Gangaram vs State of M.P. (Now C.G.)

R.L. Jhanwar, J.—This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 06.04.1991, delivered in Sessions Trial No. 198/1990, whereby, the learned 1st Additional Sessions Judge, Raigarh, has convicted the Appellant u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentenced him to undergo R.I. for six months and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo R.I. for one month.

The case of the prosecution is that on 30.11.1990, Sub Inspector-S.N. Pandey (PW-4), police Station Sarangarh received information that the Appellant was carrying ganja. On this, he accomplished with another police officer and went to search the Appellant to village Malda and found him near Kosabadi. The Appellant was on motorcycle. He stopped the Appellant and interrogated him. The the Appellant gave ganja from his pocket, which was tied up in a blue colour towel in small packets. Thereafter, the Sub Inspector seized the ganja and motorcycle and prepared seizure memo Ex. P/2 in front of the witnesses. After completion of the necessary legal proceedings, he recorded Dehati Nalici Ex. P/3 and after reaching to Police Station, lodged the F.I.R. The seized ganja was sent to Excise Sub Inspector P.S. Netam (PW-1), who examined and found it to be ganja.

After completion of the investigation, charge sheet was filed before the Judicial Magistrate First Class, Sarangarh, who committed the case to the Sessions Judge, Raigarh. After that the Sessions Judge, Raigarh made over the case to the 1st Additional Sessions Judge. Charge u/s 20 of the N.D.P.S. Act was framed against the Appellant and was read over and explained to him, who abjured the guilt and his defence was that he has been falsely implicated in the case.

The learned 1st Additional Sessions Judge, after appreciation of the evidence available on record and hearing the counsel for both the parties, convicted the Appellant u/s 20 of the N.D.P.S. Act and sentenced as above.

I have heard learned Counsel for the parties at length and have perused the record.

Prosecution witness S.N. Pandey (PW-4), Sub Inspector, Police Station-Sarangarh has stated that on 30.11.90 he received information that the Appellant was carrying ganja. He went to village Malda and near Kosabadi, found that the Appellant was coming on a motorcycle, he stopped and interrogated him before witnesses Vaishnav Charan (PW-2) and Baliram (PW-3). Thereafter, the Appellant gave ganja from his pocket, weighing near about 7 gms., which was kept in an old newspaper, tied up in a blue colour towel. He seized that article in presence of those witnesses and seizure memo was prepared under Ex. P/2. The weight of ganja was found 7 gms. with envelope. Dehati Nalici was recorded and after reaching to the Police Station, F.I.R. was lodged.

The seizure witnesses Vaishnav Charan (PW-2) and Baliram (PW-3) supported the prosecution case and seizure memo. It is evident from the statement of S.N. Pandey (PW-4) that he sent the seized article to Excise Sub Inspector-P.S. Netam (PW-1) for its chemical examination.

The Excise Sub Inspector P.S. Netam (PW-1) deposed that after receiving 1 packet of ganja from Police Station-Sarangarh, he tested the substance and found it to be ganja. His report is Ex. P/1.

In this case, the seized article was not sent to F.S.L. for its chemical examination and it was sent to the Excise Sub-Inspector. He deposed that he was having experience and obtained training for testing intoxicants, therefore, he examined the seized material and found it to be ganja. On perusal of his statement, it is clear that he has not produced any certificate of training. He also did not apply any chemical test. Statement of S.N. Pandey (PW-4), Sub Inspector shows that he had not recorded the information in writing and had not sent any information to his higher officers or Magistrate. He had also not informed the accused about his legal rights to be searched by the nearest Magistrate or Gazetted Officer. These all are the mandatory provisions under the Act. According to the Excise Sub Inspector-P.S. Netam (PW-1), he also did not apply any chemical test.

Thus, it is clear that the provision of Section 42(2) of the N.D.P.S. Act has not been complied with.

Section 42 of the N.D.P.S. Act reads as under:

Power of entry, search, seizure and arrest without warrant or authorization.--(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building conveyance or enclosed place may, between sunrise and sunset--

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance:

Provided that if such officer has reason to believe that a search-warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy therefore to his immediate official superior.

Section 42 is mandatory. It was incumbent on the officer making search to send forthwith a copy of information taken down by the officer under Sub-section (1) of Section 42 of the Act. From the evidence of S.N. Pandey (PW-4), nothing has been brought to support that the provisions of Section 42 of the Act have been complied with. Therefore, violation of the provision is fatal.

Section 57 of the Act reads as under:

Report of arrest and seizure. --Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

Under Section 57 of the Act, a duty has been cast on S.N. Pandey (PW-4) to make full report of arrest and seizure to his immediate superior within 48 hours. But, there is nothing on record to establish that the compliance of above provisions was made by S.N. Pandey (PW-4). Although the above provision is not mandatory in nature, but having considered all the facts present in this case, non-compliance of the above provision, casts doubt on the prosecution version.

Section 50 of the Act reads as under:

Conditions under which search of persons shall be conducted.-- (1) When any officer duly authorized under Sec, 42 is about to search any person under the provisions of Section 41, Section 42, or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by any one excepting a female.

{(5) When an officer duly authorized u/s 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided u/s 100 of the Code of Criminal Procedure, 1973.

(6) After a search is conducted under Sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.}

Learned Counsel for the Appellant argued that the provisions of Sections 42, 50 and 57 of the Act have not been complied with; therefore, the Appellant deserves to be acquitted of the charge u/s 20 of the Act.

Considering the facts and circumstances of the case, I am of the view that mandatory provisions of Sections 42(2) and 50 of the Act have not been complied with and the obligatory provision of Section 57 of the Act, has also been violated, even the seizure material has not been tested by chemical process, the conviction of the Appellant u/s 20 of the Act cannot be sustained.

In the result, the appeal is allowed and the Appellant is acquitted of the charge u/s 20 of the N.D.P.S. Act. The Appellant be set at liberty forthwith, if not required in any other case.