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Madhya Pradesh High Court · body

2013 DIGILAW 655 (MP)

Arti Sen v. State of M. P.

2013-05-16

A.K.SHRIVASTAVA

body2013
JUDGMENT Feeling aggrieved by the judgment of conviction and order of sentence dated 04.06.2010 passed by learned Special Judge (N.D.P.S. Act) Damoh in Special Case No. 7/2009 convicting the appellant under Section 8(c) read with Section 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "NDPS Act") and thereby sentencing her to suffer 10 years RI and fine of Rs. 1 Lac, in default further RI for one year, the appellant has taken shelter of this Court by preferring this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973. 2. As per the case of prosecution at the Police Station Tendukheda which comes within the territorial jurisdiction of Damoh Shri I. P. Mandvi, Dy. S.P. / SDO(P) was posted. On the said date, he was informed telephonically by an informant that appellant is illegally carrying the business of ganja in her house situated at Ward No. l, Hanuman Mandir Road, Tendukheda. Upon receiving such information, a panchnama was prepared in the presence of Constable Mahesh Kumar and driver A.S.I. Vijay Charar at 14.50 hours. Thereafter the said information was forwarded to the Senior Police Officers by endorsing relevant endorsement in the Roznamcha sanha No. 46 at 14.25 hours. The Tehsildar Tendukheda was also informed and was requested to arrive at Police Station. 3. It is the further case of prosecution that the police control room of Damoh was also informed to send a Lady Constable and the said fact was also endorsed in the Roznamcha sanha N. 462 at 14.30 hours. Thereafter, a duty certificate was given to Constable Rama Shankar directing him to bring the balance and weights and other necessary articles to seal the contraband article, who brought all these articles and necessary endorsement was made in Roznamcha sanha in that regard. The lady constable also reported her arrival in the police station Tendukheda. The police party alongwith independent witnesses proceeded towards the house of appellant at about 4.00 p.m. The factum of keeping illegal possession of ganja by the appellant as informed by the informant was told to her and after obtaining her consent, her house was searched. A panchnama of consent given by the appellant was also prepared. Prior to the search of the house of appellant her personal search was also made by the lady constable Harsiddhi. A panchnama of consent given by the appellant was also prepared. Prior to the search of the house of appellant her personal search was also made by the lady constable Harsiddhi. Thereafter house of appellant was searched in presence of the independent witnesses and the Tehsildar. 4. It is the specific case of the prosecution that when the house of appellant was searched, in 7 gunny bags and in one tin container, ganja was found inside the two rooms of the house of appellant and which was identified by smelling and rubbing. A panchnama of the seizure was also prepared. The physical verification of the balance and weight was made and a panchnama in that regard was prepared and thereafter the ganja was weighed and it was found to be two quintals and 200 Kg. From each gunny bag as well as from tin container, one sample of ganja weighing 20 gms (in total 8 samples) was collected in presence of witnesses and all the packets of the samples were sealed. The appellant was arrested and was brought to the police station where F.I.R was registered and the bulk of ganja which was seized was kept in malkhana. Relevant entry in the malkhana register was also made. 5. After the investigation was over, a charge - sheet was submitted before the learned Special Court who framed charges punishable under Section 8(c) read with Section 20(b) (ii) (C) of NDPS Act. Needless to say that the appellant denied the charges and requested for the trial. 6. In order to bring home the charges, the prosecution examined as many as 20 witnesses and also proved certain documents on record. The defence of the appellant is that since April 2009 she has given two rooms of her house to Mukesh Sahu and K.D. Rajput on rental basis, who are possessing these two rooms as godown to store Bidi, tobacco, Tendu leaves etc. They also inserted the locks in the rooms. The appellant during the search handed over the relevant document of tenancy to the investigating Officer. The further defence which has been taken by the appellant is that SDO(P) Shri IP. Mandvi was trying to keep illegal relations with her because she was residing alone with her children and when she refused to accept his vile offer, falsely she has been implicated. The further defence which has been taken by the appellant is that SDO(P) Shri IP. Mandvi was trying to keep illegal relations with her because she was residing alone with her children and when she refused to accept his vile offer, falsely she has been implicated. In support of her defence she produced certain documents including the rent note / agreement of giving two rooms on tenancy basis. In support of her defence she also examined Ramsingh Kewat (DW1), Guddu Vishwakarma (DW2) and Suraj Sen (DW3). 7. Learned Trial Court on the basis of evidence placed on record arrived at a conclusion that the charges have been proved and eventually convicted the appellant and passed the sentence, which is mentioned in para 1 of this judgment. 8. In this manner, the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 9. The contention of learned counsel for appellant is that there is absolutely no evidence at the time of seizure of the bulk and preparing the samples to show that substance which was seized was ganja because it does not tally with the definition of ganja also envisaged under Section 2 (iii)(b) of NDPS Act. At this juncture only my attention has been drawn 1,0 fee. P/32 which is the report of Chemical Examiner dated 27.06.2009 and has submitted that samples which were sent to public analyst were having flowering and fruiting tops and upon chemical ex-animation the substance in the sample was found to be ganja. Thus, it has been contended by learned counsel that substance which was seized at the spot since there is no description that it was having flowering and fruiting tops, therefore, it cannot be said that samples of same substance were sent to the public analyst. In support of his contention learned counsel has placed reliance upon certain decisions of this Court. 10. It has also been put - forth by him that as per the case of prosecution after entire proceeding of search and sealing etc. was over the bulk of ganja was brought to the police station and was kept in the malkhana but register of malkhana has not been proved by examining incharge of Malkhana. 10. It has also been put - forth by him that as per the case of prosecution after entire proceeding of search and sealing etc. was over the bulk of ganja was brought to the police station and was kept in the malkhana but register of malkhana has not been proved by examining incharge of Malkhana. In this regard learned counsel has placed heavy reliance upon the decision of Supreme Court Jitendra and another v. State of M.P. (2004) 10 SCC 562 which has also been relied by Supreme Court in latter decision in Ashok alias Dangra Jaiswal v. State of M.P. AIR 2011 SC 1335 . Learned counsel has also placed reliance upon the decision of Supreme Court in State of Rajasthan v. Gurmail Singh (2005) 3 SCC 59 . By inviting my attention to the testimony of I.P. Mandvi (PW13) it has been submitted that his evidence is very much doubtful about the custody of contraband article from the date of its seizure till its production before the Court and no other witness was examined to prove this fact. In support of his contention learned counsel has placed reliance upon the decisions in Valsala v. State of M.P. 2002 (2) MPLJ 117 and Ambaram V. State of M.P. 2007 (I) MPWN 34 . Thus, it has been contended that it is highly doubtful that the ganja produced in the Court was same which was alleged to have been seized from the accused and sent for chemical examination. Learned counsel has also placed heavy reliance upon the decision in Bhadar V State of M.P. 2009 (1) MPWN 58 . 11. By hammering upon the case of prosecution it has been argued by learned counsel that there is no proof of contraband article being in physical and conscious possession of the accused as well as investigating officer has not taken care to comply the provisions of Section 52, 55 and 57 of the NDPS Act. In this regard learned counsel has placed heavy reliance upon the decisions in Remgul alias Remulal s/o. Noorgul and another v. State of M.P. 2003 (1) MPLJ and Lucian R. Rodrigues V State of Goa 1994 (II) CCR 398 (DB). 12. In this regard learned counsel has placed heavy reliance upon the decisions in Remgul alias Remulal s/o. Noorgul and another v. State of M.P. 2003 (1) MPLJ and Lucian R. Rodrigues V State of Goa 1994 (II) CCR 398 (DB). 12. By inviting my attention to Section 50 (4) of the NDPS Act as well as Section 100 (3) of Cr.P.C. it is contended that there is total non compliance of these provisions as accused who is a lady not searched by any lady constable with strict regard to decency in this regard learned counsel has placed heavy reliance upon two decisions of Supreme Court Jagdish v. State of M.P. AIR 2007 SC 369 and Ritesh Chakravarti v. State of M.P. (2006) 12 SCC 321 . By further placing reliance upon the decision of this Court in Harish v. State of Madhya Pradesh 2010(1) MPHT 90 it has been argued that statement of prosecution witnesses were found contradictory to each other and they were not corroborated by evidence of any independent witness and therefore on the solitary statement of Investigating Officer conviction cannot be sustained. 13. Lastly it has been argued by learned counsel that the appellant took the defence that indeed two rooms from where alleged contraband article (ganja) was seized, was not in her possession since they were let out by her to two tenants Mukesh Sahu and K.D. Rajput and this fact was also confronted by prosecution witnesses including investigating Officer I.P. Mandvi (PW 13) by showing the most relevant document rent note Ex. D/9. The another defence is that the appellant being a young lady of 42 years, the Investigating Officer I.P. Mandvi was trying to keep illicit relations with her but when his offer was not accepted, she has been roped in a false case because at the time of search the tenants were not found. It has been then contended by him that if the defence of accused is based upon preponderance and probability due weightage should be given to it and witnesses who have been examined in defence should be treated at par with that of prosecution witnesses. It has been then contended by him that if the defence of accused is based upon preponderance and probability due weightage should be given to it and witnesses who have been examined in defence should be treated at par with that of prosecution witnesses. In this regard learned counsel has placed heavy reliance upon two decisions of Supreme Court in Noor Aga v. State of Punjab and another (2008) 16 SCC 417 and Munshi Prasad and other v. State of Bihar AIR 2001 SC 3031 and certain decisions of this Court. On these premised submissions it has been prayed by learned counsel that by allowing this appeal, the impugned judgment be set aside and the appellant be acquitted from all the charges. 14. On the other hand, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by the Trial Court placing reliance upon the evidence of prosecution witnesses. Learned counsel further submits that defence which was taken by appellant was not found to be probable and therefore it was not relied upon and hence it has been prayed that this appeal be dismissed. 15. Having heard learned counsel for the parties, I am of the considered view that this appeal deserves to be allowed. 16. As per the case of the prosecution at the time of raid two independent witnesses were present and they are Shyamlal (PW7) and Sewaram (PW1). Both these witnesses have not supported the case of the prosecution and they were declared hostile. According to them, upon 8 to 10 blank papers, the investigating officer obtained their signatures. They have also denied that they had gone along with the raiding party at the spot. Sewaram has deposed that he used to wash the uniform of police personnel of the police station. Both of them have stated that they have put the signature upon the saying of the police personnel. Thus, the case of prosecution is not proved from the evidence of these independent witnesses. In the case of Bhola Ram Kushwaha v. State of M.P. (2001) 1 SCC 35 , 2001(1) EFR 160, having been found glaring discrepancy in the statement of independent witnesses who were declared hostile it was held by the Supreme Court that looking to the other loopholes also prosecution has failed to prove the case and conviction of accused was set aside. 17. 17. In the present case the relevant panchnama of identification of the contraband article (ganja) is Ex. P/5. The other relevant document (Ex. P/ 11) is panchnama of contraband article. In these panchnama of contraband article the weight of ganja kept in 7 gunny bags and one tin container has been mentioned. In both these panchnamas the place of house of appellant where contraband article was has been shown. On bare perusal of these panchnamas this Court finds that there is absolutely no description of the substance which can be said to be ganja. The term ganja has been defined in Section 2(iii) (b) of the NDPS Act which connotes ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated. In these panchnamas nowhere it has been so mentioned that the substance which was found in the house in question was having flowering or fruiting tops. At this juncture, it would be germane to mention that investigating Officer I.P. Mandvi who at the relevant point of time was serving on the post of SDO(P) and is a senior officer of police has prepared these panchnamas. Tehsildar Tendukheda G.P. Bhatt (PW3) is also one of the signatories of these panchnamas. That apart, the independent witnesses Shyamlal (PW7) and Sewaram (PW1) are also the signatories of these documents. Neither investigating Officer I.P. Mandi (PW 13) nor Tehsildar G.P. Bhatt (PW3) have deposed that the contraband article which was seized was having flowering or fruiting tops. One cannot imagine that such a Senior Police Officer has no acquaintance with the law that what is ganja which is envisaged in the NDPS Act. According to the prosecution from each gunny bag which were 7 in number and from one tin container, sample of 20 gms of contraband article was taken out. All the eight samples were sealed and sent to Chemical Examiner. According to me, had there been any seizure of the substance having flowering and fruiting tops certainly its description would have been there in the panchnamas. The report of Chemical Examiner (Ex. P/32) indicates that in each and every sample the substance which was found was having flowering and fruiting tops. According to me, had there been any seizure of the substance having flowering and fruiting tops certainly its description would have been there in the panchnamas. The report of Chemical Examiner (Ex. P/32) indicates that in each and every sample the substance which was found was having flowering and fruiting tops. Thus, when the substance which was sealed was not having flowering an fruiting tops how they were found when the samples were opened by the Chemical Examiner in his Laboratory. Thus, it cannot be ruled that the samples which were collected and sealed at the spot were not sent for chemical examination, but, altogether different sample were sent. 18. The sampling was made at the spot on 16.06.2009 and it was received in the office of Chemical Examiner on 19.06.2009. As per the case of prosecution as well as from the statement of Investigating Officer I.P. Mandvi (PW13) and from the evidence Head Constable Rajendra Singh (PW6) after sealing the bulk and the samples they were brought to the police station and seized bulk of the contraband article was kept in Malkhana. Thus, according to me, after sealing the samples which were taken out from the bulk and after sealing bulk, in whose custody and in which condition was lying is very much material. In the present case, although Head Constable Rajendra Singh (PW6) brought Malkhana register (Ex.P/20) in the Court (its photocopy is Ex.P/26 and the original were returned back to witness) with him but he has acted only as postman because he only brought the register from the police station. Admittedly, this witness is not the signatory to relevant document malkhana register nor in his entire testimony he has deposed that the bulk of ganja was in his custody or he was malkhana incharge. The evidence of Investigating Officer Mandvi (PW13) in paras 12 and 14 is very relevant. In the opening sentence of para 12 he has deposed that evidence in regard to the condition in which the contraband article was lying can be given either by Court Moharrir or Malkhana Incharge and he is totally unable to give any information and evidence in that regard since he directed to deposit the contraband article in the Malkhana of the police station. In para 14 of his cross-examination, he has admitted that he did not put any effort to know from police Moharrir where the samples of contraband article are lying and further admits that after directing to deposit the ganja in the malkhana he was not having any domain over the bulk of ganja and samples and therefore he cannot say anything in regard to the condition of the samples. In para 10 of his cross-examination he has further admitted that the packets of the samples were lying where and in which condition he cannot say because he only sealed the samples at the spot Thus, it becomes very doubtful that the contraband article which was seized at the spot was in fact the ganja as envisaged in Section 2 (iii) (b) of the NDPS Act. Similarly it becomes doubtful that the samples which were taken out from the bulk of ganja are the same samples because the bulk was not containing flowering or fruiting tops. Further the material evidence is missing that in whose custody and where and in which condition the samples and the bulk of ganja were lying. Hence, taking the cumulative effect, according to me, the substance which was seized at the spot was ganja is not at all proved. 19. The decision of Valsala (supra) placed reliance by learned counsel for appellant is quite relevant. In this decision the Apex Court has held in para 4 as under:- "There is absolutely no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of P.W.6 the Officer-in-charge of Police Station who seized it there is again nothing to show whether it was sealed and kept there." In the present case also, the evidence of Investigating Officer IP Mandvi (PW13) is also silent in this regard In the same para in the said decision further it has been held by the Supreme Court:- "Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner There is a big gap and an important missing link. In the Mahazar Ex.P.2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even P.W.6 does not say that he continued to keep it in his custody under seal till it was produced in the court on 14-1-88 The evidence given by P.W.6 Police Sub Inspector, who seized the article, is absolutely silent as to what he did with the seized article till it was produced in the court." In the present case also, it is not proved that samples and bulk were kept in proper custody. Hence it is highly doubtful what was seized only was sent to Chemical Examiner. 20. In a later decision the Supreme Court in State of Rajasthan V Tara Singh (2011) 11 SCC 559 has held that in cases prosecution relating to NDPS Act the question as to how and where samples had been stored or as to when they had been dispatched or received in the laboratory is a matter of great importance on account of the'huge penalty involved in these matters. 21. In the present case although the contraband article was produced in the Court but investigating officer I. P. Mandvi (PW13) has not deposed that who has brought and produced it in the Court. This witness is not saying that bulk has been produced by him. I have already discussed hereinabove the evidence of prosecution that contraband article was lying in whose possession in the police station is not at all proved. The person who brought the said contraband article in the Court has not at all been examined. 22. In the present case the possession of premises where the contraband article was found and seized was of appellant is also required to be strictly proved by the prosecution before convicting her under Section 29 (ii)(C) of the NDPS Act. As per the case of the prosecution from two rooms of appellant's house the ganja was seized. The possession of the ganja in the premises must be in the knowledge of the appellant. Merely because the appellant is owner of the entire house it cannot be said that she was possessing those two rooms where the ganja was kept and it was in her knowledge. Absolutely there is no evidence in this regard of the prosecution. The possession of the ganja in the premises must be in the knowledge of the appellant. Merely because the appellant is owner of the entire house it cannot be said that she was possessing those two rooms where the ganja was kept and it was in her knowledge. Absolutely there is no evidence in this regard of the prosecution. At this juncture, the defence of appellant is also to be taken note of which she is taking from the beginning that these two rooms from where alleged contraband article has been seized, were given on tenancy basis to the tenants namely Mukesh Sahu and KD. Rajput and these two rooms were in their possession. This defence was also put-forth during cross-examination to the Investigating Officer I.P. Mandvi (PW13). On bare perusal of para 25 of the testimony of investigating Officer this Court finds that he is concealing the reality about who was in possession of those two rooms. When this fact was confronted to him that the contraband article which was seized from two rooms of the house of appellant., were given to the tenants K.D. Rajput and Mukesh Sahu, he tried to avoid to give a specific answer and by sweeping the situation has simply deposed that he is not acquainted that appellant told him that in two rooms from where contraband article was seized, were given to the tenants. According to me, if those rooms would not have been in possession of tenants straightway suggestion put to investigating Officer ought to have been denied by him. The investigating Officer has further admitted that at the time of raid except appellant nobody was there. Further he has admitted that it is not known to him that in those rooms appellant was not residing. True, the investigating Officer by denying the suggestion has deposed that appellant handed over the relevant document proving the tenancy of Mukesh Sahu and K.D. Rajput and also denied the suggestion that for this reason he did not produce those documents alongwith the challan. But, in the accused statement recorded under Section 313 of CrPC specifically appellant has stated that she had given two rooms in April 2009 on tenancy basis to Mukesh Sahu and K.D. Rajput for godown purpose where they were storing Bidi, Tobacco, Tendu leaves etc. But, in the accused statement recorded under Section 313 of CrPC specifically appellant has stated that she had given two rooms in April 2009 on tenancy basis to Mukesh Sahu and K.D. Rajput for godown purpose where they were storing Bidi, Tobacco, Tendu leaves etc. is well settled in law that standard of proof of the defence is not at par with that of prosecution where prosecution is obliged to prove its case beyond all reasonable doubts. The defence of the accused should be based upon preponderance and probability and Court is required to see that a probable defence has been taken by the accused and the same has been proved by it. Further it is well settled that credibility of defence witnesses is at par with that of prosecution and due weightage should be given to it and their testimony should not be discarded merely because they have been examined on behalf of defence. In this context it may profitably place reliance upon the decisions of Supreme Court Munshi Prasad (supra) and Noor Ada (supra). In the present case, the suggestion that the possession of two rooms was exclusively of those two tenants was put to the investigating Officer I.P. Mandvi (PWI3) which he denied, but, the appellant has proved her defence that those two rooms were given to the tenants for godown purpose to store Bidi, Tobacco, Tendu leaves etc. by examining the defence witness Suraj Singh (DW3) who is her brother. This witness has deposed that he is acquainted to K.D. Rajput and Mukesh Sahu. They are the tenants of appellant and they took two rooms of house of appellant on rent. A rent note (Ex.D/9) was also executed in that regard and this fact is known to this witness. This witness is also the signatory of rent note and has admitted that said rent note was executed in his presence. He has also proved the signature of tenants Mukesh Sahu and K.D.Rajput upon the said document. Further he has deposed that in those two rooms the tenants were storing Bidi, Tobacco, Tendu leaves etc. In very specific words this witness has deposed that possession upon these two rooms was exclusively of tenants. According to this witness in the remaining part of house, his sister (the appellant) is residing. Further he has deposed that in those two rooms the tenants were storing Bidi, Tobacco, Tendu leaves etc. In very specific words this witness has deposed that possession upon these two rooms was exclusively of tenants. According to this witness in the remaining part of house, his sister (the appellant) is residing. This witness remained firm in his cross-examination and nothing is carved out from his testimony that two rooms from where alleged ganja was seized, do not belong to those tenants. This fact has also been denied by him that the rent note (Ex. D/9) is a concocted document. Hence, the defence which the appellant has taken cannot be said to be an afterthought. On the contrary it s proved that from the beginning her defence is based upon preponderance and probability that two rooms from where the contraband article was seized, belong to tenants and they are hi possession of those rooms. There is positive evidence of the defence which is based upon preponderance and the probability and this and this defence has also been taken by the appellant in her statement recorded under Section 313 CrPC that those two rooms were taken by aforesaid tenants as godown to store Bidi, Tobacco, Tendu leaves etc. Thus, it cannot be said that the possession of premises from where contraband article was seized was in the possession of appellant or she was having knowledge that ganja is stored by the tenants in these rooms in place of Bidi, Tobacco, Tendu leaves etc. Since the initial burden of proof has not been discharged by the prosecution by proving that it was in the knowledge of the appellant that inside those rooms ganja was being stored by the tenants according to me the appellant cannot, be convicted. 23. In the present case there is total non-compliance of Section 50(4) of NDPS Act as well as Section 100(3) of CrPC. The appellant-accused is a lady and therefore her search was to be made only by a lady constable or lady police officer. Investigating officer I. P. Madvi in his cross-examination has deposed that the consent of appellant of her search was obtained and a panchnama Ex.P/30 was also prepared which bears his signature. The appellant-accused is a lady and therefore her search was to be made only by a lady constable or lady police officer. Investigating officer I. P. Madvi in his cross-examination has deposed that the consent of appellant of her search was obtained and a panchnama Ex.P/30 was also prepared which bears his signature. On going through Ex.P/30 this Court finds that it has been mentioned in this document that lady constable Harsiddhi searched the person of appellant, but, this fact has not at all been proved by the Investigating Officer and in his evidence he has simply said that search panchnama of appellant is Ex.P/30. He has not deposed that appellant was searched by lady constable Harsiddhi. Had she been searched by a lady constable there is no reason that investigating Officer would not have so stated in his deposition. That apart, the picture becomes more clear in cross-examination of the investigating Officer. If para 19 of his cross-examination is taken into consideration this Court finds that appellant gave consent of her search and thereafter the search of appellant was taken. In para 20 specifically the investigating Officer Mr. Mandvi is saying that he himself took the search of appellant and thereafter in presence of the witnesses her house was searched. Further he has deposed that once only he took the search of appellant, which took 2-5 minutes. It would be quite relevant to quote para 20 of the cross-examination of investigating Officer I. P. Mandvi which reads thus: Hence according to me, the said action of the investigating Officer is in direct contravention to Section 50(4) of NDP Act and Section 100(3) of CrPC. His action is also violative to Article 21 of the Constitution of India. The Supreme Court in State of Punjab v. Surinder Rani alias Chhindi (2000) 10 SCC 429 dismissed the State appeal and upheld the order of Punjab High Court because search was not made in accordance to mandatory provisions of Section 50(4) of NDPS Act and held that accused who was female was not searched by female constable or lady officer, search was vitiated. In another decision State of Punjab v. Baldev Singh (1999) 6 SCC 172 the Supreme Court held that if the illicit article seized during illegal search it cannot be used as evidence or unlawful possession of that article. In another decision State of Punjab v. Baldev Singh (1999) 6 SCC 172 the Supreme Court held that if the illicit article seized during illegal search it cannot be used as evidence or unlawful possession of that article. Further in para 13 it was held that the empowered officer must act in the manner provided by Section 50(4) of NDPS Act r/w section 51 (2) of CrPC and whenever it is found necessary to cause a female to be searched, it should be searched by female only. Further it was held that the female official who carried out the personal search of person concerned should also be disclosed and the personal search memo of the female concerned should indicate compliance of that section. The Supreme Court laid down the law of land that failure to do so may not only effect the credibility of the prosecution's case but may also be found as violative of a basic right of the female to be treated with decency. In the given case at hand, nowhere the investigating Officer I.P. Mandvi has deposed that appellant was searched by a female constable. On the contrary, he has admitted in his cross-examination that he himself took the search of appellant, who is a lady. Hence, according to me, the failure to comply the mandatory provisions has affected the credibility of the prosecution's case and is also violative of Article 21 of the Constitution of India. 24. It is well settled principle of criminal jurisprudence that more serious the offence, the stricter the degree of proof is required. True the offences under the NDPS Act are very serious and therefore severe punishment is to be imposed, looking to the aim and object of the said Act, but, before convicting an accused under the Act, a strict degree of proof is required and the accused cannot be convicted upon shaky and weak evidence. Further the mandatory requirement under the Act is also required to be proved. In this regard, I may profitably place reliance upon the decision of Supreme Court Noor Aga (supra). 25. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted from all the charges. The amount of fine if deposited be refunded to the appellant. Appellant is in jail. 25. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted from all the charges. The amount of fine if deposited be refunded to the appellant. Appellant is in jail. She be set at liberty forthwith if not required in any other case.