PARMANAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By judgment dated 17.5.2007 passed by Special Judge, N.D.P.S. Cases, Baran in sessions case No. 137/2004 the appellant applicant has been convicted under Sec. 8 read with Sec. 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'N.D.PS. Act') and he has been sentenced to ten-years rigorous imprisonment and a fine of rupees one lakh and in default of payment of fine further rigorous imprisonment for six months.

(2.) Heard learned counsel for the appellant applicant, learned Public Prosecutor for the State and perused the relevant material placed before me.

(3.) Learned counsel for the appellant applicant submits that 1 kg and 10 gram opium is alleged to have been recovered from the possession of the appellant applicant which quantity is less than commercial. He submits that search and seizure have been made by Bhanwar Singh PW. 2 who was posted as S.I. Kotwali Baran whereas on that day Rajendra Singh Gogawat PW. 9 was the SHO, Kotwali, Baran. He submits that as per the notification dated 16.10.1986 S.O. 155 issued in exercise of the powers conferred by Sec. 42 of the N.D.P.S. Act the State Government has authorised only that SI who is posted as Station House Officer to make the search and seizure whereas in the present case Bhanwar Singh PW. 2 has made the search and seizure who was posted simply as SI and not as SHO Kotwali Baran and, therefore, he was not authorised person to make the search and seizure and the search and seizure made by him is thus vitiated. He places reliance on 2006(3) WLC (Raj.) 392. He submits that the appellant applicant has already remained in jail for about one year and nine. months. He, therefore, prays that the appellant applicant be released on bail. Learned Public Prosecutor opposes the application.