SARDAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed under Section 374 Cr. P. C. against the judgment dated 4. 4. 2000 delivered by learned Special Judge, NDPS Act Cases, Jodhpur by which each of the three appellants herein have been convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as "the Act") and awarded minimum sentence of 10 years' rigorous imprisonment alongwith a fine of Rs. 1,00,000/ -.

(2.) BRIEF facts are that PW-1 Shri Kalyanmal Meena Dy. S. P. who was Circle Officer of Jaisalmer on 1. 4. 1999 at 3. 45 P. M. received a secret information at his office that three persons named Sardar Singh, Rajmal and Moolchand are likely to hand over charas to some persons at Damar Road between Baramsar and Baisakh. Mr. Kalyanmal got the above secret information recorded in his rojnamcha at Sr. No. 31 which is Ex. P/1 and simultaneously informed the Superintendent of Police on telephone who was also having his office nearby and in the same building. He similarly also informed in writing about the above information to the Superintendent of Police. Thereafter two independent witnesses viz. PW-3 Ramesh and PW-4 Kishan Singh were also called. Similarly services of PW-11 Ajay Singh Rathore, Sub Divisional Magistrate, Jaisalmer were also requisitioned. Upon their coming the raiding party started towards the place of occurrence on a police gypsy jeep at about 4. 25 P. M. and got the jeep secluded behind the jal trees and got the members of the party deputed at sundry places. After some time three persons were seen coming from Baramsar side on a scooter which was being driven by a person wearing white dress. Two persons were pillion riders. The scooter stopped nearabout jal trees and all the three got down. At that juncture PW-2 Narpatdan ASI called out that these were the three persons who are mentioned by mukhbir. Upon this one of the accused persons shouted that police gypsy is standing there and thereafter all the three started running away holding one bag each in their hands. At this the police party chased and caught hold of them alongwith bags in their hands. Thereafter a joint notice Ex. P/3 under Section 50 of the Act was given to all the three persons asking them that if they want their search can be conducted before a Magistrate or any Gazetted Officer. The above notice was given in presence of PW-11 Ajay Singh Rathore. SDM. All the three accused persons voluntarily stated that they can be searched by PW-1 Kalyanmal Dy. S. P. in presence of SDM. Thereafter the personal search was conducted and the bag which was with Sardar Singh was having two polythene packets inside weighing 1830 grams whereas the bag with Rajmal contained 920 grams and with Moolchand was 750 grams. All the packets were having charas and they were not having any licence to carry the same. Therefore, the above quantity was confiscated and two samples from each packet weighing 60 grams each were taken out, seized and sealed there and then. The remaining material was also seized and sealed then and there. In presence of Ramesh and Kishan Singh attesting independent witnesses as also in presence of PW-11 Ajay Singh Rathore SDM and the members of the raiding party. A seizure memo Ex. P/4 was also prepared there and then. Scooter was also seized vide Ex. P/6. Site plan map Ex. P/5 was also prepared there and then. All the three accused were put under arrest vide memos Ex. P/7 to Ex. P/9 and thereafter usual investigation was conducted. The samples so seized and sealed were sent to the Forensic Science Laboratory, Jaipur in sealed condition whereupon examination vide report Ex. P/19 they were found containing charas.

(3.) EVEN assuming that before search none of the accused were informed that they have a right under Section 50 of the Act yet that by itself will not vitiate the trial as per the Constitutional Bench pronouncement of State of Punjab vs. Baldev Singh (3), which has subsequently been relied upon in Abdul Rahim Ibrahim Mansuri vs. State of Gujrat (4), Ahmad vs. State of Gujrat (5) and Kolutumotil vs. State of Kerala (6), among others. At the most it may cause some prejudice to the accused persons and if the above prejudice is not sufficient enough to throw the case over board the accused appellants can be convicted.