, it transpires from perusal of the seizure memo that the arresting officer had prior information from the Mukhbir that two persons coming from Nepal would go to Nichlaul and they were carrying Charas. The arresting officer decided to take action and apprehended the culprits. The alleged recovery and arrest was made from a public place. The arresting officer, was, therefore, required under the law to apprise the appellants of their valuable right that if they so desired they could be taken to the nearest Gazetted Officer of the departments mentioned in Section 42 or to the nearest Magistrate for personal search.In the present case, there is not even a whisper that the accused were apprised of their right to be searched before a Gazetted Officer or a Magistrate. It is correct that the arresting officer tried to strengthen the prosecution case by saying in the Court that both the appellants were given an option to be searched before the Gazetted Officer. He, however, could not disclose that they were apprised of their right that they could be taken to the nearest Magistrate also. P.W. 4 Shanker Prasad, a constable also tried to support the prosecution on this point but in view of the fact that recovery memo is totally silent on this point, I am not prepared to accept the testimony of the arresting officer as well as P.W. 4 Shanker Prasad in this regard and I hold that there has been no compliance of mandatory provisions of Section 50 of the Act. The law is well settled on the point that in case it is found that there has been non-compliance with the requirement of Section 50 of the Act it is difficult to sustain the conviction and sentence of the appellant. Consequently, the appellants are entitled to be acquitted on this score.
16. I find from perusal of the Fard recovery as well as testimony of the arresting officer and the constable that recovered Charas was never weighted by the police. The arresting officer has not mentioned in the seizure memo that he took out from both bags being carried by the appellants. Contrary to this, S.I. Ram Nagina Singh testified in the Court that a portion of the recovered Charas was separated and sealed. The arresting officer prove the recovered Charas from the possession of the appellants in the Court but he could not face the test of cross-examination on this point. He gave out in the opening line of his cross-examination that he had not sealed the recovered Charas in the 'Gamcha' and according to him, the Charas was sealed in the 'Gamcha' by the employee's of the Forensic Science Laboratory. It is noteworthy that samples of the contraband are sent for chemical examination and not the whole contraband article. S.I. Ram Nagina Singh further demolished the prosecution case by admitting that there was no distinguishing mark on the bag on the basis of which he could say that the bag was the same which was sealed on the spot.
17. P.W. 4 Shanker Prasad further gave a death blow to the prosecution story by saying that recovered Charas was not sealed in the cloth which was produced in the Court. He further clarified that he could not say that the bag produced in the Court was same bag, which was sealed on the spot. In his own words "NIYALYA ME UPLABDH BAG KO DHEKHAR GAWAHAN NE BATAYA KI MAI NAHI BATA SAKTA HOO KI YAH BAG MAUKE PAR BARAMAD HOOYA THA YA NAHI". Constable Shanker Prasad gave out that except Charas and bag nothing was recovered from the possession of the appellants. This statement of the witness does not inspire confidence. The appellants were coming from Nepal and were going to Nichlaul. They must be having some money in their pockets to meet the necessary expenses.
18. I further find that no link evidence was produced by the prosecution to show that the samples taken out by the arresting officer were actually sent to the Forensic Science Laboratory and the same samples were actually examined.
19. The prosecution has further failed to explain as to why the investigating officer was not examined in the trial Court.
20. The prosecution produced two public witness Ram Prasad and Ishaque and both stated categorically that no Charas was recovered from the possession of the appellants in their presence nor they were arrested. They turned hostile. In cross-examination by the State Counsel they asserted that their signatures were obtained on blank papers. Thus, there is no evidence of independent public witnesses to support the prosecution story.
21. In view of the infirmities and discrepancies in prosecution case/evidence on record, I hold that the learned trial Court committed error in appraisal of the evidence on record as well as in the application of relevant law. Consequently, I hold that the conviction of the appellants is not sustainable and is liable to be set aside.
22. In the result, the appeal is allowed and the conviction and sentence passed by the trial Court against the appellants are set aside and they are acquitted. The appellant No. 1 is on bail. His bail bonds are cancelled and sureties are discharged. The appellant No. 2 is in jail. He will be released forthwith if he is not wanted in any other crime.