STATE OF M P Vs. NATHU LAL

JUDGEMENT

(1.) THIS appeal is directed by the State against the Judgment dated 1.2.91 passed by II A.S.J. Mandsaur in S.T. No. 194/90 whereby the respondents were acquitted of the offence under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short 'the Act').

(2.) THE prosecution case, in brief, is that on 18.12.89 at village Titrod R.S. Jhala S.H.O. P.S. Sitamau who was patrolling, received information at about 11: 15 p.m. that two persons would be transporting opium on motor -cycle from Rahimgarh to Suwasra. He prepared information Panchnama Ex. P.15 and reached Basai Tiraha (junction of three roads) Sub -inspector R.L. Mukati (PW 3) and constables Manoharlal, Madholal and Shambhulal (PW 2) also came there. The police party lied in wait near the bridge of Chambal river. At about 5:45 a.m. the respondents came on motor -cycle from Rahimgarh. The police officer gave indication to stop the motor -cycle but Nathulal who was driving the vehicle, did not stop. R.S. Jhala followed by his motor -cycle and near bridge the respondents motor -cycle struck against the toll tax barrier and Nathulal fell down and was caught. Pillion rider Heeralal, who was having a bag in his hand, threw the bag and ran away but he was apprehended. S.H.O. R.S. Jhala informed the respondents vide memo Ex. P. 7 about their right of being searched in presence of Magistrate or gazetted officer and thereafter search was taken. From the possession of Nathulal, from his motor -cycle's dicky (M.P.O. 4017) 10 kg and 60 gms. of opium and from the bag of the respondent Heeralal 9.750 gms. of opium was seized vide seizure memo Ex. P. 2 and P. 1 respectively. R.S. Jhala weighed the seized article and drew two samples from each bag of opium and prepared panchnama Ex. P. 2. Thereafter the seized opium and the samples were sent to FSL Sagar. The chemical examiner vide his report Ex. P. 19 opined that the samples contained opium. After completion of investigation, challan was filed. The respondents pleaded not guilty and false implication. The learned trial Judge acquitted the respondents. Hence, this appeal by the State.

(3.) I considered the arguments advanced by learned counsel for both sides and perused the record. S.H.O. Sitamau, R.S. Jhala (PW 6) deposed that on receiving information on 18.12.89 from an informant that two persons were going to bring opium on motor -cycle from Rahimgarh, he prepared Ex. P. 15 and thereafter he came on Basai Tiraha. He stated that after a while ASI RM. Mukati, constable Manoharlal and Madhavlal also came there and they lied there in wait for the respondents. He testified that at about 6:45 a.m. in the morning on 19.12.89 the respondents came on motor -cycle from the side of Rahimgarh. He gave indication to stop the motor -cycle but the motor' -cyclist did not stop. He followed them and after going a while the motor -cycle struck against toll tax post barrier and the respondents fell down. Nathulal was apprehended on the spot. Heeralal tried to run away, but he too was caught. He stated in para 17 of his deposition that he gave notice Ex. P. 7 under section 50 of the Act. The respondents put their signatures on this memo. He did not state that he informed the respondents that they had a right to be searched before a Magistrate or a gazetted officer. The independent witnesses Harinarayan (PW1) and Shambhulal (PW 2) also did not state that the respondents were informed of their right. RM. Mukati, A.S.I. (PW 3) clearly admitted in cross -examination in paragraph 28 of his deposition that the respondents were not informed that they had a right to be searched before a Magistrate or a gazetted officer. It is, thus, clearly proved that the compliance of section 50 of the Act was not made. It is true that panchnama Ex. P.7 states that the respondents were informed of their right to be searched before Magistrate or gazetted officer but there is no evidence that it was read over to the respondents. It appears that this panchnama was prepared later on and the signatures of the respondents were taken thereon. None of the witnesses stated that RS. Jhala informed the respondents that they had a right of being searched before Magistrate or gazetted officer. Thus, there was violation of section 50 of the Act and the trial vitiated. (See AIR 1994 SC 1872) State of Punjab v. Balbir Singh.