JUDGMENT Mukteshwar Prasad, J.
1. Accused-Gopal alias Mahesh, son of Bhoop Kachhi, filed this appeal from jail against the judgment and order dated 20-6-1989 passed by the then learned Sessions Judge, Fatehpur whereby he convicted Gopal alias Mahesh under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act') and sentenced him to suffer rigorous imprisonment for a period of ten years and to pay a sum of rupees one lac as fine in the event of default, he was ordered to undergo additional rigorous imprisonment for a term of two years.
2. Briefly stated, the prosecution case was as under :
P.W. 1 S.I. Rajendra Dhar Dwivedi was posted as Station Officer GRP, Patehpur on 24-9-1988. He accompanied by two Constables, namely, Tribhuwan Pandey and Afsar Khan were on duty at platform No. 2/ 3 of the Railway Station. At about 9-45 p.m. S.I. Dwivedi was informed by Mukhbir that one miscreant having intoxicating drugs and weapon was waiting on the wooden bench under tin-shed built towards east of the over-bridge for Prayag Raj Express. Believing this information, S.I. Dwivedi picked up two public witnesses Ramesh and Ram Khelawan and disclosed his mission to them. The police force accompanied by public witnesses and the Mukhbir arrived near the said tin-shed and questioned a person sitting on the bench. He did not reply and tried to run away. He was, however, overpowered by the police force with the help of witnesses at about 10.00 p.m.
3. After interrogation, the miscreant disclosed his name as Gopal alias Mahesh Kachhi and on being searched in the presence of public witnesses, a knife was recovered from his possession. The police further recovered fifteen tablets of Lorazepam from the left pocket of the trouser.
4. Accused-Gopal alias Mahesh could not produce the licence for having knife and any prescription of a medical practitioner on demand. The accused was formally arrested by the police after disclosing the grounds of arrest. Both knife and tablets were sealed on the spot separately. The sample of seal was prepared and a fard recovery was also prepared on the spot and a copy thereof was furnished to the accused. Accused-Gopal alias Mahesh along with recovered weapon and tablets was brought to the police station and a case was registered at Crime No. 109 under Section 22 of the Act at 11-00 p.m. on the same night.
5. P.W. 3 Lalji Prasad, Head Moharrir prepared Chik report and made entry in the G.D. at serial No. 41.
6. The investigation of the case was taken up by S.I. Krishna Pal Singh, who was incharge of the GRP outpost, Khaga. He interrogated the witnesses and inspected the place of occurrence and prepared a site plan. Thereafter, the investigation was transferred to GRP, Kanpur. After chemical examination, the tablets were found to contain Lorazepam. After completing investigation charge-sheet was submitted against the accused by S.H.O. Nageshwar Tiwari, GRP, Kanpur Central.
7. The case was committed to the Court of Session on 22-12-1988 and accused was charged under Section 22 of the Act on 2-2-1989. He pleaded not guilty and claimed to be tried.
8. In order to establish its case, the prosecution examined P.W. 1 S.I. Rajendra Dhar Dwivedi, the arresting officer, P.W. 2 Ramesh, one of the public witnesses, who was allegedly present at the time of arrest of the accused, P.W. 3 H. C. Lalji Prasad P.W. 4 S.I. Krishna Pal Singh, I.O. of the case and P.W. 5 Constable Ram Kumar Verma, who filed affidavit to the effect that he took the sealed bundle to Forensic Science Laboratory, Lucknow and deposited there on 21-10-1988. He further disclosed that he obtained the report of Chemical Examiner and handed over the same on 17-1-1989 at GRP, Fatehpur.
9. Accused-Gopal alias Mahesh in his statement given under Section 313, Cr. P.C. totally denied all accusation and stated that tablets were planted by S.I. Dwivedi and he was falsely implicated. He led no evidence in defence.
10. After having considered the entire evidence on record led by the prosecution and the arguments advanced on behalf of the parties learned Judge found the accused guilty and convicted and sentenced him, as noted above. Hence this appeal.
11. I have heard Sri Sunil Kumar, Amicus Curiae, learned A.G.A. and perused the record carefully.
12. Learned Amicus Curiae has assailed the judgment mainly on the grounds that the prosecution failed to establish its case against the accused beyond all reasonable doubt and he deserves acquittal. According to him, there is total non-compliance of mandatory provisions of Section 50 of the Act and the information given to the arresting officer by the Mukhbir was not recorded by him as required under Sub-section (1) of Section 42 of the Act. Moreover, there is no compliance of the provisions of Section 57 of the Act and the evidence on record is totally silent on the point. It was also urged that S.I. Krishna Pal Singh, I.O. of the case was a subordinate of the arresting officer.
13. On the other hand, learned A.G.A. has supported the judgment and contended that the appeal is liable to be dismissed.
14. After considering the arguments advanced on behalf of the parties and close scrutiny of the evidence on record, I find that the prosecution could not bring home the charge against the appellant beyond all shadow of doubt and the appellant is entitled to be acquitted. According to seizure memo, S.I. R. D. Dwivedi, the arresting officer and two Constables were on duty at the combined platform Nos. 2 and 3 on the fateful night. S.I. Dwivedi received information that one miscreant was waiting for Prayag Raj Express along with weapon and intoxicating tablets. The arresting officer was Station Officer of GRP, Fatehpur. It means, the police station was at a very short distance from the place where S.I. Dwivedi got the information. Section 42 requires that such information has to be taken down in writing and a copy thereof shall be sent to the immediate official superior. However, this was not done by the arresting officer for the reasons best known to him.
15. I further find sufficient force in the contention of appellant's learned counsel that there has been total non-compliance of the mandatory provisions of Section 50 of the Act. According to Fard recovery, after detaining the accused the arresting officer took search and recovered fifteen tablets concealed in two polythene packets. Before having a search of the person of the appellant the arresting officer did not apprise him of his right that he had a right to be searched in the presence of nearest Gazetted Officer of any of the departments mentioned in Section 42 of the Act or Magistrate. The law requires that accused must be given option and explained his right to have his search in the presence of Gazetted Officer/Magistrate and this provision is mandatory as held by the Apex Court of the country in a number of decisions. In the instant case, the seizure memo is totally silent on this point and it appears that the arresting officer did not tell him about his right in this regard.
16. I further find that no report was sent to the higher officers within 48 hours regarding arrest and seizure as provided under Section 57 of the Act. I find that the learned Judge has overlooked all these aspects of the matter and recorded a finding of conviction. He failed in his duty to scrutinize the evidence cautiously and carefully as required under the law. It is needless to mention that law requires that provisions of the Act have to be complied with by all concerned because severe punishment is provided to the culprits who commit offences under this Act.
17. I further find contradiction in the testimony of P.W. 1 R. D. Dwivedi and P.W. 2 Ramesh, who is a public witness. According to arresting officer, he had recovered fifteen teen tablets from the pocket of the appellant. On the other hand, P.W. 2 Ramesh testified that accused himself handed over the tablets to the police.
18. In view of the foregoing observation and discussion of the evidence on record and in view of the non-compliance of mandatory provisions of Section 50 of the Act, I hold that this appeal has merits and it must succeed. Consequently, the appellant deserves acquittal.
19. In the result, the appeal is allowed and the impugned judgment and order dated 20-6-1989 are hereby set aside. The appellant is acquitted of the charge framed against him. He is confined at District Jail, Rampur. He is directed to be set at liberty forthwith, if not wanted to any other case.
20. Sri Sunil Kumar, Advocate was appointed Amicus Curiae to argue this appeal on behalf of the appellant, who is in jail, vide order of the Court dated 13-7-2004. He argued the appeal on 13-7-2004. He will be paid Rs. 1000/- as his fee.