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Rajasthan High Court · body

2016 DIGILAW 628 (RAJ)

State of Rajasthan v. Hukam Singh

2016-05-05

PANKAJ BHANDARI

body2016
Hon'ble BHANDARI, J.—The State has preferred this appeal aggrieved by the impugned judgment and order dated 24.09.1989 passed by the learned Additional Sessions Judge, Barmer, vide which the accused-respondent has been acquitted of the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Briefly stated the facts of the case are that on 24.05.1988, an information was received by Shiv Chand, A.S.I. from Sumar Khan Constable that he has received information from informee that Hukam Singh would come in the bus, which is going from Ramsar to Chouhatan and he would be carrying opium and if the bus is searched, the same can be recovered. Upon this information, Shiv Chand, A.S.I. went to the road running from to Ramsar to Chouhatan and stopped bus No.RJN 5459 and on checking the bus, found Hukam Singh sitting in the bus. Under the thighs of Hukam Singh, a plastic canvass white colour bag was found, which on opening, was found to be containing opium. Shiv Chand, A.S.I., then brought the accused-respondent to the police station and in front of the S.H.O, recovery of the contraband was made. After investigation, challan was filed against the respondent. The learned court below charged the respondent for offence under Section 8/18 of the NDPS Act. The accused-respondent denied the charge, upon which ten witnesses were examined on behalf of the prosecution. The statement of the accused-respondent was recorded under Section 313 Cr.P.C., and the learned court below, after hearing the arguments, acquitted the accused of offence under Section 18 of the NDPS Act. Aggrieved by which, the State has preferred this appeal. 3. Learned Public Prosecutor appearing on behalf of the State has argued that the learned court below has found non-compliance of Sections 42, 43, 50 & 57 of the NDPS Act. The learned court below has also held that the A.S.I. was not competent to search, and therefore, has acquitted respondent. Learned Public Prosecutor has argued that bus was searched in presence of independent witnesses, and the samples were properly sent to the Forensic Science Laboratory, and the samples were found to be containing opium, having 3.68% and 2.75 opium and morphine respectively. Therefore the appeal deserves to be allowed. 4. Learned Public Prosecutor has argued that bus was searched in presence of independent witnesses, and the samples were properly sent to the Forensic Science Laboratory, and the samples were found to be containing opium, having 3.68% and 2.75 opium and morphine respectively. Therefore the appeal deserves to be allowed. 4. Counsel appearing for the respondent has argued that the learned court below has not committed any error in acquitting the accused, as the A.S.I. was not competent under Section 42 of the NDPS Act. My attention has been drawn to the State Government's Notification No.F.1(3) FD/EX/85-1 dated 16.10.1986, wherein all Inspectors of Police and Sub-Inspectors of Police posted as Station House Officers have been authorized to exercise the powers mentioned in Section 42 of the Act. 5. I have perused the impugned order and have also gone through the statement of witnesses. 6. It is important to note that independent witnesses PW-5 Gajaram and PW-6 Mangnaram have not supported the prosecution and have been declared hostile. PW-9 Nakhat Singh, who is Conductor of Bus No.RNJ 5459 has stated that the bus was not checked by the police and the accused-respondent was not in the bus. This witness has also been declared hostile by the prosecution. Thus, there is no independent witness relating to the search of the bus and recovery of contraband from the possession of the accused-respondent. 7. With whom the sample remained is also doubtful since malkhana incharge PW-4 Khuman Singh has stated that he was on election duty from 27.5.1988 to 13.6.1988 and during that tenure, the keys of the malkhana were with Ram Singh, SHO. Ram Singh, SHO, who has been examined as PW10, has denied about receipt of the keys of malakhana from malkhana incharge. Thus it becomes doubtful as to in whose possession the contraband remained 8. Under Section 42 of the NDPS Act, the State Government is required to pass special orders empowering the Police Officers to exercise the powers under Section 42 of the Act. The State Government in pursuance thereof, has issued the notification dated 16.10.1986, reference of which, has been made hereinabove, wherein it has authorized all Inspectors of Police and Sub-Inspectors of Police posted as Station House Officers have been authorized to exercise the powers mentioned in Section 42 of the Act. 9. The State Government in pursuance thereof, has issued the notification dated 16.10.1986, reference of which, has been made hereinabove, wherein it has authorized all Inspectors of Police and Sub-Inspectors of Police posted as Station House Officers have been authorized to exercise the powers mentioned in Section 42 of the Act. 9. Admittedly, Shiv Chand, A.S.I. is neither Inspector of Police nor Sub-Inspector of Police, and hence, he is not an authorized person to exercise the powers under Section 42 of the Act. 10. The learned court below has considered this aspect and has come to the conclusion that Shiv Chand, A.S.I. was not the authorized person, and thus, search and recovery by him is unauthorised and in violation of the Act. 11. It is also to be noted that in this case, as per statement of PW-3 Sumar Khan, after recovery from Hukam Singh, the bag remained with Shiv Chand, A.S.I. In his cross-examination, this witness has stated that the opium bag remained with Shiv Chand, A.S.I. from the place of occurrence to the police station. Thus, it is not established that recovery was made from the accused-respondent by the S.H.O. 12. In totality, as the independent witnesses have turned hostile. The Conductor of the bus has also turned hostile, and the police has not examined any passenger of the bus the entire story of the prosecution becomes doubtful. 13. The learned court below has, in detail, discussed the evidence and has rightly concluded that the prosecution has failed to prove the offence under Section 18 of the NDPS Act against the accused-respondent. I do not find any error in the impugned judgment and order. Consequently, the present appeal filed by the State is dismissed.