JAGAT RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 17.7.93, passed by the Additional Sessions Judge No. 1, Sri Ganganagar, by which the learned Additional Sessions Judge convicted the accused-appellant for the offence under Sec. 8/15 of the Narotic Drugs and Pshychotropic Substances Act and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 1,00,000.00 and in default of payment of fine further to undergo one year's rigorous imprisonment.

(2.) The appellant was tried by the learned Additional Sessions Judge No. 1, Sri Ganganagar, for the offence under Sec. 8/15 of the Narcotic Drugs and Psychotropic Subsequence Act (for short, 'The Act). The case of the prosecution, in brief, is that on 25.11.91, Sub-Inspector Mani Ram of Police Station, Sadar, Sri Ganganagar, alongwith Constables Sukhmahendra Singh, was on the routine patrolling duty and went to Check Post, Sadhuwali. While he was at the Check Post, Sadhuwali, he received some information at about 11.30 a.m. that one person from Gang Canal Link Channel side is coming with the opium poppy. They made a Nakabandi on the bridge and at about 11.50 a.m., the accused come there. He was coming on feet and was carrying a bag. The accused was informed that if he wanted to get himself searched before a gazetted officer or the nearest Magistrate then he may be taken before him, upon which the accused said that he had no objection if the search is made by the Sub-Inspector himself. The search of the accused was then made in the presence of two independent witnesses, viz., PW 1 Lal Chand and PW 2 Sadhu Ram, and on search two kilograms of opium poppy was found in four paper-bags. The article recovered from the possession of the accused-appellant was weighed and scaled in the presence of two motbir witnesses, viz., PW 1 Lal Chand and PW 2 Sadhu Ram, the accused was arrested, he was brought to the Police Station, the F.I.R. was registered and thereafter the investigation was conducted by PW 6 Mani Ram, the charge- sheet was filed against the accused and the accused- appellant was tried by the learned Additional Sessions Judge No. 1, Sri Ganganagar for the offence under Sec. 8/15 of the Act. The prosecution, in support of its case, examined six witnesses. PW 1 Lal Chand and PW 2 Sadhu Ram are the two Motbir witnesses, in whose presence the search of the accused-appellant was taken, the recoveries were made, the accused was arrested and the site plan was prepared. PSW 3 Sukhmahendra Singh is the Foot Constable, who accompanied PW 6 Mani Ram in the routine checking at the Check Post, Sadhuwali, where the information from some Mukhbir that the accused was carrying opium-poppy, was received and thereafter they proceeded towards the canal bridge, made a Nakabandi, searched the accused, made the recoveries and arrested the accused. PW 4 Bhanwar Singh is the Constable posted at the relevant time at Police Station, Sadar, Sri Ganganagar, who took the samples for F.S.L. examination to the State Forensic Science Laboratory, Jaipur and PW 5 Jugal Kishore is the Malkhana Incharge at Police Station, Sadar, Sri Ganganagar, with whom the sealed articles were deposited by PW 6 Mani Ram and from where they were taken by PW 4 Bhanwar Singh for F.S.L. Examination to the aforesaid Laboratory. Both these witnesses have stated that the seals on the samples remained intact till they remained in their possession. PW 6 Mani Ram in the Sub-Inspector Police, posted at Police Station; Sadar, Sri Ganganagar, who, while on routine patrolling duty, received the information, did the Nakabandi near the Link Canal Bridge, found the accused coming on foot with a bag, stopped him, searched him, made the recoveries, arrested the accused and after completion of investigation presented the challan against the appellant.

(3.) It has been contended by the learned counsel for the appellant that the compliance of Sec. 42 of the Act has not been made in the present case as the information received by PW 6 Mani Ram has not been recorded nor was it sent to the immediate officer superior and as the compliance of the mandatory provisions of Sec. 42 of the Act has not been made, therefore, the trial and conviction of the appellant stand vitiated. It has, also, been contended by the learned counsel for the appellant that the investigation was made by PW 6 Mani Ram, who searched, seized and arrested the accused, lodged the F.I.R. and investigated into the matter. The investigation should have been conducted by some another person and as the investigation was conducted by the complainant himself, therefore, the whole trial stands vitiated. Lastly, it is contended by the learned counsel for the appellant that PW 6 Mani Ram was working as Sub-Inspector of Police, posted at Police Station, Sadar, Sri Ganganagar, and was not the Station House Officer, therefore, he was not authorised, under the provisions of the Act, to search, seize, arrest and investigate into the matter and, therefore, the investigation, made by PW 6 Mani Ram was wholly without jurisdiction, which vitiates the whole trial. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the provisions of Sec. 42 of the Act are not applicable in the present case as the search was made at the public place on the bridge and, therefore, Sec. 43 of the Act is applicable, which does not require recording of any information and despatching the same to his immediate officer superior. So far as the contention that the investigation was conducted by the same person who made the search, seizure and arrest of the accused, is concerned, in view of the latest judgment of the Supreme Court in the case of: the State of Punjab Vs. Balbir Singh, (JT 1994(2) SC 108) , PW 6 Mani Ram was competent to conduct the investigation after making search, seizure and arrest of the appellant. It has, also, been contended by the learned Public Prosecutor that PW 6 Mani Ram was vested with the powers under Sec. 42 and 43 of the Act.