OM PRAKASH GUPTA Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) THE accused in S.C.No.111 of 1986 on the file of the Court of the learned 4th Additional Sessions Judge, Madras is the appellant. He was charged for an offence punishable under Sec 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for having been found in possession of opium (Heroin), convicted and sentenced to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 1,00,000 in default to undergo rigorous imprisonment for a further period of two and a half years.

(2.) THE prosecution has examined P.Ws.1 to 3 and marked Exs.P-1 to P-6 and material objects 1 to 8. No witness and documents were let in by the defence.

(3.) LEARNED counsel for the appellant has raised several contentions in his memorandum of appeal. LEARNED counsel for the appellant contended that the provisions of Secs.42, 50, 55 and 57 of the abovesaid Act have not been followed in this case meticulously and therefore, the conviction and sentence cannot be sustained. Further he contended that the prosecution has not proved its case beyond reasonable doubt. P.W.1 is only a casual witness and his evidence is that he had no place of his own for doing his cut piece business. According to him he was doing business only on cycle. He is only a street hawker. LEARNED counsel for the appellant contended that P.W.1 had no residence at all at Madras and he was at the mercy of the police for doing his business and he is a native of Vadagarai at Calicut. According to the learned counsel for the appellant, this witness had no business to go to the bus stand to witness the alleged occurrence on 8.8.1986 at about 6.30 p.m. From the fact that he did not ask P.W.3 as to what he had written in Ex.P-1, it is clear that this witness had no interest at all in knowing the contents of Ex.P-1 and he is an obliging witness to the police. Therefore, I am unable to accept his evidence. P.W.2 is only a court staff and he knows nothing about the prosecution case excepting receiving and sending the material objects; to the Chemical Examiner for analysis. Therefore, the only evidence available is that of P.W.3 who is the Sub Inspector of Police. Unfortunately, P.W.3 had not at all followed any of the provisions of Secs.42, 48, 50, 52, 55 and 57 of the Act. Sec.50 and 57 which are mandatory, read as follows: - ?50. Condition under which search of persons shall be conducted: (1) when any officer duly authorised under Sec.42 is about search any person under the provisions of Sec.41, Sec.42 or Sec.43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Sec.42 or to the nearest Magistrate. 2. If such requisition is made, the Officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-sec(1). 3. The Gazetted Officer or the Magistrate before whom any such person is brought shall if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. 4. No female shall be searched by anyone excepting a female.? ?57. Report of arrest and seizure: Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure makes a full report of the particulars of such arrest or seizure to his immediate official superior.?