j^y^^', ^^^ 'r!:. B|£,. 1^'S^'.^ Wsi Sfti'^ \\/,-,:-' ':y'sf. ^Q SS;i as8'' ^^^' 'iSSS ^il^^^T'- a» stsSi BIg^ s"y IBIS Ss.SK 'tSw- oII§1 ::%s gi ws& 81 •^,;^ OQ:! seiss~a ;.4^^ HIGH COURT OFCHHATTISGARH AT BILASPUR y. i-v ^ SmflleBench : Hon'bleShn Rajeshwarlal Jhanwar, J. Criminal Appeal No. 129 of 1995 Deonarayan versus State of M.P. (now Chhattisgarh) JUDGMENT Post for pronouncement of Judgment |£, -09-2009 Sd/- R.L. Jhanwar Judge II infHiH ; ••%. ,,...,.,^;-E^- »»gft HIGH COURT OF CHHATTISGARH: BIL^SPUR SINGLE BENCH: HON'BLE SHRI RAJESHWAR LALJHANWAR, J, Appellant Respondent Criminal Aoneal No.129 /1995 Deonarayan son of Hiralal, aged about 26 years, residence of Boregaon, Police Station, Khamtarai, District Raipur. Versus State ofMadhya Pradesh (now Chhatdsgarh) Criininal Appeal Under Section 374 (21 of the Code of Criminal Procedure Present:- Shri Arun Kochar, counsel for the appellant. Shri Rakesh Ranjan Sinha, Panel Lawyer for the State. JU D GMEN T (Delivered on |C,| 9/2009) This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 19.01.1995 delivered in Special Criminal Case No. 174/1993 <whereby the learned 2nd Additional Sessions Judge, Raipur has convicted the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth the Acf) and sentenced him to rigorous iinprisonment for two years and fine of Rs.2000/- and in default to further undergo rigorous imprisonment for sbc months. 2. Brief facts of the prosecution case are that Assistant Sub- Inspector - Shankar Chandrakar along with Head Constable No. 405 and Constable No. 1137 and also jeep driver Constable Raj, who drove thejeep No.M.P.P.3259, was on patrolling. On receiving information from an informant that near the Advani School, Jhopadpara in village Birgaon the accused - Deonarayan was in illegal possession of ganja, he proceeded to the house of the appellant and after completion of the necessary formalities and searching the house of the appellant, he seized about 500 grams ganja from one plastic bag (jhUlif. Seizure of ganja was effected vide Ex.P.l and ganja was sealed. The accused/appellant was arrested. F.I.R. was lodged by the Assistant Sub-Inspector vide ^ss ?^^i £ 'f / ^- Lb / />.//./. ^w Ex.P.6. Information about seizure of ganja was sent to his superiors vide Ex.P.7. Statements ofwitness - Narayan P.W.2 and Balduram P.W.3 were recorded. The seized ganja was sent for its chemical examination to Forensic Science Laboratory, Raipur vide Ex.P.8 through Constable Kamal Kant. The Forensic Science Laboratory, after chemical examination of the same, found that it contained ganja. 3. After completion of investigation, the charge sheet was filed before the Sessions Judge, who made over the case to the 2nd Additional Sessions Judge, Raipur. The 2nd Additional Sessions Judge framed charge under Section 20 of the Act against the appellant, which was read over and explained to the appellant. The appellant abjured the guilt and his defence was that he has been falsely implicated in the crime. 4. The 2nd Additional Sessions Judge, after appreciation of the evidence available on record and hearing the counsel for both the parties, convicted and sentenced the appellant as stated in paragraph 1. 5. Learned counsel for the appellant argued that the provisions of Sections 42 and 50 of the Act have not been complied with, therefore, the appellant deserves to be acquitted of the charge under Section 20 of the Act. 6. On the other hand, learned State Counsel argued in support of the impugned judgment. 7. Having heard the rival submissions for the pardes at length I have perused the record. Only four witnesses were produced by the prosecution. Shankar Chandrakar P.W.4 stated that he went along with some Constables to village Birgaon and raid was conducted where he found the appellant behind Advani School and seized 500 grams of ganja from the possession of the appellant. He seized the ganja vide Ex.P.1 in the presence of the witnesses and thereafter registered the F.I.R. vide P/6 and the appellant was arrested. Thereafter, information regarding seizure of ganja was sent to his superiors vide Ex.P/7. The seized ganja was sent to 'i^ ^Si \^) 'i y / 1. < ftH ^^s^; Forensic Science Laboratory, Raipur for its chemical examination vide Ex.P.8 wherefrom report Ex.9 has been received. It is evident from the statement of Shankar Chandrakar that undoubtedly before the search of the appellant was made, the appellant was not given any option as to whether he desired to be searched in the presence of Gazetted Officer or Magistrate. In his cross- examination, Shankar Chandrakar P.W.4 stated that he asked the appellant whether the appellant desired to be searched in the presence of Gazetted Officer or Magistrate but in Ex.P.3 there was no such mention &bout the search of the appellant through Gazetted Officer or Magistrate by Shankar Chandrakar P.W.4. Even the testimony of seizure witnesses Narayan P.W.2 and Balduram Verma P.W.3, the fact that accused was asked about his rights did not emerge. They siinply stated that police had called them in the police station and obtained their signatures on the documents. Thus, it creates a serious dent in the prosecution story. A duty is cast on the Assistant Sub-Inspector Shankar Chandrakar P.W.4 that before effecting search of the appellant, he should have given options as to whether the appellant desired to be searched in the presence of Gazetted Officer or Magistrate, as envisaged under Section 50 of the Act. 8. Section 50 of the Act reads as under: "50. Conditions under which search of persous shall be conducted.—(1) When any officer duly authorised under secdon 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 of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer raay 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 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. 2- >' /^/•' '/ i^ (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 docuraent, 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. (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 a seventy- two hours send a copy thereof to his immediate official supenor. A bare perusal of the above, it is clear that Section 50 of the Act confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction. In the present case, Shankar Chandrakar did not comply with the above Section despite the fact that the provisions of Section 50 of the Act to be mandatory, the non-compliance whereofwould vitiate the conviction. 9. Under sub-section (1) of Section 42 before entering in a building or place for affecting his search upon prior information of contraband ganja being kept therein the officer concerned has to record information so received in writing that contraband article was stored in the premise. Sub-section (2) of Section 42 of the Act which lays down that 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 forth send a copy thereof to his immediate official superior. Even if the testimony of Shankar Chandrakar P.W.4 is taken at its face value, there is clear cut violation of sub-section (1) 65 (2) Secdon 42 ofthe Act. 10. In AU SIustaffa Abdul Rahman Moosa vs. State of Kerala, 1995 (1) EFR 16 (SC), it was held by the Supreme Court that before the authorised or einpowered officer conducts a search, ,,;^;i.;-S!5i1 ^.^^'•'^.^ ?• 1 J/ -^ h\: /"^ -''/•j he should give the accused an option to be searched either in the presence of a Gazetted Officer or Magistrate. 11. It is also pertinent to mention here that Shankar Chandrakar P.W.4, after effecting the seizure of ganja, did not weigh the same and was not sure that the seized ganja was 500 grams or more than 500 grams or less than 500 grams. It is also evident from his testimony that after seizure of ganja, the facts that whether ganja was sealed or not and whether or not the ganja was sent to Malkhana in a sealed condition did not emerge. It is also pertinent to mention here that ganja was seized on 19.08.1993 vide Ex.P.l and the same was sent to Forensic Science Laboratory on 27.08.1993 for its chemical examination. It is evident from the tesdmony of Shankar Chandrakar in which he did not depose that after seizure of ganja under whose safe custody it was kept and why the seized ganja was sent to F.S.L. on 27.08.1993 after delay ofmore than 7 days and the place where he kept the seized ganja. . 12. The following facts emerge from the above: A) Provisions of Section 42 & 50 of the Act have not been complied with though the language is clear and was mandatory. B) Narayan P.W.2 and Balduram Verma P.W.3 did not support the prosecution story. C) Seized ganja was not weighed by the A.S.I. Shankar Chandrakar. D) No explanation was forthcoming from Shankar Chandrakar that why delay of more than 7 days in sending the seized ganja to F.S.L. on 27.08.1993 has occurred and why the seized ganja was not kept in MalaKhana in a sealed condition. 13. Having thus considered the evidence led by the prosecution in its entirety and in view of the law laid in Balbir Singh s case (supra), I am ofthe considered view that conviction ofthe appellant r:in--!i!--nniBT'-' f}/ /• :~'~S 6 under Section 20 of the Act and the sentence awarded thereunder are liable to be set aside. 14. In the result, the appeal is allowed. Conviction of appellant under Section 20 of the Act and the sentence awarded thereunder are set aside. The appellant is acquitted and shall be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded. -- c.-i- - R-'-.Jhanvvar Judge £i 9^ ^. 'N]