-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: S.B. CRIMINAL APPEAL NO.333/1988 (Khuma Ram Vs. The State of Rajasthan) S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT DATED 11.8.88 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE, BARMER IN SESSIONS CASE NO.51/88. DATE OF JUDGMENT : 13th February, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Kishan Lal Vishnoi ) Mr. Laxman Vishnoi ) for Mr. Vijay Bishnoi for the appellants. Mr. S.N.Tiwari, Public Prosecutor. BY THE COURT : 1. This appeal is directed against the judgment dated 11.8.88 passed by the learned Additional Sessions Judge, Barmer in Sessions Case No.51/88, whereby, he convicted accused appellant - Khuma Ram for offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) and sentenced him to undergo ten years' -2- rigorous imprisonment and to pay a fine of Rs.1 lac, in default of payment of fine to further undergo one year's rigorous imprisonment. 2. Facts leading to this appeal are that on 15.10.87, one Gena Ram who was under custody in Cr. Case No.286/87 of police station Barmer gave an information under Section 27 of the Evidence Act to SHO Avtar Singh PW-9 that opium milk measuring two kilogram was purchased by him from one Khuma Ram, who is appellant in this case and some more opium may be found from his house. The SHO Avtar Singh recorded this information of accused Gena Ram vide Ex.P-9 and proceeded with the police constables at the house of accused appellant Khuma Ram along with Gena Ram, who was in the custody. On reaching at the house, they called the motbirs and made a search and found 200 grams of opium lying in the open Almirah of the room. The recovery memo was prepared and after completing the formalities of samples, accused Khuma Ram was arrested. Sample was sent for chemical examination and, thereafter, the accused appellant was challaned under Section 18 of the Act. He was charged accordingly, to which he pleaded not guilty. Prosecution examined 10 witnesses. Statement of the accused appellant was recorded under Section 313 Cr.P.C. He produced two witnesses in defence. -3- 3. After hearing the arguments, the learned trial Judge convicted the accused appellant as indicated above. 4. At the outset, learned counsel for the accused appellant has submitted that the whole case is concocted one as the same has been initiated at the behest of accused Gena Ram, who has been acquitted by this Court in S.B.Criminal Appeal No.71/89 decided on 27.8.90 (Gena Ram Vs. The State of Rajasthan). According to the learned counsel, neither the conscious possession of the accused appellant has been proved nor the requirement of various provisions of the Act has been made. 5. Per contra, learned Public Prosecutor has supported the judgment of the learned trial court. 6. The first contention of the learned counsel is that the recovery has been made in pursuance to the information furnished by accused Gena Ram under Section 27 of the Evidence Act and this type of recovery cannot be the basis for conviction of another accused in a criminal trial. Section 27 of the Indian Evidence Act deals with the nexus of the accused with the commission of crime, who has furnished the information under Section 27 of the Evidence Act and no other accused can be implicated on such information. However, if from such -4- information, it is found that some contraband articles were lying somewhere, then the Investigating Officer has to make compliance of the mandatory provisions of the Act under Sections 41, 42 and 43. Present case is pertaining to Section 42 of the Act, where no warrant was obtained before search. It has been pointed out in the Roznamcha Report Ex.P-10A that search has to be made at once, therefore, it is not possible to take warrant in such a condition. The procedure has been prescribed for taking search under Section 50 of the Act. Sub-section (5) of Section 50 of the Act says that when an officer duly authorized 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 document, 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. The SHO Avtar Singh PW-9 has no where stated in his statement that he asked accused appellant Khuma Ram as to whether he wanted the search to be in the presence of Gazetted Officer or the Magistrate. If for the sake of argument, he did not say so to the accused appellant, he was required to comply with the requirements of Section 100 Cr.P.C. Sub-section (4) of Section -5- 100 Cr.P.C. reads as under:- “Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.” 7. According to the SHO Avatar Singh PW-9, he sent head constable Channa Ram for calling the motbirs, who called two motbirs but they refused to become motbirs and left. Inhabitants of the locality closed their houses. Then, the search was conducted in the presence of police officers Kalu Ram and Sona Ram. When this was the situation, it was for the investigating officer to issue notice to the inhabitants or such other persons in writing, while not doing so, he has failed to comply with sub-section (4) of Section 100 Cr.P.C. That apart, there were children standing nearby the house from where the search has been made and from the cross examination of Avtar Singh, it appears that he did not even dare to call these children to verify the possession of accused appellant Khuma Ram over the alleged house from where the search has been made. In the absence of this, apart from non compliance of Section 50 of the Act, the prosecution has failed to prove conscious possession of -6- accused appellant Khuma Ram over the alleged house from where the search has been made. 8. Merely on the basis of the information furnished by another accused in a separate case, making search of the house, where the conscious possession is not established and non compliance of the other mandatory provisions of the Act vitiates the investigation and the trial as well specially when that accused on the basis of whose information, recovery has been made has been acquitted by this Court. 9. Apart from this, the Investigating Officer has not informed his superior officers about search proceedings so as to make compliance of Section 57 of the Act. Consequently, the prosecution case suffers from infirmities and illegalities, for which, the accused appellant is entitled for benefit. 10. Consequently, this appeal filed on behalf of appellant Khuma Ram S/o Tulcha Ram is allowed. He is acquitted from the charge levelled against him. He is on bail, his bail bonds stand cancelled. (DEO NARAYAN THANVI), J. ms rathore