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TMI Blog2006 (1) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... on 24.5.99 at 3.55 p.m. that nobody is willing to be a witness to the search as the entire area belongs to Muslim community. The SHO put a note on Ex.P.I below the report of PW 2 Ramkalyan that no one is prepared to become an independent witness to the search, therefore, Ashish Bhargava Sub-Inspector and Yashwant Singh, Sub-Inspector were made witnesses in the case. A notice Ex.P.3 under Section 50 of the Act was given to the accused apprising him to get his search before any Gazetted Officer or before the Magistrate or by SHO itself. The accused gave in writing that he wants his search in presence of Gazetted Officer. Vide Ex.P.4 search and seizure memo, 10 gram smack with small paper bags was recovered from the possession of the accused appellant. The net weight of contraband was 5 gram. The site plan Ex.P.2 was prepared. The quantity of contraband was small, therefore, entire smack was sent for chemical examination. As per report Ex.P.19 given by Asstt. Director, Chemical State Forensic Science Laboratory, Rajasthan, Jaipur diacetyl mor phine (Heroin) was found. After receipt of positive report and other investigation of the case, a challan was filed against the appellant under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan 2003 (1) R.C.C. 501. 6. The learned Counsel for the appellant lastly contended that although in view of non-compliance of mandatory provisions of Section 50 of the Act, the accused is entitled to be acquitted, but if this Court does not agree with his submission then at least, the case of appellant for the purpose of sentence of imprisonment be considered. He contended that the accused appellant was arrested at the spot on 24th May, 1999 and he was not enlarged on bail during investigation/trial as well as during pendency of this appeal, therefore, he is in jail since 24th May, 1999 and has already undergone a sentence of imprisonment for more than 6 and half years, however a minimum sentence of 10 years imprisonment is prescribed in the above offences, hence at least sentence of 15 years imprisonment awarded by the Trial Court be reduced to a period of minimum sentence of 10 years R.I. particularly when the contraband found in the present case was only 5 gram in quantity. 7. The learned P.P. contended that the Trial Court has considered oral as well as documentary evidence and rightly convicted and sentenced the accused appellant and no interference is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report that no one is willing to be a witness to the search as accused is muslim by caste and locality in which accused is to be searched was of muslim community. Thereafter the SHO Rajeev Dutta did not make any efforts about giving any notice to any person of the locality in writing to attend and witness to the search and directly made a report in his own hand-writing that Ramkalyan was sent for bringing two independent witnesses but no one is willing to be independent witness to the search hence Shri Ashish Bhargava, Sub-Inspector and Shri Yashwant Singh, Sub-Inspector are made independent witnesses to the search in the case. 12. Section 50 of the NDPS Act reads as under: 50. Conditions under which search of persons shall be conducted. When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. 13. Sub-section 5 of Section 50 is also reproduced as under: (5) When an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independent witness but found none. I am not prepared to believe that in the afternoon no witness was present in a busy area. Calling of independent witness of the locality for witnessing the search was not an idle formality. The provisions made in Sec. 100(4) Cr.P.C. is a salutary safeguard to ensure the sanctity of the search conducted by the police officers. The mere statement by the Investigating Officer that he tried to associate some respectable of the locality but none was available cannot suffice as a convenient bypass to the said provision. Mahendra Singh Constable (PW 5) categorically stated in his cross-examination that C.I. Did not stop the persons from the place of incident which was a busy area. This shows that witnesses were available but they were not associated with the search. All this leads me to the conclusion that the recovery of smack as alleged, is not free from doubt. 17. In Saudan and Anr. v. State of Rajasthan (supra), this Court again examined the provisions of Section 100 Cr.P.C. and also the judgment of the Apex Court in State of Punjab v. Balbir Singh and held as under: In State of Punjab v. Balbir Singh 1994CriLJ3702 their Lordships ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter it is necessary to examine and scrutiny the statement of the prosecution witnesses as well as the mandatory provisions of the Act strictly. As per Section 51 of the Act, the provisions of Cr.P.C. in respect of search and seizure were applicable and as per Sub-section 4 of Section 100 Cr.P.C., it was necessary that before making a search, the officer to make, it shall call upon two or more Independent witnesses and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such Inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. From the oral as well as documentary evidence available in the present case it is clear that no order in writing was delivered or tendered to any person of the locality to attend and witness a search by PW 11 Rajeev Dutta. Sub-section 8 of Section 100 Cr.P.C. is also an important provision and it clearly says that any person cannot refuse without reasonable cause to attend and witness a search when he is called upon to do so by an order in writing and if he refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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