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2013 DIGILAW 1633 (RAJ)

State of Rajasthan v. Ajay @ Ajju

2013-09-17

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeal has been preferred by the State of Raj asthan challenge the judgment dated 20.06.2008 passed by the learned Special Judge, NDPS Cases, Sri Ganganagar in Cr.Case No.64/2006 whereby the respondent was acquitted of the charge under Section 8/21 of the NDPS Act. 2. Succinctly stated the facts of the case are that the SHO Kotwali, Sri Ganganagar and his associates were allegedly on patrolling duty on 25.07.2006 at about 5.35 P.M. It is stated that a person was seen standing in a suspicious condition near the gate of Gopi Ram Bagechi. He started running in a seeing the police vehicle. He was over powered and on asking the reason for trying to escape, the suspect could not give any satisfactory explanation.The police party suspected the action of the accused in trying to run away the locality the Act not complied - Accused acquitted. on seeing the police personnel, and therefore, if was thought fit to conduct his personal search. It is alleged that a by passer named Balram gave his counsel to be the witness in the search proceeding.The apprehended person disclosed his name to be Ajay @ Ajju. He was allegedly given an option of being searched in the presence of a Gazetted Officer but he gave consent for being searched by the SHO himself. Accordingly, the accused was searched and from the right hand pocket of his trousers, a plastic and smelling, the recovered. The pouch contained a powder like substance. On tasting and smelling, the recovered substance felt like smack and was seized, weighed and thereafter sealed after taking out a sample. The accused was apprehended and thereafter the police party reached back the police station Kotwali, Sri Ganganagar where an FIR No.321/2006 was registered and investigation commenced. On conclusion of the investigation, a charge sheet was filed against the respondent for the offence under Section 8/21 of the NDPS Act. 3. The learned trial Judge at the conclusion of the trial by the judgment impugned dated 20.06.2008 proceeded to acquit the respondent from the charge under Section 8/21 of the NDPS Act. On conclusion of the investigation, a charge sheet was filed against the respondent for the offence under Section 8/21 of the NDPS Act. 3. The learned trial Judge at the conclusion of the trial by the judgment impugned dated 20.06.2008 proceeded to acquit the respondent from the charge under Section 8/21 of the NDPS Act. For acquitting the respondent from the charge, learned trial Judge principally relied upon the non-compliance of Clause 4 of Section 100 of the Cr.P.C. It was held that two respectable person of the locality were not kept to witness the proceeding and thus the search and seizure are vitiated. 4. The State has approached this Court by way of the instant appeal challenging the respondents acquittal.This Court granted leave to the State for filing appeal against the judgment of acquittal by order dated 21.11.2008. The respondent Ajay @ Ajju was summoned by a bailable warrant in the sum of Rs. 10,000/- and was directed to appear before this Court on 05.01.2009.He furnished the bail bonds in pursuance to the bailable warrants served on him for appearance before this Court 02.04.2009. However, the respondent failed to mark his attendance before this Court whereupon this Court by order dated 24.07.2009 directed the issuance of warrant of arrest against him. The respondent Ajay @ Ajju was arrested and by order dated 13.10.2009 he was directed to he released on furnishing a personal bond. He was directed to submit a surety before the Dy.Register (Judicial) on 31.10.2009. However, he failed to appear on 31.10.2009 and furnish the surety as directed. On this, his personal bond was again forfeited on 11.11.2009 and he was directed to be summoned through warrant of arrest. Ultimately, the respondent was arrested and produced before this Court on 02.09.2011 and was sent to judicial custody. Thereafter he continue to be lodged in custody. 5. Learned Public Prosecutor vehemently urged that the acrguittal of the respondent as recorded by the learned trial Court was absolutely uncalled for. He submits that simply for the non-compliance of Section 100(4) Cr.P.C. the proceedings of search and seizure cannot be nullified. He thus submits that the acquittal of the respondent deserves to be set aside. 6. Heard and considered the arguments advanced at the bar. Perused the record. 7. He submits that simply for the non-compliance of Section 100(4) Cr.P.C. the proceedings of search and seizure cannot be nullified. He thus submits that the acquittal of the respondent deserves to be set aside. 6. Heard and considered the arguments advanced at the bar. Perused the record. 7. After going through the material available on record, it is evidence that the learned trial Judge acquitted the respondent solely on the ground of non-compliance of the provisions of Section 100(4) Cr.P.C. It has been held time and again in various decision that the mere non-compliance of Clause (4) of Section 100 Cr.P.C. would not by itself vitiate the search and seizure proceedings. However, the reasoning given by the trial Court in the case at hand for holding the search and seizure to be vitiated on the ground of non-compliance of Section 100(4) Cr.P.C. is sound. It is noteworthy that the Seizure Officer gave lame and feeble excuses for not associating two independent and respectable persons of the locality in the search and seizure. 8. Further, on going through the record carefully, it is evident that the respondent is entitled to an acquittal on another ground. Admittedly, the recovery of the contraband was effected during the personal search of the respondent under taken by the SHO PW8. The SHO in his deposition clearly stated that the respondent tried to escape on seeing the police party and thus, his conduct appeared to be suspicious. Accordingly, it was decided to carry out his personal search looking to his suspicious conduct. A Motbir was summoned and an option of being searched presumably under the NDPS Act was offered to him. The SHO deposed that the accused was orally told that his conduct was suspicious and that he could be searched before a Magistrate or Gazetted Officer.Thereupon it is stated that the accused consented to be searched by the SHO himself, From the said testimony it is evident that the SHO did not intimate the respondent of his right to be searched before a Gazetted Officer or a Magistrate as is warranted under Section 50 of the NDPS Act. The law in this regard has been settled conclusively by the Hon'ble Apex Court in its Constitution Bench judgment rendered in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, reported in 2010(3) Apex Court Judgments 619 (S.C.) : AIR 2011 SC 77 , wherein it was held that before conducting the personal search,the suspect must be apprised about the existence of his right to be searched before a Gazetted Officer or a Magistrate. Admittedly, no such information was given to the accused before conducting his personal search in this case. 9. As a result of the aforesaid discussion, this Court is of the opinion that even if the view taken by the learned trial Judge in acquitting the respondent is not wholly appreciable then too, on the sole ground of non-compliance of the mandatory provisions of Section 50 or the NDPS Act, the respondent would be entitled to acquittal. Thus, there is no force in the instant appeal filed by the State of Rajasthan challenging the acquittal of the respondent recorded by the learned Special Judge, NDPS Cases, Sri Ganganagar by the impugned judgment dated 20.06.2008. 10. Resultantly, the Criminal Appeal No.861/2008 filed by the State against the acquittal of the respondent Ajay @ Ajju s/o.Kishanlal fails and is hereby rejected. The respondent is in custody. He shall be released forthwith, if not wanted in any other case. *******