S. B. Criminal Appeal No.251/89 (Ladu v. The State of Rajasthan) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T. LADU V. THE STATE OF RAJASHAN. S. B. CRIMINAL APPEAL NO.251/89, against the judgment dt.1.6.89, passed by Shri P.S.Shukla, Additional District & Sessions Judge, Jalore in Sessions Case No.19/87. DATE OF JUDGMENT ::: 7/9/2009 HON'BLE MR. JUSTICE C. M. TOTLA Mr.T.S.Champawat, for Appellant (s). Mrs. Chandra Lekha, PP, for the State. BY THE COURT : Challenged is appellant's conviction and sentence awarded of ten years' rigorous imprisonment and fine of Rs.1,00,000/- for the offence of Section 18, NDPS Act per judgment dated 1.6.89 in SC 19/87. Heard learned counsel for the appellant and learned Public Prosecutor. The facts alleged leading to appellant's prosecution are that on 16.1.87 at about 9.00 P.M. when SHO, Raniwara, Binjraj Singh PW 4 was at Chowki Karda, he was informed by some informer that in last bus coming to Chatwada from Bhinmal coming two persons who having S. B. Criminal Appeal No.251/89 (Ladu v. The State of Rajasthan) 2 blanket like clothes over them, probably are possessing opium so PW 4 taking head constable Heera Lal PW 2 with him, proceeded for doing needful and on way also took with them Narpat Singh PW 1, effected Nakebandi at a “Nala” between Chatwada and Karda – at about 11 came two persons and they surrounding stopped them – SHO interrogating them asked their names etc. and they disclosed to be Lakha and Ladhu – Lakha when searched, found below cloth worn by him in tehmed, a polythene having opium which weighed 1 kg. of which substance sample of 30 gm. and separately sealed and remaining substance separately sealed. Similarly, was searched other person Ladu and below blanket worn over his person and at below his left arm was a bag having opium milk in a polythene bag which also weighed 1 kg which seized and and out of which 30 gm. Sample separately sealed and remaining substance separately sealed. Memo of this search and seizure is Ex.P1 and these persons Laduram and Lakha were arrested vide memos Exs. P1 and P2 at 1.00 A.M. Returning to police station with these persons and packets of seized material, SHO PW 4 making entires in Roznamcha Ex.P5 registered FIR Ex.P4 bearing No.4/87 for the offence of Section 17/18, NDPS Act. In search of Ladu made while arresting him also found was a ticket which and blanket and also cloth of Ladu were seized. Keeping packets safely in malkhana with incharge head constable PW 2, same were forwarded to laboratory with constable PW 5 who depositing both sample packets intactly in FSL on 24.1.87 obtained receipt Ex.P7. After other usual investigations, charge-sheet submitted. Appellant Ladu and also co-accused Lakha charged for the offence punishable under Section 18 that on 17.1.87 at about 11 in night when they were on way from Chatwada to Karda, in their possession (is) was 1 kg. opium without any license, they claimed trial. S. B. Criminal Appeal No.251/89 (Ladu v. The State of Rajasthan) 3 On behalf of the prosecution, examined are five witnesses. Binj Raj Singh PW 4 is SHO who doing and searching as above, seized the substance. Head constable PW 2 Heera Lal accompanied PW 4, whereas PW 1 Narpat Singh is “motbir” of this recovery and their signatures are appearing on memos Exs. P1, 2 and 3. Prabhu Ram Head Constable PW 3 was malkhana incharge and PW 5 Narayan Singh is the constable who taking the samples to laboratory and depositing obtained receipt. Packets of samples and of remaining substance exhibited are Arts. 1, 2, 3, 4, Art. 5 is the blanket worn by Lakha and Art. 6 cloth (dhoti) of appellant and Art.7 is the ticket allegedly found with appellant. Explanation put-forward by the appellant is that Lakha Mali came to Raniwada for purchasing ox who had engaged him (kappellant) as his workman so he accompanied Lakha – policemen on seeing two persons, inquired about two persons and when they stated of ignorance, asked to sit there - then when on search, those two persons not found police personnels took appellant and Lakha to police station and implicated them falsely. A perusal of order-sheet and also judgment discloses that co- accused Lakha absented himself who could not be arrested so ordering separate trial for him, the case against appellant proceeded. Learned Judge, arriving at conclusions, that appellant possessed without license 1 kg. opium sentenced as above. Learned counsel for appellant emphatically argued that (1) it is a case of the personal search and from the inside clothes of the person alleged is the recovery, therefore, provisions of Section 50 were and are applicable. (2) Section 50 not complied with in any way. (3) In memo prepared and also in oral evidence, no mention is of giving or expressing S. B. Criminal Appeal No.251/89 (Ladu v. The State of Rajasthan) 4 any option to appellant. (4) No compliance of Section 42, though search is following some information. (5) No specimen seal prepared and no entry of sample in malkhana register is proved. Citing (i) 2000-01 [Supp.] Cr.L.R. [Raj.] 595, Suresh Chandra v. The State of Rajasthan; (ii) 2009 Rajasthan Criminal Decision 491, S.C.Karnail Singh v. State of Haryana, (iii) 1999 SCC Cr.1080, State of Punjab v. Badeo Singh, submitted that non-compliance of Section 50 itself leads to acquittal. Learned Public Prosecutor, opposing contentions, submitted that the appellant is proved to be in possession of 1 kg. opium. Considering rival arguments, perused judgment, evidence produced and record. Searching and seizure officer SHO PW 4 depose that at 9, he was at Chowki Karda of police station and there a informer informed him that alighting last bus coming from Bhinmal to Chatwada, two persons wearing (odhna) clothes over them perhaps possess opium, so he enforced Nakebandi at nala – at about 11.00 came these two persons appellants Ladu and Lakha and they were searched – first he searched Lakha (alleged is recovery of opium from his tehmed) and then searched appellant Ladu who on his person below left arm possessed a polythene bag having opium milk which on weigh found 1 kg. Ex.P4 describes of separately sealing sample of 30 gm and remaining substance. Memo of recovery prepared by PW 4 is Ex.P1 and arrest memos are Exs. P2 and P3 which bear signatures of PWs 1, 2, 3 and thumb impression of the person searched. Thus, PW 4 state of wearing of some cloth sheet by and on person of appellant and also that substance recovered was attached to his person. No mention is of any other manner of search. Heera Lall PW 2 head constable posted at Chowki Karda states receipt of information by S. B. Criminal Appeal No.251/89 (Ladu v. The State of Rajasthan) 5 SHO and then SHO effecting Nakebandi, he being with him. PW 2 says that at about 11 from towards Chatwada, came two persons who surroundingly stopped and the person named Lakha was having blanket over him (described recovery from Lakha) and Ladhu wearing dhoti over him below which found was a polythene which contained opium like substance which found so on smell and test and weighed 1 kg. - sample and remaining substance separately sealed preparing memo Ex.P1 and persons arrested preparing memos Exs. P2 and P3. This witness too does not say of any other mode. Similar are the statements of “motbirs” Narpat Singh PW 1. Memo of recovery prepared is Ex.P1 which describes that SHO and others were sitting on Nakebandi and about 11 were coming two persons on foot and as they entered the stream, were stopped – of them one was Lakha and other was appellant – over appellant Ladu was having cotton sheet over (“odhna”) him and in his left arm pit, was the polythene having this substance the opium. Memo Ex.P1 mentions of seizure and doing all as above and not of any procedure. Thus, no mentioning regarding taking of search before gazetted officer or magistrate anywhere is. So clear is that procedure described in Section 50 (1) is not complied with in any way. As mentioned above, the recovery is from the below left arm, that is arm pit of the appellant. Search conducted is search of the person. Thus, search conducted was of a person following a information. Thus, straightly are applicable provisions of Section 50. As provisions of Section 50 are not complied with in any way or form, Hon'ble the Supreme Court in a number of cases, including State of Punjab v. Balveer Singh, 1994 (3) SCC 299; State of Punjab v. Baldev S. B. Criminal Appeal No.251/89 (Ladu v. The State of Rajasthan) 6 Singh, 1999 (6) SCC 172 and, thereafter, as observed that the provisions of Section 50 are necessarily to be followed for search of person. For the above reasons, the appellant is to be acquitted. Accordingly, appeal is accepted – conviction and sentence awarded to appellant Ladu s/o. Virdha for the offence of Section 18 NDPS Act (in SC No.19/87 vide judgment dt. 1.6.89) is set aside and appellant is acquitted of the offence charged. Appellant is on bail and he need not surrender, his bail bonds are discharged. (C. M. TOTLA), J. scd