KANHAIYALAL Vs. STATE OF CHHATTISHGARH

JUDGEMENT

(1.) APPELLANT Kanhaiyalal being aggrieved by the judgment dated 17-3-2001 passed in Special Case No. 16 of 2000 by the learned Special Judge (NDPS), Rajnandgaon convicting the appellant under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to undergo R.I. for five years and pay fine of Rupees Five thousand, in default of payment of fine to undergo further R.I. for three months has filed this appeal.

(2.) THE prosecution case in brief is that V. S. Dwivedi an Inspector when was on patrol and making seerch of certain members of Bajrang Dal he was accompanied with Deputy Superintendent of Police Amit Saxena, Sub Inspector Lochan Pandey, Assistant Sub Inspector S.K. Uike and two other constables. When he reached near B.N.C. Mills he received an information from the informer that one man was standing near Dau-Chawl with a bag containing Ganja. He prepared Panchanama of the informer's report and thereafter sent an information on wireless to the City Superintendent of Police. The said Superintendent of Police reached to the spot, the officer gave a notice under Section 50 to the accused and after obtaining his consent took his search. In the search of the accused 2 kg Ganja was recovered. The samples were drawn and after preparing the Panchanamas etc. the bag containing Ganja and the samples were properly sealed. After return to the police station said V.S. Dwivedi registered first information report and sent a copy of the same to the Special Court. On 10-3-2000 the samples were sent for analysis. The Forensic Science Labortory reported that the sample was of Ganja. The Investigating Officer after recording the statements of the witnesses and further armed with the Panchanamas and the F.S.L. report filed the challan. As the accused denied commission of the offence he was put to trial. After recording the evidence and hearing the parties the learned trial Court convicted and sentenced the accused as referred to above.

(3.) SHRI Ranveer Singh, learned Govt. Advocate, on the other hand, submitted that from Ex.P/2 it would clearly appear that the City Superintendent of Police who is a gazetted officer had given the option to the accused. He further submits that the defence is nowhere said that the accused exercised his right of being searched by a Magistrate. He submits that even otherwise it is the right of the officer to take the accused to the nearest available officer or the Magistrate, According to him as the person who was conducting the search proceedings was a gazetted officer it was not necessary for him to take the accused to the Magistrate.