JUDGMENT : DINESH KUMAR SINGH-I, J. 1. This criminal appeal has been filed against the judgment and order dated 17.9.1996 passed by the then Sessions Judge, Banda in Special Case No. 57/1996 State v. Rajesh, arising out of Crime No. 35 of 1996 P.S.-Kotwali Dehat, District Banda whereby the accused-appellant Rajesh has been convicted and awarded punishment under section 20 of the N.D.P.S. Act of two years rigorous imprisonment and fine of Rs. 2,000/- and in default of the payment of fine three months further rigorous imprisonment. Facts of this case in brief are as follows:-- 2. On 23.3.1996, S.O. Purusottam Singh Yadav (P.W.-1) along with H.C.P. Laxman Singh and Constable Udit Raj Sachan had started from police station in official vehicle along with its driver vide Report No. 34 time 20:30 hours for night patrolling. When they reached near the road which led to Chilli, they saw one person coming on foot from the side of Gutahe who was having a bag hanging from his left shoulder. The police party stopped their vehicle beside the road and leaving the Jeep and driver there P.W.-1 along with his companion Constables focussed their torch on him and directed the said man to stop. The said person moved in the reverse direction and started running after seeing the police. The police party arrested him after having chased few steps at about 5:30 p.m.; he told his name to be Rajesh son of Shri Punna resident of Village Chilli, P.S.-Kotwali Dehat, District-Banda. His personal search was made and from the bag (Jhola) which he was carrying on his shoulder illegal Ganja was recovered regarding which he could not show any license to possess. Thereafter it was suggested to him, since Ganja was recovered from him, if he wanted to be searched in the presence of a Circle Officer or a Sub-Divisional Magistrate or any other Gazetted Officer, the same could be arranged but the accused told them that he had no objection to be searched by the police party itself which had already made his search. He did not want to be searched again by any other officer. Thereafter he was told the reason of his arrest that 1kg. illegal Ganja was recovered from him for possession of which a license was required and hence he had committed an offence under section 8/12, N.D.P.S. Act. He was taken into police custody. He did not want to be searched again by any other officer. Thereafter he was told the reason of his arrest that 1kg. illegal Ganja was recovered from him for possession of which a license was required and hence he had committed an offence under section 8/12, N.D.P.S. Act. He was taken into police custody. Out of this recovered Ganja, 100 gms. was taken as sample and the same was wrapped in a newspaper and thereafter it was kept in a white cloth and was sealed therein and a memo was also prepared. Remaining 900 gms. Ganja was wrapped back in the same newspaper and was placed back in the same bag (Jhola) and was sealed therein. The sample seal was also prepared on the spot and after having written recovery memo (Ext. Ka-1), the same was read out to the accused along with companion police officials and their signatures were taken thereon. Many people passing through the way were asked to be the witness to this recovery but none gave consent hence, no public person could be made witness to this recovery. One copy of the recovery memo was provided to the accused. 3. Thereafter police party along with the accused and the contraband substance (Ganja) came to the police station and Case Crime No. 113/1996, under section 8/20 of N.D.P.S. Act was registered against the accused-appellant at P.S. Kotwali Dehat, District-Banda. The same day at 7:45 p.m., Chik copy of FIR (Exb. Ka-3) was prepared and entry of this case was made in G.D. of the same date at Report No. 10 at 7:45 hours (Exb. Ka-2). The Investigating Officer Banslal Yadav (P.W.-2) prepared the site plan at the instance of the P.W. 1 which is (Exb. Ka-4) and after taking into consideration the report of Forensic Science Lab (Exb. Ka-6) wherein the sample was found to be Ganja, he filed charge-sheet (Exb. Ka-5). 4. The learned Sessions Judge had framed charge on 20.6.1996 against the appellant under section 8/20 of the N.D.P.S. Act, to which the accused appellant pleaded not guilty and claimed to be tried. 5. In support of this charge the prosecution examined only one witness of fact, S.O. Purushottam Singh Yadav (P.W.-1) who had made arrest and the Investigating Officer S.I. Sri Banslal Yadav (P.W.-2). 6. 5. In support of this charge the prosecution examined only one witness of fact, S.O. Purushottam Singh Yadav (P.W.-1) who had made arrest and the Investigating Officer S.I. Sri Banslal Yadav (P.W.-2). 6. The entire documentary evidence which had been taken into consideration by the Court below consists of recovery memo, Ext.-Ka-1, G.D. Ext.-Ka-2, Chick FIR Ext.-Ka-3, site plan Ext.-Ka-4 and report of Forensic Science Lab Ext.-Ka-6. 7. Thereafter the evidence of prosecution was closed and the statement of accused was recorded by the Court below under section 313 of Criminal Procedure Code on 6.9.1996 wherein he denied any such recovery to have been made from him and also denied that any such recovery memo was prepared on the spot. He alleged that he was falsely implicated in this case and further stated that he wanted to give evidence in defence, but he had not examined any witness in defence as per record. The Court below has held the charges proved on the basis of evidence cited above and has awarded the above mentioned punishment. 8. A perusal of the impugned judgment would show that the learned Amicus Curiae on behalf of the accused had made argument that compliance of section 50 of the N.D.P.S. Act was not made by the prosecution because the accused was not apprised of his legal right that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate but the learned Court below was not convinced with the said argument and held that compliance of the said provision was required to be made only when there was prior knowledge to the police party that contraband substance could be recovered from the accused. In the case at hand there was no such prior information with the police hence question did not arise of making compliance of the said provision. It was a case of sudden arrest by the police when during patrolling, it recovered the said Ganja from the accused. 9. The next argument made before the learned Court below was that police party did not take each others search in presence of the accused nor gave their search to the accused to eliminate any chance of false planting of the contraband substance. 9. The next argument made before the learned Court below was that police party did not take each others search in presence of the accused nor gave their search to the accused to eliminate any chance of false planting of the contraband substance. The learned Court below held in this regard that such a search was not necessary to be taken because in the case in hand the search was to be made of only bag (Jhola) and not that of the accused. The recovery of the alleged illegal Ganja is made from the bag which the accused was carrying. 10. The third argument made before the Court was that the accused-appellant was not apprised the reason why he was being arrested, but the learned Court below did not find it tenable because it had come on record that the appellant was apprised that 1 kg. illegal ganja was recovered from him for which he did not have any license. What else the learned Amicus Curiae wanted to be communicated, was not clear. 11. The next argument which was made by the learned Counsel for the accused relates to the police patrolling party having not taken any public witness while making the recovery from the accused. It has also not been found appealing by the Court because it has recorded that the recovery was made all of a sudden and it was also found recorded by it that P.W.-1 had clearly stated that public witness was tried to be taken but nobody was ready to become a witness. 12. The next point argued before the learned Court below was that no information was given to the higher police authorities as was required under section 52/57 of N.D.P.S. Act but even this argument was not found appealing by the Court below as it has recorded that witnesses which were examined by the prosecution could be put question in this regard, but no such question was made by the defence before the Court below. 13. Learned Amicus Curiae, Ms. Seema Pandey has argued before this Court that a very small quantity was recovered from the accused hence the punishment awarded by the Court below is not proportionate and it should be reduced. 13. Learned Amicus Curiae, Ms. Seema Pandey has argued before this Court that a very small quantity was recovered from the accused hence the punishment awarded by the Court below is not proportionate and it should be reduced. It is also argued by her that in the site plan the distances have not been shown and the P.W.-2 (Investigating Officer) has stated in this regard that he did not consider it to be necessary to mention them. Further it was argued that the accused has no criminal history. He had been wrongly implicated, hence he should be acquitted as there is no sufficient evidence on record to prove him guilty. 14. In rebuttal the learned AGA has argued that the learned lower Court has rightly held that there was no requirement of making compliance of section 50 of the N.D.P.S. Act because it was a case of sudden arrest. As regards, recovery of small quantity it is argued that in the old N.D.P.S. Act prior to the amendment of 2001 there was no such provision to award punishment in proportion to the recovery of the contraband substance. The minimum punishment prescribed under section 20 (b)(ii) of NDPS Act was 10 years which could be extended up to 20 years and fine of Rs. 1 lakh which could be extended up to 2 lakhs, for reasons to be recorded in writing. Hence in the case in hand when the Court below found the charge under section 20 of the N.D.P.S. Act proved it should have awarded the prescribed minimum punishment of 10 years R.I. and fine of Rs. 1 lakh, therefore it requires enhancement of the punishment rather than its reduction, for which notice could be required to be issued to the accused-appellant to give reasons why the punishment be not enhanced in this case, in case Court comes to the conclusion that the learned Court below had rightly held him guilty. 15. Although, learned Amicus Curiae has not raised the point of compliance of section 50 of N.D.P.S. Act not having been made in this case, though the same was raised before the Court below, it would be proper that the said point be also taken into consideration in the light of the evidence on record. 16. 15. Although, learned Amicus Curiae has not raised the point of compliance of section 50 of N.D.P.S. Act not having been made in this case, though the same was raised before the Court below, it would be proper that the said point be also taken into consideration in the light of the evidence on record. 16. A perusal of the recovery memo indicates that the police party while on patrolling had come across the accused-appellant all of a sudden and when he was directed to stop, he, instead of stopping, started running in the reverse direction; he was caught after having been chased for about 50 steps at 8:40 p.m. and from the bag which he was carrying on his shoulder, police found 1 kg. Ganja, to possess which he could not show the licence. There is no other witness of fact examined by the prosecution although as per the recovery memo there were two other police witnesses of fact but none of them has been examined to corroborate the version of P.W.-1. It is therefore clear that the recovery of this contraband substance has been tried to be proved on the basis of sole police witness while other police witnesses were also available as per the prosecution version. This Court finds that the testimony of PW-1 indicates that Jama Talashi was taken which will amount to taking his personal search as well, along with the search of his bag which he was carrying and that nothing was found from the possession of the accused in search of him but from his bag 1kg Ganja is alleged to have been recovered by the prosecution. 17. In Dileep v. State of M.P., (2007) 1 SCC 450 the following has been held: "12. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of section 50 of the Act, although required in law, had not been complied with. 16. In this case, the provisions of section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done." 18. It was not done." 18. Therefore, it has been clearly laid down in the above case that if personal search is also made along with the search of any article which the accused is carrying, the application of section-50 of N.D.P.S. Act shall be mandatory to be complied with. But in the present case the Court laid down in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 would be applicable in which the following has been held:-- "25. If a police officer without any prior information as contemplated under the provisions of the N.D.P.S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such search is completed at that stage section 50 of the N.D.P.S. Act would not be attracted and the question of complying with the requirements there under would not arise. If during such search for arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the N.D.P.S. Act. If he happens to be an empowered officer also, then from that stage onwards he should carry out the investigation in accordance with the other provisions of the N.D.P.S. Act." 19. In view of the above proposition of law, it is clear that in case during ordinary search the police party finds from the accused some contraband substance, of which they did not have prior information, the moment they recover the contraband substance from him, from that point onwards the provisions of N.D.P.S. Act shall be applicable. In such a case of sudden recovery of contraband substance, the compliance of section 50 of N.D.P.S. Act would not be mandatory. In the case at hand in the light of above evidence, it is apparent that the police party while doing patrolling duty saw the present accused-appellant in suspicion condition and directed him to stop; he started running in the reverse direction. They suspected that he might be carrying some illegal substance or thing and pursuant to that, his search was made and from the bag which he was carrying on his shoulder, Ganja was recovered. They suspected that he might be carrying some illegal substance or thing and pursuant to that, his search was made and from the bag which he was carrying on his shoulder, Ganja was recovered. Hence, this case would fall in the category of sudden recovery of contraband substance, hence the provision of section 50 of the NDPS Act would not be applicable, which has rightly been held by the Court below. But, it is also to be made clear that in the light of the above said law, after the recovery was made the remaining provisions of the N.D.P.S. Act would be applicable in this case, most important of which is section 57 of the N.D.P.S. Act which mandates that when arrest of an accused is made and some contraband substance is recovered from him by the police party they shall ensure informing their superior authorities immediately within 48 hours about the arrest made as well as the seizure of the contraband substance made from the accused. In this case, this has not been done by the police as there is no evidence on record that police ever made any report under section 57 of the N.D.P.S. Act which was sent to the higher authorities. This violation itself may not be treated to be detrimental to the prosecution's case single handedly, but if coupled with other infirmities, it would be found detrimental to the prosecution's case and the trial would vitiate. In this regard reliance can be placed on the law laid-down in the case of Dilbagh Singh v. State of Punjab, 2017 (98) ACC 686 in which following has been held in paragraph 16:-- "(16) In Balbir Singh (supra), a. Bench of two Hon'ble Judges of this Court had enunciated, adverting to sections 52 and 57 of the Act that these provisions contain certain procedural instructions for strict compliance by the officers, but clarified that if there was none, such omission by itself would not render the acts done by them null and void and at the most, it may affect the probative value of the evidence regarding arrest or search and in some cases, it may invalidate such arrest or search. That the non-compliance had caused prejudice to the accused persons and had resulted in failure of justice was necessary to be demonstrated, was emphasised. That the non-compliance had caused prejudice to the accused persons and had resulted in failure of justice was necessary to be demonstrated, was emphasised. It was ruled that these provisions, which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 and 44 are by themselves not mandatory and if there was noncompliance or any delay was involved with regard thereto, then it has to be examined, to ascertain as to whether any prejudice had been caused to the accused and further whether, such failure would have a bearing on the appreciation of evidence regarding arrest or seizure as well as on the merits of the case." 20. In view of the above position of law it is absolutely clear that the Court has to form view as to whether any prejudice has been caused to the appellant by non-compliance of the provision of section 57 of the NDPS Act by the prosecution. It is apparent in this case that due to sudden recovery of contraband substance from the accused, compliance of section 50 of the NDPS Act could not be made hence it was very essential that the compliance of provision of section 57 should have been made by the prosecution by sending report to the higher authorities that the accused-appellant had been arrested and contraband substance was recovery from him, to eliminate any probability of false implication. This certainly has not been done in this case. Apart from this, there are number of other infirmities noticed, such as, there being no corroborative piece of evidence regarding proof of contraband substance having been recovered from the accused-appellant and there being solitary statement of police witness to prove the said recovery. 21. The next important question which this Court would like to take up is whether the prosecution has been able to prove beyond shadow of doubt that 1 kg. Ganja was recovered from the accused-appellant. In this regard, it may be noticed that in the recovery memo there is no mention made of any weighing machine (balance) to have been used for weighing the ganja recovered from accused. It is not brought on record as to how police party found the recovered ganja to be 1 kg. It has also not been made clear as to how 100 gm out of total 1 kg. was taken out and weighed. It is not brought on record as to how police party found the recovered ganja to be 1 kg. It has also not been made clear as to how 100 gm out of total 1 kg. was taken out and weighed. How they were separately sealed; which seal was used on the alleged recovered contraband and its sample and when they were sealed; whether the sample was sent to FSL along with the sample of contraband. P.W.-1 who is a police witness has nowhere stated that any weighing machine was used for weighing entire quantity of contraband substance and the same was found to be 1kg. and also it has not been clarified as to how 100 gms. out of the said quantity was weighed and taken out Further it is not made clear, neither in the recovery memo nor in the statement of P.W.-1 as to which seal was used in sealing the said recovered remainder contraband substance, as well as the sample taken. It is also not made clear where this contraband substance was kept along with the sample and the sample seal till the sample was sent to the Forensic Science Lab and till the remainder was produced before the Court for being exhibited. No evidence has come on record that these items/articles were kept in the Malkhana and the reminder was taken out from the Malkhana in sealed condition before the Court at the time of recording statement of P.W.-1 and that the seal was found to be the same which had been used at the spot. Similarly the sample which was sent to the Forensic Science Lab for being tested, whether it bore the same seal which was affixed on the spot and was matched by FSL and was found to be intact; no such evidence has been brought on record. According to the Forensic Science Lab's Report the seal used in sealing the sample was bearing "Monogram-U.P.P.". 22. It was bounden duty of prosecution to bring on record the evidence that the seal which was used on the spot in sealing the remainder was also produced before the Court concerned at the time of recording evidence of PW1 and the same was matched with the seal which was found affixed on the remainder before its being exhibited in Court. In view of these infirmity it cannot be held beyond doubt that the prosecution has been successful in proving it's case beyond reasonable doubt, that the said quantity of ganja was recovered from the accused-appellant on the spot. The burden on the accused under sections 35 and 54 of the N.D.P.S. Act to prove how he came in possession of the contraband substance can be shifted only when the prosecution proves beyond reasonable doubt that the said recovery was made from the accused. In this case prosecution having failed to do so, it cannot be held that the burden would be shifted on the accused to disclose as to how he came in possession of the said contraband substance. 23. The sole witness examined by the prosecution is a police witness/(P.W.-1) who has clearly stated that there were number of public persons who were available but none of them came forward to become an eye-witness of this recovery but he has failed to mention names of even a single person who refused to be a witness. 24. In view of the above infirmities, it is apparent that the prosecution has not been able to prove the case against the accused-appellant of the recovery of 1kg. ganja beyond reasonable doubt, of which he did not have license to possess. 25. In view of the above, the appeal deserves to be allowed and is, accordingly, allowed. 26. The appellant is held not guilty of charges under section 20 of NDPS Act. He be released from jail forthwith in this case, if not detained in any other case, subject to complying with section 437-A, Cr.P.C. 27. The case property/recovered contraband (Ganja) be destroyed in accordance with rules after the period of appeal, provided if any, expires or if the law provides otherwise. 28. The record of this case be transmitted to Court below forthwith with a copy of this judgment and order for compliance. Ms. Seema Pandey, learned Amicus Curiae shall be paid Rs. 7,500/- for assisting the Court in deciding the appeal.

Rajesh v. State of U. P.