2013 Supreme(Raj) 932
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Meena V.Gomber, J.
Kulwant Rai and another - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal (Jail) Appeal No. 261 of 2009.
Decided On : 8-03-2013
Advocates:
For the Appellants:Anshuman Saxena, Advocate.
For the Respondent: N.R. Saran, Public Prosecutor.
The mandatory provisions of Section 42 of the NDPS Act are not applicable to search and seizure conducted in a public place. In such cases, the provisions of Section 43 of the NDPS Act, which deal with search and seizure in a public place, are applicable.
Headnote:
NDPS ACT - SECTION 42 - SECTION 43 - SEARCH AND SEIZURE - PUBLIC PLACE - SUMMARY
Fact of the Case:
Accused-appellants Kulwant Rai and Kuldeep Singh were convicted for possessing and transporting Dodapost Chura under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution alleged that the appellants were intercepted at a public place, Paniyala Mod, while transporting the contraband in a truck. The appellants challenged the conviction, arguing that the mandatory provisions of Section 42 of the NDPS Act were not complied with.
Finding of the Court:
The court held that Section 42 of the NDPS Act, which mandates certain procedures for search and seizure in a building, conveyance, or enclosed place, was not applicable in this case. The court found that the search was conducted at a public place, Paniyala Mod, and therefore, Section 43 of the NDPS Act, which deals with search and seizure in a public place, was applicable.
Issues: 1. Whether the provisions of Section 42 of the NDPS Act were mandatory in this case. 2. Whether the search and seizure were conducted in accordance with the provisions of Section 43 of the NDPS Act.
Ratio Decidendi: 1. The court held that Section 42 of the NDPS Act is mandatory only when the search and seizure are conducted in a building, conveyance, or enclosed place. In this case, the search was conducted at a public place, Paniyala Mod, which is not an enclosed place. Therefore, Section 42 of the NDPS Act was not applicable. 2. The court found that the police officer, upon receiving secret information, recorded it in writing and sent it to his superior, as required under Section 43 of the NDPS Act. Therefore, the search and seizure were conducted in accordance with the provisions of Section 43 of the NDPS Act.
Final Decision: The court dismissed the appeal, upholding the conviction and sentence awarded by the trial court.
JUDGMENT
1. - Accused appellants Kulwant Rai and Kuldeep Singh @ Kiya have preferred this appeal against the judgment of conviction and order of sentence dated 17.7.2008 passed by the learned Special Judge, N.D.P.S. Act Cases, Jaipur in Special Sessions Case No. 15/2005 whereby the appellants have been convicted for offence u/s 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced to 10 years' RI along with fine of Rs. 1,00,000/-, in default whereof to further undergo one year's RI.
2. The facts in brief are that on 8.10.2004, SHO, Police Station Kotputali, Shri Ghanshyam Sharma (PW-11) along with his patrolling party left police station at 9.30 p.m. and reached at Paniyala Check Post from where he accompanied the Nakabandi staff and reached Narnaul Road for patrolling duty. During Nakabandi at about 11.15 p.m., he received a secret information that a truck bearing no. PB-10B-9982 coming from Jaipur was carrying Dodapost Chura in separate cabin in the truck body. This information was recorded by SHO Ghanshyam Sharma (PW-11) and was sent to his superior through constable Kalu Ram (PW-6) and PW-1 Shankar was sent to bring independent witnesses. At about 12.15 a.m., said truck crossed that place and was intercepted wherein two persons were found. The accused appellant Kuldeep Singh @ Kiya was on the driving seat whereas the other was sitting next to him who, on being asked, disclosed his name to be Kulwant Rai. After having obtained their consent, got the photography of the truck done and after having got their consent in the presence of independent witnesses Gheesa Lal and Ganga Sahai, the truck was searched and in the body of the truck, twenty three gunny bags containing Dodapost Chura were found in the rack. The gunny bags were offloaded with the help of one Kailash The accused on being asked about the licence or permit for possessing / transporting the Dodapost Chura, denied having one. The Ginny bags weighed 966.400 Kg. Thereafter in presence of independent witnesses samples of 250 gms. were taken from the 23 Ginny bags and were sealed and remaining bags were also sealed and marked as "A-1" to "W-1" and the control samples were marked as "A-2" to "Z-2". The seizure memo was prepared. On further search of papers of truck were found which were also seized. The seal used, was separately sealed as mark "X". The accused persons Kulwant Rai and Kuldeep Singh @ Kiya informed that the said narcotic was loaded by Kailash and the gunny belonged to one Balvinder Singh. The telephone diary seized from the possession of Kulwant Rai showed the number of Balvinder and some others. After informing them the reason of arrest, both the accused were arrested and after completion of formalities, a case was registered and the seized samples and articles were deposited in Malkhana and file was handed over to the C.O. for investigation.
3. During investigation, the Investigating Officer, prepared the site plan sent the seized samples for FSL and the investigation against co-accused Kailash and Balvinder was kept pending u/s 173(8) Cr.P.C. However, after a while, the other co-accused Balvinder was also arrested and supplementary charge sheet was filed.
4. After hearing the charge arguments, the learned Special Judge, read over the charge u/s 8/15 of the Act which was denied by them and trial was claimed. In order to prove its case, the prosecution examined as many as 13 witnesses and exhibited 37 documents. Accused were examined under section 313 Cr.P.C. They alleged false implication but did not lead any defence evidence.
5. Learned Trial Court, on the basis of material placed before it, recorded the finding of guilt against the present two accused appellants for offence u/s 8/15 of the Act whereas accused Balvinder was acquitted. The appellants, being aggrieved of the said conviction and sentence, have preferred this appeal.
6. Heard the learned counsel for the appellants as also the learn
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