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2016 DIGILAW 1106 (RAJ)

Balu Singh v. State of Rajasthan

2016-08-02

SABINA

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JUDGMENT : Sabina, J. 1. Appellants had faced trial in FIR No. 308/2006 registered at Police Station Bhawani Mandi, District Jhalawar for the offences u/s 8/21 and 8/17 the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act'). 2. Prosecution story in brief is that on 30.11.2006 police officials received information that the appellants were indulging in smuggling of drugs. On the basis of the said information Nakabandi was arranged. At about 5.00 p.m. two motorcyclists were seen coming from the side of railway crossing. The said persons were signaled to stop their vehicles. One person disclosed his name as Balu Singh whereas the other person disclosed his name as Parmeshwar Pillai. Brijraj Singh, Deputy Superintendent of Police (DSP) also reached the spot. Appellants were informed in writing about their right that they could get their search effected in the presence of Magistrate, Gazetted Officer or Brijraj Singh DSP. Both the appellants gave their consent that their search be conducted in the presence of DSP. Thereafter, on serarch 500 grams of smack was recovered from each appellants. Further from the motocycle 6 Kg processed opium was recovered. Samples were separated from the recovered contraband and were made into sealed parcels. Case property was taken in possession. 3. After completion of investigation and necessary formalities, challan was presented against the appellants and their co-accused Gokul. 4. During trial prosecution examined 11 witnesses. Appellants when examined u/s 313 Code of Criminal Procedure, 1973 prayed that they were innocent and had been falsely involved in this case. 5. Learned trial court vide judgment/order dated 5.5.2008 ordered the conviction and sentence of the appellants Balu Singh u/s 8/21 & 8/17 of the Act whereas appellant Parmeshwar Pillai was convicted sentence u/s 8/21 of the Act. So far as accused Gokul is concerned, he was ordered to be acquitted. Hence, the present appeal by the appellants. 6. Learned counsel for the appellants has submitted that in the present case the appellants in response to notice u/s 50 of the Act had specifically given their consent that they were ready to get their search effected in the presence of DSP. As per the prosecution story, Brijraj Singh, DSP was present at the spot. Further the said DSP had not signed any documents/memo prepared at the spot nor was examined as a witness during trial. The said fact was fatal to the prosecution case. As per the prosecution story, Brijraj Singh, DSP was present at the spot. Further the said DSP had not signed any documents/memo prepared at the spot nor was examined as a witness during trial. The said fact was fatal to the prosecution case. Learned counsel has further stated that no independent witness was joined at the time of alleged recovery, although police party had the secret information that appellants were dealing in smuggling. 7. Learned counsel has placed reliance on Vijaysinh Chandubha Jadeja v. State of Gujarat, 2011 CRI.L.J. 680, wherein it was held as under:- “18. Although the Constitution Bench did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.” 8. Learned State Counsel on the other hand has opposed the appeal. 9. In the present case, prosecution witnesses examined during trial have deposed that as per the prosecution case. However, there is force in the arguments raised by the learned counsel for the appellants. Learned State Counsel on the other hand has opposed the appeal. 9. In the present case, prosecution witnesses examined during trial have deposed that as per the prosecution case. However, there is force in the arguments raised by the learned counsel for the appellants. Ex.P-19 is the consent memo prepared at the time of alleged recovery with regard to appellant Balu Singh whereas Ex.P-20 is the consent memo u/s 50 of the Act prepared with regard to appellant Parmeshwar Pillai. Both the appellants were informed that they could get their search effected in the presence of Magistrate or Gazetted Officer or Brijraj Singh DSP present at the spot. Both the appellants gave their consent that they were ready to get their search effected in the presence of DSP Although, as per the prosecution case, DSP was present at the spot but none of the memos bear the signatures of DSP Brijraj Singh. Moreover, DSP Brijraj Singh was not examined during trial as a witness. DSP Brijraj Singh was an important witness in the present case. Non-examination of DSP Brijraj Singh is fatal to the prosecution case. It has caused serious prejudice to the appellants. The fact that DSP Brijraj Singh has not been examined during trial renders the prosecution case doubtful. 10. It is a settled proposition of law that an accused is presumed to be innocent till proved guilty. Prosecution is required to establish its case against the accused beyond the shadow of reasonable doubt. Offence under the Act invites stringent punishment. In such cases prosecution is required to lead cogent evidence to substantiate its case. However, in the present case material witness DSP Brijraj Singh has not been examined during trial and said fact entitles the appellants to be acquitted of the charges framed against them. 11. Accordingly, this appeal is allowed. The judgment/order of conviction and sentence dated 05.05.2008 passed by the Special Judge, Narcotic Drugs and Psychotropic Substances Cases, Jhalawar are set aside. Appellants are acquitted of the charges framed against them. Appellants Balu Singh and Parmeshwar Pillai are in custody and they be set at liberty forthwith, if not required in any other case.