1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Rajasthan Vs. Onkar Lal S.B.Criminal Appeal No. 429/1990 UNDER SECTION 378 (I) AND (III) OF THE CR.P.C. AGAINST THE JUDGMENT DATED 13.6.1990. DATE OF JUDGMENT :::: August 8, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr B.K.Sharma, PP, for the State. Mr R.P.S. Rajawat, for the respondent. BY THE COURT Challenge in this appeal is to the judgment dated 13th June, 1990 whereby the Sessions Judge Jhalawar has acquitted the accused respondent Onkar Lal in the offence under Section 8/18 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “Act, 1985”). 2. The accused respondent has been indicted for the offence of having found in possession of 1.600 Kg opium on 10th May, 1988 which was in two bags of polythene lying beneath the bags of fodder. It is alleged that PW/4 Duli Chand accompanied by Ishak Mohd. ASI, Bhairon Singh, ASI Rajpal Singh Constable and others while on patrolling, reached the house of the accused Onkar Lal and took the search of a room situated on the first floor wherein the bags of fodder were lying. PW/4 Duli Chand prepared the search memo Ex.P/1 and after undergoing 2 the process of taking out of samples, weighing and sealing them etc., arrested the accused vide memo Ex.P/2. After usual investigation the police sent the accused for trial. 3. The accused was charged for the offence under Section 8 read with Section 18 of the Act, 1985 who pleaded not guilty and claimed trial. The prosecution has examined 13 witnesses to prove its case. The accused in his explanation under Sec. 313 of Cr.P.C., claimed innocence. After completion of trial, the learned trial Court acquitted the accused as indicated hereinabove. 4. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, learned counsel for the accused respondent and with their assistance, scanned the relevant material available on record. 5. The learned Public Prosecutor has contended that the room from where the said opium is alleged to have been recovered, belongs to the accused and his exclusive possession over this room is proved from the evidence of the prosecution witnesses. The learned trial Court has erroneously held that the said room was not in the exclusive possession of the accused. The learned Public Prosecutor has further contended that PW/3 Bhairon Singh ASI was fully authorised to seize the opium and the observation of the learned trial court with regard to his incompetence is not just and legal. The learned 3 trial court has not properly appreciated the evidence of the prosecution witnesses. Hence, the impugned judgment of the lower Court deserves to be set aside and the accused respondent be convicted. 6. Per contra, the learned counsel for the respondent has simply submitted that the judgment of the lower Court is perfectly just and legal. The prosecution has miserably failed to establish the exclusive possession over the room from where the alleged opium is said to have been recovered, as such, the said appeal deserves to be dismissed. 7. Having reflected over the prosecution evidence, the learned trial court is found to have acquitted the accused on the following grounds: (i) PW/3 Shri Bhairon Singh received the information from informer of opium lying in the personal house of the accused Onkar Lal. He co-opted two witnesses Roop Lal and Madan Lal from the vicinity and in their presence entered in the room where 3-4 bags of fodder were lying inside. Shri Bhairon Singh recovered two polythene bags of blue colour which contained 740 grams and 860 grams opium respectively. The learned trial Court held that in the light of notification No. S.O/115 dt.16.10.1986, ASI was not authorised to arrest search and seizure of the contraband article. (ii)The learned trial court has critically analysed the prosecution evidence in detail and in the light of the judgment of Rajasthan High Court reported in RCC 1990, 121 (Suresh Lal Gupta vs. Rajasthan State, RCC 1988 556 Viram Vs. State of Rajasthan, Cr.Law Reporter (Raj.) 1989, 156 (Chhote Lal Vs. Rajasthan State and Cr.Law Reporter (Raj.) 1990, 149(Bhanwar Singh Vs. State of Raj.) has held that the Investigating Officer has not made the proper compliance of the mandatory 4 provisions of Section 50, 52, 55 and 57 of Act 1985. (iii)Finally, the learned trial Court observed that the prosecution miserably failed to establish the recovery of the said opium from the exclusive possession of the accused, hence acquitted. 8. A perusal of the notification S.O/115 dt.16.10.1986 issued under Section 42 of the Act of 1985 reveals that the powers of investigation particularly detention, search, arrest and seizure were given according to the Section 42 and 43 of the Act to the Officers of the rank of Sub-Inspectors and of the rank of Sub-Inspectors and the Department specified were Central Excise, Customs,Revenue Intelligence and Central Bureau. In the instant case, the accused respondent was detained and arrested on 10th of May 1988 and alleged opium was recovered from his possession on the same day when the notification dated 16th of October 1986 was in force. PW/3 Bhairon Singh being ASI was not authoritized to conduct the search, seize the contraband articles and arrest the accused for the offence under the Act of 1985. Thus, in the light of aforesaid notification it is very well proved that the entire exercise of conducting the search, seizure of contraband articles and arrest of accused has been made by a Police Officer not authorized to do so under Section 42 of the Act of 1985. 9. Secondly, in the case of Beckodan Abdul Rahim Vs. State of Kerala (2002) 4 SCC 229, the Hon'ble Apex Court has held that the safeguards mentioned in Section 50 are intended to serve a dual 5 purpose to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. Section 50 has been introduced with the obvious intent to avoid any harm to innocent persons and to avoid raising of allegation of planting of fabrication by prosecuting authorities. It is now well settled by the catena of judgments of the Hon'ble Supreme Court as also this Court, that the provisions of Section 50 are mandatory in nature and the empowering authority is required to make strict compliance thereof. In the instant appeal also it is found that the compliance of the mandatory provision of Section 50 of the Act of 1985 has not been made by the unauthorised Investigating Officer and thus it vitiates the trial. 10. The learned trial Court in its detailed discussion has properly appreciated the prosecution evidence and considered all the possible aspects of the case. The judgment of the learned trial court is found to be cogent and well meritted I fully concur with the finding of the lower court that the prosecution has miserably failed to fasten the guilty upon the accused- respondent. The arguments advanced by the learned Public Prosecutor are found to be devoid of force as also devoid of merits and in my firm view, the impugned judgment calls for no interference. 11. For these reasons, the State appeal being devoid of merits stands dismissed. The accused- respondent is on bail and his bail bonds stand discharged. (MAHESH BHAGWATI),J. PCG