The main legal point established in the judgment is the mandatory compliance required for search and seizure under the NDPS Act, particularly emphasizing the strict adherence to the provisions of section 42 and 50.

JUDGMENT :

1. The present appeal under section 374 of the Code of Criminal Procedure is directed against the judgment and order dated 29.08.1990, passed by learned Additional Sessions Judge, Barmer in Sessions Case No.51/1989, whereby the appellant was convicted under sections 8 and 18 of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and has been sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.1,00,000/-and in default of payment of fine, to further undergo two and a half years’ simple imprisonment.

2. The case as set up by the prosecution was that S.H.O., Barmer-Ghanshyam Singh (PW-7) was asked by the Superintendent of Police, Barmer to conduct search at residence and shop of one Rizumal Khatri, who was reportedly engaged in illicit business of purchase and sale of opium.

3. On receipt of such direction, the S.H.O., Barmer proceeded to conduct search at the business and residential premises of M/s Chunnilal Babulal – a proprietory concern of said Rizumal Khatri.

4. Before the police personnel could reach the shop (M/s Chunnilal Babulal) they saw two persons running from the said shop and trying to flee on finding that the police was approaching. Those persons were interjected and searched; out of which one was the present appellant (Chunnilal s/o Rizumal Khatri) who was carrying a box/container.

5. According to the prosecution, the appellant was explained about the provisions of section 50 of the NDPS Act and his choice to be searched in presence of a Gazetted Officer or Magistrate. But when the appellant refused to exercise such option, the Seizure Officer himself proceeded to search the appellant so also the box he was carrying. It was revealed that the box which was being carried by the appellant was containing 8.5 kg of substance that was suspected to be opium.

6. May not be relevant, but for the sake of completing the factual narration it may be noted that the other person (Babulal) was also searched and was found having about 570 gms of the same substance with him.

7. 30 gm substance was taken out as sample from the said box and sent for chemical analysis, which was reported/confirmed to be opium.

8. On the charge-sheet being filed, charges under section 8/18 of the NDPS Act were framed against the appellant, who denied the allegation and sought trial.

9. During the course of trial, Jethu Singh (PW-1); Om Prakash (PW-2); Pabaram (PW-3); Goklaram (PW-4); Channaram (PW-5); Bhanwar Singh (PW-6) and Ghanshyam Singh (PW-7) appeared in witness box as witnesses to prove the case as set up by the prosecution and B.R. Nimbawat (DW-1) appeared for the defence.

10. The following documents were also produced :-

Ex.P/1- Forwarding letter dated 04.07.1989

Ex.P/2- Fard Baramdgi

Ex.P/3- Fard Arrest Chunnilal

Ex.P/4- Statement of Om Prakash under section 161

Ex.P/5- Statement of Pabaram under section 161

Ex.P/6- FSL Receipt

Ex.P/7- Malkhana entry register

Ex.P/8- Certificate

Ex.P/9- Roznamcha Report

Ex.P/10- Roznamcha Report

Ex.P/11- FIR Parcha

Ex.P/12- FSL Report

Ex.P/13- Remand Applciations

Ex.P/14- Report

Ex.D/1- Statement of Gokhlaram under section 161

Ex.D/2- Site plan

Ex.D/3- Statement of Bhanwar Singh under section 161

Ex.D/4- Statement of Roopram under section 161/chargesheet

Ex.D/5- Ration Card Chunnilal

Ex.D/6- Photographs

11. On behalf of the accused-appellant, the defense counsel raised various arguments to establish his innocence and to show that the search was illegal on various counts, including that the Seizure Officer did not follow the mandate and procedure prescribed under sections 40, 42 and 50 of the NDPS Act.

12. The learned trial Court considered the evidence and material available on record and held the appellant guilty of offence under section 8/18 of the NDPS Act and awarded sentence as stated in para No.1 above, while rejecting contentions/grounds raised on behalf of the accused.

13. Mr. Khatri, learned counsel for the appellant navigated the Court through the mate