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2001 DIGILAW 255 (RAJ)

Bundu @ Abdul Latif v. State of Rajasthan

2001-02-14

KHEM CHAND SHARMA

body2001
JUDGMENT 1. :- This appeal is directed against the judgment dated 7.10.96 passed by the Additional Sessions Judge No.2 (designated as Special Judge, Narcotic Drugs and Psychotropic Substances Act Cases), by which the learned Special Judge has convicted the accused appellant for the offence under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the "NDPS Act") and sentenced him to undergo ten years rigorous imprisonment and a fine of Rs. 1 lac and in default of payment of fine, to further under go 6 months imprisonment. The learned Special Judge also ordered for the forofeiture of the heroin recovered from the possession of accused appellant. 2. The appellant was tried by the learned Special Judge for the offence under section 8/21 of the Narcotic Drugs And Psychotropic Substances Act. The case of the prosecution is that on 23.11.95 at 9.15 A.M., P.W. 7 Shri Mohan Lal Cheeta, Station House Officer, Makbara was informed by the informer that, Bundu @ Latif having smack (heroin) in his possession is sitting on Chabutri outside his house. That information was recorded by Shri Mohan Lal in Rojnamch, copy of which is on record as Ex.P.8. The above information was also recorded by Shri Mohan Lal as Ex.P.9. On this information, he along with Ramesh Chand, A.S.I., Chittar Lal A.S.I. and Shambhu Lal, Constable No.1179 left the Police Station and reached the house of accused, where he found the accused appellant standing on the Chabutra outside his house. He made accused appellant aware of his legal right that if he so desires, he shall be produced before a Gazetted Officer or a Magistrate for the purposes of making search in their presence and Ex. P.1 was prepared to this effect. The accused appellant, in exercise of his legal right, opted for his personal search in presence of a Gazetted Officer. Shri Mohan Lal requested Shri Satya Narayan Soni, Deputy Superintendent of Police, a Gazetted Officer to arrive at the spot and on his arrival at the spot, personal search of the accused appellant was conducted and smack (heroin) weighing 2.100 grams was recovered from the left pocket of his kurta (shrit). One sample of 1.5 grm. of heroin was taken and the sample as well as the remaining heroin were sealed. Memo of recovery Ex.P-2 was prepared on the spot. One sample of 1.5 grm. of heroin was taken and the sample as well as the remaining heroin were sealed. Memo of recovery Ex.P-2 was prepared on the spot. The sealed packets were thereafter deposited in the Malkhana of the Police Station, wherefrom the sample was sent for chemical examination in the State Forensic Science Laboratory. On chemical examination the sample gave positive test for the presence of Diacetyl morphine (Heroin), the report of F.S.L. is Ex.P.13. 3. The prosecution in support of its case, examined 8 witnesses. The accused also examined DW.1 Abdul Hamid and DW.2 Abdul Salim in his defence. The learned trial Court after completion of trial, by his judgment dated 7.10.96 convicted and sentenced the accused appellant as stated above. It is against this judgment that the appellant has preferred the present appeal. 4. The learned counsel for the accused appellant while challenging the coviction and sentenced awarded to the accused appellant by referring the prosecution evidence has pointed out the non-compliance of Section 42 and 50 of the Narcotic Drugs And Psychotropic Substances Act and vehemently contended that the appellant is entitled to be acquitted by this Court. 5. To decide the controverory, if would be proper to take into consideration the relevant provisions of the Act. 6. Section 42 of the Act deals with the power of entry, search, seizure and arrest without warrant or authorisation. 5. To decide the controverory, if would be proper to take into consideration the relevant provisions of the Act. 6. Section 42 of the Act deals with the power of entry, search, seizure and arrest without warrant or authorisation. Sub-section (1) of Section 42 of the Act provides that any officer authorised under the Act who received any information from any person, should take down in writing that any Narcotic Drug or Physhotropic Substances, in respect of which an offence punishable under Chapter 4 has been committed, may, between sun-rise and sun-set - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such during (sic drug ?) or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter N relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: 7. Sub-section 2 of Section 42 of the Act further gives mandate to the authorised officer after writing down the information under Sub-section (1) to forthwith send a copy thereof to his immediate officer superior. 8. Section 42 of the Act has been held to be mandatory by the Supreme Court in the case of State of Punjab v. Balbir Singh AIR 1974 Supreme Court 1872 , wherein, it has been held as under: "The object of Narcotic Drugs And Psychotropic Substances Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safe-guards are provided which in the context have to be observed strictly. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safe-guards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial". The Supreme Court further observed:- "Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 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. 9. In the present case there is a total non-compliance of the mandatory provision. PW-7 Mohan Lal Cheeta, SHO, who recorded the information Ex. P-9 has nowhere in his statement stated that he sent a copy of Ex.P-9 to his immediate superior officer. On the other hand he has admitted in his cross-examination that he only sent the report of arrest and seizure to the Suptd. of Police vide Ex.P-12. He sent Ex. P-12 in compliance of Section 57 of the Act and not in compliance of Section 42(2). From the statement of PW-7 Mohal Lal Cheeta it is clear that there is complete non-compliance of sub-section (2) of Section 42 of the Act which is mandatory in nature. Since there is complete non-compliance of the mandatory provision of Section 42 of the Act, the whole trial as well as the conviction of appellant stands vitiated. 10. It is further contended by the learned counsel for the appellant that under the provisions of Section 50 the Act, the appellant was required to be informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate but there being a breach of the provisions of Section 50, the appellant is entitled to acquittal. It is further contended by the learned counsel for the appellant that under the provisions of Section 50 the Act, the appellant was required to be informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate but there being a breach of the provisions of Section 50, the appellant is entitled to acquittal. The above question came up for consideration in State of Punjab v. Balbir Singh (supra) and the Apex Court held as under: "On prior information the empowered officer or authorised officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial." 11. Again after reviewing the entire case law on the point it was held by the Apex Court in the case of State of Punjab v. Baldev Singh and others AIR 1999 Supreme Court 2378 , as under:- (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. However, such information may not necessarily be in writing. (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recovered (sic ?) only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act: 12. Thus on the basis of the above pronouncement of the Apex Court, it is now settled law on the point that compliance of Section 50 of the Act is imperative and its non-compliance would render the recovery suspicious and result in vitiating the conviction and sentence of the accused. 13. In the present case, P.W.1 Chittar Mal P.W.7 Mohal Lal Cheeta and P.W. 8 Ramesh Chandra have categorically stated that before the search of the accused, he was informed of his right of being taken to the nearest Magistrate or the nearest Gazetted Officer for making the search. In this connection. Ex. P.1 was prepared. The accused in exercise of his above right opted for his search in the presence of a Gazetted Officer and as per his desire Shri Satya Narain Soni, Deputy S.P. PW.4 was requested to come on the spot and in his presence search of the accused was conducted. Therefore, there is ample evidence on record to prove the compliance of Section 50 of the Act in letter and spirit. 14. No other point has been urged before me. However, since there is a total non-compliance of the mandatory provisions of Section 42 of the Act, the conviction and sentence of the accused appellant for offence under Section 8 read with Section 21 of the Act deserves to be quashed and set aside. 15. 14. No other point has been urged before me. However, since there is a total non-compliance of the mandatory provisions of Section 42 of the Act, the conviction and sentence of the accused appellant for offence under Section 8 read with Section 21 of the Act deserves to be quashed and set aside. 15. The result of the above discussion is that the appeal filed by appellant Bundu @ Abdul Latif deserves to be allowed and it is allowed. The judgment dated 7.10.1996 passed by the learned Additional Sessions Judge No.2, Kota (Special Judge, Narcotic Drugs And Psychotropic Substances Act cases) convicting and sentencing the accused appellant is quashed and set aside and the accused appellant is acquitted of the charges levelled against him. He is in jail and he shall be released forthwith, if not required in any other case.Appeal allowed *******