STATE OF HIMACHAL PRADESH Vs. SUDARSHAN KUMAR

JUDGEMENT

(1.) The determination of these cases requires close scrutiny of the various provisions, particularly those relating to procedure contained in Chapter V of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'Narcotic Act').

(2.) Here, brief reference may be made at the very outset to the facts of Cr. Rev. No. 106 of 1987 and Cr. Rev. No. 121 of 1987.

(3.) The first Criminal Revision No. 106 of 1987 is directed against the order dated August 11, 1987 passed by the learned Sessions Judge, Una, whereby he declined to frame a chargesheet against the accused on the facts placed before him. Briefly stated, the prosecution case was that S.H.O., Babu Ram received a secret information on December 1, 1985 that accused Sudarshan Kumar was carrying on sale of opium at his house and that opium in large quantity could be recovered from his house. On the following morning, he associated three independent witnesses with the raiding party and went to the Sudershan Kumar's house. He gave his personal search before searching the house. During the search he found a plastic bag hidden underneath a gunny bag. The plastic bag contained opium weighing 352 gms. The case was registered under S.9 of the Opium Act and accordingly a challan was put up, but the learned trial Court committed the case to the Sessions Judge under Section 18 of the Narcotic Act as the provisions of the Opium Act stood repealed by the Narcotic Act. The prosecution, however, failed to produce any notification issued by the State Government under the provisions of Section 41 or 42 empowering the police officer concerned to enter, search, seizure and arrest without warrants. In its absence, search effected and the recovery made by the police was held to be without any legal authority to be ignored in the eye of law. The learned Sessions Judge further held the provisions of Sections 50 and 55 of the Narcotic Act as mandatory and non-compliance therewith fatal to the prosecution case. The order of discharge of the accused followed.