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2001 DIGILAW 1945 (RAJ)

Kesha Ram v. State of Rajasthan

2001-12-14

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This appeal has been field by the accused appellant against the judgment and order dated 24.9.1986 passed by the learned Sessions Judge, Balotra in Sessions Case No.8/86 by which he convicted the accused appellant for the offence under Section 8/18 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act) and sentenced him to undergo ten years RI and to pay fine of Rs.One lac, in the default of payment of fine, to further undergo RI for one year. (2). The facts giving rise to this appeal, in short, are as follows:- On 17.1.1986, P.W.1 Khangar Khan, ASI in Police Station Samdari District Barmer while on patrolling alongwith Bhanwar Singh and Nawal Kishore (PW2) near Sarhad Melee Bandha, received a secret information from mukhbir to the effect that accused appellant Kesaram used to deal in illegal business of opium and he had opium in his possession at his house. Thereafter, he alongwith two motbirs PW5 Madha Ram and PW6 Heera Ram reached the house of the accused appellant where he was found and he was informed about the mukhbir information. Thereafter, search of the house of the accused appellant was conducted and in the house, there were three jhumpas belonging to the accused appellant and in one of the jhumpas, one earthen pot containing black substance was recovered and on being tasted, it was assessed that it was nothing, but contraband opium and on being asked, the accused appellant told that he had no valid licence to keep that opium. Thereafter, the opium was weighed and its weight was found to be 70 grms., out of which, one sample of 30 grms. was taken for the purpose of chemical analysis. PW1 Khangar Khan prepared the fard of search and seizure on the spot and the same is Ex.P/2. The accused appellant was arrested through arrest memo Ex.P/4. PW1, Khangar Khan chalked out regular FIR Ex.P/6 and he first kept the recovered articles in his possession and, thereafter, handed over the same to PW3 Rewant Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/7A. Thereafter, one sample was given to PW4 Baburam, who after obtaining forwarding letter Ex.P/9 from SP, Barmer, deposited he same in FSL, Jaipur on 21.1.1986 and got receipt Ex.P/8. Thereafter, one sample was given to PW4 Baburam, who after obtaining forwarding letter Ex.P/9 from SP, Barmer, deposited he same in FSL, Jaipur on 21.1.1986 and got receipt Ex.P/8. The FSL report is Ex.P/12, where it was stated that the sample contained in the packet was opium having 3.84% (Three point eight four percent) Morphine. (3). After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 1.5.1986, the learned Sessions Judge, Balotra framed charges for the offence under Sections 8/18 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 6 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under Section 313 Cr.P.C. was recorded. In defence, three, witnesses were produced by the accused appellant. After conclusion of trial, the learned Sessions Judge, Balotra through his judgment and order dated 24.9.1986 convicted the accused appellant for the offence under Section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter- alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the said offence. Aggrieved from the said judgment and order dated 24.9.1986 passed by the learned Sessions Judge, Balotra, this appeal has been filed by the accused appellant. (4). In this appeal, the learned counsel appearing for the accused appellant has made the following two submissions:- 1. That on the relevant day, PW1 Khangar Khan was simply ASI in the Police Station, Samdari and thus, as per the provisions of Section 42 of the NDPS Act, PW1 Khangar Khan, who was ASI, was not authorised to make search and thus, the whole proceedings of search and seizure conducted by him are liable to be set aside. 2. That since in this case recovery was made from the house of the accused appellant, therefore, provisions of Section 42 of the NDPS Act are applicable and since they are mandatory and they have not been complied with by PW1 Khangar Khan, therefore, from this point of view also, the whole trial against the accused appellant stands vitiated. 2. That since in this case recovery was made from the house of the accused appellant, therefore, provisions of Section 42 of the NDPS Act are applicable and since they are mandatory and they have not been complied with by PW1 Khangar Khan, therefore, from this point of view also, the whole trial against the accused appellant stands vitiated. Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. (5). On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge, Balotra. (6). I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. Point No.1 (7). On this point, the simple case of the learned counsel for the accused appellant is that on the relevant date meaning thereby on 17.1.1986, PW1 Khangar Khan was simply ASI of Police Station Samdari and not the SHO of that Police Station and, therefore, the proceedings of search and seizure conducted by him are without jurisdiction. In support of this contention, he has placed reliance on the Notification No.F.1(3)FD/EX/85-1 dated 16.10.1986 issued by the Government of Rajasthan. For convenience, the said Notification is quoted here:- ``No.F.1(3)FD/EX/85-1 dated 16.10.1986 S.O. 115.–In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No.61 of 1985) the State Government hereby authorise all Inspector of Police, and Sub-Inspector of Police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said act with immediate effect: Provided that when power is exercised by Police Officer other than Police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or S.H.O. of the Police Station concerned. (8). From the above Notification, it appears that only those SIs have been authorised to make search under the provisions of Sec. 42 of the NDPS Act, who are posted as Station House Officer. (9). In the present case, there is no dispute on the point that on the relevant date i.e. on 17.1.1986, PW1 Khangar Khan was ASI in the Police Station, Samdari. (10). (9). In the present case, there is no dispute on the point that on the relevant date i.e. on 17.1.1986, PW1 Khangar Khan was ASI in the Police Station, Samdari. (10). Since on the relevant day i.e. on 17.1.1986, PW1 Khangar Khan was simply ASI in the Police Station Samdari, therefore, in view of the Notification just quoted above, he was not authorised to conduct search and seizure under the provisions of Section 42 of the NDPS Act and in these circumstances, the whole proceedings of search and seizure conducted by him are liable to be set aside. In this respect, the decisions of this Court in Mahendra Singh vs. State (1), Raju @ Basant vs. State of Rajasthan (2), State vs. Ramchandra (3) and Ram Swaroop vs. State of Rajasthan (4) may be referred to. (11). The Honble Supreme Court in Roy V.D. vs. State of Kerala (5) has held that search seizure and recovery of illicit material made by Excise Inspector, not authorised under Section 41 and 42 of the NDPS Act, are per se illegal. Hence, proceedings of search & seizure conducted by ASI Khangar Khan, PW1 are liable to be quashed and point No.1 stands decided in favour of accused appellant. Point No.2 (12). This point relates to Section 42 of the NDPS Act. (13). It may be stated here that the provisions of Section 42 of the NDPS Act are applicable in the case in which a building, conveyance or enclosed place is be entered into and searched. if such places are not to be entered into and searched, the provisions of Section 42 of the NDPS Act will not be applicable. Section 42 of the NDPS Act has two aspects:- (1) That if the officer has reason to believe from personal knowledge or information given by any person, he shall take down that information in writing; (2) That for making compliance of Section 42(2), such officer, after taking down that information in writing or recording grounds for his belief under the proviso to above section, shall forthwith send a copy thereof to his immediate official superior. (14). The Honble Supreme Court has held in so many cases that the provisions of Section 42 of the NDPS Act are mandatory and violation of these provisions vitiates the trial. (15). (14). The Honble Supreme Court has held in so many cases that the provisions of Section 42 of the NDPS Act are mandatory and violation of these provisions vitiates the trial. (15). In the present case, PW1 Khangar Khan has admitted that after receiving the secret information from mukhbir, he did not prepare any parcha separately, though as per the provisions of Section 42(1) of the NDPS Act he was bound to prepare that parcha and not only this, he was required to send the copy thereof to his immediate official superior under the provisions of Section 42(2) of the NDPS Act. (16). Since in this case PW1 Khangar Khan has not reduced the secret information into writing nor he has sent the copy thereof to his immediate official superior, therefore, there is a complete non-compliance of Section 42 of the NDPS Act and from this point of view also, the entire trial against the accused appellant stands vitiated. (17). For the reasons stated above, the findings of the learned Sessions Judge, Balotra convicting the accused appellant for the offence under Section 8/18 of the NDPS Act are liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled to acquittal. Accordingly, the appeal filed by accused appellant Kesha Ram is allowed and the judgment and order dated 24.9.1986 passed by the learned Sessions Judge, Balotra are set aside and the accused appellant is acquitted of the charge framed against him. Since the accused appellant is on bail, he need not surrender and his bail bonds stand cancelled.