V.G. Munshi, J.

1. The important facts of the case of the prosecution lie within a small compass and may be briefly stated as under:

2. P.S.I. Madavi, Crime Branch, Nagpur on 09.02.1999 on prior information arranged trap and at about 1 P.M. apprehended the appellant - accused Sheikh Ibrahim s/o Sheikh Mohamad, near Vijay Talkies, Nagpur. After completing all the formalities he had seized seven small packets containing Charas, weighing total about 390 grams. The samples were properly packed and sealed for being sent to chemical Analyzer, Panchnama of all these events was drawn before the Panch Witnesses and the samples were sent to the Chemical Analyzer. The report of the Chemical Analyzer showed that the sample did contain contraband item Charas. The Investigating Officer after completing investigation, submitted charge sheet in the court of Special Judge, Nagpur.

3. The learned Special Judge, accordingly framed charge against the appellant under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as Act of 1985). The defence of the appellant in Lower Court was that of denial, accompanied by the statement that he was falsely implicated in this case by the complainant. The learned Special Judge, taken the trial, delivered judgment and convicted the appellant/accused and sentenced him to suffer R.I. for 10 years and fine of Rs.1 lac, in default further imprisonment of 2 years.

4. The appellant/accused feeling aggrieved by the said order preferred this Appeal, mainly on the ground that, firstly the learned Special Judge did not properly appreciate the oral and documentary evidence adduced on record, and arrived at a wrong conclusion. Secondly, the learned Judge should have held that there was no compliance of the mandatory provisions of the of 1985. Lastly, the order passed by the learned Judge, is not only contrary to the principles of law, against the facts and circumstances brought on record.

5. It was argued by the learned Counsel for the appellant/accused that the appellant was prosecuted and convicted for the offence under Section 20(b)(ii) of theof 1985. According to the learned Counsel, the has provided severe punishment for the contravention of the provision, and therefore, the burden affirmatively lies on the prosecution to establish all the ingredients of the offence. The important ingredients of the offence is that there should be conscious possession of the contraband articles with the appellant, and secondly, the prosecution with the help of expert has to prove that it was a contraband article within the meaning of Section 2(iii)(a) of theof 1985. It was argued by the learned Counsel, that the evidence adduced on record on the point of seizure of such article from the appellant is most discrepant and unsatisfactory. Secondly, search, seizure and ultimately the raid was not carried as per the procedure laid down in Chapter - V of the, of 1985. Thirdly, the report of C.A. suffers from infirmity and therefore, cannot be accepted. Therefore, we have to view the case of prosecution in the light of the grounds taken in appeal memo.

(i) The raid which was conducted by the members of the Police Staff, can be conveniently divided into three parts for discussion:-

(a) receipt of the secret information etc., and preparation of the raid;

(b) raid, search, seizure, arrest, taking of samples, putting of seal and drawing of the Panchnama etc.

(c) lodging of report in the Police Station, sending information about the raid etc., to the Superior officer, putting seal of the Police Station on the seized property, sending of the sample to the C.A., report of the C.A. etc.

As the learned counsel argued at length and raised several questions about the legality, propriety and validity of the said raid. It is necessary to consider all this aspect in their sequence.

(ii) P.S.I. Madavi, on 09.02.1999, along with P.S.I. Tidke and other staff members was on patrolling duty at about 2 P.M. In the noon they received secret information that one person of certain description was expected to reach near Vijay Talkies, at about 1 P.M. P.S.I. Madavi, reduced the information into writing and also communicated the same in writing to his superior officer, A.C.P. Crime Branch, Nagpur at the hands of P.S. Hamid, Buckle No.964. He called two panch witness and informed them about his intention to effect raid and obtained their consent to act as Panch Witness. It was argued by the learned counsel for the appellant that the raiding party should have sent report to the Superior Officer, in view of the provisions of section 42(2) of theof 1985. In reply to it, the learned Prosecutor, submitted that in case of chance recovery it is not mandatory or it was not possible for the P.S.I. Madavi to inform the superior about the secret information as required under Section 42(2) of theof 1985. According to the learned Prosecutor, the provisions of Section 42(2) of theof 1985, are not mandatory in case if the raiding party received information just before the raid, and when there was no time to inform the superior officers or to take entry in the station diary. In the present case before us, the prosecution tried to show that it was a chance recovery and the raiding party came to know about the possession of the contraband article with the appellant just before the raid. It appears that P.S.I. Madavi, got time to report the matter to the Police Station Officer and to effect raid with the help of Panch Witnesses. It shows that even though he had ample time, he did not report the matter to the superior officers, thus there was no compliance of section 42(2) of theof 1985.

(iii) It was argued by the learned Counsel and ground is also taken in the appeal memo,, that in view of the provision of Section 50 of theof 1985, it was incumbent upon the Police Officer to inform the appellant that he had got right to be searched before Magistrate. In reply it was argued by the learned prosecutor that, the provisions of Sections 42 and 50, are not applicable to chance recovery as such the said recovery is not on prior information, which is a requirement of Section 50. Secondly, according to the learned Prosecutor notice was given to the appellant/accused by the Investigating Officer, before taking search, that he was at liberty to be searched before the Magistrate or a Gazetted Officer, as the case may be. It has come in the evidence of P.S.I. Madavi, that he told the appellant that if he desired his search could be taken in presence of the gazetted officer or magistrate, as provided under section 50 of theof 1985. P.S.I. Madavi, says that accordingly he issued notice, contents of the notice were read over to the appellant, and the original notice was served to the appellant. It was also signed by the panch witness and P.S.I. Madavi (Exh.29). The notice (Exh.29), was produced on record. The relevant portion which is important is reproduced as under:

"You are hereby informed by this letter (Notice) that, we have received information that you are possessing Charas, and hence we have to take your personal search and search of your bag. There is a provision under Section 50(1) of N.D.P.S. Act that such search should be taken before the Gazetted Officer or Judicial Magistrate."

As the packets of contraband article Charas were recovered from the pocket of the pant of the appellant and during his personal search of the appellant, there is no scope for doubt that the provision of Section 50 are attracted and are applicable in the present case. It was argued by the learned Counsel, that in view of the mandatory provision of Section 50 of theof 1985, it was incumbent upon the investigating officer to tell the appellant in clear words about the statutory right, to have personal search, before the Magistrate or the Gazetted Officer. In other words, according to the learned Counsel, such notice only mentioning about the existence of the provisions of section 50(1) of the Act, merely as a formality, is not sufficient, within the meaning of legal position. It cannot be expected from the appellant or any such person, to have knowledge about his rights, and whether to be exercised at the time of search, seizure etc. Therefore, unless the appellant/accused or any such person is made aware of his rights, the option given by him, has no meaning in the eye of law. After pointing out all these things, the learned counsel relied on the decision given by the Apex Court in K. Mohanan v. State of Kerala, (2000) 10 SCC 222 [LQ/SC/1999/1044] . The learned Counsel argued that the compliance of the provision of Section 50(1) of theof 1985 is mandatory and in case of non compliance of the said provision, the appellant/accused is entitled to acquittal. The learned Counsel in support of his argument placed reliance on the decision given by this Court, reported in Mohd. Ismail s/o Karim Patel v. State of Maharashtra, : 2003(1) CCC 649 (Bom.): 2003 Mh. L.J. 623. In this case, it was held that;

"Accused must be aware of his right to get himself searched before the Gazetted Officer or Magistrate. It was further held that merely asking the accused whether he desires to be searched in presence of the gazetted Officer or Magistrate cannot be treated as communication to his right under law to be searched."

The ratio laid down in Mohd. Ismail v. State of Maharashtra (supra), is clearly applicable to the case before us, as the facts are same. In the present case, the notice given by P.S.I. Madavi to the appellant nowhere mention that the appellant had got right to be searched before the Magistrate of Gazetted Officer. Thus there was no compliance of Section 50(1) of theof 1985. Secondly, the report shows that the search or drawing of Panchnama (Exh.30) commenced on 09.09.1999 at about 12.45 hours, while the notice (Exh.29) was given to the appellant on 09.02.1999 at about 13.45 hours. It means the notice under section 50(1) of theof 1985 was given to the appellant much after the commencement of the drawing of the Panchnama (Exh.30). In such circumstances, the words cannot lie in the mouth of P.S.I. Madavi, that the appellant was made aware of his right to be searched before Magistrate or Gazetted Officer. Further all these things are not mentioned in the Panchnama (Exh.30). It shows that the said notice (Exh.29) was given merely as a formality after the starch or seizure etc. Thus, there was no compliance of Section 50 of theof 1985, and therefore, the conviction and sentence is vitiated.

(iv) The evidence of the members of the raiding party on the point of seizure of the contraband article from the appellant accused is most unsatisfactory. P.S.I. Madavi, effected the raid and drawn panchnama (Exh.30). We have already seen that the panchnama (Exh.30) is to be viewed with suspicion. Moreover, panch witness Prabhakar Lahane did not support the prosecution case, and therefore, he was cross examined to a good length, but nothing could come on record to believe his version. Therefore, the evidence of this witness is of no use to the prosecution. Moreover, there is no evidence on record which would indicate that the copy of the panchnama was given to the appellant. Thus there was no compliance of Section 100(6) of the Code of Criminal Procedure. Therefore it is really doubtful as to whether the contraband articles were seized from the appellant. Thus the seizure of the contraband article from the appellant/accused is not at all established.

(v) It was argued by the learned Counsel that it was incumbent upon the police officer to inform the superior officer/authority about the raid, seizure of the contraband article etc., as required under section 57 of the. The evidence of P.S.I. Madavi, shows that after the raid he had taken the appellant/accused and the property to the police station, handed over the same to the station officer, lodged report in police station and offence was registered. However, his evidence do not show that he had sent report to his superior officer as required under section 57 of the Act, and thus there was no compliance of mandatory provision of Section 57 of theof 1985.

(iv) In view of the provisions of section 55 of the Act, the sample was required to be sealed with the seal of the police station officer, and it should have been kept in a safe custody, and thereafter it should have been sent to the C.A. There is no evidence on record which would indicate that in the meantime, the sample was kept in the safe custody and it was deposited in the Laboratory in sealed condition. It was argued by the learned Counsel that the prosecution failed to establish the link between the appellant accused and the contraband article and therefore, the report of C.A. should not be believed. The prosecution failed to prove the seizure of the contraband article from the appellant for want of satisfactory evidence on record. It cannot be held that the sample was properly taken, sealed and sent to the C.A. There fore, the report of C.A.(Exh. 11) has to be viewed with suspicion.

(vii) It was argued by the learned Counsel, that the report of C.A.(Exh. 11) shows that the sample was analyzed by the Assistant Chemical Analyzer. According to the learned counsel, in view of Rule 2(c) of the of 1985, the definition of C.A. nowhere includes the Assistant Chemical Analyzer, and therefore, analysis was not made by the person competent to do analysis as laid down under the Rules. Therefore, as the analysis was made by the Assistant Chemical Analyzer, who was not authorized in that behalf, the report of the C.A.(Exh. 11) cannot be accepted.

6. After going through the evidence on record, it is seen that the prosecution not only failed to establish the seizure of the contraband article from the appellant, the investigating officer did not follow the mandatory provisions of the of 1985, and the procedure laid down under those provisions, which resulted into great injustice to the appellant. The learned Judge, did not properly appreciate all these aspects and was wrong in holding the appellant guilty under section 20 of theof 1985. Therefore, it is necessary to interfere with the findings and order recorded by the learned Judge. In the result the appeal must succeed. I pass the following order.

7. Criminal Appeal No.35 of 2001, is allowed. The Judgment and order passed in Special Criminal Case No. 18 of 1999 by the Special Judge, (N.D.P.S.) Nagpur on 22.11.2000 convicting the appellant/accused Sheikh Ibrahim Sheikh Mohamad for the offence punishable under Section 20(b Xii) of the N.D.P.S. Act, 1985 and sentencing him to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1 lac, in default further R.1. for 2 years, is quashed and set aside. The appellant/accused Sheikh Ibrahim Mohamad is set at liberty. His bail bond/surety bonds stands cancelled. He be released immediately if not required in any other case. Amount of fine if any, deposited by the appellant be refunded to him.