Shyam Sunder Soni vs State
1996 Latest Caselaw 21 Del

JUDGMENT

Jaspal Singh, J.

(1) It has been a long wait tor the counsel for the appellant. He did not appear day before yesterday. He did not appear even yesterday. There has been no sign of him even today. Leaving him to his conscience and his God I am proceeding to dispose of this appeal as, I feel, any further delay would only add to the agony of the appellant.

(2) The story is as it usually is in all such cases. A secret information is received, a raiding party is formed and witnesses from the public are approached. One of them obliges. The suspect is interrogated and a notice is given under Section 50 of the N.D.P.S. Act (hereinafter called the Act). This is followed by search and to the recovery is made leading to preparation of documents like recovery memos, personal search memos, taking out of the sample and putting the sample and the remaining drug recovered into separate parcels.

(3) In this case the witness from the public is Laxmi Narain. The alleged recovery is of 10 Kgs. and 100 grams of charas from the hold all of the appellant.

(4) The learned Additional Sessions Judge convicted the appellant. I am acquitting. Here are the reasons.

(5) As we all know by now giving of a notice under Section 50 is a mandatory requirement of law. The appellant says he was not given any such notice. He finds support from the only witness from the public namely, Laxmi Narain. True, the Investigating Officer does say that he gave the notice. But then I am not relying on his statement as it docs not find support from Laxmi Narain and further as the evidence on the point is of the quality that makes me raise my eyebrows in disbelief. The Investigating Officer tells us that the notice was given in the presence of the Station House Officer. However, as per the Station House Officer the notice was not given in his presence. The A.C.P. says when he reached the spot, the notice already stood prepared but was given in his presence. The notice does not bear the signatures of the A.C.P. as an attesting witness. In any case, it is difficult to believe that notice was given after its preparation and signatures thereon by the accused. The language of the notice goes to show that the note was prepared only after the giving of the notice and after the accused had declined the offer. In any case, the notice records that offer was made but had been declined by the accused. If the offer made stood already declined at the lime of the making of the note, where was the point in making an offer afterwards on arrival of the ACP? What is of further significance is that as per the S.H.O., the notice was given at his back when he had left the spot to inform the ACP. If that be so, the notice could not have been given in the presence of the ACP. Even, otherwise, if we pursue the notice it would lead to the conclusion that the Acp was not present at that time. Had he already been there the notice would not have stated that arrangement for the presence of a Gazetted Officer could be made, if so desired by the accused. The very fact that the notice offers to make arrangements for the presence of a gazetted officer, belies the presence of the A.C.P. This much on the alleged service of notice under Section 50 of the Act.

(6) Yet another reason which prompts me not to believe the prosecution version as Gaspal truth is the report of the Central Forensic Science Laboratory. It is typewritten with some over-writings with hand. The more pertinent is the overwriting with pen with regard to the seals on the parcels received. No body has proved as to who made those cuttings and overwritings and whether those were authorised or not. The officer who made the report has not entered into the willness box and the Investigating officer who has tendered it in evidence has said not a word to authenticate them.

(7) This, however, is not the end of the matter. The Station House Officer categorically stales that the writing work was completed at about 5.30 P.M. If so. the First Information Report which makes a mention of all the documents prepared at the spot; could not possibly be recorded at the given time i.e. 3.45 P.M.

(8) As already noticed, the only willness from the public has lent no support. The fact that he was known to the Investigating Officer from before and had been running a shop just in Irony of a Police Station makes the whole affair look fishy.

(9) It is for the reasons recorded above that I doubt the veracity of the prosecution version, Its benefit goes not to the prosecution hut to the appellant. The appeal thus stands accepted. The judgment of conviction and the order of sentence stand set aside. Let the appellant he released forthwith if not wanted in any other case.