1

Reserved on 5

th

August, 2019

Delivered on 28

th

August, 2019

A.F.R.

Court No. - 88

Case :- CRIMINAL APPEAL No. - 5200 of 2009

Appellant :- Jog Raj

Respondent :- State Of U.P.

Counsel for Appellant :- Harikesh Kumar Gupta,Ajay Kumar

Kashyap

Counsel for Respondent :- Govt. Advocate

Hon'ble Mrs. Manju Rani Chauhan,J.

1.The present criminal appeal has been preferred by the

accused appellant Jograj challenging the order dated 05.06.2009

passed by Additional Sessions Judge, Court No.1, Pilibhit, in Special

Trial No.63 of 2007 (State vs. Jograj) arising out of Case Crime

No.1080 of 2007 u/s 8/18 Narcotics Drugs & Psychotropic

Substances Act, 1985, Police Station Neuria, District Pilibhit,

whereby the appellant has been convicted u/s 8/18 Narcotics Drugs

& Psychotropic Substances Act, 1985 and has been sentenced for

four years rigorous imprisonment and a fine of Rs.10,000/- and in

default of payment of fine, for six months further imprisonment.

2.Heard Mr. R.B. Pal, Advocate holding brief of Mr. Ajay Kumar

Kashyap, learned counsel for the appellant and Mr. Om Prakash

Mishra, learned Additional Government Advocate as well as perused

the record.

3.The prosecution case as narrated in the F.I.R. lodged by P.W.1

Sub-Inspector Gajram Singh is that on 22.08.2007, Sub-Inspector

Gajram Singh along with Constable Ran Singh & Constable Kanhai

Lal was busy in making enquiry about an application and was also

on patrolling duty, during which when they reached Pilibhit road

near village Gulhadiyan Dulhan, they received an input from police

informer that one person sitting near the triangle of village

Dhankuna is possessed with opium. Relying on this information, the

Neutral Citation No. - 2019:AHC:143621

2

police personnel made a search of each other to ensure that none of

them were having any illegal substance and thereafter, proceeded

towards triangle of village Dhankuna. They also tried to get

independent witnesses, but no one came forward to become witness

of search. When they reached near the triangle of village Dhankuna,

the police informer pointed out the person who was having opium.

As soon as the police personnel reached close to that person, he

tried to run towards village Dhankuna, however the police personnel

chased and apprehended him near the triangle of village Dhankuna

at about 07:30 P.M. and upon being asked to disclose reason for his

running away from the police, he confessed that he has opium in the

polythene bag kept in his hand and that is why he ran on account of

fear of his arrest. The P.W.1 informed him about his right to be

searched in presence of a Gazetted Officer or before a Magistrate.

But the arrested person reposed faith in police personnel and

consented for being searched by them. On being asked, he disclosed

his name to be Jograj and upon being searched, one green colored

polythene, having therein another white polythene, was found in his

right hand, wherein a black colored sticky substance smelling like

opium was recovered. After weighing, the quantity of substance was

found to be about 200 gms. Thereafter accused Jograj was arrested

and was informed about the grounds for his arrest and the mandate

of law regarding arrest and the instructions issued by Hon’ble

Supreme Court and National Human Rights Commission regarding

arrest and search were followed. The recovered substance was duly

sealed and a memo was prepared and copy thereof was given to the

accused after obtaining his thumb impression and thereafter, the

arrested accused along with recovered substance was brought and

detained in police station and on the basis of recovery memo and

arrest memo, an F.I.R. was registered on 22.07.2007 at about 9:10

A.M. The entries of relevant facts were also made in the general

diary of the police station. Thereafter during investigation, the

3

sample of recovered substance was sent to forensic laboratory at

Lucknow for its forensic examination and subsequently forensic

report was received, wherein presence of opium was mentioned and

percentage of morphine in the sample was found to be 2.8%. After

completing investigation, a charge-sheet was submitted against the

appellant u/s 8/18 Narcotics Drugs & Psychotropic Substances Act,

1985 (referred in short as NDPS Act hereinafter).

4.The learned trial court, vide order dated 01.12.2007, framed

charge against the accused appellant u/s 8/20 NDPS Act and the

trial proceeded.

5.The prosecution in order to prove its case, examined five

prosecution witnesses, out of them, P.W.1 Sub-Inspector Gaj Ram

Singh is first informant of the case and is a witness of arrest of

accused appellant Jograj and the recovery of 200gms. of opium from

his possession. P.W.2 Constable Ran Singh is also witness of arrest

of accused appellant Jograj and recovery of 200gms. opium from his

possession. P.W.3 Constable Clerk Naveen Kumar Saxena had

registered the F.I.R. and has proved the registration of a criminal

case. P.W.4 Sub-Inspector, Bhuwaneshwar Singh, Investigating

Officer, had conducted the investigation and had submitted charge-

sheet. P.W.5 Constable Satyapal has given the evidence about

collection of sample of recovered opium and send it to forensic lab

and has proved the link evidence.

6.Thereafter, the accused appellant Jograj was examined u/s

313 Cr.P.C., who denied his involvement in the offence and stated

that some stolen property was recovered from one person, whose

wife had kept two pants which were stolen from his house and

hence, the police had challaned him in the false case of Narcotics

Drugs & Psychotropic Substance. He further stated that he will

adduce evidence in his defense but no evidence was adduced by the

defense.

7.The learned trial court relied the prosecution witness and

4

convicted the accused appellant under section 8/18 NDPS Act and

sentenced him to four years R.I. and a fine of Rs.10,000/- and in

default of payment of fine, six months further imprisonment. Feeling

aggrieved by this order of conviction and sentence, the accused

appellant Jograj preferred the present criminal appeal.

8.The learned counsel for the appellant has assailed the

impugned order of conviction and sentence and has submitted that:-

(i)The prosecution case is not supported by any independent

public witness and it would not be safe to rely upon the evidence of

police personnel only.

(ii) There is anomaly in sending the substance recovered to

forensic lab and although it is alleged that 40gms. of sample was

prepared and sent for testing in forensic lab, but the substance

alleged to have been received in forensic lab has been shown to be

37gms. only and hence, the entire exercise done by the prosecution

appears to be doubtful and the prosecution case has to be

disbelieved.

(iii) The charge framed against the accused appellant is defective for

the reason that the substance alleged to have been recovered from

the possession of the appellant is “opium”, as such charge u/s 8/18

NDPS Act should have been framed, but the learned trial court has

framed charge u/s 8/20 NDPS Act which relates to substance

“charas” and thus, there is ambiguity and illegality in framing of

charge, which goes to the root of the matter and causes prejudice to

the appellant and hence, the trial of the accused appellant is vitiated

in law.

(iv)The mandatory provisions of NDPS Act and rules regarding

search, arrest and recovery, particularly sections 42 & 50, have not

been complied with by the police party in the present case, which

vitiates entire proceeding and the accused appellant is liable to be

5

acquitted.

9.On the other hand, the learned Additional Government

Advocate has supported the order of conviction and sentence and

has contended that the prosecution witness are wholly reliable and

the prosecution has proved its case beyond reasonable doubts and

the accused appellant has miserably failed to show any prejudice

caused to him on account of the alleged defect in framing the

charge.

10.In the light of rival submissions, this court proceeds to

examine the evidence available on record, which reflects that the

P.W.1 Sub-Inspector Gajram Singh, the first informant has stated

that on 22.08.2007 he was posted at police outpost Dhankuna,

police station Neuria and on that day he along with constable Ran

Singh and constable Kanhai Lal left for outpost Dhankuna after

making an entry in the general diary to conduct an enquiry on some

application received by him. When they reached near triangle of

village Gulhadiyan Dulhan, an input was received from police

informer that one person who is sitting at Dhankuna triangle is

having opium in his possession and he may be arrested. Believing

this information, the police party after ensuring non-availability of

any illegal substance with them proceeded to village Dhankuna

triangle along with police informer. P.W.1 Sub-Inspector Gajram

Singh, the first informant has further stated that while proceeding,

the police personnel tried to procure independent public witness but

none from public was ready to accompany them for that purpose.

After reaching near Dhankuna tiraha, the police informer pointed out

towards one person said to have opium in his possession and while

reaching towards that person, he tried to run away but was chased

and over powered and was arrested. Upon being asked, he disclosed

that he is having opium in a polythene bag. Upon this, the P.W.1

apprised him about his right to be searched in front of any Gazetted

Officer or Magistrate. The said person reposed trust in police

6

personnel and stated that he is not willing to be searched before any

Gazetted Officer or Magistrate. Thereafter again, P.W.1 tried to

procure independent public witness but none became ready for that

purpose and thereafter the aforesaid person was interrogated who

disclosed his identity as Jograj Singh S/o Tika Ram, resident of

village Dhankuna, police station Neuria, District Pilibhit. The P.W.1

Sub-Inspector Gajram Singh has also identified the accused in the

court and has stated before the court that he is the same person

who was found to be in possession of Opium and when he was

searched, a black coloured sticky substance was recovered from a

white polythene which was kept in a green coloured polythene

laying in the right hand of the accused appellant. Upon being

sniffed, the substance smelled like opium. P.W.1 Sub-Inspector

Gajram Singh has stated that he asked the constable Kanhai Lal to

procure Taraju Baat and after weighing, the weight of the substance

was found to be 200 grams. The accused Jograj was asked to

produce the license of keeping opium but he failed to show it. Then

again he was explained about the offence committed by him and the

recovered substance was taken into possession by the police.

Meanwhile the endorsement of accused regarding his consent to be

searched by police personnel was also obtained. The substance was

sealed on the spot and a recovery memo was prepared upon which

the accused put his thumb impression and the accompanying police

personnel also signed it. A copy of the recovery memo was also

given to accused Jograj and thereafter he along with accused Jograj

went to police station and the criminal case was registered against

accused Jograj and the recovered substance i.e. opium was also

kept in malkhana in a sealed cover. The aforesaid witness was cross

examined by the defense in detail but nothing material could be

elicited from the cross examination. A suggestion has also been

made to this witness that accused appellant was arrested from the

house as he was a suspect of theft of a engine in the village but he

7

did not confess regarding the theft so he has been falsely implicated

in this case. This suggestion was readily denied by P.W.1.

11.Similar statements have been given by P.W.2 Ran Singh, who

has supported the statement of P.W.1 in every material aspect. Apart

from other things, he has also identified the bundle in which

substance, alleged to have been recovered from the possession of

the accused, was kept and sealed by Sub-Inspector Gajram Singh.

He has further identified the signature of Gajram Singh as well as his

own signature on the bundle and has also identified the thumb

impression of accused Jograj. After opening the seal of the bundle

before trial court, the substance kept therein in white polythene has

also been identified by P.W.2 as the substance recovered from the

possession of accused Jograj.

12.P.W.3 Constable Naveen Kumar Saxena has given his

statement regarding registration of first information report and has

proved the Chik first information report and other general diary

entries regarding admission of arrested accused at police station and

also about preservation of substance recovered from accused Jograj

in a sealed packet.

13.The P.W.4, Sub-Inspector, Bhuwneshwar Singh who was the

Investigating Officer of the case has proved the steps taken by him

during investigation and he has also proved further investigation

done by Sub-Inspector, Dharam Singh and has also given statement

regarding sending of sample of recovered substance to forensic lab

and receiving of forensic report from concerned lab.

14.The P.W.5, Constable, Satyapal has given link evidence

regarding preparation of sample and sending it to forensic lab. He

has also stated that a sample of substance measuring about 40gms.

was taken from the bundle and was forwarded to forensic lab,

Lucknow on 13.09.2007 in a sealed cover and was deposited in the

forensic lab on 14.09.2007.

15.With regard to the submissions made by learned counsel for

8

the appellant that there is discrepancy regarding the weight of the

sample of the substance recovered from the possession of the

appellant. In this regard, while the prosecution case is that 40 gms.

of substance was sent to forensic lab, the report of forensic lab

shows that only 37 gms. of substance was received in the lab.

Although Exhibit Ka-9 by which the sample was sent shows the

quantity of the sample as “about 40gms.”, though a judicial notice

can be taken of the fact that such a minor difference in the weight

of substance in question may occur on account of difference of

weighing machines and its accuracy on both the ends, i.e. at the

end of local police and at the end of forensic laboratory, especially in

view of the fact that because of stickiness of the substance in

question, it may not be completely taken out from the bundle

wherein it was kept and it may also lose some weight on account of

time gap and may get affected on account of change of humidity

due to change in weather conditions in between the time of taking

sample and its examination at forensic lab. Furthermore, the

difference of weight, as suggested by learned counsel for appellant,

is too trivial and is in fact inconsequential and cannot be treated as

discrepancy in prosecution evidence and hence, it does not create

any doubt in the mind of the court.

16.With respect to defect in framing of charge and consequential

prejudice to accused appellant, this court has gone through the

language of charge framed by the trial court and bare perusal of

charge reveals that the accused/appellant has been specifically

informed to the effect that on 22.08.2007 at about 07:30 A.M., 200

gms. of Opium have been recovered from the green polythene held

by accused/appellant in his right hand. A copy of the charge framed

against the appellant is mentioned below:-

” vkjksi

eS] vkj0ds0 tSu vij l= U;k;k/khश@U;k;ky; la0 1]

ihyhHkhr vki] tksxjkt ij fuEufyf[kr vkjksi yxkrk gwa%&

9

;g fd fnukad 22-8-2007 dks le; 7%30 cts izkr% okgn xzke

/kudquh eas frjkgk ds ikl Fkkuk U;wfj;k ftyk ihyhHkhr ds {ks= esa

vki iqfyl ikVhZ }kjk fxjQrkj fd;s x;s vkSj vkids dCts ls

vkidh tek rykसh ls vkids nkfgus gkFk esa idM+s gjs jax dh

ikWyhFkhu ds vUnj ls 200 xzke vQhe cjken gqbZ ftldks j[kus dk

vkids ikl dksbZ ykblsal ugh FkkA bl izdkj vkius /kkjk 8@20]

Lokid

औषधी

,oa eu%izHkkoh inkFkZ vf/kfu;e ds varxZr n.Muh;

vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA

eS] ,rn}kjk vkidks funssZ

श

nsrk gwa fd vkidk fopkj.k mDr

vkjksi ij bl U;k;ky; }kjk fd;k tk;sxkA

fnukad% 01-12-2007

vkj0ds0 tSu

vij l= U;k;k/khश@U;k;ky; la0 1

ihyhHkhr

vkjksi vfHk;qDRk dks i<+dj lquk;k o le>k;k x;kA mlus

vkjksi vLohdkj djrs gq, fopkj.k pkgkA

fnukad% 01-12-2007

vkj0ds0 tSu

vij l= U;k;k/khश@U;k;ky; la0 1

ihyhHkhr

17.Thus it is crystal clear that accused appellant was fully aware

that he is being charged for keeping 200 gms. of Opium without

there being any license to keep the same. The error appears to have

occurred in mentioning the section of the offence and in place of

“section 18”, “section 20” has been mentioned. The law is well

settled in this regard that mere defect in the charge will not

vitiate the trial automatically but such eventuality gives an

occasion to the accused to prove or to show that serious prejudice

has been caused to him on account of the error/defect in framing of

charge. Chapter XVII of the Code of Criminal Procedure deals with

the framing of charge. The relevant provisions in this regard find

place in sections 211, 212, 213 & 215 of Cr.P.C. which are being

10

quoted below:-

“211. Contents of charge- (1) Every charge under this

Code shall state the offence with which the accused is

charged.

(2) If the law which creates the offence gives it any

specific name, the offence may be described in the charge

by that name only.

(3) If the law which creates the offence does not give it

any specific name so much of the definition of the offence

must be stated as to give the accused notice of the matter

with which he is charged.

(4) The law and section of the law against which the

offence is said to have been committed shall be mentioned in

the charge.

(5) The fact that the charge is made is equivalent to a

statement that every legal condition required by law to

constitute the offence charged was fulfilled in the particular

case.

(6) The charge shall be written in the language of the

Court.

(7) If the accused, having been previously convicted of

any offence, is liable, by reason of such previous conviction,

to enhanced punishment, or to punishment of a different

kind, for a subsequent offence, and it is intended to prove

such previous conviction for the purpose of affecting the

punishment which the Court may think fit to award for the

subsequent offence, the fact date and place of the previous,

conviction shall be stated in the charge, and if such

statement has been omitted, the Court may add it at any time

before sentence is passed.

212-Particulars as to time, place and person- (1) The

charge shall contain such particulars as to the time and place

of the alleged offence, and the person (if any) against whom,

or the thing (if any) in respect of which. it was committed , as

are reasonably sufficient to give the accused notice of the

matter with which he is charged.

(2) When the accused is charged with criminal breach of

11

trust or dishonest misappropriation of money or other

moveable property, it shall be sufficient to specify the gross

sum or, as the case may be, described the movable property

in respect of which the offence is alleged to have been

committed, without specifying particular items or exact dates,

and the charge so framed shall be deemed to be a charge of

one offence within the meaning of section 219.

Provided that the time included between the first and

last of such dates shall not exceed one year.

213. When manner of committing offence must be

stated- When the nature of the case is such that the

particulars mentioned in section 211 and 212 do not give the

accused sufficient notice of the matter with which he is

charged, the charge shall also contain such particulars of the

manner in which the alleged offence was committed as will

be sufficient for that purpose.

215. Effect of errors- No error in stating either the

offence or the particulars required to be stated in the charge,

and no omission to state the offence or those particulars,

shall be regarded at any stage of the case as material,

unless the accused was in fact mislead by such error or

omission, and it has occasioned a failure of justice.”

18.Like-wise, section 464 of Cr.P.C. deals with the effect of

omission to frame, or absence of, or error in charge. It states as

under:-

“464. Effect of omission to frame, or absence of, or

error in, charge- (1) No finding sentence or order by a Court

of competent jurisdiction shall be deemed invalid merely on

the ground that no charge was framed or on the ground of

any error, omission or irregularity in the charge including any

misjoinder of charge, unless, in the opinion of the Court of

appeal, confirmation or revision, a failure of justice has in fact

been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of

opinion that a failure of justice has in fact been occasioned, it

may-

(a) in the case of an omission to frame a charge, order

12

that a charge be framed and that the trial be recommenced

from the point immediately after the framing of the charge.

(b)In the case of an error, omission or irregularity in the

charge, direct a new trial to be had upon a charge framed in

whatever manner it thinks fit:

Provide that if the Court is of opinion that the facts of the

case are such that no valid charge could be preferred

against the accused in respect of the facts proved, it shall

quash the conviction.”

19. The Hon’ble Apex Court, while deciding the reference in

the case of Willie (William) Slaney vs. State of Madhya

Pradesh reported in AIR 1956 SC 116, has elaborately discussed

the purpose and scope of framing of charge in a criminal trial and

has observed in following manner:-

“Before we proceed to set out our answer and examine

the provisions of the Code, we will pause to observe that the

Code is a code of procedure and, like all procedural laws, is

designed to further the ends of justice and not to frustrate

them by the introduction of endless technicalities. The object

of the Code is to ensure that an accused person gets a full

and fair trial along certain well established and well

understood lines that accord with our notions of natural

justice.

If he does, if he is tried by a competent court, if he is

told and clearly understands the nature of the offence for

which he is being tried, if the case against him is fully and

fairly explained to him and he is afforded a full and fair

opportunity of defending himself, then, provided there is

“substantial” compliance with the outward forms of the law,

mere mistakes in procedure, mere inconsequential errors

and omissions in the trial are regarded as venal by the Code

and the trial is not vitiated unless the accused can show

substantial prejudice. That, broadly speaking, is the basic

principle on which the Code is based”.

20.In the present matter, the record shows that at the time of

framing of charge, the accused was heard and after framing of

13

charge, it was read over and explained to the accused appellant, but

at that point of time he did not raise any grievance or objection

regarding any type of error or irregularity in framing of charge.

21.Similarly, the prosecution witnesses were examined in

presence of accused and his counsel, who clearly stated that 200

gms. of opium was recovered from the possession of the accused

appellant and hence, there was no occasion to have doubt in the

mind of the accused appellant that he was charged and was being

tried for illegal possession of 200 gms. of any substance other than

opium regarding which he was not having license. This fact was

again put to accused appellant by the Trial Court while putting

question no.2 at the time of his examination U/s 313 Cr.P.C. and his

answer to question no.2 goes to show that he was fully aware of the

accusation made against him. Furthermore, when the learned Trial

Court asked the accused appellant as to whether he wants to say

anything further, the accused appellant replied that no such opium

has been recovered from his possession. For ready reference, the

relevant question nos. 2 & 7 put by the learned Trial Court to the

accused and its reply by the accused appellant are being quoted

below:-

”पशन la[;k 2& ih0MCyw0 1 ,l0vkbZ0 xtjke flag

dk dFku gS fd idM+s x;s O;fDRk dk uke irk iwNk vkSj Hkkxus

dk dkj.k iwNk rks mlus crk;k fd mlds ikl iksyhFkhu esa vQhe

gSA bl ij mlls dgk fd rqEgkjk fof/kd vf/kdkj gS fd rqe

viuh tek rykसh fdlh jktif=r vf/kdkjh ;k eftLVªsV ds

le{k pydj ns ldrs gks rks vkidh Lohd`fr ij vkidh tek

rykसh yh xbZ rks vkids nkfgus gkFk esa idM+s gjs jax dh

ikWyhFkhu esa dkys jax dk fpifpik inkFkZ cjken gqvkA ftls mlus

lw[kk o vU; deZpkfj;ks dks सुंघा;k tks mlesa ls vQhe dh xa/k

vk jgh Fkh rFkk cjken vQhe dks rjktw ckaV ls rksyk rks vQhe

dk out 200 xzke fudykA ekSds ij QnZ izn

शर

d&1 vafdr dh

14

xbZ rFkk eky vQhe dks lhy eksgj fd;k vkSj eky o vfHk;qDRk

dks Fkkus esa nkf[ky djds eqdnek iathd`r djk;kA vkidks blds

laca/k esa D;k dguk gS\

mRrj& th ugha xyr gSA

पशन la[;k 7& D;k vkidks dqN vkSj dguk gS\

mRrj& pksjh dk eky ftlds ;gka cjken gqvk Fkk mldh vkSjr

us esjs ?kj ij nks iSUVsa pksjh dh esjs ;gka igqapk nh FkhA iqfyl us

QthZ vQhe ,u0Mh0ih0,l0 esa esjk pkyku dj fn;k esjs ikl esa

dksbZ vQhe cjken ugh gqbZ FkhA ”

22.This statement of accused appellant makes it amply clear that

the accused appellant was fully aware of the prosecution allegations

at every stage of the trial and the error in mentioning the provision

number of offence, while framing of charge, was not significant even

according to the accused himself. Thus the submission made by

learned counsel with regard to the error in framing charge is liable

to be rejected.

23.For next submission regarding non-compliance of mandatory

provision of section 42 & 50 of NDPS Act and illegality in the arrest

and the recovery from appellant, the record shows that P.W.1 &

P.W.2 have categorically stated to the effect that the accused was

informed, orally as well in writing on the form prescribed for that

purpose, about his right to be searched before a Gazetted Officer or

Magistrate and moreover, P.W.1 Gajram Singh has proved the

aforesaid documents as Exhibit Ka-1 which contains thumb

impression of accused Jograj. The memo of arrest and the document

regarding intimation of arrest of accused to the District Legal Aid

Committee has also been proved as Exhibit Ka-2. Like-wise the P.W.1

Sub-Inspector, Gaj Ram Singh had received information, when he

was on the patrol duty and he might not have chance to reduce the

same into writing and to dispatch it to the Superintendent of Police.

24.The position of law in this aspect of the matter as laid down

15

by Hon’ble Apex Court in the case of State of Orissa vs.

Rajendra Tripathi reported in 2004 SCC (Crl.) 1586, enlightens

this court, wherein under similar set of facts, conclusion was drawn

in following manner: -

“8. It has to be noticed that before the trial Court and the

High Court the stand was taken by the accused persons

alleging non-compliance of Sections 42 and 50 of the Act.

The same was given up by the respondents in this appeal

and in our view rightly. Considering the time when search

and seizure was done, and the undisputed position that the

detection was made while the officers were on patrolling

duty, Section 42 has no application. Additionally the evidence

of P.W.s. 1 & 5 clearly shows that the accused persons were

given the liberty to be searched in the presence of the

prescribed officer and they did not choose to be searched by

any person other than P.W.5. Therefore, the plea related to

non-compliance of Section 50 as raised during trial and

before the High Court in addition to the concession, plea

regarding non-applicability of Sections 42 and 50 of the Act

is also without any substance. The residual question is

regarding custody of the contraband articles and corrections

in seizure memo. The evidence on record clearly shows that

the forwarding report clearly indicated that the articles were

being produced before the Magistrate. The order sheet of the

Magistrate shows that because he was busy he directed that

the articles should be produced on 10.8.1992 for the purpose

of collecting samples.”

25.In one another judgment in the case of Girdhari vs. State

of Rajasthan reported in (2010) 15 SCC 576, the Hon’ble Apex

Court dealt with the objection raised by the accused regarding non-

compliance of section 50 of NDPS Act and rejected such objection,

the relevant portion whereof may be usefully quoted herein below:-

“4. The learned counsel then argued that the mandatory

requirement of section 50 has also not been complied with

inasmuch as there was an error in the memo issued to the

appellants as to their right of being searched by a gazetted

16

officer or magistrate. He pointed out that in the said memo

given to the appellants instead of word “magistrate”, the word

“Judicial Magistrate” is used which is not the requirement of

section 50 of the Act. We do notice that P.W.7 while issuing

the memo to the appellants has used this word “judicial

magistrate” instead of the word “Magistrate” found in section

50 of the Act. But then the learned counsel is unable to point

out to us what prejudice is caused to the appellant by the

usage of the word “judicial magistrate” instead of the word

“Magistrate”. In the absence of any such prejudice being

caused to the appellants, we think this argument of learned

counsel for the appellants must also fail.”

26.Recapitulating facts of the case, it is found that apart from

above noted circumstances on the issue of compliance of section 42

and 50 as well as arrest of appellant and recovery of contraband,

the P.W.1 was not cross-examined on these factual aspects of the

matter and as such, this court is satisfied that the provision of

section 42 and 50 of NDPS Act has been duly complied with by the

arresting police party and there is also no illegality in the arrest and

the recovery from appellant.

27.With regard to the submission of non-compliance of section 52

of Narcotics Drugs & Psychotropic Substance Act, the record of the

case demonstrates that there is sufficient material on record to

satisfy this court about due compliance of the provision of section 52

of NDPS Act. The averment regarding compliance of section 52 of

NDPS Act is available in the recovery memo and first information

report itself. The P.W.1 Sub-Inspector, Gaj Ram Singh and P.W.2

Constable Ran Singh have stated in their deposition before the court

that the accused appellant was informed about his right to be

searched in presence of a Gazetted Officer or Magistrate and in this

regard, his written consent was also taken and produced in the court

and was proved by P.W.1 as Exhibit Ka-1.

28.Similarly, the submission with regard to the non-presence of

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independent witness is also not acceptable in as much as the

presence of independent witness during search is not mandatory.

Moreover in the present case, it has been stated by the prosecution

witnesses that they had tried to procure public witnesses but no one

came forward to become the witness of search and arrest. This

statement is not improbable, in view of the fact that the accused is

resident of the same vicinity, from where he was arrested. It is a

matter of common knowledge that the co-villagers normally don’t

get ready to give evidence against another co-villager in criminal

matters. Furthermore, there is no such circumstance or material

available on record, which may discredit the evidence of the

searching officer who is responsible government servant. In this

regard, the relevant part of the judgment of Hon’ble Apex Court in

the case of Pon Adithan vs. Deputy Director, Narcotics

Control Bureau, Madras reported in (1999) 6 SCC 1, may be

referred, which reads thus:-

“6. It was next contended by Mr. Lalit that oral testimony

of a witness alone cannot be regarded as sufficient for

establishing that the requirement of Section 50(1) was

complied with. To support this contention he relied upon the

decision of this Court in T. P. Razak v. State of Kerala, 1995

Supp (4) SCC 256. In that case the Sub-Inspector of Police

had searched the accused and recovered brown sugar from

him. He deposed before the Court that before the accused

was searched he had asked the appellant whether he

wanted to be taken before a Gazetted Officer or a Magistrate

for the purposes of search and that the accused had replied

that it was not necessary. As this fact was not reflected either

in the F.I.R. or in the seizure mahazar and the independent

witness to the mahazar had not supported the version of the

Sub-Inspector this Court held that the prosecution had failed

to establish that there was compliance with the provision of

Section 50(1) of the Act. As it appears from the judgment the

trial Court in that case had not considered it necessary to

assess the evidence of Sub-Inspector of Police since it was

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of the view that it was not necessary to comply with the

provisions of Section 50(1). The High Court had also

proceeded on the basis that the said requirement of Section

50(1) is directory and, therefore, its non-compliance was not

fatal to the prosecution case. It was in the context of these

facts and circumstances that this Court held:

"Having regard to the fact that the FIR and

Seizure Mahazar do not mention about the appellant

having been asked before the search was conducted

as to whether he would like to be produced before a

Gazetted Officer or a Magistrate and the further fact

that P.W.1, the other independent witness, also does

not state about this we are of the view that the

prosecution has failed to establish that there was

compliance with the provisions of Section 50 of the

Act before conducting the search of the appellant."

In that case no clear finding was recorded regarding

credibility of the Sub-Inspector of Police who was the only

witness on the point. It was upon appreciation of the

evidence led in that case that it was held that the prosecution

had failed to establish that there was compliance with the

provisions of Section 50(1) while conducting the search of

the accused. We, therefore, cannot agree with the

submission of Mr. Lalit that this Court in that case has laid

down as a proposition of law that in absence of independent

evidence or any other supporting documentary evidence,

oral evidence of a witness conducting the search cannot be

regarded as sufficient for establishing compliance with the

requirement of Section 50(1).”

29.In view of totality of facts and circumstances detailed herein

above, there is no merit in the submissions made by learned counsel

for the appellant and this court finds that the prosecution has been

able to successfully prove its case beyond reasonable doubt. Hence,

the conviction of the appellant is liable to be upheld. On the

question of sentence, this court is of the view that the learned Trial

Court has considered the aspect of sentence in detail and has

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already taken a lenient view and as such, under facts and

circumstances of the case, there comes no occasion to alter or

reduce the sentence.

30.The present criminal appeal is devoid of merit and is dismissed

accordingly.

(Manju Rani Chauhan, J.)

Order Date :- 28.8.2019

Sushil/-