1987 Supreme(Raj) 833
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Vinod Shanker Dave, J.
Nand Lal - Appellant
Versus
State of Rajasthan - Respondent
S.B. Cri. Appeal No. 124 of 1987.
Decided On : 5-10-1987
Advocates:
For the Appellant - Appellant:P.K. Sharma, Advocate.
For the Respondent.: S.C. Sharma, P.P.
An investigation conducted by an unauthorized person is illegal and can vitiate the trial, leading to the acquittal of the accused.
Headnote:
NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 42 - INVESTIGATION - UNAUTHORISED PERSON - CONVICTION BASED ON SOLITARY STATEMENT OF UNAUTHORISED PERSON - ILLEGALITY IN INVESTIGATION - VITIATION OF TRIAL.
Fact of the Case:
The appellant was convicted under Section 8 read with Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (the Act) for possessing 800 grams of opium. The prosecution's case was that the appellant was caught by a Head Constable, Amanulla Khan, with a bag containing opium on a railway platform. Amanulla Khan took the appellant to the police station, where the opium was seized and a First Information Report (FIR) was lodged. The appellant denied the occurrence and claimed that he was falsely implicated.
Finding of the Court:
The court found that Amanulla Khan was not authorized to investigate the case under Section 42 of the Act, as he was not an officer of the rank of Inspector or Sub-Inspector of Police. The court also found that the Station House Officer (SHO), Ram Chandra, who prepared the documents and submitted the charge sheet, was not authorized to do so on the date of the occurrence. The court held that the investigation was illegal and that the trial was vitiated.
Issues: 1. Whether the investigation was unauthorized and illegal due to the involvement of an unauthorized person, Head Constable Amanulla Khan? 2. Whether the conviction based solely on the statement of an unauthorized person is valid? 3. Whether the illegality in the investigation vitiated the trial?
Ratio Decidendi: 1. The court held that the investigation was unauthorized and illegal because Amanulla Khan, a Head Constable, was not an authorized officer under Section 42 of the Act to carry out the search, seizure, and arrest. 2. The court held that the conviction based solely on the statement of an unauthorized person, Amanulla Khan, was not valid. 3. The court held that the illegality in the investigation vitiated the trial, as the appellant was deprived of a fair and proper investigation.
Final Decision: The court accepted the appeal, set aside the conviction and sentence, and acquitted the appellant.
JUDGMENT
1. 1. This appeal has been directed against the judgment of Sessions Judge, Ajmer, dated February 17, 1987, whereby the convicted the accused-appellant for offence under Section 8 read with Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (here in after referred to as "the Act") and sentenced him to 10 years' rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine the accused-appellant was ordered to suffer 1 year's further simple imprisonment.
2. The brief facts giving rise to this appeal are that a report was lodged at 2.55 a.m. on November 21, 1985 by Amanulla Khan a literate Head Constable G.R.P., police station, Ajmer wherein it was alleged by him that on the night intervening between 20th & 21st November, 1985 he had gone for general checking of smugglers and miscreants and went towards train 16 down at 2.45 a.m. on platform No. 2. No sooner the train steamed in and stopped he started keeping an eye on the movements of the passengers getting down from Ajmer-Khandva coach. He noticed one man who had wrapped bottle green cloths getting down with a rexine bag in his hand. After seeing on the either side he started moving on the back side of the train. Suspecting his movements Amanulla Khan asked his name and address on which he became nervous. He told his name as Nand Lal son of Ratiram by caste Dhakar, resident of Raoti, police station Begun, District Chittor. Some railway employees who were around were called by Amanulla and asked the accused about the contents of the bag on which he said that besides some domestic goods there is opium. On demand he could not produce the permit, therefore, along with both the railway employees who were taken as motbirs, namely, Jagdish Prasad and Ram Swaroop, he was taken to the police station and the aforesaid report was taken own in police station. After taking down this in Rojnamcha and recording the FIR police proceedings were taken and the bag was got opened wherein a dirty white male Dhoti was found, below it was ground-nut then there was a black rexine bag which contained some wet material wrapped in polythene. When removed and tested and smelt it appeared like opium. Since he had no licence his case fell under Section 4/9 of the Opium Act. It was got weighed and its quantity was found to be 800 grams out of which two samples of 30 grams each were taken for chemical examination which were sealed. The accused was arrested at 3.15 a.m. and from his possession, according to arrest memo, was found a bag which contained opium as mentioned above and IInd class Railway Ticket No. 10773 from Bhilwara to Kishangarh. Statements of the witnesses were recorded under Section 161 Cr. P.C. and the goods were sent to the Forensic Science Laboratory, the result of which confirmed it to be opium as it was written that "on chemical examination the sample contained in the packet marked A-1 was found to be opium having 2.35% morphine. After completing the investigation charge sheet was submitted against the accused-appellant in the court of Judicial Magistrate (Railway), Ajmer for offence under Section 18 of the Act. The learned Magistrate committed the accused for offence under Section 8/18 of the Act. The learned Sessions Judge on 29th September, 1986 read over the charge for offence under Section 8 read with Section 18 of the Act to the accused who pleaded not guilty and claimed to be tried.
3. At trial the prosecution in support of its case examined 6 witnesses. The accused-appellant denied the occurrence and stated that that on the night of incident he was travelling from Bhilwara to Kishangarh and when the train reached Ajmer he was sitting in his coach. At that time the police people entered and started checking everybody's bag. These people checked his bag also. An abundant bag was lying at a distance of 5 to 7 feet from him. Police men asked whose bag was that on which everybody in the compartment disowned it. After some time when he g
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