B. R. ARORA, J. - (1.) THIS appeal arises out of the judgment dated August 2,1988, passed by the Additional Sessions Judge No. l, Hanumangarh, by which the learned Additional Sessions Judge convicted the appellant under Section 8/18 of the Narcotics Drugs and Psychotropic Substances Act ( hereinafter referred to as' the Act') and sentenced him to ten years' rigorous imprisonment and a fine of Rs. 1 lac, and in default of payment of fine to further undergo two years' rigorous imprisonment.
(2.) THE incident, which led to the prosecution of the accused Section 8/18 of the Act, took place on May 17,1986, at about 10. 30 p. m. when the appellant was apprehended by the Station House Officer Shri Raghuveer Singh (PW4) THE case of the prosecution is that on may 17. 1986, at about 8. 15 PM. , the Station House Officer Shri Raghuveer Sing, the Deputy Superintendent of Police Shri Gangadhar Sharma, Kaliyan Singh F. C. , Hari Ram F. C. , Rameshwar Lal F. C. , Bhanwar Lal F. C. , Satyadeo Singh Constable and Hakam Singh F. C. , went on patrolling duty, At about 10. 30 p. m. , when they reached near the Gurudwars situated near Bhagatsing Choraha, Hanumangarh Junction, the accused appellant was coming-out from the Gurudwara, who was carrying a white bag in his hand. After seeing the police party, he returned back and tried to run away. Suspicion arose and the police party caught hold of him and on search of the bag, 1. 850 kgs. of opium was found in that bag. A sample from this material was taken, which was separately sealed and the remaining opium was also sealed in separate cover. After sealing the opium, the accused-appellant was arrested and the memo of arrest was prepared at the place of the occurrence and thereafter, after returning to the Police Station, a First Information Report was drawn at the Police Station at about 11. 50 P. m. THE sample was, thereafter, sent for Forensic Science Laboratory (F. S. L.) examination, which, on examination, was found as opium. THE police, after necessary investigation, presented a challan and the appellant was tried for the offence under Section 8/18 of the Act by the Additional Sessions Judge No. l, Hanumangarh. After trial, the learned Additional Sessions Judge No. 1, Hanumangarh, convicted and sentenced the appellant, as mentioned above. The learned counsel for the appellant, challenging the conviction of the appellant, submitted that while making the recovery from the appellant, no independent witness was called though the place, from where the appellant was* arrested, is situated in the main market and numerous independent witnesses were available. His further submission is that the S. H. O. Raghuveer Singh was not authorised to make a search, arrest the accused and to investigate the matter, and, thus his prosecution is without any authority of law and is illegal, which vitiates the whole trial. In support of his contention, the learned counsel for the appellant has placed reliance on Nand Lal vs. the State of Rajasthan (l), Umrav vs. the State of Rajasthan (2), Chhoteylal vs. the State of Rajasthan (3), Prithvi Raj vs. the State of Rajasthan (4), Aila alias Aidan vs. the State of Rajasthan (5), Suresh Lal Gupta vs. the State of Rajasthan (6) and Bhanwar Singh and another vs. the State of Rajasthan (7 ). The next argument of the learned counsel for the appellant is that the sample in the present cause was not properly sealed and there is no evidence on record, from which it could be gathered that the seals of the sample remained intact throughout from the day the articles were seized and sealed till it reached the Forensic Science Laboratory and was chemically examined. The learned public Prosecutor, on the other hand, has supported the judgment passed by the learned Additional Sessions Judge. His submission is that the appellant was arrested at 10. 30 p. m. in the night and at that time, no independent witness was available and when there is the evidence of the police witnesses regarding search and seizure, which inspires confidence, then the conviction can be well be based on their evidence. He has further submitted that the irregularity in the search and seizure will not vitiate the trial when no prejudice has been caused to the appellant. Regarding the competency of Shri Raghuveer Singh, S. H. O. , to conduct the investigation, the learned Public Prosecutor has further argued that the present case is not covered by Section 42 of the Act, but it is covered by Section 43 of the Act and according to Section 43 of the Act, S. H. O. was competent to investigate into such a matter. So far as the question of sealing of the sample is concerned, the learned Public prosecutor has argued that the sample was sealed at the place of the occurrence and was deposited by the S. H. O. in the 'malkhana' and there is the evidence of P. W. 2 Jeetsing, Incharge, Malkhana Section, to the effect that the seals of the sample remained intact from the date of its receipt till the sample was sent for F. S. L. examination. P. W. 3 Om Prakash, who took the sample for F. S. L. examination, has also, deposed that when be took the sample, it was in a sealed condition and after taking the sample from the 'malkhana' he deposited the same in the Forensic Science Laboratory in the sealed condition. According to the learned Public Prosecutor, from this evidence produced by the prosecution it stands proved that the seals on the sample remained intact through-out till it was chemically examined. Before dealing with the question raised by the appellant, I would like to deal-with the nature of the evidence produced by the prosecution. P. W. 1 Birbal Ram is the Head Constable posted at the Police Station, Hanumangarh, who, on May 17, 1986, was working as the CO. in the office at Hanumangarh. On that day, he along with the Deputy Superintendent of Police Shri Janardan Sharma, Raghuveer Singh S. H. O. and Kaliyan Singh A. S. I. Police, was on patrolling duty and at about 10. 30 p. m. , they apprehended the accused and on search of the bag, 1,850 kgs. of opium was recovered from the appellant, which was seized and sealed by the S. H. O. in their presence. A sample of 50 grams of opium was separately taken, which was separately sealed. The recovery memo of the opium Ex. P. /l was also prepared, which is signed by him. P. W. 2 Jeetsingh is the 'malkhana' incharge, who stated that the sealed packets connected with the F. I. R. no. 128/1986, were kept in the 'malkhana' and one of which was handed-over to Shri Om Prakash (P. W. 3) for handing over to the Forensic Science Laboratory for examination in the sealed condition p. w. 3 Omprakash is the L. C. , who took the sample for F. S. L. examination. P. W. 4 Raghuveer Singh is the Station House Officer, who conducted the investigation and presented the challan. This is all the evidence produced by the prosecution. No independent witness was called at the time of search and seizure. Now, I take the question : whether any illegality or irregularity has been committed by the prosecution in search/seizure by the Investigating Officer? Chapter the of the Act deals with the procedure. Section 50 of the Act, which is a part of Chapter V provides the condition, under which the search of a person shall be taken. According to Section 50, when any officer duly authorised under Section 42 of the Act is about to make a search of any person under the provisions of Section 41, 42 and 43, he shall, if such person so requires, take such person without any unnecessary delay to the nearest Gazetted Officer of any department mentioned in Section 42, or before the nearest Magistrate. The question that requires consideration is whether it was necessary for the investigating officer to ask the accused, as required under Section 50 of the Act as to whether he requires to be searched before a gazetted officer or in the presence of the Magistrate. Section 50 of the Act enjoins upon the Officer who is about to Search any person under Section 42 and 43, if such person so requires to take him without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The object of making it peremptory on the part of the officer is to ensure that the officer, who is charged with the duty of conducting the search, to conduct it properly -and do no harm or wrong, such as planting of offending drugs by any interested party and prevent fabrication of any false evidence. The Provision of Section 50 are intended to provide a safe-guard against vexatious search, any unfair dealings and to protect and safeguard the interests of the innocent persons. It also provides a protection to the law enforcing officer against the common allegation that drugs are planted by the investigating agency. In the present case, there is no evidence on record that the appellant was informed of his right at any time before his person was searched. As the investigating officer, in the present case, failed to comply with these mandatory requirements of Section 50 of the Act, which, in my opinion, vitiates the whole trial.
(3.) THE next question which requires consideration is : whether the S. H. O. Raghuveer Singh was authorised and competent to investigate into the matter ? It is contended by the learned counsel for the appellant that the matter relates to May 17, 1986, and on that day, P. W. 4 Raghuveer Singh was not authorised under Section 42 of the Act to conduct the investigation. Section 42 of the Act deals with the power of entry, search, seizure and arrest without warrant or authorisation. According to Section 42, any such officer being an officer superior in rank to a peon, Sepoy or Constable of the department of the Central Excise, Narcotics, Customs, Revenue, Intelligence or any other department of the Central Government or the B. S. F. as is empowered by this provision by the general and specific order of the Central Government or any other such officer (being an officer superior in rank to peon, Sepoy or a Constable) of the Revenue, Narcotic Drugs Control, Excise, police or any other department of the State Government as is empowered in this behalf by the general or special order of the State Government, if he has reason to believe from personal knowledge or as per the information given by any person or taken down in writing that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Section 4 of the Act, has been committed or any document or any other article which may be furnished in evidence as such, is concealed in any building, conveyance or place, may between Sun-rise and Sun-set, enter into such building , conveyance or the place. According to the learned counsel for the appellant, authorisation before taking any search or seizure is a must. As the S. H. O. was not authorised, on the date of the incident with the power under Section 42 of the Act, and, therefore, he was not empowered to make search of the appellant and, therefore, the search made by P. W. 4 Raghuveer Singh and the investigation conducted by him on the basis of which the trial was conducted, vitiates the whole trial and the appellant deserves to be acquitted of the offence. In Support of his contention, he has placed reliance on : 1987 (2) R. L. R. 679, 1988 (1) R. L. R. 796, 1989 (1) R. L. R. 262, 1989 R. C. C. 474, 1989 R. C. C. 532, 1989 Cr. L. R. (Raj)413, 1990 R. C. C. 121 and 1990 R. C. C. 268. The learned public prosecutor, on the other hand, submitted that the case in hand is covered under Section 43 of the Act and no authorisation was necessary under Section 43 of the Act. He has placed reliance on the judgement rendered in Hardeo Gujar vs. the State of Rajasthan (8 ). I have considered the rival submissions made by the parties and have also looked into the authorities cited by the learned counsel for the appellant as well as by the learned* public prosecutor. Section 42 of the Act deals with the search being conducted of any building, conveyance or place and not with the search at the public place. In the present case, neither any building nor any conveyance or place was searched and, therefore, in my opinion, Section 42 the Act is not applicable so far as the personal search of the person is concerned. The appellant was apprehended while the police party was no patrolling duty and in such a matter, the provisions of Section 43 are applicable and not of Section 42. The learned counsel for the appellant has placed reliance over the judgments which deal with the search made under Section 42 in any building, conveyance or enclosed place, while the authority cited by the learned public prosecutor deals with the Search and seizure at an open place. A close reading of the provisions of Section 43 makes it clear that when a search and seizure is made at an open place then the provisions of section 43 will apply and not of Section 42. ;