1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Raj. Vs. Kishan Lal & Ors. S.B.CRIMINAL APPEAL NO.434/1988 against the judgment dt. 14.7.1988 passed by learned Sessions Judge, Jalore in Sessions Case No. 38/1986. Date of order : : 21st April, 2008 PRESENT HON'BLE MR. MAHESH CHANDRA BHAGWATI, J. Mr.J.P.S.Choudhary, Public Prosecutor. None present for the respondents. BY THE COURT:- This Criminal Appeal has been preferred by the State of Rajasthan against the judgment and order dated 14th of July, 1988 passed by the Sessions Judge, Jalore whereby the Sessions Judge did not find the accused-respondents, namely, Kishan Lal, Siya Ram and Mangla Ram guilty for the offence under Section 8 read with Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as “the Act of 1985”) and accordingly, acquitted them. 2 As per the prosecution case, three accused-persons, namely, Kishan Lal, Siya Ram and Mangla Ram were nabbed on public way leading from Kuda to Karda at about 5 A.M. on 8th of March, 1986 during police Nakabandi arranged by PW-1 Shri Pahad Singh, In-charge of Police Station, Raniwara, District Raniwara and his police associates. The accused Kishan Lal is alleged to have been found in possession of 6 kg. 180 gms. opium, accused Mangla Ram is alleged to have been in possession of 1 kg. 30 gms. opium and the third accused Siya Ram in possession of 1 kg. 180 gms. opium. It has been submitted by the prosecution that after following the procedure as laid down in the Act of 1985, the Officer of Police Station, Raniwara registered the case, commenced investigation and after its completion submitted the police report against the aforesaid accused-respondents in the court of Judicial Magistrate, Bhinmal, who in turn committed the case to Sessions Judge, Jalore for trial. At the very outset it is made clear that this criminal appeal has been pending in this Court since 31st of October, 1988 and thereafter, to my grate surprise, it has been listed before me for the first time today only for hearing. Shri JPS Choudhary, learned Public Prosecutor has given his appearance on behalf of the State but none is present on behalf of the accused-respondents Kishan Lal and others. 3 Shri J.P.S.Choudhary, learned Public Prosecutor has submitted that the lower court has acquitted the accused- respondents in the aforesaid charge on a legal ground. To start with, the learned Public Prosecutor has fairly conceded that the judgment of the lower court is perfectly just and legal and there is no scope for any interference therein. Shri Choudhary has drawn my attention to the judgments of Nand Lal Vs. State of Rajasthan reported in 1987 Cr.L.R. (Raj.) 698 and Umrav Vs. State of Rajasthan reported in 1988 RCC 113 wherein this Court has enunciated that any detention, search or arrest of the accused by an unauthorized Police Officer is illegal and bad in law. In both the cases, the accused were detained, searched and found in possession of psychotropic substance by police before issuing a Gazette Notification on 16th of October, 1986 by the State of Rajasthan. A bare perusal of Section 42 of the Act of 1985 reveals that detention, search, seizure or arrest of an accused could be made only by an Officer of Police who is empowered in this behalf by general or special order of State Government. The Act of 1985 came in force on 16th of September, 1985 when it was duly notified in the Gazette but the State Government authorized and empowered the Police Inspector or Sub- Inspector of Police who is an Officer-in-Charge of a Police Station to detain, search, seize or arrest the accused vide notification dated 4 16th October, 1986. Since the decision of the appeal at hand solely rest on a legal question and the learned Public Prosecutor has fairly conceded the judgment of the lower court to be just and proper, I do not feel inclined to issue notices to the accused-respondents again and the appeal may be decided in their absence. At the cost of repetition, it is mentioned that the accused-respondents were nabbed on 8th of March, 1986 by SHO PW-1 Pahad Singh and his police associates whereas they were empowered by the State of Rajasthan to make search or arrest of the accused-respondents vide notification dated 16th of October, 1986. Thus, in view of the judgments of Nand Lal and Umrav's cases (supra), it could safely be entailed that PW-1 Pahad Singh was not empowered or authorized to detain, make search and seize the said opium from the possession of the respondents and effect their arrest for the offence under Section 8/18 of Act of 1985. The entire proceedings conducted by PW-1 Pahad Singh under the provisions of the Act of 1985 was totally unauthorized, illegal and for want of jurisdiction. This infirmity in the investigation goes to the root of the matter and thus, vitiates the whole trial. The learned lower court has legally analyzed all the relevant provisions of law and its finding with regard to the acquittal of accused-respondents in view of the legal position is found to be perfectly legitimate and just. I do not find 5 any infirmity or perversity in the impugned judgment of the lower court. The impugned judgment of the lower court is perfectly just and legal with which I fully concur. In view of above, this Criminal Appeal being 434/1988 filed by the State of Rajasthan is dismissed. (MAHESH CHANDRA BHAGWATI), J. NK