NARAINLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated November 21, 1990, passed by the Additional Sessions Judge, Rajsamand, by which the learned Additional Sessions Judge convicted and sentenced the accused-appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

(2.) THE incident which led to the prosecution and trial of the accused Narain Lal took place on September 23, 1989, when the accused was found alongwith a white bag containing 2. 400 kgs. of opium in a bus No. RRY 2951, which was coming from Pardi to Deogarh side. Bhanwar Singh, Assistant Sub-Inspector of Police, who was the Incharge of Police Station, Deogarh, received an information from a 'mukhbir' that accused Narain Lal is carrying opium and is travelling by bus No. RRY 2951, which was coming from Pardi to Deogarh. Bhanwar Singh, A. S. I. , alongwith Head Constable Dalpat Singh, Constable Bhagwat Singh and Constable Bhanwar Singh reached Anjana Circle (CHAURAHA) after recording the information in the 'rojnamcha'. After reaching Anjana circle at about 10. 05 a. m. the bus No. RRY 2951 coming from Pardi side, was got stopped by Bhanwar Singh, A. S. I. Accused Narain Lal was found on the last seat of the bus near the seat of the Conductor of the bus and was carrying a bag in his hand. Assistant Sub Inspector Bhanwar Singh asked Narain Lal to come down from the bus. THE accused came down from the bus. Three other persons Bhanwar, Hema and Sohan were asked to come down from the bus. THEreafter the bus proceeded. An information was given to the Deputy Superintendent of police PW 11 Bhanwar Singh who reached Deogarh at about 3. 30 p. m. and searched the accused, weighed the opium recovered from the accused Narain Lal and took two samples of 30 grams each, recorded the statements of the witnesses and prepared the site inspection note. THEreafter the accused, alongwith the sealed packets, was taken to Police Station, Deogarh. A case was registered under Sec. 8/18 of the Narcotic Drugs and Psychotropic Substances Act and the sample was sent to Forensic Science Laboratory for examination. After examination, it was found that the sample was containing morphine and it was opium. THE police, after necessary investigation, presented the challan against the accused and the accused-appellant was tried by the learned Additional Sessions Judge, Rajsamand, who, after trial, convicted the accused Narain Lal under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'the Act') and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo one year's rigorous imprisonment. It is against this judgment, passed by the learned Additional Sessions Judge, Rajsamand, convicting and sentencing the accused Narain Lal that the accused-appellant has preferred this appeal.

(3.) SECTION 50 of the Act specifies the conditions under which search of a person (accused) shall be conducted and it enjoins a duty upon the Officer, who is about to search a person, to take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in SECTION 42 or to the nearest Magistrate and make a search in the presence of the gazetted officer empowered under SECTION 42 or SECTION 43 of the Act, or before the nearest Magistrate. The provisions of section 50 of the Act have been made with an intention to act as a safe-guard against the vexatious search and unfair dealings. The provisions have, also, been incorporated in order to protect and safe-guard the interests of an innocent person. If a person is searched before a gazetted officer or before a Magistrate, as the case may be, then it will provide a weapon to the law-enforcing agency against the common allegation that the opium has been planted by the Investigating agency. In the present case, the appellant was neither asked by the investigating officer whether he wanted himself to be searched before a gazetted officer or the nearest Magistrate nor was the search conducted by Bhanwar Singh, A. S. I. in the presence of any gazetted officer or before the nearest Magistrate. In making the search, the investigating officer has, therefore, contravened the provisions of section 50 of the Act. As the Investigating Officer, in the present case, failed to comply-with the mandatory requirements of section 50 of the Act, it vitiates the whole trial and the accused-appellant, therefore, deserves to be acquitted on this score alone.