Ram Awtar Yadav vs The State of Bihar

N.N. Singh, J.—This appeal is directed against the judgment of conviction and order of sentence dated 4.9.1996 passed in Sessions Trial No. 1348 of 1989/3 of 1995 passed by the Sessions Judge, Madhubani by which he convicted this Appellant under Sections 20(1)(b) and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as "the Act") and sentenced him u/s 22 of the Act to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lakh and in default to undergo simple imprisonment for two years. No separate sentence was passed u/s 20(1)(b) of the Act.

Briefly stated, the case of prosecution was that on getting secret information, Ugranand Mishra A.S.I, raided the house of this Appellant along with armed forces and made search in the Appellant''s house in presence of two independent witnesses Chandeshwar Ram (P.W. 1) and Mangal Ram (P.W. 2). According to the prosecution case 12 gunny bags filled with 67 bags of Nepali ganja were allegedly recovered from the house of this Appellant, weight of which was 210.5 kilograms. A seizure list (Ext. 3) was prepared over which the seizure list witnesses put their signatures (Exts. 1 and 1/1) and a copy of Seizure list was given to the Appellant, who put his signature in token of receipt of a copy of seizure list. On the basis of the written report (Ext. 2) of A.S.I. Ugranand Mishra (P.W. 3) Khajouli Rs. Case No. 109 of 1989 was registered against this Appellant under Sections 8(c), 20, 23, and 25 of the Act and the police after due investigation submitted chargesheet against this Appellant and after cognizance and commitment this Appellant was put on trial and was convicted as aforesaid.

The defence of the Appellant was that he has been falsely implicated in this case and that the house from which Nepali ganja was recovered belonged to his brother Gangai Yadav and in support thereof D.W. 1 Sitaram Kuar and D.W. 2 Ram Sakal Kuar were examined.

The prosecution examined alltogether seven witnesses in support of its case out of whom P.W. 6 Malhu Ram was tendered for cross-examination. P.W. 7 Hawaldar Surendra Kumar Singh and P.W. 4 Siyaram Singh drivers of the police jeep, were in the raiding party along with P.W. 3 Ugranand Mishra A.S.I. P.W. 5 Wazir Mansoori is witness on the point of seizure who stated that these packets were not opened in his presence. P.W. 1 Chandeshwar Ram and P.W. 2 Mangal Ram were the seizure list witnesses who proved their signatures as Exts. 1 and 1/1 -on the seizure list (Ext. 3). The trial court has discussed the evidence of witnesses in detail in paragraphs 8, 9, 10 and 11 of its judgment.

It was contended on behalf of the Appellant that in this case P.W. 3 Ugranand, Mishra, A.S.I, conducted the search and made seizure for which he was not authorised u/s 42 of the Act or by general or special order and as such the search and seizure is vitiated. It was also contended that Section 50 of the Act was not complied with. So far as the argument regarding compliance of Section 50 of the Act is concerned, it has been held in the case of State of Punjab Vs. Baldev Singh, that a bare reading of Section 50 of the Act indicates that in the case of house search, Section 50 is not applicable rather it is applicable only in the case of search of person.

However, I find weight in the contention of the learned Counsel for the Appellant that for making search and seizure u/s 42 of the Act, only those persons who have been authorised by Central or State Governments to make a search and to seize the articles in a public place or in the private place, can conduct investigation and he cannot seize the articles unless and until that officer is specifically authorised under Sections 42 and 43 of the Act. Here, in this case, search and seizure, as also the investigation of the case, was made by A.S.I. Ugranand Mishra (P.W. 3). Under notification dated 5th September, 1988 S.O. No. 880 officers of the rank and above of the Inspector in the Department of Excise or Home were authorised by the State Govt, to exercise the power and perform the duty specified u/s 42 of the Act within the area of their respective jurisdiction. Since P.W. 3, the officer who conducted the search and seizure in this case was below the rank of Inspector was not authorised to make any search and seizure and he was also not authorised to make any investigation in the case and the investigation conducted by him is wholly without jurisdiction which vitiated the whole trial.

In the result, this appeal is allowed and the order of conviction and sentence passed against this Appellant is hereby set aside and he is directed to be released forthwith, if not wanted in any other case. Before parting, I must observe that the trial court was not at all justified in convicting the Appellant u/s 22 of the Act when no charge was framed u/s 22 of the Act and since Section 22 of the Act is not a minor Section of Section 23 of the Act, the conviction could not have been made u/s 22 of the Act on charge framed u/s 23 of the Act.