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High Court Of Rajasthan
Judgename : B.R.ARORA
JANWATA RAM - Appellant
Versus
STATE OF RAJASTHAN - Respondent
Criminal Appeal 531 Of 1993
Decided On : 10/18/1994
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT - SECTION 42 - SECTION 50 - SECTION 55 - SECTION 57 - SEARCH, SEIZURE, ARREST AND INVESTIGATION - AUTHORIZED OFFICER - COMPLIANCE WITH MANDATORY PROVISIONS - INTERPRETATION AND APPLICATION.
Fact of the Case:
Accused-appellants Janwata Ram and Surja Ram were convicted and sentenced for offenses under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The prosecution alleged that the accused were caught with 30 kgs. 100 grams of Hashish, which was recovered during a search conducted by Mr. Mehar Singh, Deputy Superintendent, C.B.I. The accused challenged the conviction and sentence on various grounds, including non-compliance with mandatory provisions of the NDPS Act and the lack of authority of Mr. Mehar Singh to conduct the search and seizure.
Finding of the Court:
The High Court allowed the appeals filed by the accused-appellants and set aside the judgment of the lower court. The court held that the mandatory provisions of Section 42 of the NDPS Act were not complied with, as Mr. Mehar Singh did not record the grounds of his belief and send the same to his immediate officer superior before conducting the search and seizure. The court also held that Mr. Mehar Singh was not an authorized officer under the NDPS Act to make the search, seizure, and arrest of the accused, as no Notification authorizing the officers of the C.B.I. to investigate into the matter or to arrest, search, or seize under the Act was produced by the prosecution.
Issues: 1. Whether the mandatory provisions of Section 42 of the NDPS Act were complied with? 2. Whether Mr. Mehar Singh, Deputy Superintendent, C.B.I., was an authorized officer under the NDPS Act to conduct the search, seizure, and arrest of the accused?
Ratio Decidendi: 1. Section 42 of the NDPS Act empowers certain officers to enter, search, seize, and arrest the accused without warrant or authorization. However, such officers must record the grounds of their belief and send the same to their immediate officer superior before conducting the search and seizure. In the present case, Mr. Mehar Singh failed to comply with this mandatory requirement, which vitiated the trial and conviction. 2. The NDPS Act makes a stringent provision for the control and regulation of the operation relating to narcotic drugs and psychotropic substances. Only certain officers have been authorized under the Act to make search, seizure, and arrest the accused for the commission of the offense under the Act. In the present case, Mr. Mehar Singh was not an authorized officer under the Act, and therefore, the search and seizure made by him were wholly illegal and vitiated the trial and conviction.
Final Decision: The appeals filed by the accused-appellants were allowed, the judgment of the lower court was set aside, and the accused were acquitted of the offenses they were charged.
B. R. ARORA, J.
( 1 ) THESE two appeals arise out of the judgment dt. 22-11-93, passed by the Special Judge, N. D. P. S. Cases, Jodhpur, by which the learned Special Judge convicted accused-appellant Janwata Ram for the offence under S. 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act (in short, the Act) and appellant Surja Ram for the offence under S. 20 (b) (ii) read with S. 29 of the Act and sentenced each of them to ten years rigorous imprisonment and a fine of Rs. 1,00 000. 00 each and in default of payment of tine, each of them was further sentenced to undergo rigorous imprisonment for one year. The learned Special Judge further ordered under Ss. 60 and 63 of the Act for the confiscation of the Hero Honda Motor-cycle No. RPZ 4406 as it was used in transportation of the contraband article.
( 2 ) ACCUSED-APELLANTS Surja Ram and Janwata Ram were tried by the learned Special Judge, N. D. P. S. Cases, Jodhpur, for the offences under Ss. 20 and 29 of the Act. The case of the prosecution is that the Superintendent, C. B. I. , S. I. U. (II), New Delhi, received an information regarding smuggling of Hashish in Jodhpur area in the State of Rajasthan. To verify this information, Mr. Mehar Singh Deputy Superintendent, C. B. I. , along with Sarvashri N. S. Virk and K. Babu, Inspectors, C. B. I. , New Delhi, P. C. Sharma, A. S. I. , Ram Kumar and Jagram Head Constable, Yed Ram, Surjan Singh and Farry Singh Constables, were deputed. They left New Delhi on 21-5-91 and reached Jodhpur on 22-5-91. On 27-5-91, Mr. Mehar Singh, Deputy Superintendent C. B. I. , received information from some Mukhbir that Janwata Ram and Surja Ram will supply one Kg. of Hashish to some unknown person near Raika Bag Palace Railway Station (Jodhpur) at about 12. 30 p. m. He, also, received the information that this Hashish will be carried by the accused on a red-colour Hero-Honda Motro-cycle bearing registration No. RPZ 4406. Mr. Mehar Singh called two Motbir witnesses, viz. , PW 2 A. R. G. Vyas - the Branch Manager, UCO Bank, Paota, Jodhpur - and Mr. Gurmukh Singh Virwani - the Field Officer, S. B. B. J. , Sojati Gate Branch, Jodhpur. Mr. Mehar Singh, Deputy Superintendent, C. B. I. , along with the Police Party and the two Motbirs, went to Raika Bag Railway Station. The accused-appellants came on the motor-cycle. The motor-cycle was being driven by accused Surja Ram and Janwata Ram was sitting on the pillion. They were carrying a suit-case. They were detained. The accused tried to run away but they were caught-hold by the police party. They were thereafter informed by Mr. Mehar Singh that he is a gazetted officer and wants to search them and if they want to get themselve searched in the presence of a Magistrate then they may taken to the Magistrate but the accused showed their desire to be searched by PW 8 Mr. Mehar Singh. The accused were searched and on being searched, 30 kgs. 100 grams of Hashish was recovered from their possession. From the recovered Hashish, two samples weighing 200 grams each were taken. The samples as well as the remaining Hashish were seized and sealed properly. The accused were arrested and thereafter the investigation was completed by PW 8 Mr. Mehar Singh and the charge-sheet was submitted against the accused in the Court of the learned Special Judge, N. D. P. S. Cases, Jodhpur. The prosecution, in support of its case, examined eight witnesses. The accused, in their defence, examined two witnesses. The learned Special Judge, after trial, convicted and sentenced the accused-appellants as stated above by his judgment dt. 22-11-93. It is against this judgment that the accused-appellants have preferred these two appeals challenging the conviction and sentence passed against them by the learned Special Judge.
( 3 ) IT is contended by the learned counsel for the appellants that the compliance of the mandatory provision of S. 42 and 50 of the Act, have not been made and Mr. Mehar Singh, the Deputy Superintendent,
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