IMPORTANT POINT
Un-amended section 42(1), NDPS Act cannot be interpreted literally.

JUDGMENT

Dipak Misra, J.

The present appeal is directed against the judgment of acquittal dated 9.4.2004 passed by the learned single Judge of the High Court of Judicature of Rajasthan in S.B. Criminal Appeal No. 659 of 2002 whereby he has reversed the judgment of conviction and order of sentence passed by the learned Special Judge, NDPS cases, Chittorgarh on 7.8.2002 and acquitted the respondent of the offences punishable under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”).

2. The broad essential facts leading to trial of the respondent are that on 4.4.2001 about 5.45 p.m. Parveen Vyas, temporary in-charge S.H.O., Police Station Chittorgarh, received information from a reliable informer that the respondent would come with illegal opium on his Hero Honda Motor Cycle No. 5902 from Phkhliya towards Chittorgarh and would sell it to some person. The information was entered into Daily Diary at report No. 146 and dispatched to higher officers through Constable Davender Singh. Thereafter, Parveen Vyas, along with other police officials and independent witnesses, namely, Abdul Kareem and Haider Ali laid a trap at Sarhad Kheri Road and when the respondent came to the spot with a plastic bag, he was informed about his right to be searched by a gazetted officer or a Magistrate and, thereafter, after proper search two polythene bags containing 3 Kgs. opium in each bag were seized. Following due procedure, the samples were sent for chemical analysis and, after completing the investigation, charge-sheet was placed for the offences punishable under Sections 8/18 of the Act.

3. The accused denied the charges, pleaded false implication and claimed to be tried.

4. The prosecution to bring home the charges examined Abdul Raheem, PW-1, Parveen Vyas, PW-2, Rais Mohammad, PW-3, Narayan, PW-4, Madan Lal, PW-5, Arjun Lal, PW-6, Mithu Lal, PW-7, RodSingh, PW-8, Rameshwar Prasad, PW-9, Davender Singh, PW-10, and Kailash, PW 11. The accused examined Bheru Lal, DW-1, and Shanti Lal, DW-2.

5. The learned trial Judge, analyzing the evidence and other material brought on record, and considering the contentions raised by the learned counsel for the prosecution and defence, found the accused guilty of the offence punishable under Sections 8/18 of the Act and sentenced the accused to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lakh and in default of payment of fine, to suffer further rigorous imprisonment for one year.

6. Challenging the conviction and sentence an appeal was preferred by the respondent before the High Court.

The principal contention that was raised in appeal was that Parveen Vyas was not authorised under Section 42 of the Act to search, seize or arrest a person and hence, the whole trial was ab initio void. The High Court, scanning the statutory provision and the notification issued by the Government, came to hold that Parveen Vyas was not the Station House Officer of Police Station, Chittorgarh, as Rameshwar Prasad was the only Station House Officer and hence, Parveen Vyas did not have the authority to conduct any search, seizure and arrest and, therefore, the whole trial was vitiated. Being of this view, the learned single Judge dislodged the judgment of conviction and acquitted the accused.

7. We have heard Dr. Manish Singhvi, learned Additional Advocate General for the State of Rajasthan, and Mr. Atul Agarwal, learned counsel appearing for the respondent. It is submitted by Dr. Manish Singhvi that the High Court has failed to appreciate the language employed in the Section 42 of the Act and the notification issued by the State of Rajasthan in that behalf as a consequence of which the ultimate conclusion of the High Court has become wholly unsustainable. It is urged by him that Rameshwar Prasad, Station House Officer of the police station, had gone out of police station and handed over the charge to Parveen Vyas, Sub-Inspector and he had conducted the searc