HANUMAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant Hanuman has been convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to ten years R.I. and a fine of Rs. one lakh by the learned AddI. Sessions Judge, Barmer by his judgment dated 18-2-87. He has come up in appeal.

(2.) The brief fact giving rise to this appeal are that on 28-2-86, Baney Dan, S.H.O., Chohatan along with Kishore Singh, Head Constable and Moti Singh, Sang Singh, Utama Ram, Constables to Patrol went on the road leading towards Kalnore. While they were sitting on a culvert near the mines behind the hilloc on this road they saw a person coming from the side of shok carrying a bag in his hand. When the man came near and saw the police officer there, he took to his heels. The police officer followed him and captured him. He gave out his name as Hanuman and on the search of his bag, opium was found wrapped in a yellow poly thin paper. It was weighed and came to be 1 kilo and 200 grams. They had took out a sample weighing about 30 grams and sealed the same as also the remaining opium in a different packet along with the diary which is said to be found along with opium in the bag. The accused was arrested and brought to the police station. The case was registered and after completing the investigations a challan was put up against the accused under sections 17 and 18 of the Act. It may also be mentioned that the sample sent for chemical examination was found to be of opium. At the trial, since the accused denied the offence, the prosecution examined seven witnesses. The accused was then examined and he also examined three witnesses in defence. After hearing the learned P.P. and the learned counsel for the accused, the learned AddI. Sessions Judge convicted and sentenced the appellant as aforesaid.

(3.) I have heard the learned counsel for the appellant and the learned P.P. and have gone through the record. In the first place, the learned counsel for the appellant tried to urge that since the accused had been arrested and searched by a person not authorised under section 42 of the Act, the whole proceedings were vitiated. However, a question further arose whether the authorisation of any officer of any of the departments mentioned in section 42 is necessary under section 42 before he can act under section 43 of the Act as the two provisions appear to be different and independent. The learned counsel wanted some time to obtain the copy of the bill on the basis of which the act was framed and to ascertain the reasons and purpose of the different sections of the Act and, therefore, the case was adjourned on 20-8-87. One more adjournment was granted on 27-8-87 and then the case has now come up today. The learned counsel has however, submitted that he has not been able to lay his hands on any material which may expressly throw any light on the intent and purpose of the legislation in enacting sections 42 and 43 of the Act and he has, therefore, given up that argument. On the merits of the case, the learned counsel for the petitioner has urged that the whole story put forward by the prosecution is shrouded in mystery and doubts. The only evidence is that Shri Baney Dan, S.H.O. and his subordinates Kishore Singh, Moti Singh and Utama Ram and the rests of the witnesses are only those who are said to have carried the sample from the police officer to the chemical examiner from time to time. No independent witness was present nor sought to be called at the time of the said recovery and even after the first Information report had been lodged by Baney Dan after the alleged recovery the further investigations were also not made by any independent superior officer. He placed reliance upon Bhagwan Singh v. The State of Rajasthan, in support of his contention that in the absence of independent witnesses the bare testimony of the police officers should not be relied upon if there are suspicious circumstances appearing in the case. He also placed reliance upon Rattan Lal v. State2 and Swarna v. State of Punjab3. On the other hand, the learned Public Prosecutor hits supported the decision of the learned AddI. Sessions Judge and has urged that the evidence of the prosecution witnesses cannot be rejected merely on the ground that they are police officers. He placed reliance upon Jeewan Prakash v. State of Maharashtra4 and Kanwar Lal v. State5.