CHATTRA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal arises out of the judgment dated August 2,1988, passed by the Additional Sessions Judge No. l, Hanumangarh, by which the learned Additional Sessions Judge convicted the appellant under Section 8/18 of the Narcotics Drugs and Psychotropic Substances Act ( hereinafter referred to as' the Act') and sentenced him to ten years' rigorous imprisonment and a fine of Rs. 1 lac, and in default of payment of fine to further undergo two years' rigorous imprisonment.

(2.) THE incident, which led to the prosecution of the accused Section 8/18 of the Act, took place on May 17,1986, at about 10. 30 p. m. when the appellant was apprehended by the Station House Officer Shri Raghuveer Singh (PW4) THE case of the prosecution is that on may 17. 1986, at about 8. 15 PM. , the Station House Officer Shri Raghuveer Sing, the Deputy Superintendent of Police Shri Gangadhar Sharma, Kaliyan Singh F. C. , Hari Ram F. C. , Rameshwar Lal F. C. , Bhanwar Lal F. C. , Satyadeo Singh Constable and Hakam Singh F. C. , went on patrolling duty, At about 10. 30 p. m. , when they reached near the Gurudwars situated near Bhagatsing Choraha, Hanumangarh Junction, the accused appellant was coming-out from the Gurudwara, who was carrying a white bag in his hand. After seeing the police party, he returned back and tried to run away. Suspicion arose and the police party caught hold of him and on search of the bag, 1. 850 kgs. of opium was found in that bag. A sample from this material was taken, which was separately sealed and the remaining opium was also sealed in separate cover. After sealing the opium, the accused-appellant was arrested and the memo of arrest was prepared at the place of the occurrence and thereafter, after returning to the Police Station, a First Information Report was drawn at the Police Station at about 11. 50 P. m. THE sample was, thereafter, sent for Forensic Science Laboratory (F. S. L.) examination, which, on examination, was found as opium. THE police, after necessary investigation, presented a challan and the appellant was tried for the offence under Section 8/18 of the Act by the Additional Sessions Judge No. l, Hanumangarh. After trial, the learned Additional Sessions Judge No. 1, Hanumangarh, convicted and sentenced the appellant, as mentioned above.

(3.) THE next question which requires consideration is : whether the S. H. O. Raghuveer Singh was authorised and competent to investigate into the matter ? It is contended by the learned counsel for the appellant that the matter relates to May 17, 1986, and on that day, P. W. 4 Raghuveer Singh was not authorised under Section 42 of the Act to conduct the investigation. Section 42 of the Act deals with the power of entry, search, seizure and arrest without warrant or authorisation. According to Section 42, any such officer being an officer superior in rank to a peon, Sepoy or Constable of the department of the Central Excise, Narcotics, Customs, Revenue, Intelligence or any other department of the Central Government or the B. S. F. as is empowered by this provision by the general and specific order of the Central Government or any other such officer (being an officer superior in rank to peon, Sepoy or a Constable) of the Revenue, Narcotic Drugs Control, Excise, police or any other department of the State Government as is empowered in this behalf by the general or special order of the State Government, if he has reason to believe from personal knowledge or as per the information given by any person or taken down in writing that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Section 4 of the Act, has been committed or any document or any other article which may be furnished in evidence as such, is concealed in any building, conveyance or place, may between Sun-rise and Sun-set, enter into such building , conveyance or the place. According to the learned counsel for the appellant, authorisation before taking any search or seizure is a must. As the S. H. O. was not authorised, on the date of the incident with the power under Section 42 of the Act, and, therefore, he was not empowered to make search of the appellant and, therefore, the search made by P. W. 4 Raghuveer Singh and the investigation conducted by him on the basis of which the trial was conducted, vitiates the whole trial and the appellant deserves to be acquitted of the offence. In Support of his contention, he has placed reliance on : 1987 (2) R. L. R. 679, 1988 (1) R. L. R. 796, 1989 (1) R. L. R. 262, 1989 R. C. C. 474, 1989 R. C. C. 532, 1989 Cr. L. R. (Raj)413, 1990 R. C. C. 121 and 1990 R. C. C. 268.