IGH COURT OF CHHATTISGARH AT BILASPUR H or. Aw. No. 112111991 a SB: Hon’ble Shri Justice R.L. Jhanwax Bhagwan Singh APPELLANT Versus RES?ONDENT State of Madhya Pradesh (Now CG) JUDGMENT Post for judgment 011% 08.?OQB\¥ N,“ ~/ Sd/- 4 R.L. Jhanwaf ‘ Judge/: fw/giEg ' / 1 /‘ I \ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. App. No.112111991 SB: Hon’ble shri Justice R_L. Jhanwar APPELLANT Bhagwan Singh son of Keshavsingh Thakur, aged 21 years, resident of village Bhingnar, RS. Sarangarh, District Rajgarh (MP) (Now CG) Versus RESPONDENT State of Madhya Pradesh (Now CG) .. Appearance: Shm' RS. Patel, counsel for the appellant. Shri D.K.Gwalre, Government Advocate for the State. J U D G M E N T (Delivered on2g082009) R.L.Jhanwar, J. This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 09.12.1991, de]ivered in Sessions Trial No.201/ 1990, whereby, the learned 1“ Additional Sessions Judge, Raigarh has convicted the appellant under Section 20 of the Narcotic Drugs and Psychotropic Silbstances Act, 1985 U‘ (hereinafter referred to as ‘the Act’) and sentenced him to undergo R.I. for six months and to pay a flne of Rs.200/-, in default of payment of nne to further undergo R.I. for 11/2 months. The case of the prosecution is that on 2. 12.1990, In-charge, Police Station, Sarangarh, Sub Inspector— SS. Bhagat(PW-3) received information that the appellant was selling ganja in the "i weekly market. On this, he accomplished with Assistant Sub- “(x ,/\’\\ 2 ?«0) / Cr.App.1121/1991 Inspsctor— S.N.Panday, EXCIS€ Sub—Inspector— Netam (PW—1), i witness‘ RamsWarup (PW-2) and some othcr constabks and went on th€ spot to Village Bhingnar and seiz€d 4 tola ganja from the ~ possession of th€ appellant—Bhagwan Singh, which was kept in a plastic bag in 8 diiferent packets. The seizure memo is Ex. P/2. He frecorded Dehatj Nalici EX. P/3 and after reaching to the Police ’ Station, F.I,R. EXP/4 was registered against the appellant under 1' the Act. After completiomof the investigation, charge sheet was flled heiore the Judicial Magistrate First Class, Sarangarh, who committed the case to the Sessions Judge, Raigarh. After that the Sessions Judge, Raigarh made over the case to the lst Additional Sessions Judge. Charge under Section 2O of the N.D.P.S. Act was framed against the appellant and was read over and explained to him, who abjured the guilt and his defence was that he has been falsely implicated in the case. The learned 1st Additional Sessions Judge, after appreciation of the evidence available on record and hearing the counsel for both the parties, convicted the appellant under Section 2O of the N.D.P.S. Act and sentenced as above. I have heard learned counsel for the parties at length and have perused the record. Prosecution Witness- In—charge, Police Station, Sarangarh, Sub- Inspector.- S.S. Bhagat(PW—3) has stated that on 2.12.1990, he received information that the appellant was selling ganja in village Bhingnar. He went to village Bhingnar and seized 4 told ganja from the possession of the appellant, which was kept in a i p plastic bag in 8 different packets. The seizure memo is Ex. P,’ 2. He ‘ recorded Dehati Nalici EXP/3 and after reaching to the Police Station, ELR. Ex. P/4 was registered against the appellant under the Act, ‘t ‘ M ~ y 3 Cr.AppV1121/1991 The Court wimess-Narendra‘Singh and Witness —Ramswarup (PW-2) suppomed the prosecution case and seizure memo EX. P/ 2. It is evident from the statement of S.S.Bhagat that he sent the seized amide to Excise Sub Inspector- RS. Netam(PW-1) for its chemical examination. The Excise Sub Inspector— RS. Netam(PW-1) deposed that after receiving 1 packet of ganja from Jagdish, Constable No. 154 iof Police Station—Sarangarh, he tested the substance and found it to be gary'a His report is Ex.P/ 1. ‘* ‘ In this case, the seized article was not sent to F.S.L. for its chemical examination and it was sent to the Excise Sub-Inspector. He deposed that he was having experience and obtained training for testing intoxicants, therefore, he examined the seized material and found it to be garg'a. On perusal of his statement, it is clear that he has not produced any ceru‘iicate of training. He also did not apply any chemical test. Statement of S.S. Bhagat(PW-3), In— charge, Police Station, shows that he had not recorded the information in writing and had not sent any information to his higher onicers or Magistrate. He had also not informed the accused about his legal rights to be searched by the nearest Magistrate or Gazetted Ohicer. These all are the mandatory provisions under the Act. According to the Excise Sub Inspector- P.S.Netam (PW— 1), he also did not apply any chemical test. Thus, it is clear that the provision of Section 42 (2) of the G N.D.P.S. Act has not been complied with. v‘ Section 42 ofthe N.D.P.S. Act reads as under : 42. Power of entry, search, seizure and arrest without warrant or authorization.— (l) Any such o$cer (being an oh‘icer superior in rank to a peon, sepoy or constable) of the departments of Central excise, narcotics, customs, revenue intelligence or any other depaitment of._,the Central Government or of the Border Security Force as is empowered in this behalf by general or special 4 C1‘.App.1121/1991 order bV 1:116 Central Government or any such ofiicer (being an onicer supenor m rank to a peon sepoy or constableh of the revenue drugs control exc1se pohce or any other department of a State Government as 1s empowered 1n tins behalf by general or special order of the State Government 1f he has reason to beheve from personal knowledge or mformauon grven by any person and taken down 1n wntmg, that any narcohc drug, or psychotropw substance 1n respect of wh1ch an offence pumshable under Chapter IV has been comnntted or any document or other article Whidh‘may furnish evidence of the commission of such oEence is kept or concealed in any building 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 matenals used 1n the manufacture thereof and any other article and any anlmal or conveyance which he has reason to beheve to be hable 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 on‘ence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, ifhe thinks proper, arrest any person whom he has reason to believe to have committed any od‘ence punishable under Chapter IV relating to such drug or substance: Provided that if such oiiicer has reason to believe that a search-warrant or authorization cannot be obtained without aifording opportunity for the concealment of evidence or facility for the escape of ancil'ender, he may enter and search such building, 5 Cr.App.1121/1991 Conveyance or anclosed placc at any time between sunset and nrise after recording the grounds of his belief. (2) Where an otiicer takes down any information in writing nder sub-section (1) or records grounds for his belief under the roviso thereto, he shall forthwith send a copy therefore to his imediate onicial superior. m Section 42 is mandatory. It was incumbent on the ohicer iaking search to send forthwith a copy of information taken down by the othcer under sub-section (1) of Section 42 of the Act. From the Evidence of S.S. Bhagat(PW—3), nothing has been brought to support that the provisions of Section 42 of the Act have been cop mlied with. Therefore, violation of the provision is fatal. Section 57 of the Act reads as under : 57.Report of arrest and seizure.~ Whenever any person makes any arrest or seizure under this Act, he shall, within forty- ght hours next after such arrest or seizure, make a full report of all the articulars of such arrest r seizure to his immediate oflicial Su‘I Under/Section 57 of the Act, a duty has been cast on S.S. Bhagat(PW—3) to make full report of arrest and seizre to his imediate superior within 48 hours. 'But there is nothing on record to establish that the compliance of above provisions was made by S.S. Bhagat(PW-3). Although the above provision is not mandatory in nature, but having considered all the facts present in this case, non—compliance of the above provision; casts doubt on the prosecution version. Section 50 ofthe Act reads as under : 50. Conditions under which search of persons shall be conducted.- (1) When any ofncer duly authorized under Sec. 42 is about to search any person under the provisions of Sec.41, Sec. 4-2, or Sec.43, he shallik if such person so requires, take such person without unnecessary delay to the nearest Gazetted Omcer p o pCIOI‘. Su E u p n ei u m , 6 Cr.App.1121/1991 of any of thE depaltments mentioned in Sec. 42 or to the nearest Magistrate, a (2) If such requisition is made, the officer may‘detain the person until he can bring him before the Gazetted O£f1cer or the MagiStrate referred to in Sub—sec.(1). (3) The Gazetted Offlcer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for Search, forthwith discharge the person but otherwise shall direct that search be made. u‘ (4) No female shall be searched by any one excepting a female. { (5) When an ohicer duly authorized under Sec.42 has reason to beliéve that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the poss1bility 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 Othcer or Magistrate, proceed to search the/person as provided under Sec. 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under Sub—sec.(5), the otficer 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} Learned counsel for the appellant argued that the provisions of Sections 42, 5O and 57 of the Act have not been complied with; therefore, the appellant deserves to be acquitted of the charge under Section 2O of the Act. U‘ Considering the facts and circumstances of the case, I am of the View that mandatory provisions of Sections 42 (2) and 50 of the Act have not been complied with and the obligatory provision of Section 57 of the Act, has also been violated, even the seizure 7 Cr.App.1121/199 1 material has not been tested by chemical process, the conviction of the appellant under Section 2O of the Act cannot be sustained. g In the result, the appeal is allowed and the appenant is- acquitted of the charge under Section 20 of the N.D.P.S. Act The appellant be set at liberty forthwith, if not required in W’W M “f. caS6. ‘ " “Ed/- lR.L.JhanWaT L X Jugga/a V. N ,