RATAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Both the criminal appeals under Section 374 of the Code of Criminal Procedure, 1973 (for short, the Code hereinafter) are directed against the judgment and order dated 6-2-2003 passed by the Special Judge, NDPS Cases, Bhilwara (for short, the trial Court hereinafter) in Sessions Case No. 11/2002, whereby the trial Court convicted appellant Ratan Lal in Appeal No. 324/2003 for the offence under Section 8 read with Section 21 ( C ) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act hereinafter), as amended by the NDPS Amendment Act of 2001 and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 1,00,000/-, in default of payment of fine further to undergo simple imprisonment for one year. Appellant Kishan Lal in Appeal No. 213/2003 was convicted for the offence under Section 8 read with Section 21 (B) of the NDPS Act, as amended by the NDPS Amendment Act, 2001 and sentenced to undergo nine years' rigorous imprisonment and a fine of Rs.80,000/-, in default of payment of fine further to undergo eight months' simple imprisonment. Aggrieved by the judgment and order impugned, both the appellants have filed these two appeals. Both the appeals arise out of the common judgment and order and, therefore, are heard together and being decided by this common judgment.

(2.) I have heard learned counsel for the appellants and the Public Prosecutor for the State. Carefully gone through the judgment and order impugned, as also the record of the trial Court.

(3.) It is contended by the learned counsel for the appellants that the seizure officer PW 1 Phule Khan, Sub- Inspector, at the time of search and seizure, was posted as the Station House Officer of the Police Station and thus the search and seizure were made by an unauthorized person and, therefore, the conviction of both the appellants vitiates. It has further been contended that both the Motbir witnesses have not supported the prosecution case and, therefore, the conviction of the appellants cannot be based on the sole statements of the police witnesses. Learned counsel further contended that the provisions of Section 50 of the NDPS Act have not been complied with to the extent that the appellants were not apprised of their legal right to be searched in the presence of a magistrate or a gazetted officer. Lastly, it has been contended that the provisions of Sections 42 and 57 of the NDPS Act have not been complied with.