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2002 DIGILAW 305 (RAJ)

Raghuveer Singh v. State of Rajasthan

2002-02-06

JAGAT SINGH

body2002
JUDGMENT 1. - By this appeal filed under Section 374(2) Cr.P.C. accused appellant Raghuveer Singh herein has assailed the judgment of conviction and order of sentence dated 4.5.2001 delivered by Special Judge, NDPS Act Cases Pratapgarh who in his Cr.Case No.89/99 (18/95) while convicting the accused appellant for an offence under Section 8/21 of the N. DP. S. Act (hereinafter referred to as "the Act") has awarded him 10 years' rigorous imprisonment alongwith a fine of Rs. 1,00,000/-. 2. To appreciate the rival contentions as also for correct and proper disposal of the appeal concise facts are as under: 3. PW-4 Bhagat Singh, Sub Inspector Police at 7.00 PM on 17.9.1995 was standing alongwith PW-8 Bherulal constable at Zero Mile Square in Pratapgarh city. At that time Raghuveer Singh suddenly started running in suspicious circumstances by PW-4 Bhagat Singh. The accused appellant told them that he was having a panni and brown sugar which he was going to puff. Upon which the accused appellant was taken to the police station Pratapgarh before PW-5 Ishaq Mohd., Station I louse Officer, who gave a notice Ex. P/I 2 under Section 50 of the Act and recovered one gram brown sugar and framed him for offence under Section 8 21 of the Act. After usual investigation he was challenged and charged in the above offence. Upon his pleading not guilty and claiming trial prosecution examined eight witnesses and exhibited as many documents. In statements under Section 313 Cr.P.C. accused denied all the incriminating evidence appearing against him and pleaded false implication. However, no evidence in defence was produced Thereafter the learned court below after a threadbare discussion of the evidence convicted and sentenced the appellant as stated above. 4. Learned counsel for the appellant stated that compliance of mandators provisions of Section 50 of the Act have not been done and the ideal formality of issuing notice Ex.P/12 under Section 50 of the Act was performed subsequently. Had there been a notice given prior to search and seizure, it should have been mentioned in the FIR Ex.P 10 itself which was recorded at 7.45 PM whereas the notice Ex.P/12 does not bear the time it was given to the accused appellant nor any time has been mentioned on Ex.P/3 and Ex.P/9 which were the notices given to the attesting witnesses PW-3 Inder Singh and PW-I Ramlal. 5. 5. On the contrary, learned Public Prosecutor has supported the impugned judgment. 6. I have carefully considered the rival submissions of the parties. 7. PW-4 Bhagwat Singh and PW-5 Ishaq Mohd., Station House Officer, are the star witnesses of the prosecution. Though they have stated in their court testimony that notice under Section 50 of the Act has been given prior to personal search, however, when their attention was drawn to the FIR Ex.P/10 and the police note appended at its back at place "C" to "D", they could not explain how the fact of giving notice to the accused before search is not mentioned in it, whereas, recovery of one gram brown sugar from the panni which was in the hand of the accused has been specifically mentioned in place "C" to"D". Ex.P/10 the written FIR was recorded at 7.45 PM whereas notice Ex.P. 12 does not bear any time. However, FIR No.418/1995 is mentioned in it which indicates that Ex.P/12 was prepared after recording of FIR Ex.P/10 else the number of the FIR may not have been mentioned in it. It is not the case of the prosecution that after recording of FIR its number was mentioned in Ex.P 12. Neither it is in different ink or handwriting, therefore, it can be presumed that ideal formality of issuing notice under Section 50 of the Act was performed after recording of the FIR as also after recovery of brown sugar from the person of accused. 8. There is one more defect in notice Ex.P/12 because it is not complying the mandatory provisions of Section 50 of the Act as it has been mentioned in Ex.P/12 that if accused desired he may produce the panni having brown sugar before a Magistrate of a Gazetted Officer. The option of the accused was also mentioned underneath stating that pudia of panni which was in his hand lie will like to present before the Station House Officer himself. It w-as the legal duty of the searching officer to have apprised the accused before search that if he desired his personal search can be undertaken in presence of a Magistrate or a Gazetted Officer. No such option was given to the accused appellant. Therefore, mandatory provisions of Section 50 of the Act have not been complied with. It w-as the legal duty of the searching officer to have apprised the accused before search that if he desired his personal search can be undertaken in presence of a Magistrate or a Gazetted Officer. No such option was given to the accused appellant. Therefore, mandatory provisions of Section 50 of the Act have not been complied with. The Apex Court in Sajjan Abraham v. State of Kerala, 2001(6) SCC 692 , and in acatina of judgments have held that compliance of mandatory provisions of the Act has to be examined with pragmatic approach. The legislature time and again has made some of the provisions obligatory which the courts have interpreted to be mandatory to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of the crime involved under it so that no such person escapes from the clutches of the law. The courts, however, while construing such provisions strictly should not interpret them so literally so as to render their compliance impossible. However, before drawing such inference it should be examined with caution and circumspection. Gurbux Singh v. State of Haryana, 2001 Drug (Cases (8) : Kaleka Thumba v. State of Maharashtra, 1999(8) SCC 463 ; State of Punjab v. Baldev Singh, 1999(6) SCC I and in eatina of judgments the Apex Court has held that Section 50 of the Act would be applicable only in cases where search of a person is carried out. 9. In the matter at hand one gram brown sugar is alleged to have been recovered from the panni pudia which was in the hand of the accused and. therefore, provisions of mandatory provision of Section 50 of the Act were applicable which have not been complied with and on this solitary ground the trial has vitiated causing prejudice to the accused. It is settled legal position that whether prejudice has resulted to the accused as to be ascertained from the circumstances of each case. If basic safeguards designed to ensure the authenticity of the material based on which a conviction is made or violated, that will certainly be prejudice in law. It is settled legal position that whether prejudice has resulted to the accused as to be ascertained from the circumstances of each case. If basic safeguards designed to ensure the authenticity of the material based on which a conviction is made or violated, that will certainly be prejudice in law. In the matter at hand there are circumstances to indicate that pudia and panni having one gram brown sugar has been recovered without giving a notice under Section 50 of the Act and when realising the lacunae an ideal formality of preparing notice Ex.P/12 was done in which instead of Section 50 Section 51 was written and that too was not properly worded as per the requirement of Section 50. Perhaps the Station House Officer giving notice has not read Section 50 of the Act itself else at least the necessary ingredients of Section 50 of the Act may have been mentioned in Ex.P/12. 10. Consequently, there is no merit in the impugned judgment and the same is set aside. The appeal is accepted. Accused appellant is in jail. He be released forthwith, if not required in any other matter.Appeal allowed. *******