JANWATA RAM v. STATE OF RAJASTHAN — 1994 DIGILAW 814 (RAJ)

Judgment B. R. ARORA, J. ( 1 ) THESE two appeals arise out of the judgment dt. 22-11-93, passed by the Special Judge, N. D. P. S. Cases, Jodhpur, by which the learned Special Judge convicted accused-appellant Janwata Ram for the offence under S. 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act (in short, the Act) and appellant Surja Ram for the offence under S. 20 (b) (ii) read with S. 29 of the Act and sentenced each of them to ten years rigorous imprisonment and a fine of Rs. 1,00 000. 00 each and in default of payment of tine, each of them was further sentenced to undergo rigorous imprisonment for one year. The learned Special Judge further ordered under Ss. 60 and 63 of the Act for the confiscation of the Hero Honda Motor-cycle No. RPZ 4406 as it was used in transportation of the contraband article. ( 2 ) ACCUSED-APELLANTS Surja Ram and Janwata Ram were tried by the learned Special Judge, N. D. P. S. Cases, Jodhpur, for the offences under Ss. 20 and 29 of the Act. The case of the prosecution is that the Superintendent, C. B. I. , S. I. U. (II), New Delhi, received an information regarding smuggling of Hashish in Jodhpur area in the State of Rajasthan. To verify this information, Mr. Mehar Singh Deputy Superintendent, C. B. I. , along with Sarvashri N. S. Virk and K. Babu, Inspectors, C. B. I. , New Delhi, P. C. Sharma, A. S. I. , Ram Kumar and Jagram Head Constable, Yed Ram, Surjan Singh and Farry Singh Constables, were deputed. They left New Delhi on 21-5-91 and reached Jodhpur on 22-5-91. On 27-5-91, Mr. Mehar Singh, Deputy Superintendent C. B. I. , received information from some Mukhbir that Janwata Ram and Surja Ram will supply one Kg. of Hashish to some unknown person near Raika Bag Palace Railway Station (Jodhpur) at about 12. 30 p. m. He, also, received the information that this Hashish will be carried by the accused on a red-colour Hero-Honda Motro-cycle bearing registration No. RPZ 4406. Mr. Mehar Singh called two Motbir witnesses, viz. , PW 2 A. R. G. Vyas - the Branch Manager, UCO Bank, Paota, Jodhpur - and Mr. Gurmukh Singh Virwani - the Field Officer, S. B. B. J. , Sojati Gate Branch, Jodhpur. Mr. Mr. Mehar Singh called two Motbir witnesses, viz. , PW 2 A. R. G. Vyas - the Branch Manager, UCO Bank, Paota, Jodhpur - and Mr. Gurmukh Singh Virwani - the Field Officer, S. B. B. J. , Sojati Gate Branch, Jodhpur. Mr. Mehar Singh, Deputy Superintendent, C. B. I. , along with the Police Party and the two Motbirs, went to Raika Bag Railway Station. The accused-appellants came on the motor-cycle. The motor-cycle was being driven by accused Surja Ram and Janwata Ram was sitting on the pillion. They were carrying a suit-case. They were detained. The accused tried to run away but they were caught-hold by the police party. They were thereafter informed by Mr. Mehar Singh that he is a gazetted officer and wants to search them and if they want to get themselve searched in the presence of a Magistrate then they may taken to the Magistrate but the accused showed their desire to be searched by PW 8 Mr. Mehar Singh. The accused were searched and on being searched, 30 kgs. 100 grams of Hashish was recovered from their possession. From the recovered Hashish, two samples weighing 200 grams each were taken. The samples as well as the remaining Hashish were seized and sealed properly. The accused were arrested and thereafter the investigation was completed by PW 8 Mr. Mehar Singh and the charge-sheet was submitted against the accused in the Court of the learned Special Judge, N. D. P. S. Cases, Jodhpur. The prosecution, in support of its case, examined eight witnesses. The accused, in their defence, examined two witnesses. The learned Special Judge, after trial, convicted and sentenced the accused-appellants as stated above by his judgment dt. 22-11-93. It is against this judgment that the accused-appellants have preferred these two appeals challenging the conviction and sentence passed against them by the learned Special Judge. ( 3 ) IT is contended by the learned counsel for the appellants that the compliance of the mandatory provision of S. 42 and 50 of the Act, have not been made and Mr. Mehar Singh, the Deputy Superintendent, C. B. I. , who arrested the accused, made the recoveries, investigated into the matter and challenged the accused-appellants was not the authorised officer Ss. 41 or 42 or any other provision of the Act. Mehar Singh, the Deputy Superintendent, C. B. I. , who arrested the accused, made the recoveries, investigated into the matter and challenged the accused-appellants was not the authorised officer Ss. 41 or 42 or any other provision of the Act. No Notification has been produced by the prosecution authorising the Officers of the C. B. I. to investigate into the matter or to arrest the accused or to search or seize under the Act. It has further been submitted by the learned counsel for the appellants that the article and the samples seized by Mr. Mehar Singh were not produced in the Court for one year and for the first time they were produced in the trial Court on 31-5-92 during the course of examination of PW 8 Mr. Mehar Singh and this delay is fatal to the prosecution case. It has, also, been argued by the learned counsel for the appellants that the search, seizure and arrests were made by Mr. Mehar Singh, who, also, conducted the later part of the investigation, which vitiates the trial. Lastly, it is contended by the learned counsel for the appellants that the original F. I. R. recorded in the present case has not been produced and even the copy of the F. I. R. reached in the Court only on 7-6-92, which, also, vitiates the trial. Learned counsel for appellants Surja Ram, also, submitted that no knowledge regarding the content of the article in the attachee can be attributed to appellant Surja Ram and he only gave a lift to accused Janwata Ram up to Railway Station, Raika Bag, and, therefore, the appellant cannot be convicted with the aid of S. 29 of the Act. It has, also, been contend by the learned counsel far appellant Surja Ram that the compliance of Ss. 55 and 57 of the Act have not been made and the appellant, therefore, deserves to be acquitted. The learned Special Public prosecutor Mr. S. R. Dave, on the other hand, has supported the judgment passed by the Court below and submitted that the compliance of Ss. 42, 50, 55 and 57 of the Act have been made out in the present case and there is no violation of any of these mandatory provisions of the Act as alleged by the learned counsel for the appellants. It has, also, been contended by the learned Special Public Prosecutor that Mr. 42, 50, 55 and 57 of the Act have been made out in the present case and there is no violation of any of these mandatory provisions of the Act as alleged by the learned counsel for the appellants. It has, also, been contended by the learned Special Public Prosecutor that Mr. Mehar Singh, Deputy Superintendent, C. B. I. , was an officer authorised under the Act to search, seize arrest the accused and to make investigation in the matter and as he was an authorised officer under the Act, therefore, the search, seizure and arrest, made by him, were in accordance with law. It has, also, been contended by the learned Special Public Prosecutor that no two of Beers, under the Act, are required to make investigation and the investigation can be conducted by one officer and there is no illegality in conducting the investigation and the judgment, passed by the learned Court below, therefore, does not require any interference. ( 4 ) I have considered the submissions made by the learned counsel for the parties. ( 5 ) THOUGH the conviction and sentence of the accused-appellants have been challenged by the learned counsel for the appellants on numerous grounds but it is not necessary to consider and decide all the submissions made by the learned counsel for the appellants because the appeals can be disposed of only on two points, i. e. , there is no compliance of the provisions of S. 42 of the Act and secondly, that Mr. Mehar Singh, Deputy Superintendent, C. B. I. was not an authorised officer under the Act to make search, seizure, arrest and to investigate into the matter. ( 6 ) THE first ground, on which the conviction and sentence of the accused, passed by the learned Court below, cannot be sustained is the non-compliance of the mandatory provisions of S. 42 of the Act. Section 42 of the Act empowers certain officers to enter, search, seize and arrest the accused without warrant or authorisation. Such of Beer, if he has reasons to believe from personal knowledge or on the information to be taken-down in writing that any offence under the Act has been committed, he can detain, search any person and if he thinks proper and if he has reasons to believe such person to have committed an offence punishable under Chapter IV, he can do so. But before doing so, he must record the grounds of his belief and send the same to his immediate officer superior. Mr. Mehar Singh, in his statement before the Court, has stated that he received the information from some Mukhbir that the accused will bring Hashish on a motor-cycle and will pass-over the same to some ether person, but he did not record this information. Neither he recorded the information nor despatched the same to his immediate officer superior. Mr. Mehar Singh neither recorded the grounds of his belief, as required under Sub-Sec. (1) of S. 42 nor he sent a copy thereof to his immediate officer superior and proceeded in the matter. He has, therefore, contravened the mandatory provisions of S. 42 of the Act and, therefore, the conviction and sentence, passed by the learned lower Court, deserve to be quashed and set-aside. The Supreme Court in the State of Punjab v. Balbir Singh, (1994) 2 JT (SC) 108, has held that"under S. 42 (1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge the offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. , he may carry out the arrest or search without a warrant between Sunrise and Sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to S. 42 (1) if such officer has to carry out such search between Sunset and Sun-rise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. " "under S. 42 (2) such empowered officer who takes down any information in writing or records the grounds under proviso to S. 42 (1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. "as the mandatory provisions of S. 42 of the Act have not been complied-with it affects the prosecution case and vitiates the trial and conviction. ( 7 ) THE second ground, on which the conviction and sentence of the accused cannot be sustained is that Mr. Mehar Singh, Deputy Superintendent, C. B. I. , had no authority under the Act to make search, seizure, arrest of the accused or to investigate into the matter. Under S. 42 of the Act, only the officer mentioned therein and so empowered can make the arrest and search and the person, who is not authorised under S. 41 or S. 42 of the Act cannot make such arrest, search or seizure. The learned Special Public Prosecutor was given opportunities to place on record any such Notification authorising the officers of the C. B. I. , issued by the Central Government, but he failed to produce the same. In the absence of any such Notification authorising the officers of the C. B. I. under S. 41 or 42 of the Act to arrest a person or make a search and seize the contraband article, if he has reason to believe that there is a commission of any offence by any person, Mr. Mehar Singh, Deputy Superintendent, C. B. I. , had no legal authority, under the Act, to search the accused, make the recoveries or arrest him. The search and seizure and the arrest of the accused-appellants by PW 8 Mr. Mehar Singh, were, thus, not made by the authorised officer under the Act. The N. D. P. S. Act makes a stringent provision for the control and regulation of the operation relating to narcotic drugs and psychotropic substances. The search and seizure and the arrest of the accused-appellants by PW 8 Mr. Mehar Singh, were, thus, not made by the authorised officer under the Act. The N. D. P. S. Act makes a stringent provision for the control and regulation of the operation relating to narcotic drugs and psychotropic substances. In view of the stringent provisions made in the Act, only certain officers have been authorised under the Act to make search, seizure and arrest the accused for the commission of the offence under the Act and it is only those persons, authorised under the Act, who can make a search, seizure and arrest the accused and no other person can act as such under the provisions of the Act. As Mr. Mehar Singh, Deputy Superintendent, C. B. I. , was not the person authorised under the Act, therefore, the search and seizure made by him, were wholly illegal and was by an incompetent person, which vitiates the trial and the conviction. The judgment, passed by the learned Special Judge, therefore, deserves to be quashed and set-aside and the appellants deserve acquittal. ( 8 ) AS the conviction and sentence, passed by the learned lower Court, cannot be sustained on the aforesaid grounds, it is not necessary to consider and decide the other submissions made by the learned counsel for the parties. ( 9 ) IN the result, the appeals filed by accused appellants Janwata Ram and Surja Ram, are allowed. The judgment dt. 22-11-1993, passed by the learned Special Judge, N. D. P. S. Cases, Jodhpur, convicting and sentencing the accused-appellants for the aforesaid offences, is set-aside and the appellants are acquitted of the offence they were charged. They are in jail and be released forthwith if they are not required in any other case. Appeals allowed.