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2001 DIGILAW 321 (MP)

Usha v. State of M. P.

2001-04-10

DEEPAK VERMA

body2001
JUDGMENT This appeal has been preferred by appellant against the judgment and order of conviction passed on 10.3.1997 by Third ASJ, Ratlam, in S.T. No. 260 of 96, whereby the appellant, who was charged and prosecuted for commission of an offence under S. 8/21 of the NDPS Act (for short, the Act), for having carried with her 40 gms. of brown sugar, has been found guilty and has been awarded 10 years' RI with fine of Rs. 1 lac; in default of payment of fine to undergo further RI for 4 months. Prosecution story, in short, is that on 4.10.1996, at GRP Ratlam, an informant came and informed that one lady passenger traveling in train, Ajmer-Poona, would be carrying with her, contraband. On this information being received, panchnama was prepared and raiding party went with him to platform No.2 where the said train was to come. SHO ' Chouhan had gone to the platform along with the Police force. The lady i.e., the appellant, was identified by the informant. Her activities were watched and as soon as SHO arrived, she was asked to give her search. It is said that on search being made, in a small bag which she was carrying, 40 gms. of brown sugar was found. After seizure of the contraband, samples of 5 gms. each were prepared and sealed. After completing other formalities, she was brought to the Police Station where formal FIR was lodged. Seized contraband was sent to Alkaloid Factory, Mandsaur for its chemical analysis. It is not in dispute that the contraband was brown sugar as has been analysed by the Alkaloid Factory. After completion of other formalities, charge sheet under S. 8/21 of the Act was filed against the appellant. Appellant abjured her guilt and pleaded that she has been falsely implicated in the case. Prosecution examined 10 witnesses on its behalf. Appellant-accused did not examine any witness in defence. On appreciation of evidence, the learned trial Court has convicted the appellant and awarded her sentence as mentioned above. Hence this appeal. I have,' accordingly, heard Shri Z.A. Warsi, learned counsel for appellant and Shri Mayank Upadhyaya, Dy. G.A. for respondent State, and perused the record. Learned counsel for appellant submitted that perusal of Ex. P-2 declaration, and Ex. On appreciation of evidence, the learned trial Court has convicted the appellant and awarded her sentence as mentioned above. Hence this appeal. I have,' accordingly, heard Shri Z.A. Warsi, learned counsel for appellant and Shri Mayank Upadhyaya, Dy. G.A. for respondent State, and perused the record. Learned counsel for appellant submitted that perusal of Ex. P-2 declaration, and Ex. 'P-3 consent letter of appellant would show that she was not at all given option of being searched either by the nearest Gazetted Officer or by the nearest Magistrate. The said declaration only suggests if appellant was prepared to give her search. On such suggestion being given, she gave her consent that she is prepared to give her search to a lady Police. It may also be mentioned that attesting witnesses, PW 3 Sangeeta and PW 4 Sara Bai, of consenting letter have been declared hostile. They have not supported prosecution story. It may also be pertinent to mention here that the search was conducted by Gajanand Sharma, CSP, Ratlam, but he himself has not disclosed it in Ex. P-2 and Ex. P-3 that he being a gazetted officer, would be empowered to take search and whether appellant would like to be searched by him. Apart from the above, there existed material contradiction in the evidence of PW 1 Gajanand Sharma and PW 7 Ku. Chhaya. Gajanand Sharma stated that when he went to the platform No.2, he found appellant along with other Police party near the booking counter, whereas PW 7 Ku. Chhaya has stated that on arrival of Gajanand Sharma; they went to the compartment of the train and then informed the appellant about her option and thereafter conducted the search. Thus, there is material contradiction in the statement of these two important witnesses of the prosecution. From their statements, it is not clear as to the place where the search of the appellant was made. However, as mentioned above, I find that there has not been full and complete compliance of S. 50 of the Act, which is manifest from Ex. P-2 and Ex. P-3. It has been held in several cases of the Supreme Court that compliance of S. 50 of the Act is mandatory and non-compliance thereof proves fatal to the prosecution. The latest judgment in the series in AIR 2000 SC 2790 (Ahmed v. State of Gujarat. P-2 and Ex. P-3. It has been held in several cases of the Supreme Court that compliance of S. 50 of the Act is mandatory and non-compliance thereof proves fatal to the prosecution. The latest judgment in the series in AIR 2000 SC 2790 (Ahmed v. State of Gujarat. On the basis of the said judgment and another judgment of the Supreme Court reported in (1999) 6 SCC 172 (State of Punjab v. Baldeo Singh), this Court has held in Cr. Appeal No. 414 of 98 decided on 5.1.2001 that non-compliance of S. 50 of the Act destroys the prosecution story and benefit thereof has to accrue to the accused. No other point was urged before me. After going through the record, I am convinced that prosecution has failed to prove that there was any compliance of S. 50 of the Act. If that be so, the conviction of the appellant for commission of offence under S. 8/21 of the Act cannot be upheld. In the result, the appeal is allowed. The judgment and order of conviction dated 10.3.1997 are hereby set aside. The appellant is in jail. She be set at liberty forthwith if not required in any other case.