KESHA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been field by the accused appellant against the judgment and order dated 24. 9. 1986 passed by the learned Sessions Judge, Balotra in Sessions Case No. 8/86 by which he convicted the accused appellant for the offence under Section 8/18 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced him to undergo ten years RI and to pay fine of Rs. One lac, in the default of payment of fine, to further undergo RI for one year.

(2.) THE facts giving rise to this appeal, in short, are as follows:- On 17. 1. 1986, P. W. 1 Khangar Khan, ASI in Police Station Samdari District Barmer while on patrolling alongwith Bhanwar Singh and Nawal Kishore (PW2) near Sarhad Melee Bandha, received a secret information from mukhbir to the effect that accused appellant Kesaram used to deal in illegal business of opium and he had opium in his possession at his house. THEreafter, he alongwith two motbirs PW5 Madha Ram and PW6 Heera Ram reached the house of the accused appellant where he was found and he was informed about the mukhbir information. THEreafter, search of the house of the accused appellant was conducted and in the house, there were three jhumpas belonging to the accused appellant and in one of the jhumpas, one earthen pot containing black substance was recovered and on being tasted, it was assessed that it was nothing, but contraband opium and on being asked, the accused appellant told that he had no valid licence to keep that opium. THEreafter, the opium was weighed and its weight was found to be 70 grms. , out of which, one sample of 30 grms. was taken for the purpose of chemical analysis. PW1 Khangar Khan prepared the fard of search and seizure on the spot and the same is Ex. P/2. THE accused appellant was arrested through arrest memo Ex. P/4. PW1, Khangar Khan chalked out regular FIR Ex. P/6 and he first kept the recovered articles in his possession and, thereafter, handed over the same to PW3 Rewant Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/7a. THEreafter, one sample was given to PW4 Baburam, who after obtaining forwarding letter Ex. P/9 from SP, Barmer, deposited he same in FSL, Jaipur on 21. 1. 1986 and got receipt Ex. P/8. THE FSL report is Ex. P/12, where it was stated that the sample contained in the packet was opium having 3. 84% (Three point eight four percent) Morphine.

(3.) ON this point, the simple case of the learned counsel for the accused appellant is that on the relevant date meaning thereby on 17. 1. 1986, PW1 Khangar Khan was simply ASI of Police Station Samdari and not the SHO of that Police Station and, therefore, the proceedings of search and seizure conducted by him are without jurisdiction. In support of this contention, he has placed reliance on the Notification No. F. 1 (3)FD/ex/85-1 dated 16. 10. 1986 issued by the Government of Rajasthan. For convenience, the said Notification is quoted here:- "no. F. 1 (3)FD/ex/85-1 dated 16. 10. 1986 S. O. 115.-In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985) the State Government hereby authorise all Inspector of Police, and Sub-Inspector of Police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said act with immediate effect: Provided that when power is exercised by Police Officer other than Police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or S. H. O. of the Police Station concerned. "