[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT (1) S.B. CRIMINAL APPEAL NO. 1009/2002 SIKENDAR Vs. STATE OF RAJASTHAN & (2) S.B. CRIMINAL JAIL APPEAL NO.1172/2004 SIKERNDAR Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 (2) CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 20.07.2002 PASSED BY THE SPECIAL JUDGE, NDPS ACT, BUNDI IN SESSIONS CASE NO. 11/2000. Date: 14/08/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. N.C. Chaudhary for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the judgment and order dated 20.07.2002 passed by the Special Judge, NDPS Act, Bundi, whereby the accused-appellant has been convicted under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act of 1985') and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Brief facts giving rise to the present appeal are that on 18.08.99, FIR was lodged by Shri [2] Shiv Singh Meena, SHO, P.S. Sadar, wherein it was stated that during patrolling the complainant reached at Railway Station Tiraha, National Highway No. 12, Bundi, where a truck bearing No. MP-14/B- 7288 was coming from Kota and the same was intercepted. Immediately the truck driver fled away after parking the truck on the road side. The conductor (Khalasi) was found in the truck. On interrogation, the conductor disclosed his name as Sikendar S/o Abdul Gaffar, R/o- Chhipabarod, District Baran and the name of the driver of the truck was disclosed as Abdul Salim S/o Aabdul Suleman, R/o Chhipabarod, District Baran. Upon search which was conducted following the due process of law, 101 bags of opium Doda-post were recovered, for the possession of which no licence was shown. The alleged contraband article was seized and on weighing of Doda-post, the weight of the same was found 4199 kg. along with Bardana and actual weight of opium Doda-post was found 4128.300 kg. Thereafter sample was taken and the accused- appellant was arrested. Subsequently, a case was registered at Police Station Sadar, Bundi and investigation commenced. After completing the investigation, the police filed charge-sheet against the accused-appellant and Abdul Salam @ Salim under Section 8/15 of the NDPS Act. [3] 3. The Special Judge, after hearing rival submissions of the respective parties, vide its impugned judgment dated 20.07.2002 convicted and sentenced the accused-appellant as mentioned herein above. 4. Main challenge to the impugned judgment dated 20.07.2002 by way of the present appeal is on the ground that the Special Judge has committed serious error in not appreciating the evidence properly and further overlooked the material available on the record when specifically no recovery was made from the exclusive possessions of the accused-appellant. It is contended that the accused-appellant was travelling in the truck with the capacity of a passenger and he was not concerned at all with the alleged crime and the prosecution has utterly failed to prove its case against the accused-appellant beyond reasonable doubt. It also submitted that the accused- appellant was a conductor of the alleged truck and the owner of the truck was not made accused in this case by the prosecution and no enquiry was made from the owner of the truck as to who was the driver and conductor of the alleged truck and the owner has not appeared in the witness box. Further this aspect has not been established whether the sample of the alleged contraband article which was [4] sent to the FSL, was intact or not. 5. Learned counsel for the accused-appellant further submits that the Special Judge has overlooked the compliance of the provisions of the NDPS Act which is mandatory in nature. Compliance of Sections 42, 50 and 57 of the NDPS Act was not made by the prosecution and the compliance of the aforesaid provisions is mandatory. 6. It is further contended that the search of the accused-appellant was conducted in the presence of the police officer, who was said to be the Gazetted Officer and the mandatory provisions of Section 50 of the NDPS Act have not been complied with. As per Section 50 of the NDPS Act, search should be conducted before independent person (Gazetted officer or a Magistrate). Here in the instant case, search was conducted in the presence of the police officer and thus, the search was not properly conducted. 7. In support of his submissions, the learned counsel for the accused-appellant has placed reliance on the judgment rendere by this Court in the case of Kabul alias Khudia Vs. State of Rajasthan, reported in 1992 Cri.L.J. 1491, wherein this Court has held that where no independent [5] witness were joined when recovery was made while independent witness is available, in such circumstances recovery was not free from doubt and considering the aforesaid ratio decided by this Court, the impugned judgment and order is not sustainable and deserves to be quashed and set aside. 8. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also gone through the impugned judgment dated 20.07.2002 passed by the Special Judge as also the relevant material available on the record. 9. Much emphasize has been given by the learned counsel for the accused-appellant on the aspect that the provisions of Sections 42 and 50 of the NDPS Act have not been followed. 10. This Court in the case of Kabul alias Khudia Vs. State of Rajasthan (supra), while dealing with Section 42 and 50 of the NDPS Act, has held that it was necessary to follow the mandatory provisions of Section 50 the NDPS Act and in the instant case recovery was not made at the time of arrest at spot but was made on the information of the accused under Section 27 of the Evidence Act [6] and that too from open place which was not in his occupation. Thus, it has been held that Section 42 was not attracted and not following procedure under Section 50 was not fatal to prosecution. 11. Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under:- “42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para- military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior to rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chaper VA of this Act is kept or concealed in any building, [7] conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” [8] 12. A bare perusal of Section 42 of the NDPS Act reveals that under this Section, power of entry, search, seizure and arrest without warrant or authorisation has been given. Further as per sub-section (2) of Section 42, where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 13. Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides conditions under which search of persons shall be conducted and the same is reproduced hereunder:- “50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer or any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if [9] he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 14. The judgment rendered in the case of Kabul alias Khudia Vs. State of Rajasthan (supra), referred by the learned counsel for the accused- appellant, is of no help to the accused-appellant as in the instant case procedure under Section 50 of the NDPS Act was followed at the time of search and search was conducted before the independent witness and the contraband has been recovered from the truck on spot, which cannot be held to be fatal [10] to the prosecution. 15. Recently, Hon'ble the Apex Court in Criminal Appeal No. 211 of 2001- State of Haryana Vs. Mai Ram son of Mam Chand, vide judgment dated 31.07.2008, in para Nos. 12 and 13 has observed as under:- “12. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. [(See Kalema Tumba v. State of Maharaashtra and Anr. (Jt 1999(8) SC 293), State of Punjab v. Baldev Singh (1999(6) SCC 172) and Gurbax Singh v. State of Haryana (2001(3) SCC 28)]. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). A similar question was examined in Madan Lal and Anr. v. State of Himachal Pradesh (2003(6) Supreme 382). 13. Above being the position, the finding regarding non-compliance of Section 50 of the Act is also without any substance.” 16. With regard to recovery of 4199 kg. Doda- post from the conscious possession of the accused- appellant, the prosecution examined PW1 Rajendra Singh, PW2 Hari Singh, PW3 Badrilal Meena, PW4 Shiv Singh Meena, PW7 Jagannath Singh, PW8 Parvat Singh and PW9 Rajkumar Gupta and all the witnesses have [11] supported the story of the prosecution regarding information and seizure of contraband recovered from the possession of the accused-appellant. As per the FSL report, the contraband recovered was opium Doda-post. 17. The plea taken by the learned counsel for the accused-appellant that since the owner of the truck was not made accused, therefore, the accused- appellant cannot be held guilty for the offence under Section 8/15 of the NDPS Act, is not sustainable in the eye of law and this Court is not convinced with the submissions made on behalf of the accused-appellant. 18. Thus, as per the material available on the record, since the prosecution is able to prove the guilt against the accused-appellant for the offence under Section 8/15 of the NDPS Act, therefore, he has rightly been convicted for the aforesaid offence and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months vide impugned judgment dated 20.07.2002 by the Special Judge, NDPS Act, Bundi and the same requires no interference by this Court. [12] 19. In the result, the criminal appeal fails being devoid of merit and the same is hereby dismissed. The impugned judgment of conviction and order of sentence dated 20.07.2002 passed by the Special Judge, NDPS Act, Bundi is upheld. 20. Since the regular criminal appeal filed by the accused-appellant through his Counsel has been dismissed, therefore, S.B. Criminal Jail Appeal No. 1172/2004 filed by the same accused-appellant also stands dismissed. (K.S. RATHORE), J. /KKC/ (Hearing/Reserved)