1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Ganpat (S.B. Criminal Appeal No.76/1998) S.B.Crimnal Appeal under Sec.378 of the Cr.P.C. against the judgment and order dated 31.8.1996 passed in Session Case No.64/95, by Shri Prem Pratap Singh, RJHS, Special Judge Sikar. DATE OF JUDGMENT: September 19, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. BK Sharma, Public Prosecutor for the State. None present for the accused respondent. BY THE COURT : Challenge in this appeal is to the judgment dated 31st August, 1996 whereby the Special Judge, Sikar convicted the respondent Ganpat in the offence under Section 19 read with Section 54 of the Rajasthan Excise Act and released him on Probation of good conduct under the Provisions of Section 4 of Probation of Offenders Act and acquitted him in the offence under Section 8 read with Section 18 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act 1985'). 2. The prosecution version as unfolded during trial is as follows:- “That on 4th December, 1992 PW/5 Shri Jagdish Prasad Excise Inspector, Sikar having found a secret information reached at the residential house of accused respondent Ganpat situated in Mohallah Darogan, Sikar and with the assistance of excise force cordoned off the house. The 2 accused Ganpat was not in his house and found to have been working in the canteen of Meenakshi Cinema hall, so he was summoned through a constable. The Excise Inspector took the search of the house of accused Ganpat and found six bottles of Aristocrat whiskey and one polythene bag lying in an Almirah. The Polythene bag contained opium which was 850 grams in weight. It is averred that a sample of 50 grams of opium was taken separately and both 800 grams opium and a sample of 50 grams were duly sealed. Shri Jagdish Prasad Excise Inspector recovered the 6 bottles of Aristocrat whiskey and 850 grams of opium and seized the same vide memo Ex.P/1, prepared site plan vide memo Ex.P/2, sent them for chemical analysis to FSL, recorded the statements of the witnesses and after usual investigation sent the accused respondent Ganpat for trial to the competent Court. 3. The respondent was indicted for the offences under Section 19/54 of the Rajasthan Excise Act and 8/18 of Act 1985 who pleaded not guilty to the charges and claimed trial. The prosecution examined seven witnesses to prove its case. In his explanation under Section 313 of Cr.P.C., the respondent admitted the recovery of 6 bottles of Aristocrat Whiskey from his house but declined the recovery of opium and claimed innocence. On completion of trial, the Court decided the case as indicated hereinabove. 4. Since none appeared for the accused respondent, hence heard the submissions advanced by the learned Public Prosecutor only and with his assistance scanned the material available on record. 5. Learned Public Prosecutor has canvassed that the learned trial Court has convicted the accused respondent in the offence under Section 19/54 of the Rajasthan Excise Act but while taking a very lenient view in the case, released him on 3 Probation of good conduct. With regard to the offence under Section 8/18 of Act 1985 the learned Public Prosecutor has contended that from the evidence of PW/5 Shri Jagdish Prasad, who took the search of the house of the accused Ganpat has stated that a polythene bag containing 850 grams opium was recovered from the Almirah which was lying in the house of the accused Ganpat. He has further contended that once the learned trial Court has given this finding that the house in question was found in exclusive possession of the accused, there does not appear to be any reason to disbelieve the testimony of PW/5 Shri Jagdish Prasad and distrust the recovery of 850 grams of opium from his possession. The learned trial Court has arrived at the erroneous finding that the recovery of opium is not proved from the possession of the accused. Hence, the finding of acquittal in respect of the offence under Section 8/18 of Act 1985 deserves to be set aside and the accused respondent may be convicted and punished accordingly. 6. Having reflected over the submissions advanced by the learned Public Prosecutor and weighed the prosecution evidence, it is noticed that the prosecution has examined three witnesses PW/1 Hoshiyar Singh, PW/3 Tara Chand and PW/5 Shri Jagdish Prasad to prove the recovery of opium from the possession of the accused Ganpat. PW/3 Tara Chand S/o Shri Hanuman Prasad has not supported the prosecution story and turned hostile. PW/1 Hoshiyar Singh and PW/5 Shri Jagdish Prasad are the officers of Excise Department. Both of them have deposed that a polythene bag was recovered from the Almirah lying in the house of the respondent. This polythene bag contained 850 grams opium out of which a sample of 50 grams opium was separately drawn and duly sealed. Rest 4 of the witnesses are not relevant to the recovery of opium. 7. The most crucial question springing for consideration in the instant appeal is as to whether an Excise Inspector is empowered and authorised to search any building, conveyance or place, seize such drug or substance and arrest any person under Section 42 of Act 1985? 8. Adverting to the competence of PW/5 Shri Jagdish Prasad, Excise Inspector, it is observed that the Provisions of Section 42 of Act 1985 contemplate that any such Officer (being an officer superior in 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, may between sunrise and sunset enter into and search any such building, conveyance or place. Seize such drug or substance, 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: 9. The State Government issued notification No.S.O.115 dated October 16, 1986, exercising the powers conferred under Section 42 of Act 1985 which envisages as under: Section 42:S.O. 115:- “In exercise of powers conferred by S.42 of the Narcotic Drugs and 5 Psychotropic Substance Act,1985 (Act No.61 of 1986 the State Government hereby authorised all Inspectors of Police posted as Station House Officers, to exercise the powers mentioned in S.42 of the said Act with immediate effect: Provided that when power is exercised by police officer other than police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned police Inspectors or S.H.O. of the Police station concerned.” 10. Thus, Notification authorised all the inspector of police posted as Station House Officers to exercise powers mentioned in Section 42, of Act 1985. Proviso to this notification permits the exercise of these powers by police officer other than police inspector of the area concerned but he is required to hand over the person arrested and articles seized to the concerned police inspector or SHO of the police station concerned. In the instant appeal, the search and seizure of contraband article opium weighing 850 grams has been recovered from the house of the accused respondent Ganpat by PW/5 Shri Jagdish Prasad, the then Excise Inspector Sikar. It is very relevant to note that vide notification No.S.O.115 dated 16.10.1986 Excise Inspectors have not been authorised by the State Government to exercise the powers mentioned under Section 42 of the Act 1985. Vide notification No.S.O.115 dated 16.10.1986 only the police Inspectors have been authorised to exercise the powers mentioned in Section 42. Thus the power to search, seizure and arrest under Section 42 of the Act is found to have been exercised by an incompetent and un-authorised Officer of Excise Department who at the relevant time was posted as Excise Inspector Sikar. It has been held by the Hon'ble Apex Court in catena of judgments, that 6 the provisions of Section 42 of Act, 1985 are mandatory in nature and the non-compliance of these provisions causes prejudice to the accused, resulting in failure of justice or mis-carriage of justice. 11. Since the power of search of the house of accused Ganpat, seizure of 850 grams of opium and the arrest of the accused has been exercised by an Excise Inspector who is not competent and authorised under Section 42 of the Act 1985 by the State Government, the whole proceedings drawn by him in this respect are found to be illegal and beyond his jurisdiction which vitiates the trial and on this sole ground the accused respondent deserves to be acquitted. 12. Albeit, the learned trial Court has acquitted the accused respondent in the offence under Section 8/18 of the Act 1985 but the learned trial Court has failed to examine the relevant provisions of law in this respect. The memo of appeal filed by the State is totally vague and ambiguous. The prayer made at the end of memo of appeal is also vague, the State has prayed to quash and set aside the impugned judgment of the learned trial Court whereby the accused respondent has been convicted for one offence and acquitted for the other offence and that is contradictory in itself. 13. In view of the above position, the finding of conviction in the offence under Section 19/54 of the Rajasthan Excise Act and extending the benefit of Probation of good conduct of the accused respondent therein and the finding of acquittal in the offence under Section 8/18 of the NDPS Act 1985 is found to be just and proper with which I concur and to my firm view, the impugned judgment calls for no interference. 7 14. For these reasons, the appeal being devoid of merit stands dismissed. (MAHESH BHAGWATI),J PCG