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SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, ASHOK BHUSHAN, JJ.
State of Rajasthan – Appellant
Versus
Jag Raj Singh @ Hansa – Respondent
Criminal Appeal No. 1233 of 2006
Decided On : 29-06-2016
(1994) 3 SCC 299; (1995) 3 SCC 610 – Relied upon
(b) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 42 – Instantly, communication sent to Circle Officer not as per the information – Breach of Section 42(2). (Para 13)
(c) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 42(1), Proviso and section 42(2) – Search between sun set and sun rise without warrant – Recoding of reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender – Instantly SHO not recording of any such reasons – Conviction not sustainable. (Para 14)
(d) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 43 – Obviating compliance with provisions of section 42 in case of public conveyance – Instantly, the vehicle is personal jeep – Cannot be termed as public conveyance. (Para 16)
(e) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 42(1) and 43 – When search is conducted after recording information under Section 42(1), the provisions of Section 42 has to be complied with – Section 42 is mandatory – Instantly section 43 not attracted. (Para 18, 19, 25)
(2008) 2 SCC 370; (1994) 3 SCC 299; (1999) 6 SCC 172; (2002) 4 SCC 229; (2009) 8 SCC 539 – Relied upon
(1996) 2 SCC 37 – Referred
Facts of the case:
Special Judge, (NDPS Cases) had convicted the respondent u/s 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The High Court acquitted the respondent.
Finding of the Court:
There is no infirmity in the impugned judgment.
Result: Appeal dismissed.
JUDGMENT :
Ashok Bhushan, J.
This appeal has been filed by the State of Rajasthan against the judgment of the High Court of Judicature of Rajasthan at Jodhpur in S.B. Criminal Appeal No.98 of 2001 dated 24.11.2003 acquitting the accused from the charges under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') after setting aside the judgment and conviction order of Special Judge, (NDPS Cases), Hanumangarh, Rajasthan dated 31.5.2000 by which judgment accused were sentenced to undergo 12 years rigorous imprisonment with fine of Rs. 1,20,000/- each. Accused were to go further rigorous imprisonment of one year each in case of not depositing the fine. Accused Kishan Lal had filed Single Bench Criminal Appeal No. 397 of 2000 and accused Jagraj Singh alias Hansa had filed Single Bench Criminal Appeal No. 98 of 2001. Both the appeals having been allowed by the High Court of Rajasthan, this appeal being Criminal Appeal No. 1233 of 2006 has been filed by the State of Rajasthan against the acquittal of Jagraj Singh alias Hansa. The Criminal Appeal No. 1232 of 2006 has already been dismissed by this court.
2. The prosecution case in the nutshell is: Shishupal Singh, Station House Officer, Bhadra received a secret information on 9th August, 1998 at 8 P.M. that a blue jeep car No. HR 24-4057 would come and pass through Haryana via Sirsa. A memo was prepared regarding the above information which was also entered into Roznamacha and information was also conveyed to the Circle Officer, Nohar at 8:05 p.m. on the same day through a constable. Station House Officer along with certain other police personnel proceeded after taking two independent witnesses namely Hawa Singh and Karam Singh. At 10:15 p.m. Jeep HR 24-4057 was seen coming from Sahaba. It was stated that one driver and two other persons were sitting who told their names as Jagraj Singh and Kishan Lal. Bags were lying in the jeep. Station House Officer gave notice to Jagraj and Krishan Lal and thereafter search was conducted. Nine bags containing opium powder were recovered from the jeep for which the accused were having no licence. Opium powder was weighed and two samples of 200 grams each were taken from each bag. Seizure memo was prepared on the spot. Both the persons were arrested. Material was sealed and after reaching the police station first information report being FIR No. 291/98 was registered. Samples were sent to Forensic Science Laboratory, Jaipur and on receiving a positive report, chargesheet was filed against both the accused under section 8/15 of the Act. The prosecution produced 12 witnesses including Station House Officer, Shishupal Singh as PD-11. Two independent witnesses PD-2 Hawa singh and PD-3 Karam Singh were declared hostile. Prosecution also produced documents Exh. P1 to P40. Statements of accused were recorded under Section 313 of Cr. P.C. Sri Ram Meena the then Circle Officer, Nohar was examined as defence witness-1.
3. Before the learned Sessions Judge, accused contended that the mandatory provisions of Section 42(1) and 42 (2) as well as Section 50 of the NDPS Act have not been complied with; both the independent witnesses have not supported the status of recovery and that entire action had taken place at police station; the chain of event is not present so as to convict the accused. The test report is not admissible and readable. The contentions of accused were refuted by the learned Special Public Prosecutor. Learned Sessions Judge held that information received by Station House Officer was recorded as Exh. P-14 and the same was sent to Circle Officer, Nohar by Exhibit P-15. Hence, the Station House Officer has fully complied with the provisions of Sections 42(1) and 42(2). Sessions Judge further held that the vehicle was being used to transport passengers as has been clearly stated by PW-4 Veera Ram, hence, as per explanation to Section 43 of the NDPS Act, vehicle was covered within the ambit of p
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