1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL APPEAL NO. 47/2004 Umrao vs. State of Rajasthan Date of Judgment: 27/07/2010 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Vinay Pal Yadav, for the appellant. Mr. Javed Coudhary, Public Prosecutor. Reportable (BY THE COURT): Heard learned counsel for the appellant and the learned Public Prosecutor. 2. A challenge in this appeal has been made by the accused appellant to the judgment dated 20.12.2003 passed by the learned Special Judge, N.D.P.S. Cases, Ajmer in Sessions Case No.23/2003, whereby he has been convicted for the offence under Section 8 read with Section 21 (C) of the N.D.P.S. Act, 1985 and sentenced for 10 years' R.I. and a fine of Rs.1,00,000/-, in default of which to further undergo two years' R.I. 3. Briefly stated the facts of the case are that on 22.04.2003 at about 4.00 pm., Bhawani Singh, Sub Inspector received an information that a CBZ Hero Honda Motorcycle of silver colour, having written A/F on the rear number plate, was being driven by Kishan Lal S/o Laduram and one another Umrao 2 S/o Nathuram sitting on the back seat are carrying contraband smack. Both persons are residents of Bandanwara. Further, he was informed that between 4.45 to 5.00 pm., those persons would be coming to sell the contraband, near Railway Crossing, Parvatpura. The said information was reduced in writing and copies of the same were sent to the Superintendent of Police and Circle Officer (South), through constable Shoudan Singh. Thereafter, constable Babulal was sent to bring witnesses. He had brought Anil Kumar and Rustam Khan and both of them had given their consent, individually, for being the witnesses. Subsequent to 4.45 pm., the Incharge Bhawani Singh of Police Station Adarsh Nagar; H.G. Raghvendra Suhasa and Hanuman Singh Kavya of Alwar Gate Police Station alongwith police party as also the aforesaid witnesses proceeded from the police station. The police party had taken the special informer with them to the Railway Crossing, Parvatpura and thereafter they saw a Hero Honda motorcycle, without number, coming towards them and the special informer gave the signal and went away. The Incharge Bhawani Singh alongwith police party and the witnesses, intercepted the motorcycle and the two persons sitting on it got nervous. Then the accused persons were interrogated. The person driving the motorcycle, disclosed his name to be Kishan Lal and one sitting behind him as Umrao. Both of them were told about the information received with regard to their carrying contraband smack. After giving notice under Section 50 of the NDPS Act and obtaining receipt, the accused appellants were searched. 3 They had given their consent in writing and the same were taken on record in presence of the witnesses. On search of the two accused persons, a polythene bag was recovered from the trouser pocket of Umrao, containing the contraband smack. The said item was shown to the witnesses and they unanimously opined that it was smack. The accused persons, on having been asked, declined to have any licence/ permit for keeping the said contraband. Both the polythene bags contained 688 gm. of smack and the net weight without polythene was 678 gm and 310 mg. Thereafter samples, weighing 5 gm. each, were taken from the polythene bag for the purpose of FSL analysis. 4. After conclusion of the investigation, the matter was submitted before the Special Judge and the learned court then charged the accused for the offences under Section 8/21 of the NDPS Act. In support of its case, the prosecution produced 7 witnesses and the documents which were collected during investigation. The statement of the accused was recorded under Section 313 Cr.P.C. On conclusion of the trial, the learned court below acquitted the accused Kishan Lal of all the charges but convicted and sentenced the accused appellant as aforementioned. Hence, the present appeal before this Court. 5. The learned counsel for the accused appellant has primarily submitted that the entire proceedings against the accused appellant and in furtherance thereof, the judgment passed by the learned trial court is vitiated only on account of 4 the fact that the search and seizure which was the basis of the alleged recovery of the contraband, was done by an officer who was not competent to do so. In other words, he has submitted that Sub-Inspector Bhawani Singh (PW-3) was not authorised to carry out search and seizure under the provisions of the Act of 1985. On this premise, the learned counsel for the appellant has submitted that the entire investigation and trial on the basis of the same, against the accused appellant is illegal and the judgment passed by the learned court below is not sustainable in law. In support of his submission, reliance has been placed on the cases of Gurudev Singh vs. State of Rajasthan, 1996 Cr.L.J. 1291; Bherulal vs. State of Rajasthan, 2004(1) Cr.L.R. (Raj.) 612 and Om Prakash vs. State of Rajasthan, 2007(2) R.C.C. 811. 6. On the other hand, learned Public Prosecutor has supported the impugned judgment passed by the learned court below. Further, he has submitted that the learned court below has rightly awarded the conviction and sentence to the accused appellant and there is no illegality or infirmity in the same, so as to call for any interference by this Court in this appeal. In reply to the sole submission made by the learned counsel for the appellant that Sub-Inspector Bhawani Singh was not authorised to conduct search and seizure under the Act of 1985, learned Public Prosecutor has submitted that he was the Incharge of the police station at the relevant time. Therefore, it has been submitted by the learned Public Prosecutor that it cannot be said 5 that Sub-Inspector Bhawani Singh was not competent to conduct the search and seizure of the accused appellant Umrao and his companion Kishan Lal. 7. I have given my thoughtful consideration to the submissions made by the learned counsel for the rival parties. The submission made by the learned counsel for the accused appellant deserves consideration. The authority of the police officers for conducting search and seizure is given by the State Government in exercise of its powers under Section 42 of the NDPS Act, 1985. It would be relevant to consider the provisions of Section 42 of the NDPS Act which are as follows:- “Section 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 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 personal 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 Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- 6 (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. In State of Rajasthan, the said powers have been exercised by issuing a notification on 16.10.1986, which reads as under:- “Notification No.F. 1 (3) FD/EX/85-I. S. O. 115, October 16, 1986._- In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No.61 of 1985) the State Government hereby authorise all Inspectors of Police, and Sub-Inspectors of Police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with 7 immediate effect. Provided that when power is exercised by Police Officer other than Police Inspector of the area concerned such officer shall immediately handover the person arrested and articles seized to the concerned Police Inspector or S.H.O. of the Police Station concerned. [Published in Raj. Gaz. Ex. Ordi.4 (Ga) (II)-Dt.16- 10-86 Page 269.]” In other words, the relevant provisions of the Act of 1985 specifies that the search, seizure and arrest in any public place in respect of narcotic drugs or psychotropic substance can be made, if officer is so empowered and he has reason to believe that offence relating to the Act of 1985 has been committed. Under the aforesaid notification of 1986, only those Inspector, Sub-Inspector of Police, who were posted as Station House Officer, are to exercise the powers under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 9. In this regard, the observations made by this High Court in the case of Nandlal vs. State of Rajasthan, 1987(3) Crimes 629 is relevant and observations made in para 17 are as under:- “I have carefully gone through the cases cited above and have no hesitation in reaching the conclusion that for launching the prosecution or for initiating the proceedings the authority doing so must have a clear and unambiguous power. In criminal cases while enacting such provision the legislature puts a complete ban on the authorities beyond one mentioned in the section to carry out the functions under the Act. In Sec. 42 of the Act the legislature has clearly empowered the persons mentioned therein or who are authorised to do so by notification. The 8 legislature intended that a peon, sepoy or constable should in no case be empowered to enter search or seize or arrest a person without warrant. It also did not empower in the Act even the Police officers unless there was a notification in that behalf and as quoted by me above the officers of the police department had been empowered only by notification dated 16.10.1986 and thereto the Government authorised the Inspectors of Police and Sub- Inspectors of police who too were posted as Station House Officers a person accused of a crime particularly like the one where the legislature provides a minimum sentence of ten years and a fine of Rs.1,00,000/-, it is essential that the intention of the legislature must be carried out in letter and spirit, the accused has a right to expect a fair investigation and a fair trial keeping in view the basic concept that justice should not only be done but it should appear to have been done, has facing a trial by itself as an ordial. A Head Constable is also a constable and is certainly not a Sub-Inspector or Inspector of Police and in the instant case PW-1 Amanulla Khan was admitted not Station House Officer of GRP Police Station, Ajmer. I have also quoted his statement in extenso where he was admitted that he had gone to the police station after ten minutes of the search of which he had no jurisdiction express or implied. Even the SHO PW-6 Ram Chandra had no jurisdiction vested in him on 21.11.1985 and as such very foundation of the case is without proper authority of law. I need not go into other points raised as this alone is sufficient to dispose of this case.” 10. Needless to say that the object of the Act of 1985 is to control effectively and regulate the operation relating to drugs and substances strictly. Therefore, in order to avoid any abuse of the process of any officer or person, safeguards have also been provided in the Act and the same also have to be adhered strictly. This view of mine finds support by the principle of law laid down by the Hon'ble Supreme Court and by this High Court in the cases of Umrao vs. State of Rajasthan, (1988) 2 9 Raj.L.W. 25; Shantilal vs. State of Rajasthan, (1989) 1 Crimes 276 (Raj.); Chhuna @ Mehtab vs. State of M.P., (2002)9 SCC 363; Jagdish Teli vs. State of Rajasthan, 2004(3) R.C.C. 1116 and Raju Munim vs. State of Rajasthan, 2006 (2) Cr.L.R. (Raj.) 1041. In the said judgments, it has been laid down that the provision under Section 42 of the NDPS Act is mandatory and strict compliance is required, failing which the trial is vitiated. 11. Coming back to the facts of the present case, it is to be noted that Bhawani Singh, Sub-Inspector was not posted as Station House Officer, at the relevant time, at Police Station Adarsh Nagar, Ajmer. Neither from the material on record nor through the learned Public Prosecutor, there is any material from which it is revealed that Bhawani Singh, Sub- Inspector was posted as the Incharge of the Police Station Adarsh Nagar, Ajmer, so as to exercise the powers under Section 42 of the Act of 1985 and conduct search and seizure of the accused appellant and to arrest him. Therefore, in view of the fact that the provision of Section 42 of the Act are mandatory in nature and it warrants strict compliance, Bhawani Singh (PW-3) had exercised the powers of search, seizure and arrest of the accused appellant which was beyond his legal authority and he could not have carried out the said functions in the instant case. 12. In view of the above, this Court did not go into other points involved in the present case as Bhawani Singh, Sub- 10 Inspector was not competent to act under the provisions of Section 42 of the Act which itself is sufficient to decide the present case and to hold that the entire proceedings are illegal and thereupon the judgment passed by the learned trial court is also illegal and not sustainable in law. 13. Consequently, this appeal has to succeed and it is hereby allowed. The impugned judgment dated 20.12.2003 is quashed and set aside. The appellant is acquitted of all the charges levelled against him. It is ordered that the accused appellant who is in jail shall be set at liberty forthwith if not required to be kept in custody in any other case. (RAGHUVENDRA S. RATHORE),J. tikam daiya