STATE OF RAJASTHAN Vs. KUMARI VYASA SHARMA

JUDGEMENT

(1.) This criminal appeal under Section 378 of the Code of Criminal Procedure has been filed against the judgment dated 8.8.1997 passed by the learned Sessions Judge, Ajmer whereby he has acquitted the accused-respondent for the offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (in short, the N.D.P.S. Act) in Sessions Case No. 10/1996.

(2.) Briefly stated the facts for the disposal of this case are that on a written report Ex.P-7 lodged by the Dy.S.P. (Rural), Ajmer in the Police Station Pushkar on 5.11.1996, a case under Section 8/20 of the N.D.P.S. Act was registered. It was alleged in Ex.P-7 that an information was received on telephone by the SHO, Pushkar that a lady 21 years of age wearing red and yellow printed salwar suit was wandering in Pushkar and was having with her contraband material in plastic bags. This information was received at 11.30 a.m. and thereafter a lady head constable was taken to the place regarding which the information of the accused was given. The police party apprehended,the accused and disclosed their identity and also stated that they had an information that she was having contraband material with her. The accused was searched in the presence of SDM who was also intimated about the information. It was also alleged that the accused was informed that her search could be taken either by the Dy.S.P. or S.D.M. present at the spot. The accused gave consent that she may be searched before the SDM Smt. Roli Singh. Search was taken by a lady head constable of a plastic bag which she was holding in her left hand. On opening the plastic bag, charas was found. On weighing net weight of charas was found to be 210 gms. Two samples of 20 gms. each were taken at the spot. Samples were sealed and also the remaining charas 170 gms. was seized. On completion of investigation, charge-sheet under Section 8/20 of the N.D.P.S. Act was filed against the accused-respondent and the matter came up for trial. The learned trial Court on 16.1.1997 framed charge against the accused-respondent under Section 8/20 of the N.D.P.S. Act to which the accused denied and claimed trial. In all seven witnesses were produced and some documents were tendered in evidence. After close of the prosecution evidence in the statement recorded under Section 313 Cr.P.C., the accused stated that she had come to Pushkar for 'darshan' of Brahma temple. In the temple one person met her and asked to accompany him. Subsequently, it was known that it was Budhram and she was apprehended by the police and brought at the Police Station and a false case has been lodged against her. It was also stated that no recovery was effected from her bag. The learned trial Court after hearing both the sides found that PW-7 Kesar Singh was having an information about the contraband material with the accused and he recorded the information and the same was sent to S.P., Ajmer vide Ex.P-10. The learned trial Court further found that PW-5 Inderjeet Singh has effected recovery and he did not make any search of the accused, therefore, it was not sufficient compliance of Section 42(1) of the N.D.P.S. Act. The learned trial Court further found that in the instant case compliance of Section 50 of the N.D.P.S. Act has not been made in the manner in which it was required to be made. The learned trial Court further found that the compliance of Section 57 of the N.D.P.S. Act was not mandatory and its non-compliance was not fatal considering the entire facts and finding discrepancies in the prosecution evidence, acquitted the accused from the charge under Section 8/20 of the N.D.P.S. Act vide judgment and order dated 8.8.1997. Hence, this appeal.

(3.) It has been contended by the learned Public Prosecutor that the learned trial Court has misread the evidence and the accused was searched before PW-4 Roli Singh who is an IAS officer and was at the relevant time. SDM, therefore, it cannot be said that the compliance of Section 50 was not made. It is also contended that the learned trial Court committed an illegality in considering non-compliance of Section 42 of the N.D.P.S. Act.