STATE OF RAJASTHAN Vs. RAM CHANDRA

JUDGEMENT

(1.) Leave granted.

(2.) The State of Rajasthan is in appeal against the judgment of learned single judge, Rajasthan High Court, Jaipur bench, Jaipur holding that there was non- compliance with the mandatory requirements of Section 50 of Narcotic Drugs and psychotropic Substances Act, 1985 (in short the 'act'). The said conclusion was arrived at on the ground that though the accused respondent had been given the option of being searched in the presence of Shri Satyender Singh (PW-3) , the Deputy superintendent of Police, he was in essence a member of the raiding party and, therefore, the search in his presence cannot at all be said to be in consonance with section 50 of the Act, though he was a gazetted Officer.

(3.) Background facts in a nutshell are as under: on 8.9.1995 Prem Shaker Meena (PW-2) , sho Police Station, Kotwali, Baran having received information about illicit trafficking in narcotic substances, rushed to the place pointed out by the informant and apprehended the accused respondent. Satyendra Singh, Dy. S. P. (PW-3) also reached there. Subsequently, being of the suspicion that accused respondent was in possession of contraband, the SHO informed him of his right to have his search conducted either in presence of Shri satyendra Singh, Dy. S. P. (PW-3) who was a Gazetted Officer and happened to be present there or in the presence of any magistrate. The accused consented for his search to be conducted in the presence of the Dy. S. P. (PW-3). On being searched, 570 grams of opium was recovered from his possession in the presence of Ramesh chand (PW-5) and Rajendra Kumar (PW- 6). Out of the recovered opium, a sample weighing 30 grams was taken and was sealed. The remaining opium was also sealed. The accused was accordingly arrested vide arrest memo exhibit P-5 and memo of recovery was prepared. The sho, thereafter, registered a case vide FIR exhibit P-4 and deposited the recovered opium in the 'malkhana'. During investigation, the police recorded the statement of witnesses and sent the sample to the Forensic science Laboratory. On chemical examination, the sample contained in the packet marked 'b' gave positive tests for the chief constituents of coagulated juice of opium poppy having 5.43% morphine.