KISHNARAM GURJAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of filing the instant appeal, challenge has been made to the judgment dtd. 16/5/1995 passed by the learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No. 47/1994 whereby the appellant was convicted for committing an offence under Sec. 8/18 of NDPS Act and he was sentenced to suffer ten years' rigorous imprisonment alongwith a fine of Rs.1,00,000.00 and six months' further sentence if default in payment of fine is committed.

(2.) Briefly stated the facts of the case are that upon receipt of information on 4/6/1993 regarding illicit transportation of contraband by an unknown person in a Roadways bus, the Police Officer went to the spot and stopped the bus. Upon checking as per the allegation, the appellant was having bag in his hand was apprehended for having in possession 2 Kilo 300 gram opium. It is claimed that two samples were taken from the content filled in the bag and the rest of the article alongwith the samples were sealed and seized. After usual investigation, the appellant was charge-sheeted and the trial was commenced. Twelve witnesses Rs.were examined and reliance was placed on 12 documents to substantiate the charge. The accused was examined under Sec. 313 of Cr.P.C. and he claimed innocence. After hearing the learned Counsel for the parties, the learned Trial Court convicted him as mentioned above.

(3.) I have heard the learned Counsel for the appellant, the learned Public Prosecutor and also gone through the record of the case. PW- - 8 (Mool Singh) received the information as he claimed and whereupon forwarded the information to Azad Sharma, Police Officer to effect seizure and further proceeding. Neither the information was reduced into writing nor the same was forwarded to Superior Police Officers, nor any attempt was made to obtain a warrant from the Superintendent of Police or from a Court. Exact compliance of Sec. 42 of NDPS Act has not been made. The witness claims supplying a notice of Sec. 50 of the NDPS Act to the appellant which is tendered into evidence and marked as Ex.-P-1, however, a perusal of which revealing defect in the notice (Ex.P-1). It is mentioned in the notice that the Seizing Officer was a gazetted Officer and, therefore, the accused was given an option to get searched by a Judicial Magistrate. The option has been limited by insertion of the word "Judicial" since the law requires right of the accused to ask for his search before a Magistrate which may be an Executive Magistrate. Further the purport of notice under Sec. 50 of NDPS Act would be to make the search either before a gazetted Officer or before a Magistrate but certainly not by the Gazetted Officer or by the Magistrate. Putting restraint or limiting right by unnecessarily putting foreign word "Judicial Magistrate" instead of a Magistrate has certainly made/the document Ex.-P-1 erroneous and not in consonance with the law as well. Ex.P-4 is the memo of arrest prepared by the Seizing Officer on 4/6/1993 at 2.15 PM but the same does not have mentioning of any notice under Sec. 50 of the NDPS Act allegedly given to the accused. If the notice dtd. 4/6/1993 at 1.55 PM was there, then where it vanished thereafter. Had the notice Ex.P-1 been given to the accused at 1.55 P.M., then certainly its availability should be with the accused when he was arrested and personally searched at 2.15 P.M. vide Ex.-P/4. Certainly the above mentioned aspects are fatal to the prosecution.