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2006 DIGILAW 205 (RAJ)

Aamir Khan @ Naru v. Central Narcotic Bureau

2006-01-19

N.K.JAIN

body2006
Judgment Narendra Kumar Jain, J.-This appeal is directed against the Judgment and order dated 08.01.2003 passed by the Special Judge, NDPS Cases, Jaipur in Sessions Case No. 64/99 whereby appellant was convicted and sentenced under Section 8/21 of the NDPS Act, 1985 to 10 years RI and a fine of Rs. 1 lac, in default of payment of fine to further undergo 2 years RI. 2. The Central Narcotics Bureau, Jaipur filed a complaint against the appellant and other co-accused persons namely Aziz Khan, Mohin Khan and Aarif Khan under Section 8/21 and 8/29 of the NDPS Act, 1985 wherein it was alleged that on 01.07.1999 at about 8.30, PW. 1 Vijay Singh Meena, Superintendent (Preventive Central Bureau, Narcotics Jaipur Cell), Jaipur received an information from one informer that on 29.06.1999 one Aziz Khan R/o Gordhanpura Tehsil and Police Station (Pratapgarh) Distt. Chittorgarh and Mohin Khan R/o Mandsor (MP) came at Jaipur with 1 Kg. smack which is known as Heroin also and sold the same to one Aamir Khan. Aamir Khan resides in House No. 591, Mahaveer Nagar, Jaipur. He is trying to sell it to other person and in case at the proposed time he is checked then smack can be recovered. The said information was reduced in writing by PW. 1 V.S. Meena, which was marked as Exhibit P. 1A in the case. Thereafter a team was constituted consisting of Vijay Singh Meena, Superintendent, Rakesh, Inspector, Sunil Kumar, Inspector and Laxman Kataria, Sub-Inspector PW. 6. They went towards Rambagh Circle. Two independent witnesses were called. At about 11 PM accused came riding LML Vespa Scooter (without any registration number). His scooter was stopped, a notice was given for his search. He was also apprised with the provisions of the Act and about search before any Gazetted Officer or Magistrate. The accused gave in writing that he is ready for his search alongwith his scooter by officers of the Narcotic Department itself . Thereafter a plastic bag containing powder was recovered from the Briefcase which was in possession of the accused. The said powder was tested through chemical test kit and the same was found to be Heroin, therefore, vide Exhibit P. 3 recovery memo, the same was recovered. The weigh of Heroin was found to be 1.010 Kg. with plastic bag and net weigh was 1 Kg. The said powder was tested through chemical test kit and the same was found to be Heroin, therefore, vide Exhibit P. 3 recovery memo, the same was recovered. The weigh of Heroin was found to be 1.010 Kg. with plastic bag and net weigh was 1 Kg. Two samples of 5 gram each were taken and remaining 990 gram Heroin was sealed. The same was entered in the register of property. The provisions of law were followed. The sample was sent for chemical examination and as per report dated 16.07.1999 given by Asstt. Chemical Examiner, Government Opium and Alkaloid Works, Neemuch (MP) it was reported that the sample was found to be qualitative and quantitative analysis to be contained diacetyal morphine (Heroin) within the meaning of NDPS Act, 1985. 3. The learned trial Court framed charge against accused appellant under Section 8/21 of the Act. The accused denied the charge and claimed to be tried. In support of the case, the prosecution examined 6 witnesses and produced documentary evidence Exhibit P.1 to Exhibit P. 19. Thereafter the statement of the accused was recorded under Section 313 Cr PC wherein he stated that he has falsely been implicated in the case. No evidence in defence was produced. The learned trial Court after hearing arguments from both the sides convicted and sentenced the accused appellant as mentioned above. Being aggrieved with the same, the present appeal has been filed before this Court. 4. The learned Counsel for the appellant contended that the learned trial Court has wrongly convicted and sentenced the accused appellant. He contended that it was a case wherein there was violation of the mandatory provisions of Section 42 of the Act as search was conducted by Laxman Kataria PW. 6, who was admittedly Sub-Inspector whereas as per Gazette Notification No. SO 822(A) dated 111.1985, only Inspectors were authorised within the meaning of Section 42 of the Act, therefore, search was conducted by unauthorised person in violation of mandatory provisions of Section 42, therefore, impugned Judgment passed by the learned trial Court is liable to be set aside. He cited, Roy V.D. vs. State of Kerala, 2001 CrLR 54 (SC). He further contended that the so called information reduced in writing Exhibit P. 1 was not sent to superior officer as required under Sub-section (2) of Section 42 of the Act. He cited, Roy V.D. vs. State of Kerala, 2001 CrLR 54 (SC). He further contended that the so called information reduced in writing Exhibit P. 1 was not sent to superior officer as required under Sub-section (2) of Section 42 of the Act. He further contended that Test Memo Exhibit P. 4 and site plan Exhibit P. 7 were prepared by PW. 6 at the spot and no crime number was mentioned on it as up to that time case was not registered but a crime case No. 2/99 was written on both the documents and it creates serious doubt on the prosecution case and on this ground also the Judgment of the learned trial Court is liable to be set aside. 5. The learned Counsel for the respondent Mr. Sushil Sharma contended that Laxman Kataria PW. 6 was authorised Officer within the meaning of Section 42 of the Act. He relied upon the notification dated 02.03.1988, whereby Sub-Inspector and above officers of Department of Narcotics Central Bureau were authorised under Section 42 of the Act. So far as violation of Sub-section (2) of Section 42 of the Act is concerned, he placed reliance on G. Srinivas Goud vs. State of AP, 2005 (6) Supreme 623 wherein the Honble Supreme Court held that if search was made by Gazetted Officer then compliance of Sub-section 2 of Section 42 is not necessary and the same is not fatal to the prosecution. He also contended that so far as Exhibit P. 1 and Exhibit P. 7 are concerned, the same was produced before the Court and both were exhibited and on both the documents Crime No. 2/99 as contended by Counsel for appellant was not mentioned and only Crime No. 0/99 was written on both the documents. He, therefore, contended that the learned trial Court was justified in convicting and sentencing the accused appellant. 6. I have considered the rival submissions and examined the impugned Judgment as well as the record of the learned trial Court. 7. From the record it is clear that information received from informer at 20.30 was reduced in writing marked as Exhibit P. 1 by the Superintendent and thereafter a team was constituted consisting of Superintendent, Vijay Singh Meena himself and 2 Inspectors namely Sanjay Kumar and Rakesh and Sub-Inspector Laxman Kataria. 7. From the record it is clear that information received from informer at 20.30 was reduced in writing marked as Exhibit P. 1 by the Superintendent and thereafter a team was constituted consisting of Superintendent, Vijay Singh Meena himself and 2 Inspectors namely Sanjay Kumar and Rakesh and Sub-Inspector Laxman Kataria. The team went at the spot as per information given by the informer and in presence of all, search was conducted by Laxman Kataria, PW . 6. PW . 1 Vijay Singh Superintendent and 2 Inspectors were also present at the time of search from the accused. PW . 1 Vijay Singh Superintendent also stated before the Court that after receipt of consent of the accused for search, he directed Shri Kataria Sub-Inspector to make search. During search 1 Kg. Heroin was recovered. As per notification dated 02.03.1988, Central Government Department of Central Narcotic Bureau authorised sub-inspector and above officers of the Department under Section 42 of the Act. Therefore, in view of above referred notification dated 02.03.1988 it is clear that PW . 6 Laxman Kataria Sub-Inspector was authorised officer under Section 42 of the Act. Apart from above, it is also clear that the Superintendent, Vijay Singh and 2 Inspectors were present at the spot and as per statement of PW. 1 he gave instructions to Laxman Kataria to make search in the matter. In these circumstances, I do not find any violation of Section 42 of the Act. So far as another submission about violation of Sub-section 2 of Section 42 of the Act is concerned, I find that information Exhibit P. 1 was recorded by PW . 1 Vijay Singh, who was Superintendent and was Gazetted Officer, therefore, in view of Judgment of the Honble Supreme Court in G. Srinivas Goud vs. State of AP (Supra) the compliance of Sub-section 2 of Section 42 of the Act was not necessary. So far as Exhibit P. 1 and Exhibit P. 7 are concerned, I find that Crime No. 0/99 has been mentioned and both the documents have been proved by the cogent evidence. 8. In view of above, I do not find any force in any of the contentions of the learned Counsel for the appellant so as to interfere in the finding of the learned trial Court. 9. Consequently, there is no merit in this appeal and the same is accordingly dismissed.