SALEEM Vs. STATE

JUDGEMENT

(1.) Here is yet another appeal which needs to be accepted on account of failure to prove compliance of the mandatory requirement of Section 50 of the N.D.P.S. Act. I may hasten to add that it is not the case of the prosecution that no notice was given. It claims that it had actually been given. What makes the prosecution meet its Waterloo is the fact that it is not so proved.

(2.) The Investigating Officer is S.I. Niranjan Singh. He has entered into the witness box as PW-8. He asserts, and in no uncertain terms, that notice under Section 50 was given in the presence of the Station House Officer Inspector Satya Prakash Kaushik (PW -5) and that after it had been read over to the appellant the Station House Officer had attested it as a witness. The notice is Ex. Public Witness 2/A. It nowhere bears the signatures of the Station House Officer. As if all this was not enough, the Station House Officer states that no notice had been given in his presence and that consequently he did not sign on any such notice in any capacity. This still is not the end of the matter. The Investigating Officer asserts that the said notice had been given in the presence of an independent witness from the public, namely, Bikram Singh (Public Witness -3). Unfortunately for him, Bikram Singh too ditches him on the point. He claims in clear and unambiguous terms that no notice was given to the appellant in his presence.

(3.) One thing more before the curtain is finally wrung down. It is in the evidence of the Investigating Officer that the search was conducted after the Station House Officer had arrived at the spot. The Station House Officer, for a change, supports him on that count. If that be so, the notice Ex. P2/A must obviously have been given before the search because, it may recalled, the notice had not been given in the presence of the Station House Officer. However, the notice (Ex. Public Witness 2/A) speaks of the search having already been conducted. Only two conclusions are thus possible. Either the factum of search having been conducted recorded in the notice is wrong or the Station House Officer is telling a lie when he says that the notice had already been given before his arrest at the scene but search was conducted in his presence. Does it not make one smell rat? Anyhow, whereas this mumble jumble of contradictions renders the prosecution case highly doubtful, it in turn helps the appellant to have a safe landing. That is why, in the introductory part of this judgment itself, I mentioned that the appeal deserves to be accepted on account of non-compliance of the mandatory requirement of Section 50 of the Act.