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2005 DIGILAW 1042 (RAJ)

Prahlada Ram v. State of Rajasthan

2005-04-06

SATYA PRAKASH PATHAK

body2005
Honble PATHAK, J.–This appeal under Section 374 of the Criminal Procedure Code has been directed against the judgment and order dated 07.12.1987 passed by learned Sessions Judge, Jalore in Sessions Case No. 27/87 whereby the accused-appellant has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act) and sentenced for 10 years rigorous imprisonment and a fine of Rs. 1 Lac, in default of payment of fine to further undergo rigorous imprisonment for one year. (2). Briefly stated, the facts giving rise to the present case are that Ranjeet Singh (PW. 5), SHO, Police Station, Sanchore received a secret information on 06.03.1997 to the effect that accused-appellant has brought opium in his Dhani. After recording the secret information in the General Diary, PW. 5 proceeded towards the Dhani of accused Prahlada Ram in Govt. Jeep alongwith raiding party and reached at Dhani at about 12 A.M. On seeing the police raiding party, the accused ran away from Dhani with the plastic bag in his hand. The police party apprehended the accused near the Dhani and recovered a bag from his possession. On seeing the bag, it was found to have contained opium. The weight of the opium in 14 polythene bags was about 12.700 kgs. After taking samples of the seized article and sealing and sealing them, the accused was arrested. (3). After completion of investigation, challan was filed in the Court of Magistrate from where the matter reached to the Court of learned Sessions Judge for trial. (4). A charge under Section 8/18 of the Act was framed. The accused denied the charge and claimed trial. (5). In support of its case, prosecution examined 8 witness and tendered 7 documents in evidence. After close of the prosecution evidence, in the statement recorded under Section 313 CrPC, the accused denied the prosecution evidence and stated that the alleged recovery was made from the Dhani and he was not in sole possession of it. It was also stated that on account of litigations, he has been involved in the case by one Arjun falsely. In defence, 5 witnesses were produced. (6). The learned trial judge, after hearing both sides, vide judgment and order dated 07.12.1987 convicted and sentenced the accused as stated hereinabove. (7). It was also stated that on account of litigations, he has been involved in the case by one Arjun falsely. In defence, 5 witnesses were produced. (6). The learned trial judge, after hearing both sides, vide judgment and order dated 07.12.1987 convicted and sentenced the accused as stated hereinabove. (7). Aggrieved by the said judgment and order of the learned Sessions Judge, Sanchore, the present appeal has been filed. (8). In the instant case, what has been contended by the learned counsel for the appellant is that the mandatory provisions of the Act particularly Section 42 and 50 have not been complied with, therefore, conviction cannot be sustained. His next contention is that the evidence regarding recovery is also not trustworthy and lastly it has been submitted that on account of failure on part of the prosecution to prove that the opium recovered from the place was in exclusive possession of the accused. The learned Public Prosecutor has not disputed the legal position as far as provisions of Section 42 and Section 50 of the Act are concerned that the same are of mandatory nature. (9). I have pondered over the rival contentions made before me. (10). A perusal of Section 50 of the Act clearly envisages that accused is to be searched after an information in that behalf, and he is to be afforded an opportunity to give his option about the search to be taken either before a Magistrate or before a Gazetted Officer. In the present case, it is not in dispute that compliance of Section 50 has not been made. (11). The above provision of the Act has been considered to be mandatory in nature. In the case of Saiyad Mohd. Saiyad Umar Saiyad & Ors. vs. State of Gujarat (1), the Honble Apex Court while considering the provisions contained in the Act, particularly Section 50 of the Act, has observed that the protection given to the accused under Section 50 of the Act, has observed that the protection given to the accused under Section 50 cannot be disregarded on the technicality that this point was not raised in the Trial Court. (12). (12). A perusal of Section 42 of the Act indicates that when search is required to be made of a building, conveyance or place then to obtain a search warrant is necessary and in case in obtaining a search warrant the offender will get an opportunity to conceal the evidence of the delay in obtaining warrant may facilitate his escape then search may be affected of the above said premises provided reasons are recorded for the same. (13). Admittedly, neither search warrant has been procured nor the reasons have been recorded for non-obtaining of the search warrant. (14). Thus, in my view, the provisions of Section 42 of the NDPS Act being mandatory in nature, non-compliance thereof is fatal to the prosecution. (15). It the present case, the evidence is also missing regarding exclusive possession of the place from where the alleged contraband has been recovered. (16). In view of above legal and factual position, it shall not be necessary for me to go into further niceties of the case and the accused is entitled to benefit of doubt. (17). In view of forgoing discussion,the appeal of accused- appellant Prahlada Ram is allowed and the judgment of conviction and order of Sentence dated 07.12.1987 is hereby set aside. He is acquitted of the charge framed against him under Section 18 of the NDPS Act. The appellant is on bail. He need not to surrender the same.