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2004 DIGILAW 879 (RAJ)

Dana Ram v. State of Rajasthan

2004-06-02

H.R.PANWAR

body2004
JUDGMENT 1. - This criminal appeal under Section 374(2) Cr.RC. is directed against the judgment of conviction and order of sentence dated 10.3.2003 passed by Special Judge NDPS Cases, Jodhpur (for short "the trial court" hereinafter) in Sessions Case No. 29/2000 whereby the trial court convicted appellant Dana Ram for the offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act' hereinafter) and sentenced him to undergo 10 years' rigorous imprisonment with a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo one year's rigorous imprisonment. 2. Briefly stated, facts of the case are that PW-4 Dy. S.R Anil Kumar received a secret information vide Ex.P/9 on 15.3.2000 at 7.00 AM at Chauhtan to the effect that contraband heroin has been smuggled from Pakistan and it is hidden somewhere which will be taken out by appellant Danaram. On this information PW-2 Dy.S.R Anil Kumar, PW-1 ASI Motiram, PW-2 Circle Inspector Awardan, PW-5 Constable Swaroop Singh and PW-9 Constable Hakam Singh went to BSF post, Bhanda where they met Jiyalal and one Jai Singh, both BSF personnel, who were patrolling the border near fencing. It is alleged that a person started running from the side of Khejri tree having a plastic bag in hand. He was caught hold. On being asked, he disclosed his name as Danaram, present appellant. The bag was searched and on search it was found containing 17 small bags. He was served with a notice under Section 50 of the Act vide Ex.P/6. On having (been) served with the notice under Section 50 of the Act, the appellant gave consent vide Ex.P/2. He was searched and a seizure memo Ex.P/4 was prepared. 3. After usual investigation the police filed challan against the appellant for the offence under Section 8/21 of the Act. The prosecution adduced the evidence by producing as many as 9 witnesses and documents Ex.P/1 to Ex.P/18. The appellant made statement under Section 313 Cr.RC. and denied the allegation. The trial court, at the conclusion of the trial and appreciation of evidence, found the appellant guilty for the offence under Section 8/21 of the Act and accordingly he was convicted and sentenced as noticed above. 4. Being aggrieved by the judgment of conviction and order of sentence the appellant has filed the instant appeal. 5. and denied the allegation. The trial court, at the conclusion of the trial and appreciation of evidence, found the appellant guilty for the offence under Section 8/21 of the Act and accordingly he was convicted and sentenced as noticed above. 4. Being aggrieved by the judgment of conviction and order of sentence the appellant has filed the instant appeal. 5. I have heard the learned counsel for the appellant and learned Public Prosecutor, perused the judgment and order of the trial court and scanned, scrutinised and evaluated the evidence on record. 6. It is contended by the learned counsel for the appellant that there are serious contradictions with regard to the place where the appellant was found standing. It was further contended that the prosecution case became more doubtful for want of independent Motbirs. Learned counsel further contended that in the seizure memo Ex.P/4 the column captioned time has been left blank deliberately. He assailed Ex.P/4 on the ground that search was conducted vide Ex.P/4 prior to giving notice to the appellant under Section 50 of the Act. Thus the search and seizure were made without compliance of Section 50 of the Act. It was further contended that the secret information alleged to have been received by PW-4 Dy.S.R Anil Kumar vide Ex.P/9 does not disclose the place where the contraband heroin was alleged to have been kept as also there is no mention of the place where the person was informed to be found. The area of village Bhanda is in (a) number of kilometers. Thus the very secret information Ex.P/9 is vague and that could not have given a specific direction to the investigating agency to visit to a particular place. It was further contended that the investigating agency did not make any attempt to search the place where the contraband was alleged to have been placed. Learned counsel further contended that the seized articles have not been produced in the trial court during the trial and as such the article contraband has neither been produced in the court nor has been exhibited and proved. 7. Learned counsel further contended that the seized articles have not been produced in the trial court during the trial and as such the article contraband has neither been produced in the court nor has been exhibited and proved. 7. On the other hand, learned Public Prosecutor appearing on behalf of the State has supported the judgment and order of the trial court and contended that since the appellant was found in possession of the contraband heroin and, therefore, the minor discrepancies in the statement of the prosecution witnesses would not demolish the case of the prosecution. 8. I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties. 9. Ex.P/9 is the secret information received by PW-4 Dy. S.R Anil Kumar at 7.00 AM on 15.3.2000 at the office of the Circle Officer, Chauhtan. The information states that in the jurisdiction of police station Bakhasar in the area of village Bhanda the heroin contraband smuggled from Pak has been hidden somewhere which will be taken by Danaram. The secret information was sent to the Superintendent of Police, Barmer. On wireless the Station House Officer of police station Serwa was directed to be available on road. Thereafter PW-4 Anil Kumar, PW-1 Motiram, PW-2 Awardan and PW-9 Hakam Singh reached the BSF post Bhanda. There they met constable Jiyalal (Jiyaram) and S.I. Jai Sigh PW-3 who were patrolling near to border fencing. Thereafter they went near the water pond (Nadi) and made efforts to know the place. They found the foot steps of a person going towards border fencing. They followed the foot steps. They met Jai Singh and Iswardas, both BSF personnel, and scught help. When they were about 100 meters away from the Pak border, they noticed a person running from a kejri tree having plastic bag in hand. He was caught. He disclosed his name (as) Danaram. Having found him in suspicious condition as he was found in the prohibited area and had a plastic bag suspecting (sic) the narcotic drugs the Circle Inspector Awardan and ASI Motiram were made motbirs and the bag was searched. On search being made, there were 17 small bags. He stated that a notice under Section 50 of the Act was given to the appellant. He was given the option to be searched by a Gazetted Officer or the Magistrate or the Thsildar. On search being made, there were 17 small bags. He stated that a notice under Section 50 of the Act was given to the appellant. He was given the option to be searched by a Gazetted Officer or the Magistrate or the Thsildar. He was also given an option to be searched by him, on which the appellant gave consent to be searched by him vide Ex.P/2. The contraband was found with certain marks weighing 17.700 kg. On the random basis in all 30 grams each for two samples was kept as a sample and sealed. He prepared seizure memo Ex.P/4. The accused appellant was arrested vide Ex.P/5. In cross examination he admitted that he did not disclose the secret information to Station House Officer Serwa PW-2 Circle Inspector Awardan. He denied having taken any independent motbirs from Serwa. He admitted that there were villages on the way while going from village Serwa to Bhanda yet no independent motbir was taken by them. When they started from water pond, after crossing a distance of about 400-500 meters they noticed foot-prints of a person leading towards the border. They followed the foot-prints. The foot-prints disappeared about 100 meters before the place where the appellant was caught hold. He admitted that he has not mentioned the fact of foot-prints in the site map Ex.P/10. He stated that at the first time he saw the appellant running with a distance of about 25-30 meters. He ran for 10-15 meters and thereafter at his own stopped. He did not throw the bag even on coming of police party and BSF personnel. When he was caught, the bag was not on the ground, it was taken by PW-2 Awardan from the hand of the appellant and at his instructions PW-2 Awardan opened the bag. He admitted that in his previous statement Ex.D/2 he has not stated that the appellant was served with the notice under Section 50 of the Act on the spot. He also admitted that in his previous statement Ex.D/2 it has not been stated that the appellant was given an option to be searched in the presence of a Gazetted Officer, Tehsiidar or a Magistrate or before Circle Officer himself. 10. PW-1 Motiram and PW-2 Awardan also did not say in their statements whether any notice under Section 50 of the Act was ever given to the appellant before he was searched. 10. PW-1 Motiram and PW-2 Awardan also did not say in their statements whether any notice under Section 50 of the Act was ever given to the appellant before he was searched. There is no other evidence on record to establish that before the appellant was searched the notice as envisaged under Section 50 of the Act was given to him. Section 50 of the Act requires that when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. Thus the requirement of giving notice under Section 50 of the Act for the option to be exercised by the person searched is prior to (when) the search is made. 11. PW-1 Motiram stated that they received information to remain outside the police station from Circle Officer, Chauhtan. PW-4 Anil Kumar the Station House Officer, he himself, PW-9 Hakam Singh and the jeep driver Bhagirath Ram were standing outside the police station with a jeep. At 8.00 AM Circle Officer, Chauhtan came in a vehicle. Thereafter they went to BSF post Bhanda and took one Jailal "Khoji" (a person who can identify the foot prints) and reached the water pond. From water pond they noticed foot steps of a person going towards border. Before -about 300 meters from the border they tried to check the foot prints but lost the track. They noticed a person standing near one khejri tree having a bag. By (sic) seeing police party he started running. He was surrounded and caught. He disclosed his name Danaram. The bag was suspected to contain the smuggled articles. For his search, a notice regarding consent was served. There was no motbir, therefore, fie and PW-2 Awardan were made motbirs. On search 17 bags were found with certain marks. The marks were different on the bags. Every bag was opened containing a different mark and it was tested by the drug kit and found that the bag contained heroine. From every bag sample of 30 grams each was taken and sealed. The appellant did not possess any licence or permit to keep the contraband. On the spot memos were prepared. Every bag was opened containing a different mark and it was tested by the drug kit and found that the bag contained heroine. From every bag sample of 30 grams each was taken and sealed. The appellant did not possess any licence or permit to keep the contraband. On the spot memos were prepared. The appellant was arrested vide Ex.P/1. Thereafter they came back to police station Bakhasar along with the appellant. He stated that PW-4 Anil Kumar did not ask to bring any independent motbir from village Serwa. He admitted that there are so many villages on the way from Serva to Bhanda. However, they did not make any effort to take independent motbirs. The place of recovery is about a kilometer away from village Bhanda. When they reached near the water pond they noticed foot steps of a person of a bare leg. However, after covering some distance they found foot steps of a person wearing slippers. He stated that the distance from water pond to the place of recovery is half a kilometer. They saw the person from a distance of about 100 meters near the khejri tree. By seeing them in uniform, he started running. When they were about 100 meters away the appellant became frightened and could not run. He was surrounded. However, he did not move. He was wearing the slippers and bag having in left arm. He did not make any effort to throw the bag even after seeing the police party and when he was caught he was having the bag in his left arm. Thereafter PW-4 Anil Kumar asked the appellant to place the bag on the ground and the appellant opened the bag. He stated that notice Ex.P/2 was written by him. The appellant was arrested at 1.30. The notice was given before his arrest but he cold not say at what time the notice was given. 12. PW-2 Circle Inspector Awardan also made a similar statement. He stated that a person was standing near the khejri tree with a bag in hand. Seeing the police party in uniform he ran towards North. He was surrounded and the name and address was asked on which he disclosed his name as Danaram. Having suspicion, on his consent, he was searched and they found 17 bags containing certain marks which appeared to be the narcotic substances. It was 17.700 kg. in weight. Seeing the police party in uniform he ran towards North. He was surrounded and the name and address was asked on which he disclosed his name as Danaram. Having suspicion, on his consent, he was searched and they found 17 bags containing certain marks which appeared to be the narcotic substances. It was 17.700 kg. in weight. From each bag sample of 30 grams was taken. He stated that the police party first saw the appellant from a distance of 10 meters. He, PW-1 Motiram and PW-3 Jai Singh were going together. He was seen from a distance of 10 meters towards North from the place where the police personnel were standing. After seeing police party he started running towards North and he was surrounded within 20 paces. He had a bag in his right hand. PW-4 Anil Kumar asked to appellant to keep the bag on the ground saying that they wanted to search. When the appellant was searched he was having the bag and thereafter it was kept on the ground. 13. PW-3 Jai Sigh stated that at about 9.00 AM while he was patrolling at the border post PW-2 Awardan and PW-4 Anil Kumar came to him and asked that they will search the area. Thereafter he along with two constables started searching the area. They found a person standing near a khejri tree with a plastic bag about 100-150 meters away from the fencing. They asked him as to with whose permission he came there. Thereafter he wanted to run but he was surrounded by the police and BSF personnel and caught. He along with PW-4 Anil Kumar and PW-2 Awardan went to the spot. All of them made the bag upside down. They noticed that it contained 17 bags having written something in Urdu language. Thereafter PW-4 Anil Kumar said that these contained 1 heroin. The bags were opened and checked. It (they) contained heroin weighing 17.700 kg. Thereafter from each bag the sample was taken and sealed. PW-2 Awardan asked the person who was searched, on which he disclosed his name Danaram, a brother-in-law of Dalia Bheel. He admitted that 5 he stayed for two minutes with the person who was caught. He admitted that before they reached the khejri tree the person searched was already surrounded by the BSF personnel viz. Jiyalal and Iswardas. PW-2 Awardan asked the person who was searched, on which he disclosed his name Danaram, a brother-in-law of Dalia Bheel. He admitted that 5 he stayed for two minutes with the person who was caught. He admitted that before they reached the khejri tree the person searched was already surrounded by the BSF personnel viz. Jiyalal and Iswardas. When they reached near khejri tree, the bag was lying on the ground and it was not in the hand of the appellant and PW-2 Awardan put the bag upside down and (had) n taken out the small bags. At that time the appellant was wearing slippers. He admitted that on 12.3.2000 at the same place near to fencing 60 bags of heroin were recovered which were lying on the ground and which were noticed by the BSF personnel and was reported to the higher BSF officers. They came to know that heroin was brought by Dalia Bheel. He admitted that PW-4 Anil i Kumar and PW-2 Awardan when met him, they did not disclose the name of the appellant. He asked PW-4 Anil Kumar and PW-2 Awardan as to what for they came, then both of them informed that on 12.3.2000 there was a recovery of heroin so they wanted to inquire into the matter. Whatever the memos were prepared on the spot were got signed by the BSF personnel. 2 14. PW-9 Hakam Sigh, the another witness, was a member of the seizure party. He stated that on 15.3.2000 he along with PW-2 Awardan and PW-4 Anil Kumar went to village Bhanda. They held Nakabandi. They noticed the appellant coming from border side with a bag containing heroin. He was caught hold. He disclosed his name as Danaram. He was searched. In the bag 2 there were 17 small bags containing heroin weighing 17.700 kg. and 30 grams from each bag was taken as sample and sealed. He stated that they started from Serwa police station at 8.30 AM. At that time PW-4 Anil Kumar did not disclose that there is any information regarding appellant's coming with contraband. Nothing was disclosed by PW-4 Anil Kumar regarding the appellant. At the place of Nakabandi, in addition to police officers, there were also BSF personnel. Nakabandi was held by hiding in the bushes. After having Nakabandi for about half an hour they saw the appellant coming from border side. Nothing was disclosed by PW-4 Anil Kumar regarding the appellant. At the place of Nakabandi, in addition to police officers, there were also BSF personnel. Nakabandi was held by hiding in the bushes. After having Nakabandi for about half an hour they saw the appellant coming from border side. On which PW-4 Anil Kumar asked his name. He was having a bag in his right hand. First of all the appellant was seen coming by PW-2 Awardan. The appellant came from the Western side. He ran for about 30-35 yards with the bag. He was chased by him and others. He was ahead of chasing party. The appellant was surrounded and caught hold. There were three BSF personnel along with police party when the appellant was chased and caught hold. 15. The other witnesses PW-5 Swaroop Singh, PW-6 Bagaram, PW-7 Ranaram and PW-8 Ratanlal are the police officials who have taken the sealed article to Malkhana and then to the FSL for being analysed. The FSL report Ex.P/18 is on record. The contraband, on being examined by the FSL, gave positive test for the presence of Diacetyl Morphine (heroin). Thus, from the evidence it has been established that the contraband which was seized from the appellant by the police, on being chemically examined by the FSL, it was found to be heroine. 16. The question remaining for consideration is as to whether the appellant was found in possession of the contraband heroin or it was recovered by the police while lying hidden near the border fencing as it appears from the secret information Ex.P/9. The witnesses, more particularly PW-3 Jai Singh, have categorically stated that PW-2 Awardan and PW-4 Anil Kumar along with other police officials came to him while he was patrolling near the border fencing and informed the purpose for which they came and stated that there was a recovery of heroin on 12.3.2000 and they wanted to inquire into the recovery of heroin. It is relevant to mention here that the police party went to PW-3 Jai Singh on 15.3.2000 just after two days of earlier recovery said to have been effected from the same place. There are material contradictions in the statements regarding search and seizure. The police witnesses PW-1 Motiram, PW-4 Anil Kumar and PW-9 Hakam Singh are members of same police party conducting search. There are material contradictions in the statements regarding search and seizure. The police witnesses PW-1 Motiram, PW-4 Anil Kumar and PW-9 Hakam Singh are members of same police party conducting search. The statements of all these witnesses run contrary to each other on material particulars and thus needs extra caution while scrutinising the evidentiary value of their statement. PW-3 Jai Singh is also the witness to the recovery. 17. Apart from these witnesses there were two police personnel viz Jiyalai and Ishwardas who (are) alleged to have surrounded and caught hold of the appellant. The prosecution has not produced either of them for the reasons best known to them but at any rate they have been withheld. The case as set up by the prosecution goes to show that when the police party reached, the appellant was already surrounded by the BSF personnel. If that version is taken to be true, then the statements of PW-1 Motiram, PW-2 Awardan and PW-4 Anil Kumar run contrary to the prosecution story because they stated that they saw a person standing near a khejri tree, who after seeing police party started running and they chased him. PW-9 Hakam Singh says that he was the first person to chase the appellant and other police officials were behind him, whereas, PW-3 Jai Singh says that the appellant was surrounded and caught hold by the BSF personnel. So the story of the appellant having been seen near khejri tree, on seeing police party start running and was chased by the police party and caught hold, becomes doubtful. The story that the appellant was caught hold near the khejri tree has not been supported by the statement of PW-3 Jai Sigh and PW-9 Hakam Singh. 18. So far as the evidence that the appellant had a bag in his right arm and on being caught hold he was searched and seizure was made, there are material contradictions in the statement of all the five material witnesses. There is absolutely no consistency with regard to distance from which the appellant was first seen, the article whether it was in the left hand or it was lying on the ground or he was carrying in the right hand. Almost all the witnesses are at major variance on this material point. 19. There is absolutely no consistency with regard to distance from which the appellant was first seen, the article whether it was in the left hand or it was lying on the ground or he was carrying in the right hand. Almost all the witnesses are at major variance on this material point. 19. So far as notice under Section 50 of the Act giving option to the appellant for being searched before the Gazetted Officer or the Magistrate is concerned PW-1 Motiram, PW-2 Awardan, PW-4 Anil Kumar, PW-9 Hakam Singh and even PW-3 Jai Singh are not consistent. PW-4 Anil Kumar has admitted that in his previous statement Ex.D/2 he has not stated that before search and seizure, a notice was given to the appellant under Section 50 of the Act. PW-1 Motiram, PW-2 Awardan and PW-9 Hakam Singh all the three police officials also do not say in their statements that the notice under Section 50 of the Act was given to the appellant before he was searched. Not only this, even in Ex.P/4 the recovery memo, there is no such mention that notice under Section 50 of the Act was given to the appellant. On close scrutiny of the seizure memo Ex.P/4 the captioned time is left blank, as also in Ex.P/2 the time is not mentioned as to when the appellant gave consent to be searched by PW-4 Anil Kumar. Similarly, in Ex.P/6, in the notice for consent, the time has not been mentioned. 20. It is the mandatory requirement of law that when the authorised officer is about to search any person, he shall, if so required, take such person without unnecessary delay to the nearest Gazetted Officer of the departments mentioned in Section 42 or the to nearest Magistrate. Thus the expression "is about to search" postulates that before search is conducted a notice under Section 50 giving option to the person sought to be searched is required to be mandatorily given, if search is made prior to the notice then the whole search and seizure vitiate and the notice of giving option to the person sought to be searched under Section 50 of the Act is defeated. 21. 21. Learned counsel for the appellant has relied on a judgment of this Court in Hari Ram v. Central Narcotics Bureau, reported in 2001 (3) RCD 429 , wherein it was held that the provision of Section 50 of the Act are intended to provide a safeguard, against vexatious search, any unfair dealings and to protect and safeguard the interests of the innocent persons. The provision of Section 50 of the Act are intended to safeguard the innocent person against vexatious and unfair dealing. If a person is searched before a Gazetted Officer or a Magistrate, then it will rule out the possible common allegation that the contraband has been planted by the investigating agency. The rationale behind such provision is a search before a Gazetted Officer or a Magistrate would impart more authenticity and worthiness to credit the proceedings. It also provides the safeguard to the innocent persons where the investigating agency finds the contraband unclaimed and abandoned and plants a person (sic) with the accusation. If a person is searched before a Gazetted Officer or the Magistrate, this possibility can safely be overruled. The right under Section 50 of the Act is a valuable right which the legislature has cast upon the person sought to be searched keeping in view the stringent provision of the Act as also severity of the sentence and more particularly in cases where the search is made in absence of independent motbirs. 22. In the instant case, as it is evident from the various documents noticed above and the statements of the prosecution witnesses as noticed above, the prosecution story is not consistent right from the receipt of the secret information Ex.P/9 and till the search, seizure and recovery was effected. 23. in Ram Pher Jadav v. The State, 1993(1) Crimes 925 , a Division Bench of Calcutta High Court held that if seizure is not believed, possession cannot also be believed. In that case there were serious inconsistencies in the case as set up by the prosecution and, therefore, the Court held that the case set up by the prosecution cannot persuade the Court to believe that there was a seizure in the manner as disclosed by the prosecution and on the basis of infirmity in the seizure the Court did not accept that the appellant was in possession of the prohibited articles. 24. 24. Learned counsel for the appellant also relied on a judgment of this Court in Saudan & Anr. v. The State of Rajasthan, 2003(10) Cr.L.R. (Raj.) 483 . In para 31 of the judgment, this Court held that there is nothing in the prosecution evidence to show as to who were the persons contacted and who refused to become witnesses to the search and seizure, except the bald statement that independent witnesses were not available. 25. In the instant case the prosecution witnesses PW-1 Motiram and PW-9 Hakam Singh who were the members of the police party categorically stated that from village Serwa to Bhanda on the way there were number of villages and they have made no effort to take independent motbirs. Although PW-4 Anil Kumar stated that there were no independent motbirs at the place of recovery but the fact remains that PW-4 Anil Kumar had a secret information Ex.P/9 regarding concealment of heroin near border fencing and he started from Chauhtan, went to Serwa, took other police personnel viz PW-1 Motiram, PW-2 Awardan and PW-9 Hakam Singh and thereafter went to Bhanda. Even they made no effort to take independent witnesses from village Bhanda. It has also come in evidence that there were a number of BSF personnel patroiling in the area from where the alleged contraband have been recovered. None of the BSF personnel was kept as a motbir, coupled with the fact that various memos prepared do not bear the time which gives rise to doubt the prosecution case as projected. 26. In Hari Ram's case (supra) this Court held that in order to establish a clear cut link between the seized articles and the report of the Chemical Examiner, it is absolutely necessary to have identified the articles before the Court as a substantive piece of evidence. After seizure, some quantity of the contraband is taken as a representative sample and the remaining part of the contraband is also required to be sealed. Such remaining part and containers etc. should have been produced in Court so that they may bet got identified from the concerned witnesses at the time of recording their evidence, to be the same which were seized from the accused. 27. In Jitendra & Anr. Such remaining part and containers etc. should have been produced in Court so that they may bet got identified from the concerned witnesses at the time of recording their evidence, to be the same which were seized from the accused. 27. In Jitendra & Anr. v. State of M.R, 2003(4) Crimes 225 (SC) , the Hon'ble Supreme Court held that during trial it was necessary for the prosecution to establish by leading cogent evidence that the alleged quantities of Charas and Ganja were seized from the possession of the accused. The best evidence could have been seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of Panchnama do not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. 28. In Ratan Lal v. State of Rajasthan, 2001(1) RCC 70 , this Court held that there are omissions and contradictions in the statements of prosecution witnesses who were present at the time of search and, therefore, on the basis of material omissions and contradictions the Court held that the contradictions and omissions render the search doubtful. In that case PW-10 Rafiq Mohd. who was seizure officer holding the post of Dy.S.R stated that he himself opened the attache by putting iron rod in it, whereas, other witnesses stated that the accused himself opened the lock of the attache. The Court considered it to be a very material contradiction in the statements of the witnesses and held that search has been concocted and it is doubtful. 29. Learned Public Prosecutor appearing for the State relied on a judgment of the Apex Court in Sajan Abraham v. State of Kerala, 2001 Cr.L.R. (SC) 504 , wherein the Apex Court held that oral communication can also be valid under Section 50 of the Act. 30. 29. Learned Public Prosecutor appearing for the State relied on a judgment of the Apex Court in Sajan Abraham v. State of Kerala, 2001 Cr.L.R. (SC) 504 , wherein the Apex Court held that oral communication can also be valid under Section 50 of the Act. 30. In the instant case it is not the case of the prosecution that before search was made the appellant was orally informed of his right to be searched in the presence of nearest Gazetted Officer of any of the departments mentioned in Section 42 or to (by) the nearest Magistrate, un me contrary, u+ prosecution has tried to develop a case that a written notice, as envisaged under Section 50 of the Act, was given to the appellant before conducting the search. But the prosecution failed to establish by leading evidence that the notice was given before the appellant was searched. On the contrary, on close 5 scrutiny of the statement of PW-1 Motiram and PW-2 Awardan it is clear that they have not even whispered in their statements that notice under Section 50 of the Act was given to the appellant before he was searched. PW-4 Anil Kumar, the seizure officer, has admitted that in his previous statement Ex.D/2 he has not stated that notice under Section 50 of the Act was given to the 1 appellant before he was searched. Similarly, PW-3 Jai Singh, Sub Inspector of BSF has not stated that before the appellant was searched the notice under Section 50 of the Act was given to him. So is also the case with regard to PW-9 Hakam Singh. In view of the statements of these witnesses and on close scrutiny of Ex.P/2, P/4 and P/6 wherein deliberately the time has not been 1 mentioned by the prosecution, not only this, the captioned time has been left blank, which goes to suggest that notice under Section 50 of the Act was not given to the appellant before he was searched and in order to make the case, subsequently these documents were prepared and that is why it (they) lack(s) the relevant information. In the circumstances, therefore, the judgment relied : on by the learned Public Prosecutor is of no help. 31. In the circumstances, therefore, the judgment relied : on by the learned Public Prosecutor is of no help. 31. So far as non-production of articles in the Court is concerned, PW-4 Anil Kumar is the seizure officer and he does not even whisper in his statement regarding production of articles in the Court. None of the prosecution witnesses stated that the articles contraband were produced in the Court much : less identified by them. 32. Thus, on overall appreciation of the evidence, it emerges that the prosecution has failed to prove the compliance of provisions of Section 50 of the Act which is mandatory in nature and as such the rights of appellant have adversely been prejudiced. It has also been established that there are serious omissions and material contradictions with regard to the manner in which the search and seizure were made. On material particulars almost all the prosecution witnesses are at variance and as such there is absolutely no consistency with regard to the search and seizure, therefore, the search and seizure become doubtful and if search and seizure become doubtful and have not been established beyond reasonable doubt, then conviction of the appellant cannot be sustained and same is liable to be set aside. The prosecution has not come with any explanation as to why the articles seized were not produced in the Court as also why the same were not identified. The prosecution of articles in the Court is substantive evidence and deliberately if the prosecution has withheld the same, then it demolishes its case. 33. In this view of the matter, in my considered opinion, the prosecution has failed to establish the case against the appellant beyond reasonable doubt and, therefore, the judgment and order under appeal cannot be sustained and is liable to be set aside. 34. In the result, the appeal is allowed. The judgment and order dated 10.3.2003 passed by Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 29/2000 is hereby set aside. Appellant Dana Ram is acquitted of the offence under Section 8/21 of the NDPS Act. He is in jail. He be set at liberty forthwith, if not required in any other case.Appeal allowed. *******