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1996 Supreme(Raj) 590
Rajasthan High Court
Honble S.C. MITTAL, J.
Bashir and Others - Appellant
Versus
State of Rajasthan - Respondents
S.B. Cr. Appeal No 472 of 1995
Decided On : September 30, 1996
B.S. Rathore, for Appellants J.P. Joshi & G.M. Khan, for Appellant No. 2 R.S. Rathore, for Public Prosecutor
Headnote:(a) Narcotic Drugs and Psychotropic Substances Act,1985,Sec.42 and Secs. 21.29 – The provisions of Sec. 42 are mandatory – Search and seizure between Sunset and Sun rise without search warrant – The empowered officer has to record grounds for his belief that a search warrant or authorisation can not be obtained without affording opportunity for the concealment of evidence or Facility for the escape of an offender – Held – without recording the grounds of such belief, the act fo search and seizure by the empowered officer is unauthorised and in violation of the mandatory provisions of sec. 42 of NDPS Act. (Para 6)(b) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 21 and Sec. 29 – Prosecution has to prove that the seal on the Samples remained imtact and were not tempered with until the Samples were deposited at FSL Jaipur. (Para 7)
That search and seizure has been effected from a conveyance commander jeep and between sun-set and sun rise. It was, therefore, mandatory on the part of the empowered officer u/s 42(1) proviso (2) to record grounds for his belief that a search warrant or authorisation could not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. Without recording the grounds of such belief, the act of search and seizure by the empowered officer is unauthorised and in violation of the mandatory provisions of section 42 of NDPS Act. In the present case, grounds for such belief have not been recorded and consequently no compliance of sub section 2 of section 42 of NDPS Act was made by the empowered officer. The non compliance of his mandatory provision vitiates the conviction of the appellants. (Para 6)
The prosecution has failed to prove that the seals on the samples remained intact and were not tampered with until the samples were deposited at FSL, Jaipur. It has not been established that the samples which have been examined by FSL, Jaipur contained the same article which was sealed on the spot out of the article allegedly recovered from the appellants. Therefore on the basis of this report Ex. P-21 I do not find it safe to base conviction of the appellants. Learned trial court did not discuss the evidence in the case in the light of above aspects of the case. In view of the above discussion, I am unable to agree with the findings of the learned trial court and the conviction and the sentence passed in the impugned judgment. (Para 7)
(2) SHO Khanda Falsa Shri Ashwani Kumar received source information on 9.12.94 that Hazi Saradeen resident of Kundal will reach from Pakistan after taking heroine from Phalodi to Soorsagar in a commander Jeep no. Rj-19 C-3934. The information was sent to C.O. Shri Shorabh Srivastava who came to the police station and directed Devaram Constable to summon two motbirs and to report on duty near Gangelav Talab on new Chandpole Road. SHO Khanda Falsa and C.O. Shri Shorabh Shrivastava with police party arranged a Nakabandi at about 1.07 A.M. SHO Khanda Falsa informed on wireless that a jeep is coming with `Jaidurga Phalodi written in bold letters on stepney.C.O. Shri Shorabh Shrivastava stopped the commander jeep coming from the side of Chondpole Road and a person with a gun jumped out of the jeep and tried to run away but fell down.Bhaggaram and Ramesh Kumar chased that person. Motbirs could not be available during the night. Appe- llant No. 2 Radheshyam was driving the jeep and appellant no. 1 and 3 were sitting in the jeep and on inquiry gave the name of the person who ran away-Saradeen the father of the appellants No. 1 and 3. Heroine 1 Kg. was recovered from the foles of Tehmad of appellant Mohammad on his Jama Talasi. The tool box the below driver seat was opened and 950 gms heroine was recovered in a packet.All the ne- cessary documents were prepared and the appellants were arrested on the spot. After completing usual investigation, challan was filed against the appellant and the investigation against Saradeen was kept pending under section 173 (B) Cr. P.C.
(3) The appellants denied the charges. The prosecution and defence witnesses were recorded and after hearing the parties and perusing the evidence on record the impugned judgment and sentence as stated above was passed by learned Special Judge.
(4) Two folds arguments have been made on behalf of the appellants challenging the convicted and the sentence. Firstly, it is contended that the search and seizure was made between sun set and sun rise from the conveyance i.e. commander jeep without obtaining warrant for search and seizure but the grounds of belief that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an of- fender, have not been recorded by empowered officer. Therefore, it is non comp- liance of mandatory provision of section 42 of NDPS Act which vitiates the conviction. Secondly, it is argued that the prosecution has failed to prove that the samples sealed on the spot remained intact and sealed thoughout from the date of seizure to the date these were deposited for chemical examination in Forensic Science Laboratory Jaipur. In view of this it is contended that is is not proved beyond rea- sonable doubt that FSL report Ex. P.21 relates to the articles alleged to have been recovered from the appellants.Learned Public Prosecutor has supported the impugned judgment that the provisions of Section 42 of NDPS Act have been complied with and by producing all link evidence, it has been proved that samples were not tampered with. The memo of seal impression was sent alongwith samples and as revealed from forwarding letter Ex. P.19 and the seal on the samples was tallied with the specimen seal impression which is clearly mentioned in the report Ex. P. 21. Learned Counsel
