Basant Lal Barnwal and Another vs The State of Jharkhand

D.K. Sinha, J.—The present Cr. Revision Application is directed against the order impugned passed by the Special Judge, Bokaro in G.R.No. 398/05 arising out of Chas P.S. Case No. 66/05 registered u/s 21, 22, 26 and 27 N.D.P.S. Act on 7.7.2006 whereby and whereunder the petition filed u/s 227 of the Code of Criminal Procedure for the discharge of the petitioners was rejected and a date was fixed for framing of charge against the petitioners for the offence u/s 22 of the N.D.P.S. Act for contravention of the provisions in relation to psychotropic substances.

The prosecution story lies in a narrow compass.

The Chas police intercepted six persons on tip off from a public lane on 16.4.2005 who were addicted in common habit of taking "Fortwin" injections with the help of disposable syringes having its popular brand name "Pentazocine". On such arrest all the six, confessed having been habitual of taking such psychotropic drugs and further admitted having purchased the same without prescription of a registered Doctor from the shop of the petitioners named and styled as Rajesh Medico, Gandhipath, Chas. Pursuant to such confessional statement the police conducted raid on the same day in the shop of the petitioners from where six packets, each containing 12 injections vial with Separate 8 Vials were seized in presence of the petitioners with the same and similar batch number as it were recovered from the possession of the accused. Seizure list was prepared in presence of the witnesses and the petitioners who were present in the "Rajesh Medico" were forwarded to judicial custody.

Mr. Rajesh Kumar, learned Counsel for the petitioners submitted that the real owner of the Rajesh Medical was Rohit Kumar and the licence in form 20B was issued by licensing authority in the name of Rohit Kumar Burnwal who is the son of the petitioner No. 1 Basant Lal Burnwal and the brother of the petitioner No. 2 Ranjit Kumar. Licence was issued on 14.8.03 valid from 14.8.02 to 13.8.2008 (Annexure-2). Mr. Kumar further submitted that the petitioners were not at all concerned with the business of Rohit Kumar either with his medicines or medicine shop "Rajesh Medico" and hence no offence is made out against the petitioners u/s 22 of the N.D.P.S. Act. It was a matter of chance that the petitioners were sitting in the shop since Rohit Kumar had gone out of the shop for some urgent piece of work asking the petitioners to stay in the shop till his arrival.

Advancing his argument Mr. Kumar submitted that the petitioner Basant Lal Burnwal aged about 72 years is suffering from multiple joint pain as a result of which his legs have no proper functioning over and above a patient of Glucoma, causing partial blindness. Both the petitioners were living in village Dhamna, District Jamui (Bihar) and the petitioner No. 2 had taken his father to Bokaro for the treatment of his eyes and that he was under treatment of Dr. Randhir Kumar Singh. On the date of occurrence they had been to the medicine shop of Rohit Kumar with the prescription of Dr. Randhir Kumar Singh for taking the medicine where they were asked to wait. He further submitted that the petitioner No. 1 was having his own business under Public Distribution System at village Dhamna and for that licence has been issued in his name. His son i.e. petitioner No. 2 helps his father in the business of ration shop for the partial blindness of his father and neither of the petitioners had any concern with the business of medicine or the medicine shop of Rohit Kumar.

On the point of law Mr. Rajesh Kumar submitted that the search and seizure was conducted by a police officer of the rank in contravention to the provisions of Section 42, 43, 53 and 54 of the N.D.P.S. Act, who was not empowered to conduct raid, search and seizure without authority.

Concluding his argument Mr. Kumar submitted that the search and seizure of the alleged psychotropic substance and arrest of the petitioners were made by a Inspector of Police-cum-Officer-in-Charge of Chas Police Station not at all competent and empower to do so u/s 41(i)(ii), 43 and 50 of the N.D.P.S. Act and therefore, the prosecution of the petitioners for the offence u/s 22 of the Act is misuse of the process of law and the impugned order is liable to be set aside, accordingly the petitioners may be discharged.

Admittedly, the case was instituted by Shri Vijay Kumar Inspector of Police-cum- Officer-in-Charge of Chas Police Station who intercepted six accused persons from the lane having enjoying "Fortwine" injection and on the confessional statement of one of them that they had purchased the said injections (vials) from the medical shop "Rajesh Medico", the informant police officer conducted raid in that shop and seized six packets of "Fortwin" injection with batch No. 9068788 with two more packets with 5 & 3 vials each of "Fortwine" injection popularly known as "Pentazocine". The informant in his written report presented before the District and Sessions Judge, Bokaro did nowhere mention that he was authorized by a superior officer competent u/s 41 of the N.D.P.S. Act, 1985 either by the State Government or Central Government so to do to conduct raid by general or special order or make search and seizure of the psychotropic substance or arrest an accused of the offence u/s 22 of the Narcotic Drugs and Psychotropic Substance Act.

Similarly, Section 50 of the N.D.P.S. Act is a safeguard to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. But in the present case no authority was produced by the informant that he was duly authorized to do so.

In respect of search and seizure of Narcotic Drugs and Psychotropic substance or arrest of an accused under N.D.P.S. Act the Apex Court in Sate of Punjab v. Balbir Sing reported in 1994 Cr. Law Journal 3702 devised the guidelines, and to quote:

The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions, which are as follows:

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. It he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2A) u/s 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest is carried out would be illegal.

Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal.

(2B) u/s 41(2) only the empowered officer can give the authorization to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.

(2C) u/s 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

Under the facts and circumstances, I find that when the informant Inspector of Police failed to disclose that he was empowered u/s 42(1)(2) of the N.D.P.S. Act read with Section 50 of the Act to make search and seizure in the premises of Rajesh Medico and that the licence of the said shop was issued in the name of Rajesh Burnwal for the relevant period. The prosecution even failed to produce any documentary evidence or otherwise to connect the petitioners with the Rajesh Medico except that they are the father and brother of the licencee of "Rajesh Medico". Even if it is presumed that the petitioners were found sitting in the medical shop of Rajesh Burnwal, it will not fasten any criminal liability upon them in absence of the documentary evidences of their active participation in the business of "Rajesh Medico", I, therefore, find that their prosecution in the alleged offence u/s 22 of the N.D.P.S. Act is unsustainable. I find merit in this Cr. Revision Application and accordingly the order impugned passed by the Special Judge, N.D.P.S. Act Bokaro in G.R.No. 398/05 on 7.7.06 is set aside in so far as it relates to prosecution of the petitioners Basant Lal Barnawal and Ranjeet Kumar.

This petition is allowed.