STATE OF ORISSA Vs. A RAJESWAR PATRA

JUDGEMENT

(1.) On receipt of a reliable information that the respondent herein is involved in selling of opium capsules, PW 4, the investigating officer in this case on 3/10/1972 at about 2.50 p. m. searched the shop and house belonging to the respondent and from the shop as also from an adjacent room seized six bags of poppy capsules of opium weighing 88 kg. On being charged of the offence which is punishable under S. 18 of the Narcotic Drugs and psychotropic Substances Act, 1985 the trial court convicted the respondent for the said offence and sentenced him to undergo 10 years' rigorous imprisonment as also to pay a fine of rupees one lakh. In appeal the High court came to the conclusion that the fact that the premises which were raided were also partly a residential building, Section 43 of the said Act is not applicable and it is S. 42 which is applicable which requires the investigating officer on receipt of any information to reduce the same into writing recording his satisfaction as to the correctness and genuineness of the information received by him, and the same not having been done in this case came to the conclusion that the search and seizure was opposed to the mandatory requirement of S. 42 of the said Act, hence allowed the appeal, setting aside the conviction and sentence of the respondent imposed by the trial court.

(2.) In this appeal Ms Kirti Renu Sharma, learned counsel appearing for the appellant State contends that the seizure effected by the investigating officer was from a public place hence the seizure is one under Section 43 and not under S. 42 of the said Act. She contended that it does not have the mandatory requirement of S. 42 of recording the information received by the investigating officer to be reduced into writing in the first instance. On the contrary it is the argument of the learned counsel for the respondent that the search as a matter of fact was of the house of the respondent, therefore, s. 43 does not apply and S. 42 applies and in the absence of the information being reduced into writing by the investigating officer there will be a violation of mandatory requirement of law, therefore, he justifies the judgment under appeal.

(3.) In paragraph 8 of the impugned judgment the High Court has noticed that it is the specific case of the prosecution that the investigating officer on getting the reliable information searched the shop and house of the accused in the presence of witnesses and in the course of such search six bags of poppy capsules were found in the shop-room and in the adjacent room of the shop. That being the case, in our opinion, the premises is not an exclusive public place. Learned counsel for the appellant, however, contended that this finding of the High Court that the prosecution has admitted that premises from which the contraband was seized was a residential building is incorrect, therefore, she took us through the evidence of the investigating officer. On a perusal of the said evidence we noticed that the investigating officer has stated thus: