Decided on November 20,2002

Gidhari Appellant


- (1.)THE appellants before us were tried by the Special Judge, Narcotic Drugs and Psychotropic Substances Act, 1985 Cases, Chittorgarh, Rajasthan for the offences punishable under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Special Court on finding the appellants guilty, sentenced each one of them to undergo rigorous imprisonment for a period of ten years under S. 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and awarded a fine of rupees one lakh and in default of payment of the said fine, the appellants were directed to undergo further period of six months' rigorous imprisonment. On appeal the High Court of Judicature of Rajasthan at Jodhpur had confirmed1 the said sentence. It is against the said judgment of the High Court the appellants are now before us.
(2.)THE brief facts necessary to be mentioned for disposal of this appeal are that at about 4.00 p.m., PW 7, Mahendrapal Singh who was then the Deputy Superintendent of Police, Circle Kapasan received information from mukhbir to the effect that the appellant-accused carrying contraband opium in their possession, would pass through Bhadsoda Road near Kapasan. The said information was reduced to writing as per Exhibit P-15 and the said information was also sent to the Superintendent of Police. On receipt of the said information PW 7 along with another Sub-Inspector PW 3 and two constables PWs 4 and 6 held nakabandi near railway gate and found these appellants approaching the said gate at about 5.30 p.m. When he arrested the said persons and on their search Appellant 1 was found carrying 1 kg of opium in his lungi and Appellant 2 was carrying 500 gm of opium in a bag which were seized. Then PW 7 removed 30 gm of opium from each of the seized packets and packed the same for the purpose of sending it to the forensic laboratory. Thereafter on receipt of the report from the laboratory the appellants were charged as stated above. The trial court on consideration of the evidence came to the conclusion that the prosecution has established the case against the appellants and convicted and sentenced them as stated above which was confirmed by the High Court.
In this appeal Dr. Sushil Balwada, learned counsel appearing for the appellants contended that the courts below erred in accepting the prosecution case, in spite of the fact that the investigating agency has not complied with the mandatory requirement of Ss. 42 and 50 of the Act. The learned counsel pointed out that even according to the findings of the courts below, it is clear that PW 7 has failed to send a report in regard to the information received by him to his superior officers as required under S. 42(2) of the Act. He pointed out that the courts below have proceeded on the basis that such compliance is not necessary when the search is being made in a public place, which opinion of the courts below, according to the learned counsel, is erroneous. We have gone through the evidence on record and find that this complaint of the learned counsel has no factual basis because as could be seen from the evidence of PW 7, it is clear that PW 7 in his evidence has stated that after receiving the information he reduced the same to writing and dispatched a report to the Superintendent of Police as required under Section 42 of the Act. There is no cross-examination of PW 7 on this factual aspect. Therefore, we think that this argument of the learned counsel for the appellant must fail.

(3.)THE learned counsel then argued that the mandatory requirement of S. 50 has also not been complied with inasmuch as there was an error in the memo issued to the appellants as to their right of being searched by a gazetted officer or a Magistrate. He pointed out that in the said memo given to the appellants instead of the word "Magistrate", the word "Judicial Magistrate" is used which is not the requirement of S. 50 of the Act. We do notice that PW 7 while issuing the memo to the appellants has used this word "Judicial Magistrate" instead of the word "Magistrate" found in Section 50 of the Act. But then the learned counsel is unable to point out to us what prejudice is caused to the appellant by the usage of the word "Judicial Magistrate" instead of the word "Magistrate". In the absence of any such prejudice being caused to the appellants, we think this argument of the learned counsel for the appellants must also fail.

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