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2015 DIGILAW 660 (RAJ)

Raju Ram @ Raju v. State of Rajasthan

2015-03-19

BANWARI LAL SHARMA

body2015
JUDGMENT : Hon'ble SHARMA, J.—The appellant-accused has preferred this appeal against the judgment of conviction and order of sentence dated 15.9.2012 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. 46/2010 whereby appellant-accused was convicted for the offence under Section 8/15 of the NDPS Act and sentenced to undergo 10 years rigorous imprisonment with fine of Rs. 1,00,000/-, in default of payment whereof, to further undergo one year's rigorous imprisonment. 2. The brief facts of the case are that on 4.6.2010, at about 3.45 a.m., Shri Dalpat Singh, S.H.O., P.S., Bijoliya, received an information from mukhbir that one white coloured Bolero Vehicle, No. RJ 21 UA 1553, which was being driven by Rajuram with three other persons wen tto M.P. and will return from the same way with Doda Post and if they would not be caught, they will dispose of the same. Thereater, on compliance of the provisions of Section 42(1) of the NDPS Act, the said information was reduced in writing in the roznamcha and copy of the same was sent to S.P. Bhilwara, Additional S.P., Bhilwara and C.O., Circle Mandalgarh, Bhilwara in compliance of the provisions of Section 42(2) of the NDPS Act through Constable Vijay Singh on 4.6.2010. Thereafter he with his police team, Head Constable Roduram, Constable Arvind Kumar, Madanlal, Prahlad Kumar, Onkar Singh on his Government Jeep No. RJ 21 U 0880 with driver Naval Singh proceeded towards Singoli Ghata along with investigation box, petromex etc. and after reaching there, they started nakabandi. During nakabandi, at about 4.55 a.m. one jeep was been driven on high speed which was stopped. On seeing police party, three persons ran away and one person who was driving the jeep also tried to fled away but he was caught and the rest three persons were tried to be caught but they ran away. The person who was cauht, on asking, told his name as Raju @ Rajuram Jat. Thereafter, he as given notice under Section 50 of the NDPS Act on which he agreed to be searched by the S.H.O.. Thereafter, on search, 11 bags were found in the vehicle containing 245.500 kgs. doda post and found, which were seized and sealed after taking samples. The vehicle was also seized. The appellant-accused was thereafter arrested and F.I.R. No. 94/2010 was registered for the offence under Section 8/15 of the NDPS Act and investigation commenced. Thereafter, on search, 11 bags were found in the vehicle containing 245.500 kgs. doda post and found, which were seized and sealed after taking samples. The vehicle was also seized. The appellant-accused was thereafter arrested and F.I.R. No. 94/2010 was registered for the offence under Section 8/15 of the NDPS Act and investigation commenced. On investigation, it was found that the vehicle was stolen vehicle and for that an F.I.R. No. 115/2010 under Section 379 I.P.C. was also found to be registered. Thereafter, on completion of investigation, the police filed charge-sheet against the appellant-accused for the offences under Sec. 8/15 of the NDPS Act and Secs. 411 and 476 IPC. After hearing, the learned trial Court framed charges against the appellant-accused for the aforesaid offences to which he denied and claimed trial. 3. To substantiate the charges, the prosecution examined as many as 11 witnesses and exhibited documents. Thereafter, the appellant-accused was examined under Section 313 Cr.P.C. in which he denied he prosecution case and stated that he has been implicated falsely. 4. After trial, the learned trial Court, vide the impugned judgment of conviction and order of sentence dated 15.9.2012, convicted and sentenced the appellant-accused as aforesaid. Being aggrieved by the aforesaid judgment and order, the appellant-accused has preferred this appeal, which was admitted for hearing by this Court vide order dated 22.11.2012 and record of the trial Court was called for. 5. I have heard Mr. D.S. Beniwal, learned counsel for the appellant and Mr. L.R. Upadhyay, learned Public Prosecutor. 6. The main contention of the learned counsel for the appellant is that the prosecution has failed to assign any reason for not obtaining search warrant and thus there is total non-compliance of the provisions of Section 42 of the NDPS Act, which vitiates the trial. It was also submitted by him that the vehicle from which the alleged recovery was made, was a private vehicle and not a public vehicle, therefore, the provision of Section 42 of the NDPS Act are very much applicable but the same wee not complied with. Hence, the whole trial stands vitiated. It was thus prayed that the appeal may be allowed and the appellant-accused may be acquitted. Hence, the whole trial stands vitiated. It was thus prayed that the appeal may be allowed and the appellant-accused may be acquitted. He placed reliance upon the judgments rendered in the case of State of Punjab vs. Balbir Singh ( (1994) 3 SCC 299 ); Chhunna @ Mehtab vs. State of Madhya Pradesh ((2002) 9 SCC 363); Krishna Kanwar (Smt.) @ Thakuraeen vs. State of Rajasthan ( (2004) 2 SCC 608 ); State of Haryana vs. Jarnail Singh & Ors. ((2004) 2 SCC 188); Babbhai Odhavji Patel & Ors. vs. State of Gujarat ( (2005) 6 SCC 725 ); Union of India vs. Major Singh & Ors. ( (2006) 9 SCC 170 ); Karnail Singh vs. State of Haryana ( (2009) 8 SCC 539 ); and State of Orissa vs. Laxman Jena ( (2009) 16 SCC 332 ). 7. It was also submitted by the counsel for the appellant-accused that the prosecution has failed to corroborate the oral evidence from the documentary evidence. The prosecution has also miserably failed to proved that the information received by the S.H.O. was sent to the Superior Officer as the Circle Officer was not examined as also the peon book was not produced by the prosecution. It was also submitted hat Shankerlal (PW-6) in his statement started that due to darkness and three persons fled away. Thus, ................. darkness and thus the documents could not have been prepared there and the same were prepared after the alleged search and seizure, which also vitiates the whole proceedings. 8. Per contra, the learned Public Prosecutor supported the impugned judgment and order and submitted hat in the present case, the provisions of Section 43 of the NDPS Act are applicable as per which, if a search is made during transit in the way, then there is no need to obtain search warrant. Thus, it cannot be said that the trial stood vitiated. It was thus prayed that the appeal may be dismissed. 9. I have considered the rival submissions made at the Bar and perused the material available on record. 10. Before parting with this case, I deem it appropriate to go through the relevant provisions of law, which are Sections 42, 43 and 49 of the NDPS Act, which read as under:- 42. 9. I have considered the rival submissions made at the Bar and perused the material available on record. 10. Before parting with this case, I deem it appropriate to go through the relevant provisions of law, which are Sections 42, 43 and 49 of the NDPS Act, which read as under:- 42. Power of entry, search, seizure and arrest without warrant or authorisation.—(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset.- (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 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 IV 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: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. 43. Power of seizure and arrest in public places.-Any officer of any of the departments mentioned in Section 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article 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 an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and other person in his company. Explanation.—For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 49. Power to stop and search conveyance.-Any officer authorised under section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, in respect of which he suspects that any provision of this Act has been, or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and- (a) rummage and search the conveyance or part thereof; (b) examine and search any goods on the animal or in the conveyance; (c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon. 11. 11. A bare reading of Section 42 of the NDPS Act, shows that requirements to take down the secret information in writing and sending to the Superior Officers prior to search is in respect of recoveries made from a private place, such as building, conveyance or enclosed place. There is no requirements to record such information in writing in respect of search and arrest in a public place or in transit. The expression 'transit' in Section 43 of the NDPS Act is applicable to the expression 'conveyance' used in Section 42 of the Act as well, which is evident from the provisions of Section 49 of the NDPS Act, which authorizes an Empowered Officer to stop any conveyance, if the officer is suspecting that such conveyance, if the officer is suspecting that such conveyance is carrying narcotic drug or psychotropic substance or controlled substance. Thus, Section 43 and 49 of the NDPS Act, in respect of conveyance, creates an exception to carryout the search and seizure operations in respect of a vehicle in motion. 12. Section 43 of the NDPS Act provided that any officer of any of the departments mentioned in Section 42 of the NDPS Act may seize in any public place or in transit any narcotic drug or psychotropic substance, etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detail and search any person whom he has reason to believe to have committed an offence punishable under the NDPS Act. 13. Sections 42 and 43 of the NDPS Act, therefore, contemplate two different situations. Section 42 of the NDPS Act contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 of the NDPS Act contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 of he NDPS Act between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the NDPS Act. Therefore, it is obvious that if a conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act fro searching the vehicle between sunset and sunrise. 14. There is no such proviso in Section 43 of the NDPS Act. Therefore, it is obvious that if a conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act fro searching the vehicle between sunset and sunrise. 14. In the instant case, it is admitted that the car was moving on the public highway when it was stopped and searched. Section 43 of the NDPS Act, therefore, clearly applied to the facts of this case. Such being the factual position, there was no requirement of the officer conducting the search to record the grounds of his believe as contemplated by the proviso to Section 42(1) of the NDPS Act. 15. In the matter of State of Punjab vs. Balbir Singh (supra), it was held as under: "The Magistrate or the officer empowered while acting under Section 41 or Section 42 should have 'reason to believe' that such on offence under Chapter IV has been committed and, therefore, an arrest or search was necessary as contemplated under these provisions. Whether there was such reason to believe and whether there was such reason to believe and whether the officer empowered acted in a bona fide manner, depends upon the facts and circumstances of the case and will have a bearing on appreciation of the evidence. 16. It was also held in para No. 25 as under: "Under Section 42(1) the empowered officer if has a prior information given by any person that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building ... he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out search between sunset and sunrise, he must record the grounds of his belief." 17. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out search between sunset and sunrise, he must record the grounds of his belief." 17. In the case of Chhunna @ Mehtab (supra), the search was made in a room and the police party entered the premises and apprehended the accused and it was the admitted fact tat before the entry for effecting search, neither any search warrant or authorization was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or authorization is accorded, the evidence will escape indicated. Thus, in that fact situation, the Hon'ble Supreme Court held that there was non-compliance of proviso to Section 42(1) of the NDPS Act. 18. In the case of Krishna Kanwar (supra), the Hon'ble Supreme Court held that Section 42 of the NDPS Act comprises of two components and unless both the components exist, Section 42 has no application. 19. In the case of State of Haryana vs. Jarnail Singh & Ors. (supra), admittedly the impugned vehicle (tanker) was moving on a public highway which was stopped and searched. It was held that since both the components contemplated in Section 42 of the NDPS Act are not available, therefore, the same is not applicable and Section 43 of the NDPS Act is applicable. 20. In the case of Babubhai Odhavji Patel (supra), the matter was of chance recovery and thus the Hon'ble Supreme court held that there was no question of compliance of Section 42 of the NDPS Act. 21. In the case of Union of India vs. Major Singh & Ors. (supra), the search was made of a public carrier (Truck) at a public place between sunrise and sunset and thus it was held that the search was conducted in a public place and the officer making the search was not required to record his satisfaction as contemplated under Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise. 22. In the case of Karnail Singh vs. State of Haryana (supra), the aforesaid views were reiterated. 23. 22. In the case of Karnail Singh vs. State of Haryana (supra), the aforesaid views were reiterated. 23. In the matter of State of Orissa vs. Laxman Jena (supra), the police party, after recording the information in the Station Diary, proceeded to the house of the accused for effecting the recovery of opium, allegedly concealed therein. In this fact situation, the Hon'ble Supreme Court held that reasons for the belief of authorized officer to make the search were not record and thus there was total non-compliance of the provisions of Section 42 of the NDPS Act and held the accused entitled to acquittal. 24. In the case in hand, Shri Dalpat Singh, SHO, received information from his mukhbir, which he reduced in writing in the rojnamcha and a copy thereof was sent to the superior officers in compliance to the provisions of Section 42 of the NDPS Act. Thereafter, in pursuance of the information, the search of the vehicle was made, which was in transit on the public way. Thus, the provisions of Section 43 of the NDPS Act clearly apply and there was no requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42(1) of the NDPS Act. 25. The same view was reiterated by Hon'ble Court in the matter of Union of India vs. Major Singh (supra), while holding as under:- "3. The High Court has recorded the acquittal on two Courts: firstly, the provisions of Section 50 of the Act and secondly, under Section 42(2) of the Act have not been complied with. So far as Section 50 of the Act is concerned in the present case, the same shall have no application as the search and seizure was made from a truck and not from the person of any of the accused persons. This question has been examined by a three-Judge Bench of this Court is State of H.P. vs. Pawan Kumar MANU/SC0272/2005 : (2005) 4 SCC 350 in which it has been categorically laid down that search of a bag, briefcase or any such article or container which is being carried by a person is not search of a person, is such the provisions of Section 50 of the Act would not apply in case search and seizure is not made from the person of the accused. In the present case, as the search and seizure have not been made from the person of the accused but from the truck, the provisions of Section 50 of the Act shall have no application. 4. Turning now to Section 42(2) of the Act, in this regard, it may be sated that from the prosecution case and evidence it would be clear that the search and seizure was made of a public carrier at a public place and 127 bags of poppy straw (opium) were seized from a public carrier. This point is also concluded by a judgment of this Court in State of Haryana vs. Jarnail Singh MANU/SC/0440/2004 : (2004) 5 SCC 188 in which it has been categorically laid down that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 for searching the vehicle between sunset and sunrise. In the case in hand the search was made of a public conveyance at a public place between sunrise and sunset. Therefore, the provisions of Section 42(2) of the Act shall have no application to the case. This being the position, the High Court was not justified in acquitting the respondents and the trial Court was quite justified in convicting them." 26. Thus, the provisions of Sections 42, 43 and 49 of the NDPS Act are to be read conjointly. The harmonious construction of the provisions of the Act makes it clear that the empowered officer is competent to search a conveyance in transit in a public place and that is not necessary to record secret information in writing and to communicate the same to the superior Officer. The provisions of Section 42 and 43 of the Act show the intention of the Legislature is different in respect of each of the two provisions as is revealed from the language of these Sections. The provisions of Section 42 and 43 of the Act show the intention of the Legislature is different in respect of each of the two provisions as is revealed from the language of these Sections. Section 43 authorizes any officer of the department, mentioned in Section 42 for search, seizure, arrest or detention in any public place or in transit in respect of any narcotic punishable under Chapter IV has been committed and, along with such drug or substance, any other article which he has reason to believe may furnish evidence of he commission of an offence under this Chapter relating to such drug or substance whereas Section 42 speaks about search and seizure from any building, conveyance or in the case of private/personal place. The very working of Section 42 in regard to information to be taken down in writing has been intentionally omitted in the wording of Section 43 purportedly and deliberately so advisedly inasmuch as the police officer in Section 42 may get information with regard to the person in any public place or in transit at the best moment and if he has to undergo procedure of taking that information into writing the recording the reasons for his belief, possibly such information may not be useful. Moreso, in the prevalent situation of fast transmission of information by use of modern electronic equipments certainly would add to the woes of the Investigating Officer if he is made to trudge such an arduous procedure. Therefore, an empowered officer, while acting under Section 43 of the Act need not record any reason of his belief as is required under Section 42(2) of the NDPS Act. 27. However, Dalpat Singh (PW-10), SHO, in his statement, deposed that he received the information on 4.6.2010 at about 3.45 a.m. and treating the same to e reliable, he registered the said information in the rojnamcha complying the provisions of Section 42(1) of the NDPS Act and in pursuance to the provisions of Section 42(2) of the NDPS Act, he sent a copy of the same to his superior officer through Vijay Singh (PW-1). 28. Vijay Singh (PW-1), in his statement, stated that he received copies of the information by the SHO, Dalpat Singh (PW-10), for S.P., Bhilwara, Addl. S.P., Bhilwara and C.O., Mandalgarh. He served the copy to the C.O., Mandalgarh and obtained receipt. Since Addl. 28. Vijay Singh (PW-1), in his statement, stated that he received copies of the information by the SHO, Dalpat Singh (PW-10), for S.P., Bhilwara, Addl. S.P., Bhilwara and C.O., Mandalgarh. He served the copy to the C.O., Mandalgarh and obtained receipt. Since Addl. S.P., Bhilwara was in the circle, therefore, he went to the office of S.P., Bhilwara and served a copy and obtained receipt. One of the copy containing the endorsement of C.O., Mandalgarh is on record as Ex.P/1. 29. From a perusal of Ex.P/1, it reveals that Dalpat Singh (PW-10), SHO, recorded the information received from mukhbir and also recorded the fact that the evidence for the offence may be concealed, proceeded with the police team and sent the information to his superiors. Thus, he has recorded his reason of belief that the evidence in connection with the offence may be concealed. 30. Thus, even if for the sake of arguments, it is considered that the provisions of Section 42 of the NDPS Act come into play, then also in view of the statements of Vijay Singh (PW-1) and Dalpat Singh (PW-10) and from the perusal of Ex.P/1, it cannot be said that no reason of belief was recorded for not obtaining search warrant and there was non-compliance of the provisions of Section 42 of the NDPS Act. 31. From a careful scrutiny of record, it reveals that the prosecution has established its case by leading oral evidence and corroborating the same by the documentary evidence. I, thus, find no merit in the argument of the learned counsel for the appellant that the prosecution has failed to corroborate the oral evidence by documentary evidence. 32. It was next contended by the learned counsel for the appellant-accused that the prosecution has failed to prove the fact that the information received by the SHO was sent to the Circle Officer as he was not produced in the witness box as also the peon book was not produced. From the statement of Vijay Singh (PW-1), it is clear hat he served a copy of the information to the Circle Officer and obtained the receipt, which was brought on record as Ex.P/1 and from a perusal of Ex.P/1, it clearly reveals that the same was received by the Circle Officer. From the statement of Vijay Singh (PW-1), it is clear hat he served a copy of the information to the Circle Officer and obtained the receipt, which was brought on record as Ex.P/1 and from a perusal of Ex.P/1, it clearly reveals that the same was received by the Circle Officer. Thus, there was no need to produce the peon book and there was no reason to disbelieve the testimony of Vijay Singh (PW-1). Hence, the non-examination of Circle Officer does not affect the prosecution case, specially when the provisions of Section 43 of the NDPS Act are applicable in this case instead of Section 42 of the NDPS Act. 33. So far as the contention of the learned counsel for the appellant that the whole proceedings stood vitiated on the ground that the documents were prepared at the police station after search and seizure as on the place of incident there was darkness as per the statement of Shankerlal (PW-6) is concerned, Shankerlal (PW-6), in his statement deposed that due to darkness three persons ran away and they could not be caught. In his cross-examination, it was clearly stated by him that the documents were prepared at the place of incident in the light of petromax. Pyar Chand (PW-9) also, in his cross-examination, stated that the documents were prepared in the light of the petromax. Hence, this contention has also got no merit. 34. In view of the above, I find no irregularity or illegality in the finding of guilt recorded by the learned trial Court. The appeal is, therefore, dismissed being devoid of any merit. 35. Record of the trial Court be sent back with a copy of this judgment forthwith.