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2010 Supreme(Raj) 828
[Citation : 2011(2) RLW 1236 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Ramavtar & Shambhulal Vs. State (Rathore, J.)
HON'BLE RAGHUVENDRA S. RATHORE, J.
Ramavtar & Shambhulal
Versus
State
S.B. Criminal Jail Appeal Nos. 811 & 219 of 2003, decided on 26.08.2010
Kapil Gupta, for Appellants;
Javed Choudhary, P.P., for State
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 42, 50, 8/20(b) (2-c) — Search on the basis of suspicion — Recovered 1 kg charas including packing material from the bag of accused — Convicted and sentenced for 10 years R.I. and fine of Rs. 1 lac — Held — The search had already been made without adopting procedure prescribed under the Act — Sec. 43 of the Act would apply in this case as contraband was searched/seized from the bag and not from the person of the accused — The quantity of contraband was less than 1 kg and as such it falls between the small and commercial quantity — It attracts the provisions of Sec. 8/20(b) (ii-B) — Sentence altered to for 7 years R.I.
Appeals partly allowed. (Paras 9 to 13)
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Hon'ble RATHORE, J.—Both the appeals arises out of the judgment dated 24.1.2003 passed by the learned Single Judge, NDPS Cases, Gangapur City, District Sawai Madhopur and as such they are being decided by this common order.
2. These appeals have been filed by accused Ramavtar, Shambhulal and Mukesh against the judgment dated 24.1.2003 passed by the Special Judge, NDPS Cases, Gangapur City, District Sawai Madhopur in State Case No. 3/2003 (38/2001) whereby they have been convicted and sentenced as under:
"(a) under Section 8/20 (b)(2-c) of the NDPS Act, 1985 and sentenced for 10 years R.I., and fine of Rs. One lac, in default of which to further undergo two years and six months R.I.,
(b) under Section 8/20(B) (2-a) of the Act, and sentenced for 6 months R.I.
Both the sentences were ordered to run concurrently."
3. The case of the prosecution is that on 14.6.2001, at about 9.15 a.m., one Jainarain, Constable telephonically informed Police Station GRP, Gangapur City that while he was patrolling in Avadh Express Train, he found three suspicious persons in the General Coach. Further, he stated that he has a strong suspicion that the persons are in possession of narcotics substance. Therefore, he requested to take necessary action. The said information was recorded and the superior officers were informed accordingly. Thereafter, the police party with full preparation for investigation, reached the place, as informed by the Constable. The witnesses were called for conducting a search of the suspicious persons. Thereupon, search of all the three persons was conducted and it was found that accused Mukesh and Shambhoo were in possession of Charas in their bags. All the accused persons failed to produce any licence for possessing Charas. The total weight of Charas found in the bag was 1 kg.
Further, contraband was found from the person of co-accused Mukesh and Shambhoo which weighed 5 grams each. The samples were taken and they were sealed. During search of Mukesh, 6 railway tickets from Sawai Madhopur to Bayana and from Bayana to Sawai Madhopur were also found in his pocket. The accused were then arrested and a case under Section 8/20 of the NDPS Act was registered.
On conclusion of investigation, the police submitted a charge-sheet against the accused persons for he offences under Section8/20 of the NDPS Act. On the case having been committed, the learned trial Court framed charges against the accused persons for the aforesaid offences which they had denied and claimed for trial. The prosecution produced 9 witnesses and got exhibited 37 documents which were collected during the course of investigation. Subsequently, the statements of the accused persons were recorded under Section 313 Cr.P.C., wherein the accused persons denied the prosecution case. On conclusion of trial, the learned court below convicted and sentenced the accused persons as aforementioned.
4. The learned counsel for the accused appellants had raised a number of contentions so as to assail the impugned judgment passed by the trial Court. It was submitted that bare consideration of prosecution case goes to show that as if the search was already undertaken and it was known that the accused persons were carrying Charas. Thereafter the entire procedure under the Act, as for instance compliance of Section 42, 50 etc. had been undertaken. In this regard, the learned counsel for the appellants has referred to the Roznamcha (Ex.P/20), the information under Section 42 of the Act (Ex.P/21), information to the higher authorities under Section 42 (Ex.P/22), notice under Section 50 (Ex.P/11), etc. etc. He has also invited the attention of this Court to the statements of the prosecution witnesses Yashpal Singh, (PW/1), Jainarain (PW/4), Madan Pal Singh (PW/8), Prem Singh (PW/9) etc. to substantiate the aforesaid argument.
Further, the learned counsel for the accused appellants has submitted that the prosecution has failed to prove the memorandum of information under Section 42 of th
