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High Court Of Rajasthan
Judgename : R.P.SAXENA
DEEP CHAND - Appellant
Versus
STATE OF RAJASTHAN - Respondent
Criminal Appeal 350 Of 1994
Decided On : 07/03/1995
NDPS ACT - SECTION 8/20 (B) (I) - SEARCH AND SEIZURE - MANDATORY PROVISIONS OF SECTION 42 (2) AND 50 OF THE ACT - NON-COMPLIANCE - INVESTIGATION BY THE SAME OFFICER WHO EFFECTED THE RECOVERY - VALIDITY - QUANTUM OF PUNISHMENT - REDUCTION.
Fact of the Case:
The appellant was convicted for the offence under Section 8/20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to rigorous imprisonment for five years, a fine of Rs. 50,000/- and in default to further undergo rigorous imprisonment for one year. The prosecution's case was that the appellant was found in possession of 2 kg 500 gms of ganja, for which he did not possess any license. The appellant denied the charges and claimed trial.
Finding of the Court:
The court found that the mandatory provisions of Section 42 (2) and 50 of the NDPS Act were not violated in this case. The court also held that the investigation by the same officer who effected the recovery was not illegal, as the officer was empowered to do so under the Act. The court further held that the trial was not vitiated due to non-compliance of the provisions of Section 57 of the Act, as the report of arrest and seizure was sent to the immediate official superior within forty-eight hours.
Issues: 1. Whether the mandatory provisions of Section 42 (2) and 50 of the NDPS Act were violated? 2. Whether the investigation by the same officer who effected the recovery was illegal? 3. Whether the trial was vitiated due to non-compliance of the provisions of Section 57 of the Act? 4. Whether the quantum of punishment was excessive?
Ratio Decidendi: 1. The provisions of Section 42 (2) of the NDPS Act do not apply to a case where the search and seizure is conducted in a public place. In this case, the appellant was found in possession of ganja in a public place, therefore, the provisions of Section 42 (2) were not applicable. 2. The provisions of Section 50 of the NDPS Act require that the person to be searched be informed of his right to be searched in the presence of a Magistrate or a Gazetted Officer. In this case, the appellant was given a written intimation of his right to be searched before a Magistrate or a Gazetted Officer and he consented to be searched by the investigating officer. Therefore, there was no violation of the provisions of Section 50 of the Act. 3. The provisions of Section 57 of the NDPS Act require that the officer making the arrest or seizure shall, within forty-eight hours next after such seizure, make a full report of all particulars of arrest and seizure to the immediate official superior. In this case, the report of arrest and seizure was sent to the immediate official superior within forty-eight hours. Therefore, there was no violation of the provisions of Section 57 of the Act. 4. The quantum of punishment awarded to the appellant was excessive. The appellant was a first-time offender and the quantity of ganja recovered from him was not very large. Therefore, the court reduced the sentence to rigorous imprisonment for one year and a fine of Rs. 1,000/-.
Final Decision: The appeal was partly allowed. The conviction of the appellant for the offence under Section 20 (b) (i) of the NDPS Act was maintained, but his sentence was reduced from rigorous imprisonment for five years to one year. His fine was also reduced from Rs. 50,000/- to Rs. 1,000/-.
RAJENDRA SAXENA, J.
( 1 ) THIS appeal has been directed against the judgement dated 16-7-94 passed by the learned Special Judge, N. D. P. S. Act Cases cum Addl. Sessions Judge, Ratangarh, whereby he convicted the appellant for the offence under S. 8/20 (b) (i) of the N. D. P. S. Act, 1985, in short, the Act and sentenced him to undergo rigorous imprisonment for five years a fine of Rs. 50,000/- and in default to further undergo rigorous imprisonment for one year.
( 2 ) IN nutshell, the relevant facts are that on 11-1-1992 at 1. 45 p. m. PW 6 Balwant Rai SHO, PS, Sujangarh, while he was on patrolling duty in Naya Bazar, Sujangarh, received a source information to the effect that appellant Deep Chand Bajaj had ganja in his possession, which he wanted to sell and that he had just then gone towards the Railway Station through the southern street having a plastic bag. The said S. H. O. recorded the source information vide memo Ex. P. 9. Two motbirs namely PW 1 Ram Singh and PW 2 Hari Ram were intimated about the source information vide memo Ex. P. 1 and Ex. P. 5 respectively and their signatures were procured thereon. Balwant Rai along with the said motbir stand members of the police party consisting of PW 2 Hari Ram, Head Constable, PW 4 Raghunath Singh A. S. I. and other police constables besides the driver of the police jeep on the same day at about 2 PM reached near the street for Rampuria Cottage Sujangarh, where they noticed appellant Deep Chand carrying a plastic katta, who on seeing the police vehicle, started running. Thereupon he was chased and surrounded by the police party and apprehended. Balwant Rai intimated the appellant vide memo Ex. P. 10 whether he wanted his search to be taken in the presence of a Magistrate or a Gazetted Officer or he consented to give his search to him. It is the case of the prosecution that the appellant gave his consent to the said S. H. O. to take his search and thereupon a plastic bag was recovered from his possession, which contained ganja and for which he did not possess any licence. The said ganja was weighed in presence of the motbirs and the police party. The contraband weighed 2 kg 500 gms. and therefrom a representative sample weighing 50 gms. was taken and separately sealed in a cloth packet and the remaining contraband material weighing 2. 450 kg was sealed in the said katta and was marked B. The seizure memo Ex. P. 3 was prepared on the spot and the appellant was arrested. Balwant Rai brought the appellant to the Police Station where FIR Ex. P. 11 was drawn and a case under S. 8/20 of the Act was registered. The sealed packet of the sample marked a and contraband packet were kept in the safe custody of Malkhana of the Police Station. On 6-2-92, the sealed packet of the sample was handed-over to PW 5 Sher Singh, Constable, who took the same along with the letter of the S. H. O. Ex. P. 13 to the S. P. , Churu, who in turn, issued a forwarding letter to the State F. S. L. and the same was deposited in the State F. S. L. vide receipt Ex. P. 8 dt. 7-2-92. The Assistant Director, State F. S. L. , Rajasthan, Jaipur, on chemical and microscopic examination vide report dated 25-4-92 Ex. P. 12 opined that the said sample contained in packet marked a was found to be of ganja. After completion of the investigation, the police submitted a challan against the appellant on 27-6-92 in the court of learned M. J. M. , Sujangarh, who took cognizance against the appellants and committed the case to the learned Sessions Judge, Churu, from where it was transferred to the court of learned Special Judge, N. D. P. S. Act Cases, Ratangarh, who framed the charge against the appellant for the offence under S. 8/20 of the Act. The appellant denied the indictment and claimed trial. The prosecution examined as many as six witnesses. The appellant in his, plea recorded u/s. 313, Cr. PC denied the circumstances appearing against him in the prosecution evidence. However he did not adduce any evidence in
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