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2000 DIGILAW 1277 (RAJ)

Dharam Das v. The State of Rajasthan

2000-10-18

SUNIL KUMAR GARG

body2000
JUDGMENT 1. - The abovenamed accused-appellant has preferred this appeal against the judgment and order dated 20.6.2000 passed by the learned Special Judge (NDPS Cases), Chittorgarh in Sessions Case No. 102/97, by which he convicted the accused-appellant for the offence under section 8/20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced him to undergo three years' RI and pay a fine of Rs. 10,000/-, in default of payment of fine, to further undergo three months' RI. 2. The facts giving rise to this appeal, in short, are as follows : "PW 6 Vijendra Kumar, SHO, Police Station Kotwali Chittorgarh on 23.2.1994 made Parchakayami (Ex.P/10) to the effect that on that day at about 10.30 a.m. he proceeded in a Government Jeep along with the driver of that Jeep and reached O.P. Meera Nagar at about 11.00 a.m. where he received a secret information from Mukhbir that near the park on the Railway Station Chittorgarh Bus Stand Nimbahera Road, one person, namely, Dharam Das Sindhi (accused-appellant) was standing there and he was having contraband gan fa. Finding that information trustworthy, he along with other police officials including PW 2 Nand Kishore, ASI proceeded in a Government Jeep and on the way, they took PW 1 Sohanlal and PW 3 Chunnilal as motbirs and reached the spot, where a person was found and on being asked, he told his name as Dharam Das (accused-appellant) and, thereafter, accused-appellant was given a notice (Ex.P/1) under section 50 of the NDPS Act informing him whether he wanted to be searched in the presence of Magistrate or a Gazetted Police Office and he gave his consent on it and, thereafter, he was searched in the presence of motbir witnesses and on search, a polythene bag containing ganja was recovered from his paint. On weighing, its weight was found to be 110 grms. and out of 110 grms., two samples of 30 grms. each were taken and the same were sealed and marked as A-1 & A-2 and rest of the ganja was also sealed and marked as `A'. The articles recovered were deposited in the Malkhana and sample A-1 was sent to FSL and the FSL report is Ex.P /14, where it has been mentioned that sample gave positive tests for the presence of ganja. The fard of search and seizure is Ex.P/2. The articles recovered were deposited in the Malkhana and sample A-1 was sent to FSL and the FSL report is Ex.P /14, where it has been mentioned that sample gave positive tests for the presence of ganja. The fard of search and seizure is Ex.P/2. After usual investigation, police submitted challan in the Court of Magistrate and from where the case was committed to the Court of Session. On 27.5.1994, the learned Special Judge framed charge under section 8/20 of the NDPS Act (a case of small quantity) against the accused-appellant. The charge was read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 10 witnesses and got exhibited several documents. Thereafter, statement of the accused-appellant under section 313 Cr.P.C. was recorded. No evidence in defence was produced by the accused-appellant. After recording evidence and conclusion of trial, the learned Special Judge through his judgment and order dated 20.6.2000 convicted the accused-appellant under section 8/20 of the NDPS Act and sentenced him for the said offence in the manner as stated above holding inter alia 1. That prosecution has proved its case beyond reasonable doubt against the accused-appellant for the offence under section 8/20 of the NDPS Act. 2. That since the recovery in the present case has been made at open place, therefore, provisions of Section 43 of the NDPS Act is applicable and, thus, compliance of Section 50 of the NDPS Act was not necessary in this case. Aggrieved from the said judgment and order dated 20.6.2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh, the present appeal has been filed by the accused-appellant. 3. The only argument that has been raised by the learned counsel for the accused-appellant in this appeal is that the provisions of Section 50 of the NDPS Act in its letter and spirit have not been complied with by the prosecution and the findings of the learned Special Judge that provisions of Section 50 of the NDPS Act are not applicable are erroneous one. The learned counsel for the accused-appellant has drawn my attention to the notice (Ex.P/1) under section 50 of the NDPS Act and further submitted that this is not as per the requirement of Section 50 of the NDPS Act. 4. The learned counsel for the accused-appellant has drawn my attention to the notice (Ex.P/1) under section 50 of the NDPS Act and further submitted that this is not as per the requirement of Section 50 of the NDPS Act. 4. On the other hand, the accused Public Prosecutor supported the impugned judgment and order of the learned Special Judge. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. At the outset, it may be stated here that the findings of the learned Special Judge that provisions of Section 50 of the NDPS Act are not applicable in the present case are totally erroneous one, inasmuch as when the search was made from the person of accused-appellant. Section 50 of the NDPS Act would be applicable and the ground that search has been made at public place does not make a case of non-compliance of Section 50 of the NDPS Act. 7. Hence, it is held that compliance of Section 50 of the NDPS Act is necessary in the present case. 8. So far as the question whether the provisions of Section 50 of the NDPS Act are mandatory or not is concerned, on this aspect there are many authorities of the Hon'ble Supreme Court where it has been held that provisions of Section 50 of the NDPS Act are mandatory and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these-provisions would have the effect of vitiating the entire trial. 9. The next question which is to be considered is whether in the present case compliance of the provisions of Section 50 of the NDPS Act has been made or not. 10. From perusing the notice (Ex.P/1) issued under section 50 of the NDPS Act to the accused-appellant, it clearly appears that he was informed whether he wanted to be searched before the Magistrate or Gazetted Police Officer. 11. Now, it is to be seen whether by putting above words, compliance of Section 50 of the NDPS Act can be said to have been made or not. 12. 11. Now, it is to be seen whether by putting above words, compliance of Section 50 of the NDPS Act can be said to have been made or not. 12. The learned counsel for the accused-appellant has submitted two, judgments of this Court of the similar nature where the word `Police Gazetted Officer' was found in the notice under section 50 of the NDPS Act and they are (i) Banti @ Himta Ram v. State of Rajasthan, S.B.Cr. Appeal No. 587/96 decided on 29.6.1999 and Bhagwat Singh v. State of Rajasthan, S.B.Cr. Appeal No. 425/98 decided on 24.9.1999 . 13. In both these cases, it was held by this Court that when the word 'Police Gazetted Officer' is there in the notice under section 50 of the NDPS Act, it cannot be held that compliance of Section 50 of the NDPS Act has been made. It was further held that this is a blatant disregard of the provisions of Section 50 of the NDPS Act. 14. On the similar line, I see no reason to take a different view from the one taken by this Court in the cases of Banti @ Himta Ram and Bhagwat Singh (supra).The partial compliance of Section 50 of the NDPS Act is not enough and prosecution has to comply with the provisions of Section 50 of the NDPS Act in its letter and spirit. In this respect, the decision of this Court in Karna Ram v. State of Rajasthan, 1996 Cr.L.R (Raj.) 655 may be seen, where the conviction was set aside on the ground that provisions of Section 50 of the NDPS Act were not complied with fully. 15. In this respect, the decision of this Court in Karna Ram v. State of Rajasthan, 1996 Cr.L.R (Raj.) 655 may be seen, where the conviction was set aside on the ground that provisions of Section 50 of the NDPS Act were not complied with fully. 15. For the reasons given above, it is held that compliance of the provisions of Section 50 of the NDPS Act in its letter and spirit has not been made by the prosecution in the present case, as a result whereof, the whole proceedings stand vitiated and thus, the findings of the learned Special Judge convicting accused-appellant under section 8/20 of the NDPS Act cannot be upheld and they are liable to be set aside and the accused-appellant is entitled to acquittal.In the result, the appeal of the accused-appellant-Dharam Das is allowed and the judgment and order dated 20.6.2000 passed by the learned Special Judge (NDPS Cases), Chittorgarh are set aside and the accused-appellant is acquitted of the charge under section 8/20 of the NDPS Act. Since accused-appellant-Dharam Das is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******