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2010 DIGILAW 1750 (RAJ)

Pappi @ Abdul Rashid v. State

2010-10-20

MEENA V.GOMBER

body2010
Hon'ble Dr. GOMBER, J.—Both the appeals arise out of the same judgment and, as such, they were heard together and are being disposed of by this common judgment. 2. By way of appeal No. 605/2003, accused/appellant Pappi @ Abdul Radhid assailed the judgment dated 7.4.2003 passed by the Special Judge, NDPS Cases, Kota in Sessions case No.27/2001 whereby he was convicted for offence under Section 8/21 (C) of the Narcotic Drugs and Psychotropic Substances Act (for short as “the NDPS Act”) and sentenced to 10 years' rigorous imprisonment and fine of Rs.1,00,000/- in default whereof to further undergo six month's rigorous imprisonment. 3. The State of Rajasthan has, by way of its appeal No.613/2007, challenged the impugned judgment whereby other four accused/respondents namely Kamil S/o Shehjad, Sheru Khan S/o Aziz Khan, Prahlad S/o Ramniwas and Bhupendra S/o Khemraj were acquitted of the offences under Sections 8/21 and 8/29 of “the NDPS Act”. 4. The case unfolded by the prosecution is that on 13.8.2001 at about 9.30 pm, when the police party headed by Sh.Madanpal Singh (PW-18), SHO was on patrolling duty at Shamshanghat Tiraha, Dhakania Road, Kota, two persons, on a red colour Splender Motor Cycle, with a jute thaila lying on the motor cycle seat between the person driving the bike and the pillion rider, were seen coming from Dhakania Road. The jute thaila lying on the seat was held by the pillion rider. The police party tried to stop the bike by giving signals but the motor cyclist, after slowing his bike for a while, suddenly accelerated the speed. The police party chased and could stop the motor cyclist. While stopping, jute thaila dropped down and the pillion rider escaped. On being enquired, the motor cyclist disclosed his name to be 'Pappi' @ Abdul Rashid R/o H.No.7-E-42, Vigyan Nagar, Kota but showed his ignorance about the name or whereabouts of pillion rider. 5. The jute thaila was found to contain six polythene bags and in order to check the bags, independent witnesses were ordered to be brought, but Constable could not find one, therefore, Sub-Inspectors Deen Dayal Bhargava and Rameshwar were appointed as independent witnesses. Alfa Motor Cyclists who were also with the patrolling party arranged for the weights and measure scale. On weighing each bag weighed as 1.5 kg. Alfa Motor Cyclists who were also with the patrolling party arranged for the weights and measure scale. On weighing each bag weighed as 1.5 kg. The substance in those six polythene bags was found to be 'smack' and total weight of six bags was 9.0 kg. 50 gms of smack was taken out as sample from each of the polythene bags and were sealed at the spot and the remaining bags were sealed separately. Samples were marked as A to F whereas remaining six sealed bags were marked as A1 to F1. Seal impression of personal seal of SHO was put on those samples and thereafter recovery memo was prepared at the spot and the accused Pappi @ Abdul Rashid was arrested. 6. After coming to the police station along with sealed packets and arrested accused, sealed packets were resealed and deposited in the Malkhana and investigation of the case was handed over to the Circle Officer Sh. Alok Vashisht. 7. During investigation, on 14.8.01 at about 11.30 am, a disclosure statement was made by the accused under Section 27 of the Evidence Act to the effect that the seized smack was given to him from the house of Babu S/o Fazlu at 6-D-60 Vigyan Nagar Extension by Aziz Lala S/o Fazlu and Sheru Khan S/o Aziz Khan to carry it to Dhakania Railway Station. He also informed that Sheru Khan and one more person from M.P. were staying in Babu's house and that a very heavy quantity of opium could be seized from them. The Investigating Officer recorded this information and sent the copy of said information to his Superior i.e. Superintendent of Police under Section 42(2) of the NDPS Act. Thereafter the I.O. along with raid party consisting of Rameshwar Parihar-Sub Inspector, Kalu Lal-ASI, Man Singh-Head Constable, Om prakash-F.C. and Shyam Sunder Sharma-Tehsildar, ladpura as well as arrested accused Pappi @ Abdul Rashid, went to the house of Babu at 6-D-60, Vigyan Nagar Extension. On reaching near the house they saw two persons on two motor cycles No.RJ-30/4M 5329 and RJ-29/3M-969 about to leave. On being asked their names, one of them told as Sheru Khan R/o 6-D-60 and the other as Kamil S/o Shahzad R/o Marwatia, Distt. Shahjanpur (MP). 8. On reaching near the house they saw two persons on two motor cycles No.RJ-30/4M 5329 and RJ-29/3M-969 about to leave. On being asked their names, one of them told as Sheru Khan R/o 6-D-60 and the other as Kamil S/o Shahzad R/o Marwatia, Distt. Shahjanpur (MP). 8. Both the accused, after informing about their legal rights regarding the search and seizure, were searched by the I.O. A bag containing smack was found tied on the back of Sheru Khan which weighed to be 1900 gms. Out of said smack, 50 gms sample was taken and sealed for chemical examination and marked as 'G' and the remaining smack was also sealed and marked as 'G1'. From the pocket of Sheru Khan, a mobile phone was recovered which was also seized. 9. Thereafter other accused Kamil was searched after being told about his legal rights with regard to his search and seizure. On search he was found to have a packet tied with his string of Payjama, which, on weighing was found to be 2300 gms of smack. Out of this smack, sample of 50 gm was taken and remaining 2250 gms smack was sealed separately. Sample and remainder were marked as 'H' and 'H1' respectively. Both the accused were arrested at the spot and motor cycles were also seized and on return the sealed packets, sealed samples and motor cycles were deposited in the Malkhana. 10. On the basis of information received from the arrested accused persons, Bhupendra and Prahlad were arrested for making the smack available to accused Pappi @ Abdul Rashid. After completion of investigation, charge-sheet was filed against all the five accused persons. 11. The learned Trial Court, after hearing the charge arguments, read over the charges under Sections 8/21 of “the NDPS Act” to accused Pappi @ Abdul Rashid, Kamil and Sheru Khan; whereas charge under Section 8/29 of “the NDPS Act” was read over to accused Bhupendra and Prahlad, which were denied by all of them and the trial was claimed. 12. In order to substantiate its case, the prosecution examined as many as 20 witnesses and exhibited 16 documents. 13. After completion of prosecution evidence, accused persons were examined under Section 313 Cr.P.C wherein they denied the allegation but did not offer any explanation nor did they examine any witness. 14. 12. In order to substantiate its case, the prosecution examined as many as 20 witnesses and exhibited 16 documents. 13. After completion of prosecution evidence, accused persons were examined under Section 313 Cr.P.C wherein they denied the allegation but did not offer any explanation nor did they examine any witness. 14. The learned Trial Court framed five issues and after discussion on the material before it, convicted the present appellant Pappi @ Abdul Rashid under Section 8/21(c) of “the NDPS Act” and sentenced him as above. However, the other four accused persons (respondents in the State appeal) namely Sheru Khan, Kamil were acquitted of the offence under Sections 8/21 of “the NDPS Act” and Prahlad and Bhupendra of the offence under Section 8/29 of “the NDPS Act”. 15. I have heard the learned counsel for the parties and perused the impugned judgment as well as entire record of the case. 16. In this appeal the learned counsel appearing for the accused appellant has made the submissions as under: (A) Firstly, that the appellant Pappi @ Abdul Rashid was only the driver of the motor cycle and that there was no material to prove that he was in conscious possession of the contraband article. It was vehemently argued that he was not supposed to know as to what was being carried by the pillion rider and for want of proof of exclusive conscious possession of appellant, he could not have been convicted for the offence. 17. I have considered the argument in the light of peculiar facts of the case and evidence produced by the prosecution. 18. The accusation against the appellant was that two days before the independence day i.e. on 13.8.01 at about 9.30 PM when the police party was on a routine patrolling duty at Shamshanghat Tiraha, Dhakania Road, Kota, it saw two persons on a motor cycle coming from Dhakania Road. The police party tried to stop the motor cycle but the motor cyclist, after slowing down a bit, accelerated the speed as a result whereof a suspicion as regards their conduct arose in the mind of the police party. Hence they were chased by police jeep and also by Alpha Motor Cycles and could be stopped after about a furlong. 19. Hence they were chased by police jeep and also by Alpha Motor Cycles and could be stopped after about a furlong. 19. As soon as the motor cycle was stopped, the jute thaila, lying on the motor cycle seat between the accused appellant and the pillion rider, dropped and the pillion rider escaped taking advantage of the darkness. 20. Now the issue that arises is whether said jute thaila lying between the appellant (the driver of the motor cycle) and the person sitting behind as pillion rider and held by him, can be said to be in conscious possession of the appellant or not. 21. The question, whether there was a conscious possession, has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that the appellant and the person who escaped were travelling on the bike and appellant was driving. There is no explanation from the appellant that the person sitting behind him on the motor cycle was not known to him or that he had only taken a lift. It is improbable that the person being carried by the driver on the rear seat of his motor cycle, would be a stranger or not known to the driver especially when there is no such defence from the appellant that the person was a stranger and he took a lift. On being caught by the police, the appellant showed his total ignorance about the name or whereabouts of the pillion rider and this fact can, by no stretch of imagination, be believed as gospel truth. Simply showing ignorance without giving the explanation as to how he made that person sit on his bike, can not give any benefit to the appellant. On the contrary, it clearly shows that the appellant and pillion rider were known to each other. 22. Moreover the jute thaila, although held by the pillion rider probably to avoid its fall, was lying behind him on his bike seat between the two of them. It is clear that the vehicle was not a public vehicle and it was the duty of appellant to explain or show as to how they travelled together. 23. 22. Moreover the jute thaila, although held by the pillion rider probably to avoid its fall, was lying behind him on his bike seat between the two of them. It is clear that the vehicle was not a public vehicle and it was the duty of appellant to explain or show as to how they travelled together. 23. Section 21 of the Act makes possession of the contraband manufactured drugs and preparation punishable & this Section which relates to the offences for possession of such articles appears in chapter IV of “the NDPS Act”. 24. The sine qua non for attracting the penal provision under Section 21 of the NDPS Act, is that the appellant must be found in possession of the contrabands. The term “possession” is not defined in the NDPS Act. The term “possession” has been judicially construed to mean, in various decisions. Thus the possession is not a purely legal term but also a matter of fact. In any disputed question of possession, specific facts submitted or proved can alone establish the existence of de-facto relation of control or dominion of the person over it necessary to determine whether that person was or was not in possession of the things. 25. It is true that unless the possession is coupled with requisite mental element or culpable mental state (Conscious possession) mere custody without awareness of the nature of such possession does not attract Section 21 of the Act but in the facts of this case it cannot be said that the awareness part was missing. 26. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja and ors., AIR 1980 SC 52 , to work out a completely logical and precise definition of “possession” uniformally applicable to all situations in the context of all statutes. 27. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. 28. The Hon'ble Apex Court in the matter of Gunwantlal vs. The State of M.P., AIR 1972 SC 1756 had held that the possession in a given case need not be physical possession but can even be constructive, having power and control over the article in question. 29. It is a state of mind which is deliberate or intended. 28. The Hon'ble Apex Court in the matter of Gunwantlal vs. The State of M.P., AIR 1972 SC 1756 had held that the possession in a given case need not be physical possession but can even be constructive, having power and control over the article in question. 29. Once the possession is established the person, who claims that it was not a conscious possession, has to establish it because how he came to be in possession is within his special knowledge. In the case in hand, the accused-appellant who was carrying pillion rider on his rear seat and the jute thaila was lying on his motor cycle seat between him and the pillion rider, cannot be heard to say that he had no knowledge or that he did not know the rider. Section 35 of “the NDPS Act” gives a statutory recognition of this position because of presumption available in law. The explanation appended to Section 35 of “the NDPS Act” clarifies that 'culpable mental state' used in Section 35 of “the NDPS Act” includes knowledge of a fact and belief in, or reason to believe a fact. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles and in the case in hand he has failed to account satisfactorily. 30. The case of Sorabkhan Gandhkhan Pathan and Anr. vs. State of Gujarat-(2006)1 SCC (Cri) 508 relied upon by the learned counsel for appellant does not help the appellant as it was a case wherein 'charas' was recovered from the possession of A-1 who was travelling in an auto-rickshaw along with A-2 and two others. The case against accused A-1 was proved. However, there was no evidence to show that A-2 had any knowledge. The facts were totally different from the one in hand. 31. In Narcotics Control Bureau, Jodhpur vs. Murlidhar Soni and ors.- 2004(5) SCC 151 also, son was driving his father on his scooter to a known destination whereas in the present case, the accused has offered no explanation as to whom he was carrying on his motor cycle as a pillion rider. 32. The facts of the case relied upon by the learned counsel for the appellant in AIR 2002 SC 3343 = RLW 2003(1) SC 42-Avtar Singh and ors. 32. The facts of the case relied upon by the learned counsel for the appellant in AIR 2002 SC 3343 = RLW 2003(1) SC 42-Avtar Singh and ors. vs. State of Punjab, also does not help the appellant. In that case also, contraband was recovered from the vehicle in which the accused were travelling. One of them was driving the vehicle and other two were sitting on the back place in the truck. In that case, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, was one strong circumstance that could be put against them. 33. In the factual scenario of the present case, it could be safely stated that not only possession but conscious possession has been established. It has not been shown by the accused-appellant that the possession was not conscious in the logical background of Sections 35 and 54 of “the NDPS Act”. 34. In fact the evidence clearly establishes that he knew about transportation/carrying of smack on his motor cycle and had conscious knowledge of what he was doing and whom he was taking as a pillion rider. Simply saying, that he was driving the motor cycle without offering an explanation, is illogical. 35. In these circumstances, I am not persuaded with the submission made by learned counsel for the appellant in this regard and I am of the opinion that presumption available under Sections 35 and 54 of “the NDPS Act” clearly applies to the facts of this case. (B) The second submission made by learned counsel for the appellant was that the prosecution has not produced reliable evidence to show that articles and samples were kept in proper custody in proper form and that the samples were not tampered with after they were taken and the time they reached the hands of chemical examiner. His argument was that the samples of 50 gm each were taken on the spot but the report of FSL shows that weights of samples received by the laboratory were 60.058 gms, 58.964 gms, 60.146 gms, 59.520 gms., 57.193 gms, 61.879 gms, 59,618 gms and 57.555 gms and in these circumstances, according to him, conclusion can be drawn that the samples were tampered with and the benefit of doubt should be given to the accused appellant. 36. 36. Reliance was placed on the judgments of Coordinate Bench of this court in (i) 2001(1) RCC 293, (ii) 2007(1) Cr.L.R. (Raj.) 593; (iii) 1998 RCC 403; and (iv) 1997 Cr.L.R. (Raj.) 206 where the benefit of doubt was given to the accused when there was variance in the weight of the sample seized and the sample received in the laboratory. 37. In 2001(1) RCC 293-Nari @ Narain vs. State of Rajasthan, where the smack seized was 3.5 gms and when received in the FSL, it turned out to be only 2 gms. It was held that difference in weight is important and it creates doubt as to the fact that the smack examined was the same as was recovered from the accused appellant and in that case, benefit of doubt was given to the accused/appellant. 38. As against this, learned Public Prosecutor relied on the judicial pronouncement of Hon'ble Apex Court in the matter of Criminal Appeal No. 1215/2005 titled as Dehal Singh vs. State of Himachal Pradesh wherein while distinguishing the judgments delivered in the cases of Noor Aga S. State of Punjab and anr.-2008(16) SCC 417; and Rajesh Jagdamba Avasthi vs. State of Goa- 2005(9) SCC 773 , Hon'ble Apex Court, dealt with the evidence of the case in hand and observed that weighing scale and weights brought from the grocery shop cannot be as accurate as the scales available with the Forensic Laboratory. The Hon'ble Apex Court observed in para no.11 as under: “It is common knowledge that weighing scale and weight kept in the grocery shop are not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms in weight, in the facts and circumstances of this case, is not of much significance. Sample was taken by a common weighing scale and weight found in a grocery shop whereas the weight in the laboratory recorded with precision scale. This would be evident from the fact that the weight of the sample recorded in the laboratory was 65.5606 gm. In this background, small difference in weight loses its significance, when one finds no infirmity in other part of the prosecution story.” 39. This would be evident from the fact that the weight of the sample recorded in the laboratory was 65.5606 gm. In this background, small difference in weight loses its significance, when one finds no infirmity in other part of the prosecution story.” 39. In Dehal Singh's case (supra), case of Noor Aga's case (supra) was distinguished on the ground that in Noor Aga's case, contraband was taken by the Custom Officer and it was concluded that the weight was taken from the precision scale and that was not the only discrepancy in the weight which led the Court to reject the case of the prosecution but several other discrepancies had also played an important role. Even in Noor Aga's case (supra) in para 98, it was observed as under: “98. We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act.” 40. In that case, it was observed that the discrepancies in the weight individually may not be fatal. 41. The case of Rajesh Jagdamba Awasthi (supra) was also distinguished. In that case also, facts were different because seal as well as the packets were in the custody of same person and Hon'ble Apex Court found that there was every possibility of seized substance being tampered with. 42. In view of observations made by Hon'ble Apex Court in Dehal Singh's case (supra), the submission of learned counsel for the appellant also does not command this Court at all. 43. From the record, it is clear that recovery proceedings were held at the spot and weighing scale and weight & measures were arranged from nearby area and such weighing scale and weight and measures cannot be said to be precision scales of the standard which were available in the FSL. 43. From the record, it is clear that recovery proceedings were held at the spot and weighing scale and weight & measures were arranged from nearby area and such weighing scale and weight and measures cannot be said to be precision scales of the standard which were available in the FSL. Moreover the difference in weight of six samples is few grams/milligrams here and there which alone cannot be a ground to throw the whole prosecution case in view of the principles laid down in Noor Aga's case (supra). (C) The third submission advanced by learned counsel for the appellant was that the witnesses have not specifically stated that the seal remained intact till the samples reached FSL. Further that this question had also not been specifically put to the accused/appellant during his examination under Section 313 Cr.P.C. In this regard, reliance was placed on the pronouncement of Hon'ble Apex Court in 2009 AIR SCW 4308-Shaikh Maqsood vs. State of Maharashtra. 44. I have carefully gone through the said pronouncement. This was a case of dowry death and was entirely based on circumstantial evidence and because material circumstances relied upon by the prosecution had not been put to the accused during his examination under Section 313 Cr.P.C. whereas in the case in hand, each and every piece of evidence has been specifically brought to the knowledge of the accused/appellant. 45. Ajay Singh vs. State of Maharasthra- JT 2007(8) SC 638 relied upon by learned counsel for appellant was also a case of husband murdering his wife and the conviction was based upon extra-judicial confession and also a circumstance of the presence of kerosene oil on the dress of the appellant. One of the grounds of conviction was presence of the kerosene oil on the clothes of the accused-husband which was not put to the accused during his examination and that was treated as a material circumstance having been not brought to the knowledge of accused during his statement under Section 313 Cr.P.C. 46. Another case relied on by the learned counsel for the appellant is Sharad Birdhichand Sarda vs. State of Maharashtra- AIR 1984 SC 1622 . This was also a case of murder of wife by the husband and based on circumstantial evidence and the circumstances no.4,6,8,9,11,12,13,16, & 17 had not been put to the accused during his examination under Section 313 Cr.P.C. 47. This was also a case of murder of wife by the husband and based on circumstantial evidence and the circumstances no.4,6,8,9,11,12,13,16, & 17 had not been put to the accused during his examination under Section 313 Cr.P.C. 47. However, in the case in hand, statements of each and every witness have been separately put to the accused/appellant and he has not offered any explanation nor has he led any evidence. I do not find any substance in this submission of learned counsel for the appellant. 48. On the basis of discussion made hereinabove, I do not find any merit in the appeal, hence appeal filed by the accused/appellant Pappi @ Abdul Rashid is hereby dismissed. 49. As regards S.B. Cr. Appeal No.613/07 filed by the State of Rajasthan against the accused Prahlad and Bhupendra was that 9kgs of smack was illegally made available by them to the accused Pappi and that they conspired and helped co-accused Pappi to have the illegal possession of 9kg of smack. 50. The only evidence against these two persons is the statement of Investigating Officer Sh.Alok Vashisht (PW-20) who claims to have arrested accused/respondents Prahlad and Bhupendra and recorded disclosure statements Ex.P/36 & P/37 of accused/respondents Bhupendra and Prahlad respectively as also Ex.P/38 information given by accused Pappi. Besides these statements of Sh.Alok Vashist (PW-20), there is no other evidence on record so as to connect accused Prahlad and Bhupendra with the offence under Section 8/29 of “the NDPS Act”. 51. Even Ex.P/36 (information given by accused Bhupendra) is only to the effect that the name of truck driver, used to be sent by one Raja @ Nadim & Nisar Ahmed (who are not before us) to bring smack, was Prahlad. Even otherwise it is established principle of law that the information/ confession of an accused cannot be read as evidence against the co-accused. Besides Ex.P/36, there is nothing on record to connect the accused Prahlad with the offence under Section 8/29 of “the NDPS Act”. 52. So far as accused Bhupendra is concerned, information given by the accused Prahlad recorded as Ex.P/37 is also on the same footing and that also cannot be read against co-accused. 53. Therefore, I do not find any illegality or irregularity committed by the learned Trial Judge while arriving at a judgment of acquittal of accused Bhupendra and Prahlad from the offence under Sec. 8/29 of “the NDPS Act”. 53. Therefore, I do not find any illegality or irregularity committed by the learned Trial Judge while arriving at a judgment of acquittal of accused Bhupendra and Prahlad from the offence under Sec. 8/29 of “the NDPS Act”. 54. So far as accused/respondents Kamil & Sheru Khan are concerned, allegation against them is that on 14.8.03 at about 2.30 pm, they were found in illegal possession of a Thaila containing 2300 gms of smack tied with the string of Payjama of accused Kamil and a polythene bag containing 1900 gms of smack underneath the pant of Sheru Khan. 55. In this regard, the statements of PW-20 Sh.Alok Vashisht are very important. The Officer was entrusted with the investigation of the case on 13.8.03 and the accused Pappi @ Abdul Rashid under arrest is stated to have made a disclosure which was recorded as Ex.P/27. According to PW-20, after recording Ex.P/27, he sent it to his superior S.P., Kota under Section 42(2) of the Act. Copy of information sent by him has been proved as Ex.P/28. For verification of this information, Sh.Shyam Sunder Sharma, Tehsildar-ladpura being the Gazetted Officer had been called to verify the information and the witness went alongwith arrested accused Pappi to H.No.6-D-60 Vigyan Nagar Vistar Yojna where he found two persons starting their bikes. One of them was identified as Sheru Khan and the other as resident of M.P. The witness further deposed that on being asked, both these persons told their names to be Sheru Khan and Kamil respectively. The witness served upon them notices under Section 50 of the NDPS Act being Ex.P/29 and P/30. Both the persons consented for their search. The witness sent Omprakash to call for the independent witnesses vide Ex.P/16. However, no independent witness could be found, therefore, PW-6 Kalulal and PW-11 Omprakash were taken as independent witnesses. Personal search of Sheru Khan was made and underneath his pant, a bag (thaila) was found on the back side containing 1900gms of smack. Out of this thaila, a sample of 50 gms. was taken out for examination and sample as well as remaining contraband were sealed and marked as 'G' & 'G1' respectively. Mobile phone found from Sheru Khan was also seized. 56. Out of this thaila, a sample of 50 gms. was taken out for examination and sample as well as remaining contraband were sealed and marked as 'G' & 'G1' respectively. Mobile phone found from Sheru Khan was also seized. 56. PW-20 Alok Vashisht further deposed about the personal search of accused Kamil and he is stated to have found a polythene bag full of smack which was tied with the string of his Payjama. The bag, on weighing, was found to contain 2300 gms. of smack, out of which, sample of 50 gm was taken and the sample as well as the rest were sealed in the presence of witnesses and were marked as 'H' and 'H1' respectively. Seizure memo Ex.P/8 was prepared. The seal impression was also affixed on the seizure memo. Seal was later destroyed after making the memo Ex.P/10. Both the motor cycles seized from accused Sheru Khan and Kamil were marked as Ex.P/11 and P/12 and they were arrested by arrest memos Ex.P/13 & P/14 respectively. 57. On return to the police station, I.O. resealed the seized packets of smack and deposited them in the Malkhana and signed the necessary entry in the register. The witness claims to have sent the information of these proceedings under Section 57 of the NDPS Act to his superior i.e. S.P., Kota. He has proved Ex.P/13 stating that it bears signatures of the then S.P. He also claims to have prepared the site plan Ex.P/32 on the next date. 58. Other witnesses namely Kalu Lal (PW-6), Omprakash (PW-11) and Rameshwar (PW-13) are all members of the patrolling party. They support the statements of PW-20 with regard to the proceedings in respect of Sheru Khan and Kamil. 59. The statements of Shyam Sunder Sharma (PW-10), Tehsildar-Ladpura, Kota read alongwith the statements of PW-20 Alok Vashisht and other record, clearly establish that the compliance of Section 50 of the NDPS Act has not been made before making personal search of the body of accused Sheru Khan and Kamil. It is not disputed that when the accused Pappi @ Abdul Rashid gave information with regard to Kamil and Sheru Khan having illegal possession of smack, PW-20 made PW-10 Sh.Shyam Sunder Sharma, Tehsildar aware of this information and called him telephonically to the police station. It is not disputed that when the accused Pappi @ Abdul Rashid gave information with regard to Kamil and Sheru Khan having illegal possession of smack, PW-20 made PW-10 Sh.Shyam Sunder Sharma, Tehsildar aware of this information and called him telephonically to the police station. As per PW-10, he alongwith PW-20 went to the spot which clearly shows that the option required to be given to the accused under Section 50 of the Act i.e. making him aware of his rights for the personal search, appears to have not been properly made. Since PW-10 accompanied the I.O. to the spot from the police station, he can also be stated to be one of the other Officers of the police party. He cannot be stated to be an independent Gazetted Officer. The right given to the accused under Section 50 is a valuable right. Time and again, Hon'ble Apex Court has emphasized that before taking personal search of any accused under the provisions of this Act, notice under Section 50 is mandatory and if the notice as required under the provisions of Section 50 of the NDPS Act is not given, the whole trial vitiates and the search tantamounts to illegal search. 60. As per Section 50, accused has to be given option for his personal search in the presence of nearest Magistrate or Gazetted Officer which, in the facts of this case, especially in the light of the statement of PW-10 and PW-20 cannot be said to be strict compliance of Section 50 of the Act. PW-10 admits that C.O. had asked the accused Sheru Khan and Kamil that whether they wanted to get their search done in the presence of Tehsildar-Ladpura, Kota. It is clear that the accused were not informed of their legal right available under Section 50 of the NDPS Act as it was not stated that they had a right that if they wanted, they could be taken to the nearest Magistrate or to a Gazetted Officer for their search. 61. So far as notices Ex.P/29 & 30, stated to have been given to them, are concerned, they have not been shown in the memos of arrest Ex.P/13 & 14 and the Investigating Officer PW-20 could not offer any explanation as to why this fact was not mentioned in the arrest memo. 61. So far as notices Ex.P/29 & 30, stated to have been given to them, are concerned, they have not been shown in the memos of arrest Ex.P/13 & 14 and the Investigating Officer PW-20 could not offer any explanation as to why this fact was not mentioned in the arrest memo. Besides the alleged illegal search there is no other evidence to link the accused Sheru Khan & Kamil with the offence. The learned Trial Court has rightly arrived at the conclusion that mandatory provisions of Section 50 with respect to Sheru Khan and Kamil have not been complied with. Therefore, I do not find any illegality or infirmity in the judgment of acquittal passed by learned Trial Court in respect of Sheru Khan and Kamil. 62. Consequently, the appeal filed by the State of Rajasthan against the acquittal of accused Prahlad, Bhupendra, Sheru Khan & Kamil, has no merits and deserves to be dismissed and is hereby dismissed. The judgment of the Trial Judge is upheld. 63. The appeal filed by accused Pappi @ Abdul Rashid also fails as it has no merit.