1988 Supreme(Raj) 764
RAJASTHAN HIGH COURT AT JAIPUR BENCH
G.K.Sharma, J.
Raju @ Basant - Appellant
Versus
State of Rajasthan - Respondent
S.D. Cri (Jail) Appeal No. 76 of 1988.
Decided On : 19-09-1988
Advocates:
For the Appellant : Smt. Shashi Jain, Amicus Curiae.
For the State : Mr. Rizwan Alvi, P. P.
A Sub-Inspector of Police does not have the jurisdiction to seize and arrest persons in public places for violations of the Narcotics Drugs and Psychotropic Substances Act, 1985 without a warrant unless they are empowered to do so by a notification issued under Section 42 of the Act.
Headnote:
NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 8/17 - SEIZURE OF OPIUM - JURISDICTION OF POLICE OFFICERS - INTERPRETATION OF SECTIONS 42 AND 43 - REQUIREMENT OF NOTIFICATION EMPOWERING POLICE OFFICERS - VALIDITY OF ARREST AND SEIZURE - POWERS OF SUB-INSPECTOR OF POLICE.
Fact of the Case:
The appellant was convicted under Section 8/17 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (the Act) for possessing opium. The prosecution alleged that the appellant was found in possession of 130 grams of opium, of which 30 grams were taken as a sample and the remaining 100 grams were sealed and sent for examination to the Forensic Science Laboratory (FSL). The FSL report confirmed that the sample contained opium with 1.55% Morphine.
Finding of the Court:
The court found that the prosecution failed to prove beyond a reasonable doubt that the appellant was guilty of the offense charged. The court held that the Sub-Inspector of Police who seized the opium and arrested the appellant did not have the jurisdiction to do so, as he was not empowered by a notification issued under Section 42 of the Act. The court also found that the prosecution failed to establish that the opium seized from the appellant was the same substance that was sent to the FSL for examination.
Issues: 1. Whether the Sub-Inspector of Police had the jurisdiction to seize the opium and arrest the appellant without a warrant under Section 43 of the Act? 2. Whether the prosecution proved beyond a reasonable doubt that the opium seized from the appellant was the same substance that was sent to the FSL for examination?
Ratio Decidendi: 1. The court held that Sections 42 and 43 of the Act are not separate and independent, but rather Section 42 is a rider upon Section 43. The court interpreted Section 43 to mean that only officers who are empowered by a notification issued under Section 42 of the Act have the authority to seize and arrest persons in public places for violations of the Act. 2. The court found that the Sub-Inspector of Police who seized the opium and arrested the appellant was not empowered by a notification issued under Section 42 of the Act, and therefore did not have the jurisdiction to do so. The court also found that the prosecution failed to establish that the opium seized from the appellant was the same substance that was sent to the FSL for examination, as there were discrepancies in the evidence regarding the packaging and sealing of the opium.
Final Decision: The court allowed the appeal and acquitted the appellant of the charges under Section 8/17 of the Act.
JUDGMENT
1. 1. This appeal is preferred against the judgment dated 16th January,'88 passed by the Addl. Sessions Judge. No. 5, Jaipur City, Jaipur by which. he found the appellant guilty under section 8/ 17 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the "Act") and sentenced him to 10 years' R. I. and a fine of Rs. 1,00,000/-.
2. Shri Gopal Ramawat, S.I. submitted a written report to S.H.O. Kotwali, Jaipur on 2.6.86 at 9.30 p m. alleging that at 7.30 p. m. he alongwith Head Constable Gokul Singh and Bane Singh left the Thana for Patrolling. At 8.30 p.m. when he reached near the corner of Govind Ravji ka Rasta he was informed by mukhbir that one person wearing pajama and kurta, having a plastic bag in his hand in which there is opium standing on the corner of Nahargarh Road near Piao (waterhut) waiting for the customers. On this information, he alongwith Police Constables and Laxman and Dharma Sindhi reached Nahargarh Road and found the person as informed by the mukhbir. That person or seeing the Police-men tried to run away but he was stopped by him. On enquiry he gave his name as Raju @ Basant S/o Shyam Rao resident of Thana Kankaria Ahmedabad. He was checked and opium was found in a plastic bag wrapped in a newspaper. That man was asked about licence for keeping this opium and he stated that he has no licence. Thus, he has committed an under section 8/17 of the Act. The opium was weighed by Rameshwar fruit seller and it was found 130 grams in weight. Out of that opium he took 30 grams of opium as a sample and sealed it in a white bag of white cloth and marked it as "A". The remaining 100 gms. opium was also sealed which is marked as "B". The opium was taken into possession along with Raju (Basant and they were brought to Police Station and produced before the S. H O. On this F. I. R. No. 294/86 under section 8/17 of the Act was prepared. The seized opium was sent to Forensic Science Laboratory (F.S.L.) for examination. The report of the F S.L. is Ex. P 8. On Chemical examination the sample contained in packet marked as 'A' was found to be of opium having 1.55% Morphine. After completing usual investigation challan was submitted in the Court.
3. The learned Additional District Judge framed charge against the appellant under section 8/17 of the Act who pleaded not guilty and claimed trial. The prosecution to establish its case has examined 8 witnesses. No defence evidence has been adduced by the accused-appellant.
4. The learned trial Court found that the case has been established against the accused-appellant under section 8/17 of the Act and sentenced him as mentioned above.
5. The learned Amicus Curiae argued that according to the report Ex P. 5, S. I. Gopal Ramawat on information by a motbir came to Nahargarh Road alongwith two witnesses Laxman and Dharmu Sindhi. There is nothing on the record to show that the eye witnesses belong to that locality, who gave the information about the accused has not been examined. So this is a lacuna in the prosecution case. The prosecution should have called the witnesses of that locality.
6. This argument is of no substance. It is not necessary to disclose the name of the motbir. The motbirs are the secret persons and on whose information the Police acts, therefore, it is not necessary to have examined the motbir. When the S. I. was informed that a person is standing at the corner of Nahargarh Road for selling opium there is no irregularity or illegality if the S. I. had taken two witnesses with him while approaching to that man. Therefore, the statements of Laxman and Dharmu Sindhi cannot be thrown away on this ground that thy do not belong to that locality where the accused was apprehended.
7. It was also argued that according to the prosecution case the opium was seized, 30 grams was taken as sample and sealed in a bag of white cloth. According to the report of F. S. L. Ex. P 8 it is found that the sample was wrapped in a polythene paper enclo
Click Here to Read the rest of this document
Back
