JUDGMENT 1. 1. Instant Criminal (Jail) appeal owes its origin in the judgment dated May 24, 1999 of the learned Special Judge Narcotic Drugs And Psychotropic Substances Act Cases Bundi whereby the accused appellant was convicted under Section 3/18 of the Narcotics and Psychotrophic Substances Act, 1985 (For short the Narcotic Drugs And Psychotropic Substances Act) to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 1,00,000/- in default to further undergo two years rigorous imprisonment. 2. Relevant facts for the disposal of the appeal in brief are that Sunil Kumar Srivastava Inspector Central Narcotics Bureau along with the checking party on September 5, 1996 checked Bus No. RJ 04/P-0065 belonging to Rajasthan Roadways near Octroi Post Devpura (Bundi) and found appellant Kishan Lal sitting on the rear side of the Conductor seat in a suspicious manner. Sushil Kumar Srivastava disclosed his identity and asked the appellant as to whether he wanted to be searched in the presence of the Magistrate or Gazetted Officer. The appellant thereupon volunteered to be searched by the checking party. On being searched by S.K. Tugnawat an attache was found between the legs of the appellant. The attache was unlocked and a polythene packet wrapped in a towel containing 3.300 Kg. opium was found inside the attache. The appellant had no licence for possessing and transporting the said contraband. Two samples of 24 gms. each were drawn from the seized opium. The remaining opium was kept in the attache and sealed separately. Bus ticket from Rawatbhata to Ajmer recovered from the appellant was also sealed. Confessional statement of the appellant was recorded by S.K. Tugnawat and thereafter the appellant was arrested. FIR was registered and after completion of investigation charge sheet was filed. Charge under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act was read over to the appellant who denied the charge and claimed trial. To prove its case the prosecution examined as many as 12 witnesses. The appellant in his statement under section 313 Cr.PGO denied all the circumstances appearing against him in the prosecution evidence, however in rebuttal he did not adduce any evidence. After trial the learned Special Judge convicted and sentenced the appellant as indicated hereinabove. 3. I have heard Mr. Mahesh Sharma the learned Amicus Curiae and Mr. Bhanwar Bagri the learned Standing Counsel for the Union of India and closely scanned the record. After trial the learned Special Judge convicted and sentenced the appellant as indicated hereinabove. 3. I have heard Mr. Mahesh Sharma the learned Amicus Curiae and Mr. Bhanwar Bagri the learned Standing Counsel for the Union of India and closely scanned the record. 4. The first contention of Mr. Mahesh Sharma, learned counsel is that the officer who conducted investigation was not authorised to do so under the Narcotic Drugs And Psychotropic Substances Act. None of the witnesses had deposed that they were entrusted with the powers in accordance with section 42 of the Narcotic Drugs And Psychotropic Substances Act. Thus entire prosecution of the appellant is bad in law. Reliance was placed on Raju @ Basant v. State of Rajasthan, ( 1989(1) RLR 348 ) . I am not impressed by the submission. Section 43 of the Narcotic Drugs And Psychotropic Substances Act provides that any officer of any of the department mentioned in Section 42 may seize in any public place or in transit any narcotic drug or Psychotrophic substance mentioned in the Act. Inspector Central Narcotics Bureau is authorised under section 42 to seize the narcotic drug or Psychotrophic substance. Case of Raju @ Basant v. State (supra) is distinguishable. In that case Gopal Ramawat who conducted the search was not posted as Stations House Officer and was not authorised by the Notification dated October 16, 1986. 5. It is next contended by Mr. Mahesh Sharma learned counsel that circumstances in respect of confessional statement of appellant Ex.P 2 were not put to the appellant while examining him under section 313 Cr.PC. I do not find any merit in this contention. A look at the statement of the appellant recorded under section 313 Cr.PC. reveals that in question No. 6 the i appellant was specifically asked that witness Sunil Kumar (PW. 1) recorded the statement of the appellant Ex.P2 before his arrest. The appellant's reply to this question was that he did not know. 6. Another submission of Mr. Mahesh Sharma, learned counsel is that confessional statement Ex.P 2 is not admissible in evidence. Placing reliance i on Aher Raja Khima's case ( AIR 1956 SC 217 ) it was canvassed that confession cannot be used against an accused unless a court is satisfied that it was voluntary. To substantiate his arguments Mr. 6. Another submission of Mr. Mahesh Sharma, learned counsel is that confessional statement Ex.P 2 is not admissible in evidence. Placing reliance i on Aher Raja Khima's case ( AIR 1956 SC 217 ) it was canvassed that confession cannot be used against an accused unless a court is satisfied that it was voluntary. To substantiate his arguments Mr. Sharma contends that Article 20(3) of the Constitution of India mandates that no person accused of an offence shall be compelled to be a witness against himself. The statement - made by the accused during the course of investigation cannot be a part of a charge sheet. Even the Statement under section 67 of the Narcotic Drugs And Psychotropic Substances Act cannot be recorded if the person is already mentioned as an accused. Reliance is placed on Narcotic Control Bureau v. Gani Khan, (1994 Cr.L.R. (Raj.) 335) . I find considerable force in the submission of the learned counsel. In Narcotic Control Bureau v. Gani Khan (supra) it was indicated that section 67 of the Narcotic Drugs And Psychotropic Substances Act has been enacted for taking care of the investigatory emergencies. The sole purpose of an enquiry from the accused under the Narcotic Drugs And Psychotropic Substances Act is to ascertain whether there is any contravention of the provisions of the Act. Words 'Any person' under section 67 includes a person who has subsequently - become an accused. But if he has already been named as an accused then his statement recorded under section 67 cannot be read against him in view of the bar created by Article 20(3) of the Constitution of India.A close look at the confessional statement of the appellant (Ex.P 2) goes to show that it was recorded on September 6, 1996 by S.K. Tugnawat in front of Inspector S.K. Srivastava. In the statement the appellant has been shown as 'Accused Kishan Lal' and Re stated that he was arrested on September 5, 1996 at 11.30 p.m. From the alleged confessional statement of the appellant Ex.P 2 it is crystal clear that the said statement was recorded much after his arrest and it cannot be read against the appellant being hit by - Article 20(3) of the Constitution of India.A bare look at the Arrest Memo (Ex.P 3) of the appellant reveals that it was drawn on September 5, 1996 whereas the confessional statement of the appellant (Ex.P 2) was recorded on September 6, 1996. In view of this how can I believe the testimony of Sunif Kumar Srivastava (PW. 1) when he tells a lie that in his presence Sub Inspector Tugnawat recorded the statement of accused before his arrest wherein he confessed his guilt. The statement is marked as Ex.P 2. In Ex.P 2 he states thus:- " esjh ekStwnxh esa mifufj{kd rqxukor us fxjQrkjh ds iwoZ eqyfte ds c;ku fy, Fks ftlesa mlus viuk tqeZ Lohdkj fd;k FkkA c;ku izn'kZ ih0 2 gSA " 7. Now I proceed to consider as to whether the prosecution has established the conscious possession of alleged contraband to connect the appellant with the crime. Sunil Kumar Srivastava (PW. 1) deposed:- " eqyfte fd'ku yky ftl lhV ij cSBk Fkk] ml lhV ds uhps mlds iSjksa ds chp esa ,d vVSph FkhA ml vVSph dks Jh ,l0ds0 rqxukoar mi&fujh{kd ckgj fudky dj yk;kA cl ds vUnj gh ml vVSph dks [kksykA " Girdhar Dutt Sub Jailor (PW. 2) in his cross examination says " fd'ku yky ds ikl esa ,d vVSph Fkh o ,d >ksyk Vkbi&lk Fkk tks lhV ij iM+h gqbZ Fkh & fd'ku yky nks okyh lhV ij f[kM+dh dh rjQ cSBk gqvk FkkA fd'ku yky ds ikl ,d vkneh cSBk gqvk Fkk mlls Hkh ukjdksfVDl okyksa us iwNrkN dh FkhA " Ashok Kumar Sharma (PW. 3) District Opium Officer says " cl esa ihNs dksbZ lafnX/k vkneh cSBk gqvk Fkk & ryk'kh yh xbZ rks mDr O;fDr ds ikl vVSph esa j[kk uktk;t vQhe feykA " Satyendra Tugnawat Dy. Inspector (PW. 3) District Opium Officer says " cl esa ihNs dksbZ lafnX/k vkneh cSBk gqvk Fkk & ryk'kh yh xbZ rks mDr O;fDr ds ikl vVSph esa j[kk uktk;t vQhe feykA " Satyendra Tugnawat Dy. Inspector (PW. 4) says " lafnX/k O;fDr fd'ku yky dh rkyk'kh yh rks mlds iSjksa ds chp esa j[kh vVSph dks [kqyok;kA " In the cross examination he states- " ;g esjs dks vkt ;kn ugha gS fd fd'ku yky ds iSjksa dh vVSph dks fdlus mBk;k FkkA ;g vVSph esjs }kjk [kkyh xbZ FkhA esjs dks vVSph Jh lquhy JhokLr }kjk nh xbZ FkhA " Narendra Kumar (PW. 5) the conductor of the Bus says " lhV ua0 17 ds mij esjh vVSph ds ikl ,d vVSph vkSj FkhA vklekuh jax dh vVSph FkhA ml vVSph dks /kksrh dqjrk o ,d tkfdV igus ,d O;fDr j[kus vk;k FkkA ysMh o cPpk Hkh lkFk esa FkkA ysfMl xkM+h esa FkhA ml vVSph dh pkch ryk'k dh nwljs dh pkch ls ml vVSph dks [kksyk mlesa ls vQhe fudyhA " This witness was declared hostile. In his cross examination he categorically deposed that attache was not recovered from the appellant. 8. It appears from the above discussions that only two independent persons were examined by the prosecution as the witnesses of the occurrence. Girdhar Dutt Sub Jailor (PW. 2) in his cross examination deposed that attache was lying on the seat. The conductor Narendra Kumar (PW. 5) also stated that it was lying on seat No. 17 near his attache and it was carried in the bus by some other person bearing Dhoti, Kurta and Jacket. It was not recovered from the appellant. Now remains the testimony of Sunil Kumar Srivastava (PW. 1) and Satyendra Tugnawat (PW. 3). Both of them have interest in the success of the investigation being Inspector and Sub Inspector. According to them the attache was lying between the legs of the appellant. Sunil Kumar Srivastava stated that S.K. Tugnawat took out the attache whereas Tugnawat deposed that attache was handed over to him by Sunil Srivastava. I cautiously examined the statement of Sunil Kumar Srivastava as I already observed that this witness did not speak the truth in respect of confessional statements of the appellant. To my mind the version set out by the prosecution is highly unnatural. I cautiously examined the statement of Sunil Kumar Srivastava as I already observed that this witness did not speak the truth in respect of confessional statements of the appellant. To my mind the version set out by the prosecution is highly unnatural. The, appellant who was sitting on seat No. 17 of the Bus at window side had occasion to see the checking party from the window of the Bus. The person who conducted the search took some time in reaching to seat No. 17 where the appellant was sitting. Thus it is difficult to believe that appellant even after seeing the checking party had kept the attache between his legs. Conductor Narendra Kumar (PW. 5) did not support the prosecution case and was declared hostile. The prosecution examined other independent passenger Girdhar Dutt (PW. 2) who in his cross examination stated that attache was lying on the seat. Under these circumstances the testimony of Sunl Kumar Srivastava (PW. 1) and Satyendra Tugnawat (PW. 3) cannot be believed and a doubt creeps in mind in respect of conscious possession of alleged contraband to connect the appellant with crime. 9. Mr. Bhanwar Bagri, learned Standing Counsel contends by placing reliance on Hardeo Gujar v. State of Raj., (1989 Cr.L.R. (Raj.) 582) that the doctrine of benefit of doubt should not be stretched to that extent which will deprive the society of its just cause. I agree with the submission. To my mind the provisions of Narcotic Drugs And Psychotropic Substances Act should be interpreted to put a check on the illicit dry traffic but the court has equally to see that innocent persons do not suffer. The investigating agency is expected to carefully read the provisions of the Narcotic Drugs And Psychotropic Substances Act and apply them fairly. it is distressing to note that confessional statement of the appellant (Ex.P 2) was recorded after his arrest which appears from the Arrest memo (Ex.P 3) itself but the Inspector Sunil Kumar Srivastava (PW. 1) without any hitch stated on oath before the trial court that statement of the appellant (Ex.P 3) was recorded in his presence before the arrest of the appellant. I am satisfied that evidence led by the prosecution in the instant case is contradictory and unreliable and appellant could not be convicted on the basis of such evidence. 10. 1) without any hitch stated on oath before the trial court that statement of the appellant (Ex.P 3) was recorded in his presence before the arrest of the appellant. I am satisfied that evidence led by the prosecution in the instant case is contradictory and unreliable and appellant could not be convicted on the basis of such evidence. 10. In the case of Bhola Ram Kushwaha v. State of M.P., (2001) 1 SCC 35 their Lordships of the Supreme Court in paras 6 and 7 observed thus- "6. Upon analysis of the evidence led in the case and finding glaring discrepancies in the statements of the prosecution witnesses we feel that the prosecution has failed to prove its case against the appellant beyond all reasonable doubts. In all material particulars PW. 4 stands contradicted by PWs. 1 and 2 who are admittedly the Panch witnesses. The prosecution also failed to associate three constables who accompanied S.N. Tripathi (PW. 4) as witnesses. The trial court appears to have omitted to note the glaring contradictions in the testimony of the prosecution witnesses. PW. 4 in his testimony in the court submitted that "... he received the information that accused Bhola Ram Kushwaha was having brown sugar in the pocket of his trouser. He recorded that information in the Sanha. That is Ex. P/13." 7. However, a perusal of Exhibit P/13 showed that no entry was made therein regarding the appellant having brown sugar in his pocket. We feel that the appellant can not be convicted on the basis of evidence led, which in the case, we have found to be contradictory and not reliable." 11. In view of the discussions made hereinabove I have left with no option but to give the accused appellant benefit of doubt. The appeal is accordingly allowed and the impugned judgment dated May, 24, 1999 of the learned trial court is set aside. The accused appellant is acquitted of the charges framed against him under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act. He shall be set at liberty forthwith if not required in any other case.Appeal Allowed - Accused Acquitted. *******