ROSHAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) It is a misc. petition by the accused petitioner Roshan Lal against the order dated 21st Sept. 1989 of the learned Chief Judicial Magistrate Bharatpur under which the learned Chief Judicial Magistrate did not accept the final report submitted by the S.H.O. and took cognizance of the offence against the accused petitioner under section 8/18 of the Narcotic Drugs & Paychotrophic Substances Act, 1985 (for short the N.D.P.S. Act). Ram Kishan Verma was the A.S.I. to police station Atalband, Bharatpur on 9th Oct. J988. On that day when the said A.S.I. along with police constable Rameshwarlal and Hari Singh was going in connection with the investigation of a case No. 609/1988 P.S. Rotwali, Bharatpur, he came to know through Guptchar that the accused-petitioner in his furniture shop was also (illegible). He went to the shop of the accused petitioner and noticed that the accused petitioner has entered into his shop and he was having a bag in his hand. It was at about 6.00 p.m. and when the shop was searched, in a 2 Kg. of tin of Dalda 80 gms. of opium was recovered. He lodged a report in the police station and investigation was set in motion. It appears that the higher authorities directed Bhupendra Singh I P.S. officer to enquire into the matter and Shri Bhupendra Singh gave his report that the case is false and on the basis of the said report, it appears that the final report was filed. But the learned Chief Judicial Magistrate did not accept the final report and took cognizance of the offence as aforesaid.

(2.) A perusal of the record will show that before taking search as aforesaid of the shop of the accused-petitioner, apart from the fact that the A.S.I. was not authorised to take search and arrest the accused petitioner, he did not comply with Sec. 42 of the N.D.P.S. Act. The aforesaid section 42 requires that any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset enter-into and search any such building, conveyance or place. Under the proviso if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Therefore, in the absence of the search warrant, even a police officer who has been authorised as aforesaid by a special or general order, can take search after recording the grounds of his belief. But admittedly, in this case no such grounds of belief were recorded by the A.S.I and even he was not authorised u/s. J2 of the N.D.P.S. Act or by any general or special order of the central Government or by any other officer. The provision of Sec. 42 of the N.D.P.S Act have been brought on the statutory book to safe-guard the interest of the accused-persons and if either without a search warrant or without recording the grounds of belief in writing, if any search is taken then the entire proceedings are vitiated. In the instant case the A.S.I. was not authorised under section 42 of the N D P.S. Act and even he did not comply with Sec. 42 and. therefore, the entire search was without authority of law. This ground was not considered by the learned Chief Judicial Magistrate and this goes to very root of the matter.

(3.) Consequently, I hereby allow this application and quash the order dated 21st Sept. 1989 of the learned Chief Judicial Magistrate and direct him to accept the final report which was filed by the police.