RATAN Vs. STATE OF U P

JUDGEMENT

(1.) ONKARESHWAR Bhatt, J. This appeal has been preferred against judgment and order dated 19-10-1994 passed by the then Additional Session Judge III, Bijnor in Special Trial Nos. 44 and 43 of 1992. The appellant has been convicted under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, and sentenced to rigorous imprisonment for ten years and to pay fine of rupees one lakh and in default of payment of the fine rigorous imprisonment for three years has been ordered. By the impugned judgment the appellant has been acquitted under Section 60 of the Excice Act for which offence he was also tried.

(2.) SRI Jagdev Singh, learned Counsel for the appellant has been heard at great length and in detail and SRI. R. S. Sengar, learned A. G. A. appearing for the State has also been heard.

(3.) P. W. 1 Ram Lakhan Sharma who accompanied S. I. Devendra Pal Singh P. W. 4 at the time of search and seizure of the contraband has not been produced for cross-examination, hence he has been discharged. Constable Mukesh Giri P. W. 3 and S. I. Devendra Pal Singh P. W. 4 have stated about the apprehension of the appellant, recovery of the opium on search from possession of the appellant and seizure thereof. The facts of the case show that the recovery of the opium from possession of the appellant was made when S. I. Devendra Pal Singh, who was doing investigation in some other case, had no prior information that the appellant has committed the offence punishable under the Act. It was on sudden search of the appellant that the contraband was recovered from his possession. In the aforesaid situation, compliance of Section 50 of the Act was not required because it was not attracted. It has been contended that since seizure has taken place after sunset the arresting officer should have recorded the grounds of his belief as is provided under the proviso to Section 42 (1) of the Act. According to the prosecution case search was made infront of the hut of the appellant and as shown in the site plan it is an open place. No question has been asked either to P. W. 4 S. I. Devendra Pal Singh or to the Investigating Officers P. W. 5 A. P. Singh, S. H. O. and P. W. 6 S. I. Rajvir Singh that the land infront of the hut of the appellant was enclosed. The proviso to sub-section (1) of Section 42 of the Act will get attracted when a building, conveyance or enclosed place is to be searched. It has come in evidence that the people come and go at the place of occurrence. Therefore, the appellant was arrested and seizure was made from his possession in the public place. In the case of State of Punjab v. Balbir Singh, 1995 (1) JIC 382 (SC) : 1994 Supreme Court Cases (Criminal) page 634, it has been held that empowered officer while acting under Section 43 of the Act need not record any reason for his belief.