RAM NATH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE petitioner was convicted by the Chief Judicial Magistrate, Ambala, for an offence under section 27 (a) (ii) read with section 18 (c) of the Drugs and Cosmetics Act, 1940, and was sentenced to two years simple imprisonment and a fine of Rs. 500/ - in default of payment of fine to undergo further simple imprisonment for six months. The petitioner filed an appeal against the aforesaid conviction and sentence and the Additional Sessions Judge, Ambala while upholding his conviction for the offence mentioned above, reduced his sentence to one year's simple imprisonment. The sentence of fine as imposed by the trial Court was maintained, though it was ordered that in default of payment of fine, the petitioner shall undergo three months simple imprisonment instead of six months simple imprisonment. The present Revision petition has been filed, with a view to impugn both the judgments.

(2.) BRIEFLY stated the prosecution allegation is that on October 16, 1975 Ram Mohan Sharma (PW 1), Drug Inspector went to village Gobindpura at about 5.30 p.m. After making inquiries from the inhabitants, he went to the house of the petitioner where some medicines were found in a wooden almirah. The list of these medicines was prepared. Medicines at Serial Numbers 1 to 8 were sealed in one packet, while those at Serial Numbers 9 to 16 were sealed in another packet. The packets were signed by the Drug Inspector. Subsequently on the complaint filed by the Drug Inspector, the petitioner was prosecuted with the result, already noticed.

(3.) AT the time of the arguments of this Revision Petition, the learned counsel for the petitioner raised a crucial contention that the Drug Inspector while effecting the search of the premises of the petitioner, had not complied with the mandatory provisions of section 100(4) of the Code of Criminal Procedure, relating to house search. The argument is that even though the premises in question were located in the populated area of the village, the Drug Inspector did not associate any independent witness with him for affecting the search. The counsel has referred to provisions of section 22 (2) of the Drugs and Cosmetics Act, 1940, according to which the provisions of the Code of Criminal Procedure are to apply to any search or seizure under the Act so far as they may be applicable. Section 100 (4) of the Code enjoins upon the officer conducting the search to call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, before carrying out the search. The sanctity attached to this provision was highlighted in Rattan v. The State of Punjab, 1984(2) C.L.R. 598,wherein it was held that the said provision is of mandatory nature and it is incumbent upon the officer conducting the raid to associate at least two respectable witnesses from the same or adjoining locality. It was further held that non -compliance with the said provision renders the recovery in consequence of the accused of the raid as illegal and that in any case the accused would be entitled to the benefit of doubt on that score. I am in respectful agreement with the enunciation of law. The Drug Inspector i.e. Ram Mohan Sharma (P.W. 1) admitted in his cross -examination that he had only taken his Peon Harbans Lal with him and that nobody from the locality was joined at the time of recovery.