IMPORTANT POINT
To sustain conviction u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, justice and fair play require that the investigation should have been carried out by an independent officer who was not in any way a party to the recovery proceedings.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20 - Conviction for the offence under - Appeal - Investigating Officer in this case is the self-same person, who is said to have recovered the alleged contraband charas from the appellants - The investigation was basically bad - Justice and fair play require that the investigation should have been carried out by an independent officer, who was not in any way a party to the recovery proceedings.
       (Para 11)
       (ii) Narcotic Drugs and Psychotropic Sub-stances Act, 1985 - Sections 20 and 50 - Condition under which search of persons shall be conducted, - Officer making search must inform the person to be searched of his right to be taken to the nearest Gazetted officer or to the nearest Magistrate -Failure to comply with this mandatory provision goes to the root of the case and discredits the prosecution story. (Para 13)
       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections' 20, 50 & 55 Conviction u/s 20- Appeal - Alleged recovery of bags containing contraband Charas - The bags were not sealed on the spot - Recovery memo does not carry any specimen seal impression. The grounds given for not sealing the bags is not convincing - This makes the prosecution case doubtful. (Para 14)
       (iv) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20 and 55 Conviction u/s 20- Challenged - Recovery of bags containing contraband charas - According to the prosecution there were in all 301 bags - However, only 31 samples were taken Why samples could not be taken from the other bags could not be explained at all - Bags from which samples were not taken, cannot be said to contain contraband as claimed by the prosecution. (Para 15)
       (v) Narcotic Drugs and Psychotropic Substances Act, 1985, - Sections 20 & 55 Recovery of contraband charas - Sec. 55 of the Act requires the officer-in-charge of the Police Station to affix 'his' seal to the articles and the samples taken by him - Legislature never contemplated that the articles or the samples recovered under the provisions of the Act may be sealed with the general seal of the Police Station, which would be in possession of the constable or any other officer of the Police Station. (Para 16)
       (vi) Narcotic Drugs and Psychotropic Substances Act, 1985- Sections 20 & 55 -Conviction u/s 20 - Appeal - Recovery of contraband charas - Samples recovered were alleged to have been sent SFSL in absence of specimen seal having been sent. In such circumstances it is difficult to hold that self-same samples had been sent to the SFSL which had been recovered from the accused. (Para 16)
       (vii) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 55 - Police to take charge of articles seized and delivered All articles seized under the Act have to be kept in the safe custody 'pending the orders of the Magistrate' - SHO is not entitled to allow the Inspector to take such samples from the bags kept with him without orders of the Magistrate. - (Para 18)
       Result: Appeal allowed.

JUDGMENT

R.S. Verma, J. - The learned Addl. Sessions Judge, Barmer has convicted the appellants Saffiya and Nathiya of offence u/s 20 (II) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (here in after referred to as 'the Act') and has sentenced each one of them to under go RL for 20 years and to pay a fine of Rs.2,00,000/- each and in default to undergo further RL for one year each. Aggrieved, Saffiya and Nathiya have come in appeal.

2., Briefly stated, the prosecution story is that on 28.2.1987 P.W. 5 Hamir Singh was posted as S.H.O., Police Station, Sheo. That day he was informed by the Superintendent of Police, Barmer that the latter had been informed by an informer that Nathiya and Saffiya were proceeding on two camels with contraband 'charas'. Upon this information from the Superintendent of 'Police, Barmer, Shri Hamir Singh along with Dy. S.P. Govind Narayan, Head Constables Bijraj Singh and Heera Ram, Head Constable of C.I.D. Umaid Singh and other police officials, namely, Girdhari Singh, Tajmal Singh, Kishan Singh and Pratapdan proceeded in Govt. jeep in search of the two persons towards village Dholakiya. In this connection, Hamir Singh before proceeding to Dholkiya, recorded a report (Ex. P.12) in the daily 'Rojnamacha' of the Police Station. When the police party reached near the northern outskirt of village Dholkiya, foot marks of two camels were seen proceeding towards village Mungeria. The police party continued to proceed in the direction to which the foot marks led. On the outskirt of village Mungeria, the police party met P.W. 6 Shyam Singh, an ex-police official, who was asked to accompany them. The police party along with Shyam Singh went towards sand dunes which lay at a distance of about 1 k.m. in the north from village Mungeria. There, the police party spotted two persons going on camels. The two camels and riders were surrounded and taken into custody. Each camel was carrying a 'Pilan'. Upon enquiries, one of the camel rider gave out his name as Nathiya while other accused as Saffiya. The police party found that three bags were being carried on the camel which Nathiya was riding. Four bags were being carried by the camel which Saffiya was riding. The Police party got the bags unloaded. In the bags recovered from the camel of Nathiya 150 packets were found and from the bags carried by the camel of Saffiya 151, packets were found. Hamir Singh got opened the packets and after smelling them, found them to contain contraband charas. The two appellants were asked to produce licence or permit about the possession of the aforesaid contraband but they failed to produce any. Shri Hamir Singh, thereupon, prepared recovery memo Ex.P.1, site plan Ex.P.12 and legend of the site plan Ex.P.2. He arrested Saffiya vide arrest memo Ex. P. 3 and Nathiya vide arrest memo Ex. P. 4. He also prepared a memo Ex. P.14 regarding the foot marks which had led to the apprehension of the appellants.

3. The prosecution story is that the police party took the accused persons to Police Station, Sheo. The S.H.O. got the packets of contraband charas, weighed and took out samples from the various packets and sealed back the packets as also the samples recovered by him vide memo Ex.P.5. The bags which contained the packets were marked 1 to 7 and each of the packet was also marked by Shri Hamir Singh. He further prepared recovery memo in respect of the two camels vide Ex.P.6 and EX.P.7 The 'Pilans' of the two camels were handed over to custom officials vide EX.P.17.

4. Hamir Singh deposited the recovered bags containing the packets sealed by him as also the parcels of samples in the 'malkhana' of the police station and entries were made in the 'malkhana' register. The bags of the packets as also parcels of the samples remained in custody of P.W.1 Bijraj Singh who forwarded 31 parcels of samples to the office of S.P., Barmer with P.W.2 Moola Ram. P.W.2 Moola Ram took the sealed parcels of samples to the office of the S.P., Barmer th

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RAJASTHAN HIGH COURTR.S. Verma, J.Nathiya & another - AppellantversusThe State - RespondentS.B. Crl. Appeal No. 165/1988Decided on 30.1.1991Counsel for the parties.For the Appellants: Doongar Singh & Mahesh Bishnoi.For the Respondent: S.G. Ojha & B.S. Bhati (P.P.)

IMPORTANT POINTTo sustain conviction u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, justice and fair play require that the investigation should have been carried out by an independent officer who was not in any way a party to the recovery proceedings.

Cases Referred (2)

RAJASTHAN HIGH COURT
R.S. Verma, J.
Nathiya & another - Appellant
versus
The State - Respondent
S.B. Crl. Appeal No. 165/1988
Decided on 30.1.1991
Counsel for the parties.
For the Appellants: Doongar Singh & Mahesh Bishnoi.
For the Respondent: S.G. Ojha & B.S. Bhati (P.P.)

IMPORTANT POINT
To sustain conviction u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, justice and fair play require that the investigation should have been carried out by an independent officer who was not in any way a party to the recovery proceedings.