NAND LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been directed against the judgment of Sessions Judge, Ajmer, dated February 17, 1987, whereby the convicted the accused -appellant for offence under Section 8 read with Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (here in after referred to as 'the Act') and sentenced him to 10 years' rigorous imprisonment and a fine of Rs. 1,00,000/ - and in default of payment of fine the accused -appellant was ordered to suffer 1 year's further simple imprisonment.

(2.) THE brief facts giving rise to this appeal are that a report was lodged at 2.55 a.m. on November 21, 1985 by Amanulla Khan a literate Head Constable G.R.P., police station, Ajmer wherein it was alleged by him that on the night intervening between 20th and 21st November, 1985 he had gone for general checking of smugglers and miscreants and went towards train 16 down at 2.45 a.m. on platform No. 2. No sooner the train steamed in and stopped he started keeping an eye on the movements of the passengers getting down from Ajmer -Khandva coach. He noticed one man who had wrapped bottle green cloths getting down with a rexine bag in his hand. After seeing on the either side he started moving on the back side of the train. Suspecting his movements Amanulla Khan asked his name and address on which he became nervous. He told his name as Nand Lal son of Ratiram by caste Dhakar, resident of Raoti, police station Begun, District Chittor. Some railway employees who were around were called by Amanulla and asked the accused about the contents of the bag on which he said that besides some domestic goods there is opium. On demand he could not produce the permit, therefore, along with both the railway employees who were taken as motbirs, namely, Jagdish Prasad and Ram Swaroop, he was taken to the police station and the aforesaid report was taken own in police station. After taking down this in Rojnamcha and recording the FIR police proceedings were taken and the bag was got opened wherein a dirty white male Dhoti was found, below it was ground -nut then there was a black rexine bag which contained some wet material wrapped in polythene. When removed and tested and smelt it appeared like opium. Since he had no licence his case fell under Section 4/9 of the Opium Act. It was got weighed and its quantity was found to be 800 grams out of which two samples of 30 grams each were taken for chemical examination which were sealed. The accused was arrested at 3.15 a.m. and from his possession, according to arrest memo, was found a bag which contained opium as mentioned above and IInd class Railway Ticket No. 10773 from Bhilwara to Kishangarh. Statements of the witnesses were recorded under Section 161 Cr. P.C. and the goods were sent to the Forensic Science Laboratory, the result of which confirmed it to be opium as it was written that 'on chemical examination the sample contained in the packet marked A -1 was found to be opium having 2.35% morphine. After completing the investigation charge sheet was submitted against the accused -appellant in the court of Judicial Magistrate (Railway), Ajmer for offence under Section 18 of the Act. The learned Magistrate committed the accused for offence under Section 8/18 of the Act. The learned Sessions Judge on 29th September, 1986 read over the charge for offence under Section 8 read with Section 18 of the Act to the accused who pleaded not guilty and claimed to be tried.

(3.) SHRI P.K. Sharma appearing on behalf of the appellant challenged the conviction on several grounds. He has also raised a legal issue to the effect that the investigation was unauthorised and no charge -sheet could be submitted against him in as much as Shri Amanulla Khan was not expressly or impliedly authorised to exercise the powers Under Section 42 of the Act. It is contended by him that in pursuance of Section 42 of the Act no police officer was authorised and had power of entry, search seizure and arrest any person under the Act. The powers were conferred on 16 -10 -1986 by a notification and that too only on all Inspectors of police and Sub -Inspectors of police who were working as Station House Officers and thus earlier no police officer much less the head constable Amanulla Khan had any authority under the law to apprehend the accused -appellant, It is submitted that even assuming that since the documents were prepared by Shri Ram Chandra Station House Officer, G.R.P. Police State, Ajmer even then he too on 21 -11 -1985 was not authorised, since till then he had no jurisdiction. He should have handed over the matter for investigation to the authorities specified in the Act. It has further been submitted that even on 15 -7 -1986, the date on which the charge sheet submitted, Shri Ram Chandra was not authorised to submit the same. He, therefore, submitted that the illegality in the investigation has caused miscarriage of justice and, therefore, trial has been vitiated. He has further submitted that fair and proper investigation has not been carried out. It is further submitted that no independent motbirs had been taken in the case and their statements did not even fully corroborate the testimony of Amanulla Khan. It is further submitted that their is no positive and convincing evidence to substantiate that the sealed packet remained in proper custody from the time of seizure to the time it reached the Forensic Laboratory. It is submitted that the accused -appellant was a bonafide passenger with a ticket travelling from Bhilwara to Kishangarh. He had wrongly been taken down from the train and even his money was taken away. Whatever money has been recovered from his pocket has not even been shown in the arrest memo and the police has come with a case as if he was travelling peniless with the goods for which the minimum punishment is 10 years' imprisonment and a fine of Rs. 1,00,000/ -.