Non-compliance of mandatory provisions of the N.D.P.S. Act, chance recovery, and the authority of officers conducting search and seizure.

1. These appeals have been directed against the judgment of conviction and order of sentence dated 4.1.2005 passed in Special Case No. 22/2004 by the Special Judge Narcotic Drugs and Psychotropic Substances Act, 1985 (For short N.D.P.S. Act or the Act), Bastar at Jagdalpur, whereby, the said Court after holding the appellants guilty of offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act, sentenced them to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/-, in default of payment of fine to further undergo R.I. for 5 years.

2. At the very outset, Shri Gautam Khetrapal, learned counsel for the appellants in Cr. A. No. 253/2005, submits that he is not pressing this appeal on behalf of appellants- Ishwar Kawde and Santosh Kumar because earlier to this appeal, Cr. A. No. 165/2005 was filed on their behalf. In view of the above, Cr. A. No. 253/2005, so far as it relates to appellants No. 1 & 2 therein i.e. appellants Ishwar Kawde and Santosh Kumar is dismissed as not pressed. Now Cr. A. No. 253/2005 shall stand for appellant No.3 only i.e. Brijlal.

3. The brief facts are that in the intervening night of 5th -6th May 2004, the Flying Scott of forest department was checking various vehicles near forest barrier, Charama. At about 3.45 a.m., a vehicle (Tata Sumo) bearing registration No. MP-63/D 0008 came over there. The four appellants were the occupants of the vehicle. The vehicle was being driven by appellant -Shailendra Kumar Jurri. When a search was made by the Dy. Ranger namely- K.S. Thakur (P.W.-3), Ganja in quantity of24 Kg. was found kept in the vehicle, P.W.-3- K.S. Thakur prepared a Talashi Panchnama (Ex-P/1) and he also prepared a seizure memo (Ex.-P/9). The aforesaid search and seizure memos were prepared in presence of 2 Panch witnesses namely- Sobharam and Roop Singh (P.W-1& P.W-2). The accused persons were also arrested by the said forest officer and the exercise undertaken about search and seizure by the Dy. Ranger - K.S. Thakur (P.W -3) was informed to the range officer- L.K. Choudhary (P.W-8), who in turn wrote a memo dated 6.5.2004 to the S.H.O. police station, Charama, which was received by Sub Inspector- K.R. Karsaal (P.W-4) based on which a F.I.R. vide EX.-P/14 was lodged by him. The Investigating Officer, K.R. Karsaal (P.W-4), prepared a seizure memo EX.-P/8 and on production of vehicle, Ganja in quantity of24 Kg and an index along with various documents showing the investigation conducted by the forest department, seized them from the possession of Ranger- L.K. Choudhary (P.W-8). Thereafter, Ganja was taken into custody of the police department and after its measurement and further after taking out samples, it was sealed and was kept in safe custody. The accused persons were arrested and an information to this effect was sent to higher authority. The samples were sent for chemical examination to Forensic Science Laboratory, Raipur on 11.5.2004, from where the report was received, according to which, the articles seized were Ganja. After completion of usual investigation as stated above, the charge-sheet was filed.

4. Learned Special Judge, held that the Ganja in commercial quantity was seized from the aforesaid vehicle of which the appellants were occupants, therefore, they were liable for punishment under Section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced them as aforementioned. The Ganja was directed to be confiscated and for the vehicle, it was directed that a separate proceeding be drawn under Section 60(3) of the N.D.P.S. Act. It is against this judgment of conviction and order of sentence, the appellants have filed these criminal appeals.

5. Learned counsel for the appellants raised two fold arguments. Their first submission was that there was non compliance of mandatory provisions of Section 42(1) of the N.D.P.S. Act as the proceedings of search and seizure were completed by the forest officers, who were not the empowered officers under the N.D.P.S Act, therefore, the e