1 (1) S. B. Criminal Appeal No.223/89 (Hamira Ram v. The State of Raj.) (2) S. B. Criminal Appeal No.234/89 (Hapu Ram v. The State of Raj.) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T. (1) HAMIRA RAM V. THE STATE OF RAJASHAN. S. B. CRIMINAL APPEALS NO.223/89. (2) HAPU RAM V. THE STATE OF RAJASHAN. S. B. CRIMINAL APPEALS NO.234/89. Both the appeals against the judgment dt.31.5.89, passed by Shri Mohinuddin, Additional Sessions Judge, Jodhpur, in Sessions Case No.2/88. DATE OF JUDGMENT ::: 22.7.2009 HON'BLE MR. JUSTICE C. M. TOTLA Mr. Vineet Jain for Mr.Sandeep Mehta, for Appellant (s). Mrs. Chandra Lekha, PP, for the State. BY THE COURT : Appellant Hamira Ram challenges his conviction for the offence of Section 18, NDPS Act and sentence awarded of ten years rigorous imprisonment with fine of Rs. 1,00,000/- in Sessions Case No.2/88 decided on 31.5.89. Challenging confiscation of motor cycle is appeal No.234/89 of Hapu Ram who requested that motor cycle be handed over to him. Heard learned counsel. 2 (1) S. B. Criminal Appeal No.223/89 (Hamira Ram v. The State of Raj.) (2) S. B. Criminal Appeal No.234/89 (Hapu Ram v. The State of Raj.) Prosecution case, in brief, is that on 26.12.87, ASI PW 3 of police station, Khedapa in early morning with constables Mohanlal and Mool Singh was on Nakabandi at village Sevki Khurd road crossing – there at about 6.30 a.m. came a motor cycle No. RSA 6401 – stopping the motor cycle, the driver interrogated who disclosed his name Hamira Ram S/o. Teja Ram of village Nadiya and because of suspicion intending to search was asked by ASI if to be searched by him or desires search before higher or gazetted officer, and he told ASI to take search than on searching by ASI in right pocket of his coat, was found a polythene bag, having opium like substance which on smell and test found so and as possessed without license, so seized substance the opium weighed 400 gm out of which a sample of 30 gm separately and remaining separately sealed. Memo of recovery proceeding is Ex.P1. In search of Hamira Ram, the appellant also, were found Rs.5500/- which and the motor cycle also seized – and accused arrested – memos respectively are Exs. P2 and P3. Memos of description of place of recovery and site plan prepared are Exs. P4 and P5. ASI reaching back police station at 10.30 a.m., made entry No.695 Ex.P8 of above all happening and on basis of it recorded FIR No.64/87 Ex.P7 for the offence of Section 18 NDPS Act – keeping all the articles safe in Malkhana, packet of sample bearing mark 'A' forwarded and deposited at FSL obtaining receipt Ex.P8. After usual investigation, charge-sheet for the offence of Section 18 NDPS Act submitted and sessions case registered in Special Court. Appellant charged for the offence of act punishable under Section 18 NDPS Act that on 26.12.87 in morning in his possession and without 3 (1) S. B. Criminal Appeal No.223/89 (Hamira Ram v. The State of Raj.) (2) S. B. Criminal Appeal No.234/89 (Hapu Ram v. The State of Raj.) license was 400 gm opium claimed trial. Of the prosecution witnesses, Pratap Singh PW 3 is ASI who deposed as above that on search of appellant coming on motor cycle in his possession and as above was found 400 gm opium. The witness proves related memo Ex.P1 and has identified packets of substance article 1 and article 2. Constable Mohan Lal PW 1 who was with PW 3 also state of recovery. PW 3 and PW 4 are witnesses regarding safe custody and delivering packet of sample at FSL. Appellant asked explained that no such substance was recovered from him and he riding on motor cycle of Pappu Ram was stopped and his Rs.5500/- taken and seized by police. For appeal No.234/89 questioning confiscation, learned counsel argued that before ordering so, at least notice to registered owner appellant is essential under Section 60. Submitted that the contraband, if any, was not transported or carried with consent or knowledge of registered owner, so the same is not liable to be confiscated. Also submitted that if the prosecution fails for Hamira Ram, then registered owner is entitled to get it and even otherwise, for reasons above, not liable to confiscation. No defence led. Learned Judge arrived at conclusions that of search made as per procedure - in possession of appellant, was found 400 gm opium and Rs.5500/- and appellant possessed it without licence. Accordingly, convicted and sentenced. Learned counsel for the appellants argued that (1) person making search ASI Shri Pratap Singh was neither SHO, nor even Sub-Inspector, 4 (1) S. B. Criminal Appeal No.223/89 (Hamira Ram v. The State of Raj.) (2) S. B. Criminal Appeal No.234/89 (Hapu Ram v. The State of Raj.) (2) ASI Pratap Singh PW 3 had no authority to conduct search, (3) it was a personal search and substance as per prosecution, was in right pocket of coat of appellant. Thus, it is a personal search and provisions of Section 50 are not followed, (4) appellant not given or informed, in any manner, of his option of search before a gazetted officer or a Magistrate, (5) sealing of substance is not proved – no specimen – no re-sealing – specimen not forwarded to Laboratory – only one sample taken. Learned counsel argued that provisions of Section 50 are not at all complied with which provisions are mandatory, so prosecution fails only on this ground and the officer PW 3 was not competent for any such and/or proceeding. Further argued that there is no evidence to show that sample kept intact and delivered in the same position at Lab. Learned counsel for the appellant relied on (1) 2005 (2) Cr.L.R. (Raj.) 981, Mithu Singh v. State of Rajasthan; (2) 2001 Cr.L.R. (SC) 54, Roy V.D. v. State of Kerala; (3) 2002 (1) Cr.L.R. (Raj.) 197, Kesha Ram v. State of Rajasthan; (4) 1992 Cr.L.R. (Raj.) 74, Mithu Singh v. The State of Rajasthan; (5) 2000 SCC (Cri) 1228, K. Mohanan v. State of Kerala; (6) 2002 (1) Cr. L.R. (Raj.) 95, Salim Khan v. The Central Bureau of Narcotics; (7) 2002 (1) Cr.L.R.299, Shankar Lal v. State of Rajasthan; & (8) 2004 (1) R.Cr.D.36 (Raj.) Krishnalal v. State of Rajasthan. Arguing for confiscation of vehicle – no reason is assigned for confiscating the motor cycle and there is nothing to indicate that the same was used for the purpose attributed in knowledge or consent of Hapu Ram the owner of vehicle. Submitted that if appeal of convict Hamira Ram succeeds, then hardly in this case, can be question of confiscation. Relied in support of the contention on 2004 Raj. Cr. Decision 36, Krishna Lal v. 5 (1) S. B. Criminal Appeal No.223/89 (Hamira Ram v. The State of Raj.) (2) S. B. Criminal Appeal No.234/89 (Hapu Ram v. The State of Raj.) State of Rajasthan. Learned Public Prosecutor submitted that ASI making search and seizure was the then In-charge of police station. Regarding confiscation, learned Public Prosecutor submitted that vehicle was used in transporting contraband article. Considering arguments, perused record, evidence and impugned judgment. According to memo of seizure Ex.P1, ASI Pratap Singh was on and enforcing Nakabandi in order to search for transportation of cut trees and of smugglers – while were standing for Nakabandi at Sevki Khur cross road from side of Bucheti, at 6.30 am came their motor cycle – was stopped by them which was being driven by appellant - than – because of suspicion, as search intended – appellant told of if giving search (obviously to ASI) or shall give before higher officer gazetted officer – t (and) appellant told ASI to search. Further mentioned that on searching appellant taking out a polythene bag from right pocket of coat was a polythene bag which gave it and it contained this substance. ASI PW 3 saying that they were on Nakabandi, states that motor cycle was stopped, surrounded by then and Hamira Ram interrogated. Then, when he (PW 3) searched Hamira Ram, in his right pocket of coat, was found a polythene bag, having opium. This witness ASI PW 3 further says that in search, Rs.5500/- were also found from the pocket of the coat – on taking weight the opium weighed 400 gm from which a sample of 30 gm, separately sealed and remaining substance separately sealed preparing Ex.P1 which also bears thumb impression of accused and impression of seal used. PW 3 has also proved seizure of motor cycle and 6 (1) S. B. Criminal Appeal No.223/89 (Hamira Ram v. The State of Raj.) (2) S. B. Criminal Appeal No.234/89 (Hapu Ram v. The State of Raj.) arrest of accused. Regarding search, PW 3 tells only as above. In memo Ex.P1 is mentioned that Hamira Ram was told whether to be searched or shall give search before higher officer gazetted officer, and appellant told of taking search. Words used in Ex.P1 seem to be somewhat dominative. Whatsoever is be, but evidence of main witness PW 3 is as above. PW 3 says that no independent witness could be procured and constables Mohan Lal and Mool Singh were with him. Constable Mohan Lal PW 1 deposing of nakabandi, says that placing stones on road, obstructions were created and motor cycle was stopped which was driven by Hamira Ram. Mohan Lal PW 1 states that as ASI Pratap Singh searched, he the accused taking out a plastic bag from pocket of his coat, handed over to Pratap Singh and substance in this packet on smell and test was found opium which weighed 400 gm. PW 1 also says of recovery of Rs.5500/- from pocket of accused and admits of his signatures on memos Exs.P1 to P5. In cross-examination, states that from right pocket was given this packet of opium and in pocket of Baniyan, was currency. As above, the search is of person – for such search provisions of Section 50 are applicable - is categorically held in State of Punjab v. Balveer Singh, AIR 1994 SC 1872 and also in subsequent pronouncements, including State of Punjab v. Baldev Singh, 1999 (6) SCC 172. The search is made by ASI PW 3 who as per his evidence was ASI and also on that day In-charge of police station. No further details about it are - as per evidence of PW 3, he returning police station, making entry in roznamcha himself on basis of it registered FIR Ex.P7 – FIR bears signature of PW 3 as ASI In-charge of police station, Khedapa. Thus, search is made by ASI not being SHO, meaning thereby that he was not 7 (1) S. B. Criminal Appeal No.223/89 (Hamira Ram v. The State of Raj.) (2) S. B. Criminal Appeal No.234/89 (Hapu Ram v. The State of Raj.) posted regular SHO and was at most for some reason in-charge.PW 3 was assistant sub-inspector. As above, ASI PW 3 was neither SHO, nor Sub-Inspector, as such was not an officer authorized under the provisions of Section 42 of the Act. The substance was in the pocket of coat worn by appellant. Very clear is that recovery made searching clothes worn and with body of person and polythene in which contraband is alleged, was in pocket – so provisions of Section 50 (1) are applicable. The seizure officer ASI PW 3 deposed that when he searched the polythene container, was found in pocket – the witness in no way speak of mentioning of search by any other officer - though same is mentioned seizure memo Ex.P1, but PW 3 does not say of it. Constable Mohanlal PW 1 who was with PW 3, only tells that when searched by PW 3, also do not state so accused taking out packet from pocket handed over – thus material contradiction also is. As there is no evidence of compliance of Section 50 (1), the search is is proved to be in violation of these provisions. Arguments also are advanced regarding lack of evidence to prove intact handing over packet at Laboratory which need not be gone into detail because of the apparent violation and non-compliance of provisions of S.42 & 50 (1). Thus, the alleged search and seizure is made by a officer not authorized under Section 42. Applicable provisions of Section 50 (1) were also not followed in any way, so the appellant to be acquitted. Accordingly, the appeal of Hamira Ram is allowed. Hamira Ram has not claimed himself to be owner motor cycle and it appears that 8 (1) S. B. Criminal Appeal No.223/89 (Hamira Ram v. The State of Raj.) (2) S. B. Criminal Appeal No.234/89 (Hapu Ram v. The State of Raj.) motor cycle is interimly handed over in February, 1988 and he asserts to be the owner. As appellant accused Hamira Ram is to be acquitted, the order regarding confiscation also cannot stand. Accordingly appeal No.234/89 is also to be allowed. Accordingly, allowed are both appeals. Setting aside conviction of Hamira Ram the appellant for the offence of Section 18, NDPS Act (as per judgment dated 31.5.89 in Sessions Case No.2/88), he is acquitted of the offence. The order confiscating motor cycle is also set aside. Appellant Hamira Ram is on bail and his bail bonds stand discharged. (C. M. TOTLA), J. scd