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RAJASTHAN HIGH COURT
Dinesh Mehta, J.
Chunni Lal – Appellant
versus
State of Rajasthan – Respondent
S.B. Criminal Appeal No.283 of 1990
Decided on 2.12.2022
Narcotics Drugs and Psychotropic Substances Act, 1985 – Sections 8 and 18 read with Sections 42 and 50 – Criminal Procedure Code, 1973 – Section 374 – Seizure of Opium – Conviction and sentence – Prosecution has established its case that 8.5 kg of contraband substance (opium) was recovered from conscious possession of appellant – Stand of Motbirs that recovery was not made in their presence, can be ignored, given fact that they have admitted their signatures on ‘fard recovery’ – Seizure Officer and Investigating Officer and other prosecution witnesses have proved beyond doubt that recovery was made from possession of appellant and appellant has not been able to unsettle evidence/stand of prosecution – Such trivial discrepancies cannot demolish well-established prosecution case, in which recovery of substance from accused has been proved and further, because substance recovered has been found to be a contraband substance – Appellant was given option to be searched in presence of a Magistrate or a Gazetted Officer – It is necessary compliance of Section 50 of NDPS Act, as envisaged by law at the time – However, there was a conscious and clear breach of provisions contained in Section 42 of NDPS Act, for which appellant’s conviction is liable to be quashed and set aside – Impugned judgment and order quashed and set aside. (Paras 32, 33, 35, 45, 48, 61 and 62)
Result: Appeal allowed.
JUDGMENT
The present appeal under section 374 of the Code of Criminal Procedure is directed against the judgment and order dated 29.08.1990, passed by learned Additional Sessions Judge, Barmer in Sessions Case No.51/1989, whereby the appellant was convicted under sections 8 and 18 of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and has been sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo two and a half years’ simple imprisonment.
2. The case as set up by the prosecution was that S.H.O., Barmer-Ghanshyam Singh (PW-7) was asked by the Superintendent of Police, Barmer to conduct search at residence and shop of one Rizumal Khatri, who was reportedly engaged in illicit business of purchase and sale of opium.
3. On receipt of such direction, the S.H.O., Barmer proceeded to conduct search at the business and residential premises of M/s Chunnilal Babulal – a proprietory concern of said Rizumal Khatri.
4. Before the police personnel could reach the shop (M/s Chunnilal Babulal) they saw two persons running from the said shop and trying to flee on finding that the police was approaching. Those persons were interjected and searched; out of which one was the present appellant (Chunnilal s/o Rizumal Khatri) who was carrying a box/container.
5. According to the prosecution, the appellant was explained about the provisions of section 50 of the NDPS Act and his choice to be searched in presence of a Gazetted Officer or Magistrate. But when the appellant refused to exercise such option, the Seizure Officer himself proceeded to search the appellant so also the box he was carrying. It was revealed that the box which was being carried by the appellant was containing 8.5 kg of substance that was suspected to be opium.
6. May not be relevant, but for the sake of completing the factual narration it may be noted that the other person (Babulal) was also searched and was found having about 570 gms of the same substance with him.
7. 30 gm substance was taken out as sample from the said box and sent for chemical analysis, which was reported/confirmed to be opium.
8. On the charge-sheet being filed, charges under section 8/18 of the NDPS Act were framed against the appellant, who denied the allegation and sought trial.
9. During the course of trial, Jethu Singh (PW-1); Om Prakash (PW-2); Pabaram (PW-3); Goklaram (PW-4); Channaram (PW-5); Bhanwar Singh (PW-6) and Ghanshyam Singh (PW-7) appeared in witness box as witnesses to prove the case as set up by the prosecution and B.R. Nimbawat (DW-1) appeared for the defence.
10. The following documents were also produced:—
Ex.P/1- Forwarding letter dated 04.07.1989
Ex.P/2- Fard Baramdgi
Ex.P/3- Fard Arrest Chunnilal
Ex.P/4- Statement of Om Prakash under section 161
Ex.P/5- Statement of Pabaram under section 161
Ex.P/6- FSL Receipt
Ex.P/7- Malkhana entry register
Ex.P/8- Certificate
Ex.P/9- Roznamcha Report
Ex.P/10- Roznamcha Report
Ex.P/11- FIR Parcha
Ex.P/12- FSL Report
Ex.P/13- Remand Applciations
Ex.P/14- Report
Ex.D/1- Statement of Gokhlaram under section 161
Ex.D/2- Site plan
Ex.D/3- Statement of Bhanwar Singh under section 161
Ex.D/4- Statement of Roopram under section 161/chargesheet
Ex.D/5- Ration Card Chunnilal
Ex.D/6- Photographs
11. On behalf of the accused-appellant, the defense counsel raised various arguments to establish his innocence and to show that the search was illegal on various counts, including that the Seizure Officer did not follow the mandate and procedure prescribed under sections 40, 42 and 50 of the NDPS Act.
12. The learned trial Court considered the evidence and material available on record and held the appellant guilty of offence under section 8/18 of the NDPS Act and awarded sentence as stated in para No.1 above, while rejecting contentions/grounds raised on behalf of the accused.
13. Mr. Khatri, learned co
Seizure of Opium – Trivial discrepancies cannot demolish well-established prosecution case, in which recovery of substance from accused has been proved.
The main legal point established in the judgment is the mandatory compliance required for search and seizure under the NDPS Act, particularly emphasizing the strict adherence to the provisions of sec....
Point of Law : Contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty - Rule shall not dispense with the requirement of the prosecution to having first es....
The main legal point established in the judgment is the interpretation and application of the provisions of the NDPS Act, including the requirements for search operations, personal search, and chain ....
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