KHET SINGH Vs. UNION OF INDIA
SUPREME COURT OF INDIA (FROM: RAJASTHAN)
UNION OF INDIA
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K. G. Balakrishnan, J. -
(1.)This appeal is directed against the judgment of the High Court of Rajasthan challenging the conviction and sentence of the appellant under Sections 17, 18 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act"). Appellant had been sentenced to undergo 10 years' rigorous imprisonment and a fine of Rs. 1 lakh and in default of payment of fine further to undergo two years and six months' rigorous imprisonment.
(2.)Appellant Khet Singh was tried along with one Kanhaiya Lal for the aforesaid offences and Kanhaiya Lal was acquitted by the Sessions Court. The case of the prosecution is that on 6-5-1989, PW6 Shri Naraian Das Lakhara, Inspector, Customs Department, Jaisalmer, along with the Superintendent of Customs and two other Constables was proceeding on patroling and checking duty towards Ramgarh. Near Brahamsar crossing, they started checking several motor vehicles as it was suspected that there might be drug trafficking. In truck No. RJC 1472, the appellant was found sitting with a cloth basket in his hand. During the search, a polythene bag was found in the basket which contained some black substance suspected to be opium. Appellant Khet Singh and Kanhaiya Lal along with the cloth basket were brought to the office of the Customs. In the office of the Customs, the opium was seized, samples were taken from it and were sealed. Appellant and Kanhaiya Lal were questioned. The appellant stated that he had purchased the seized opium from Kanhaiya Lal. The samples were sent for chemical examination and the report from the Forensic Science Laboratory revealed that the sample was 'opium'.
(3.)The appellant contended before the trial Court that there was violation of Section 50 of the NDPS Act as the search and seizure was not made in the presence of a Gazetted Officer or a Magistrate and that the appellant was not told in advance that he had a right to demand that the search to be effected shall be in the presence of a Magistrate or a Gazetted Officer. This plea was rejected on the ground that search and checking was being conducted of the vehicles and it was during the course of this general search that the appellant was found travelling with the opium and hence Section 50 of the NDPS Act is not applicable and that the same would apply in the case of a search on the person of the appellant. The same plea was raised before the High Court and was rightly rejected.
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