JANWATA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two appeals arise out of the judgment dt. 22-11-93, passed by the Special Judge, N.D.P.S. Cases, Jodhpur, by which the learned Special Judge convicted accused-appellant Janwata Ram for the offence under S. 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act (in short, 'the Act') and appellant Surja Ram for the offence under S. 20(b)(ii) read with S. 29 of the Act and sentenced each of them to ten years' rigorous imprisonment and a fine of Rs. 1,00 000.00 each and in default of payment of tine, each of them was further sentenced to undergo rigorous imprisonment for one year. The learned Special Judge further ordered under Ss. 60 and 63 of the Act for the confiscation of the Hero Honda Motor-cycle No. RPZ 4406 as it was used in transportation of the contraband article.

(2.) Accused-apellants Surja Ram and Janwata Ram were tried by the learned Special Judge, N.D.P.S. Cases, Jodhpur, for the offences under Ss. 20 and 29 of the Act. The case of the prosecution is that the Superintendent, C.B.I., S.I.U. (II), New Delhi, received an information regarding smuggling of Hashish in Jodhpur area in the State of Rajasthan. To verify this information, Mr. Mehar Singh Deputy Superintendent, C.B.I., along with Sarvashri N. S. Virk and K. Babu, Inspectors, C.B.I., New Delhi, P.C. Sharma, A.S.I., Ram Kumar and Jagram Head Constable, Yed Ram, Surjan Singh and Farry Singh Constables, were deputed. They left New Delhi on 21-5-91 and reached Jodhpur on 22-5-91. On 27-5-91, Mr. Mehar Singh, Deputy Superintendent C.B.I., received information from some Mukhbir that Janwata Ram and Surja Ram will supply one Kg. of Hashish to some unknown person near Raika Bag Palace Railway Station (Jodhpur) at about 12.30 p.m. He, also, received the information that this Hashish will be carried by the accused on a red-colour Hero-Honda Motro-cycle bearing registration No. RPZ 4406. Mr. Mehar Singh called two Motbir witnesses, viz., PW 2 A. R. G. Vyas - the Branch Manager, UCO Bank, Paota, Jodhpur - and Mr. Gurmukh Singh Virwani - the Field Officer, S.B.B.J., Sojati Gate Branch, Jodhpur. Mr. Mehar Singh, Deputy Superintendent, C.B.I., along with the Police Party and the two Motbirs, went to Raika Bag Railway Station. The accused-appellants came on the motor-cycle. The motor-cycle was being driven by accused Surja Ram and Janwata Ram was sitting on the pillion. They were carrying a suit-case. They were detained. The accused tried to run away but they were caught-hold by the police party. They were thereafter informed by Mr. Mehar Singh that he is a gazetted officer and wants to search them and if they want to get themselve searched in the presence of a Magistrate then they may taken to the Magistrate but the accused showed their desire to be searched by PW 8 Mr. Mehar Singh. The accused were searched and on being searched, 30 kgs. 100 grams of Hashish was recovered from their possession. From the recovered Hashish, two samples weighing 200 grams each were taken. The samples as well as the remaining Hashish were seized and sealed properly. The accused were arrested and' thereafter the investigation was completed by PW 8 Mr. Mehar Singh and the charge-sheet was submitted against the accused in the Court of the learned Special Judge, N.D.P.S. Cases, Jodhpur. The prosecution, in support of its case, examined eight witnesses. The accused, in their defence, examined two witnesses. The learned Special Judge, after trial, convicted and sentenced the accused-appellants as stated above by his judgment dt. 22-11-93. It is against this judgment that the accused-appellants have preferred these two appeals challenging the conviction and sentence passed against them by the learned Special Judge.

(3.) It is contended by the learned counsel for the appellants that the compliance of the mandatory provision of S. 42 and 50 of the Act, have not been made and Mr. Mehar Singh, the Deputy Superintendent, C.B.I., who arrested the accused, made the recoveries, investigated into the matter and challenged the accused-appellants was not the authorised officer Ss. 41 or 42 or any other provision of the Act. No Notification has been produced by the prosecution authorising the Officers of the C.B.I. to investigate into the matter or to arrest the accused or to search or seize under the Act. It has further been submitted by the learned counsel for the appellants that the article and the samples seized by Mr. Mehar Singh were not produced in the Court for one year and for the first time they were produced in the trial Court on 31-5-92 during the course of examination of PW 8 Mr. Mehar Singh and this delay is fatal to the prosecution case. It has, also, been argued by the learned counsel for the appellants that the search, seizure and arrests were made by Mr. Mehar Singh, who, also, conducted the later part of the investigation, which vitiates the trial. Lastly, it is contended by the learned counsel for the appellants that the original F.I.R. recorded in the present case has not been produced and even the copy of the F.I.R. reached in the Court only on 7-6-92, which, also, vitiates the trial. Learned counsel for appellants Surja Ram, also, submitted that no knowledge regarding the content of the article in the attachee can be attributed to appellant Surja Ram and he only gave a lift to accused Janwata Ram up to Railway Station, Raika Bag, and, therefore, the appellant cannot be convicted with the aid of S. 29 of the Act. It has, also, been contend by the learned counsel far appellant Surja Ram that the compliance of Ss. 55 and 57 of the Act have not been made and the appellant, therefore, deserves to be acquitted. The learned Special Public prosecutor Mr. S. R. Dave, on the other hand, has supported the judgment passed by the Court below and submitted that the compliance of Ss. 42, 50, 55 and 57 of the Act have been made out in the present case and there is no violation of any of these mandatory provisions of the Act as alleged by the learned counsel for the appellants. It has, also, been contended by the learned Special Public Prosecutor that Mr. Mehar Singh, Deputy Superintendent, C.B.I., was an officer authorised under the Act to search, seize arrest the accused and to make investigation in the matter and as he was an authorised officer under the Act, therefore, the search, seizure and arrest, made by him, were in accordance with law. It has, also, been contended by the learned Special Public Prosecutor that no two of Beers, under the Act, are required to make investigation and the investigation can be conducted by one officer and there is no illegality in conducting the investigation and the judgment, passed by the learned Court below, therefore, does not require any interference.