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2001 DIGILAW 544 (RAJ)

Alpesh Kumar v. State of Rajasthan

2001-04-03

KHEM CHAND SHARMA

body2001
JUDGMENT 1. - This appeal is directed against the judgment dated 29.5.1997 passed by learned Special Judge, Narcotic Drugs & Psychotropic Substances Cases, Jhalawar by which the learned Special Judge 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 10 years rigorous imprisonment with a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo one year rigorous imprisonment. 2. The case of the prosecution is that on 11.6.1994 PW 9 Shri Ram Lal Parmar, Station House Officer, Police Station, Bhawani Mandi was informed by the informer that one person Alpesh Kumar wearing black pants and shirt is selling smack near the old distillery ground. That information was recorded by Shri Ram Lal in Rojnamcha, a copy of which is on record as Ex.P. 7. The above information was also recorded separately by Shri Ram Lal Parmar as Ex.P 3 and sent a copy of the above information to the Superintendent of Police, Jhalawar District. On this information, he alongwith A.S.I. Shri Bahadur Singh, A.S.I. Shri Durga Lal, Constable Shri Ghan Shyam, Constable Jahid Ali, Constable Piyar Singh and Constable Dinesh Kumar left the Police Station and reached at the destination, where he found the accused appellant. 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. 2 was prepared to this effect. The accused appellant authorised Shri Ram Lal Parmar for his search. The Personal search of the accused appellant was conduted and smack weighing 2 gms was recovered from the left pocket of his pants. Memo of recovery Ex.P. 1 was prepared on the spot. The recovered sealed smack was resealed at Police Station and Ex.P. 8 was prepared to this effect. He arrested accused Alpesh Kumar vide Ex.P. 4 arrest memo. The sealed packet was deposited in the Malkhana of the Police Station, where from the sample was sent for chemical examination to the State Forensic Science Laboratory. On chemical examination the sample gave positive test for the presence of diacetyl morphine (Heroine), the report of F.S.L. is Ex.P. 12. He arrested accused Alpesh Kumar vide Ex.P. 4 arrest memo. The sealed packet was deposited in the Malkhana of the Police Station, where from the sample was sent for chemical examination to the State Forensic Science Laboratory. On chemical examination the sample gave positive test for the presence of diacetyl morphine (Heroine), the report of F.S.L. is Ex.P. 12. Shri Ram Lal Parmer recorded the proceedings in Rojnamcha vide Ex.P. 9 and registered a case vide Ex.P. 10. He also sent Ex.P. 11 information regarding recovery of smack and arrest of accused to the Superintendent of police under Section 57 of the Narcotic Drugs and Psychotropic Substances Act. On completion of the investigation, charge-sheet under Section 8 read-with Section 21 of the Narcotic Drugs and Psychotropic Substances, Act was submitted in the trial Court. 3. The learned trial Court after hearing the submissions of the accused appellant and the learned Public Prosecutor framed charges under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances, Act against the accused appellant, which was readover and explained to the accused, to which he denied and claimed trial. 4. The prosecution in support of its case examined PW 1 Bahadur Singh, PW 2 Raj Pal Godara, PW 3 Jahid Ali, PW 4 Durga Lal, PW 5 Ghan Shyam, PW 6 Piyar Singh, PW 7 Chouth Mal, PW 8 Abdul, PW 9 Ram Lal Parmer and PW 10 Shyam Sundar. The trial Court examined the accused under Section 313 Cr.PC. for the purpose of enabling him personally to explain circumstances appearing in the evidence against him. The accused did not choose to examine any witness in defence. The learned trial Court, after completion of trial vide judgment dated 29.5.1997 convicted and sentenced the accused appellant as stated above. It is against this judgment that the appellant has preferred the present appeal. 5. The learned counsel for the accused appellant while challenging the conviction and sentence awarded to accused appellant, by referring to the prosecution evidence has pointed out the non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances, Act and vehemently contended that the appellant is entitled to be acquitted by this Court. 6. Under the provisions of Section 50 of 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. 6. Under the provisions of Section 50 of 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. The above question came up for consideration in the case of State of Punjab v. Balbir Singh ( AIR 1994 SC 1872 ) , and the Apex Court held as under:- "On prior information the empowered officer or authorised officer while acting under Section 41 (2) of 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." 7. The Apex Court in the case of State of Punjab v. Baldev Singh and others ( AIR 1999 SC 2378 ) , held 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 recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violator of the provisions of Section 50 of the Act. 8. 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. 9. PW 9 Ram Lal Parmar has stated that he issued notice Ex.P. 2 to the accused informing him of his right of being taken to the Gazetted Officer for making his search. Similarly, PW 1 Bahadur Singh, PW 3 Jahid AN and PW 5 Ghan Shyam have stated that S.H.O. gave the accused an option of being searched in the presence of a Gazetted Officer only. However, PW 4 Durga Lal and PW 6 Piyar Singh have stated that S.H.O. gave the accused an option of being searched in presence of a Gazetted Officer or a Magistrate and this fact also finds place in Ex.P. 2, but in the statement of PW 9 Ram Lal Parmar who gave the option to the accused, it has come on record that only partial option of being searched in presence of Gazetted Officer was given to the accused and this fact is further corroborated by the statement of PW 1 Bahadur Singh, PW 3 Jahid Ali and PW 5 Ghan Shyam. In the case of Mala Ram v. State of Rajasthan (1996 Cr.LR (Raj.) 183) it was held that; it is compulsory that the accused should be given both the options i.e. whether he wanted the search in the presence of a Magistrate or a Gazetted Officer. Where both the options are not given, the provisions of Section 50 of the Act are not fully complied with. In view of the observations, the search of the accused conducted by Shri Ram Lal Parmar cannot be held to be in accordance with Section 50 of the Act. 10. PW 3 Jahid Ali in his statement has stated that recovered smack was kept in a cigarette packet and then it was sealed. This fact finds support by the statement of PW 4 Durga Lal, PW 5 Ghan Shyam and PW 6 Piyar Singh. But Ex.P. 12 report of F.S.L. indicates that they found the packet marked A repacked in a match box. This glaring discrepancy whether the smack was packed in a Cigarette packet or a match box crates grave suspicion as to whether the same material was sent for chemical analysis, which was recovered from the possession of accused or not. On this count also accused deserves benefit of doubt. 11. Since, there is non-compliance of the mandatory provisions of Section 50 of the act and further it is not proved beyond the reasonable doubt that the material recovered from the accuseds possession was sent for chemical analysis, 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. 12. The result of the above discussion is that the appeal filed by appellant Alpesh Kumar deserves to be allowed and accordingly, it is allowed. The judgment dated 29.5.1997 passed by the Learned Special Judge, NDPS 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. *******