GARG, J. - (1.) THE abovementioned two appeals being S. B. Criminal Appeals No. 49/96 and 50/96 are being decided by this common judgment as they have arisen from the same incident, though trial in the lower court has taken place separately and separate judgment has been passed by the lower court.
(2.) BOTH the appeals have been filed by the accused appellants Ram Chandra and Birma Ram against the judgment and order dated 13. 9. 1995 passed by the learned Special Judge, NDPS Cases, Udaipur in Sessions Case No. 241/94 & 242/94 by which he convicted both the accused appellants for the offence u/sec. 8/18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as the `ndps Act') and sentenced each of them to undergo ten years rigorous imprisonment and to pay fine of Rs. one lac, in default of payment of fine, to further undergo two years RI. Facts of S. B. Criminal Appeal No. 49/96 (Ram Chandra vs. The State of Rajasthan & the Union of India) Necessary facts giving rises to this appeal, in short, are as follows:- On 31. 8. 1984 at about 11. 30 PM, PW6 Prem Raj Rathore, Sub Inspector, Central Bureau of Narcotics, Udaipur lodged a report Ex. P/10 to PW5 Roshanlal, Superintendent, Central Bureau of Narcotics, Udaipur stating inter-alia that on 31. 8. 1994 PW5 Roshanlal constituted a party of the officials of the Central Bureau of Narcotics consisting of himself, PW4 Rakesh Bhargava, PW3 Heeralal and PW6 Prem Raj Rathore for the purpose of making surprise checking and they all proceeded in a Government Jeep No. MP07/b-0140 towards Check Post on Chittorgarh Road, Udaipur for checking in order to prevent smuggling of contraband articles etc. It is further stated in the report that when they were doing the work of checking, at about 8. 30 PM in the night, a Bus bearing No. RJ14 P-1136 came from the side of Bhatewar and that Bus was got stopped by PW4 Rakesh Bhargava. When the Bus stopped, the conductor of that Bus told that this Bus is of the Depot of Udaipur and has come from Dhariyawad and going to Udaipur. Thereafter, PW6 Prem Raj Rathore alongwith PW4 Rakesh Bhargava and PW5 Roshanlal entered in the Bus and they found two persons sitting behind the seat of the Conductor and they were found in suspicious condition and on suspicion, two motbirs, namely, PW1 Gurmeet Singh and PW2 Surjeet Singh were called and on being asked, one person told his name as Ram Chandra S/o Bharuram (present accused appellant) and at that time, he was having a bag of urea. Thereafter, the accused appellant was alighted from the Bus and PW6 Prem Raj Rathore asked the accused appellant that he wanted to search his bag since he had suspicion that it contained opium and he further asked the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer. Upon this, the accused appellant denied and said that he could be searched by PW6 Prem Raj Rathore himself. Thereafter, search of the bag, which was found on the person of accused appellant, was made and on search one polythene pouch was recovered and on opening this polythene pouch, one more polythene pouch containing black substance was recovered and it was assessed that it was nothing, but contraband opium. Thereafter, it was weighed by PW3 Heeralal and its weight was found to be 1kg. 250 grms. , out of which two samples of 24 grms. each were taken and both samples and rest opium were sealed on spot. The fard of search and seizure was also prepared on the spot by PW 6 Prem Raj Rathore and the same is Ex. P/1. The specimen seal was taken by PW6 Prem Raj Rathore on separate paper and the same is Ex. P/2 and accused appellant was arrested through Ex. P/3. With letter Ex. P/8 through PW3 Heeralal, sample was sent for chemical analysis to the Manager, Govt. Opium and Alkaloid Works, Neemuch (MP ). and the receipt of the sample is Ex. P/9 and the report of the Asstt. Chemical Examiner, Government Opium & Alkaloid Works, Government of India Neemuch (MP) is Ex. P/17, where it has been stated that "the sample is found by qualitative and quantitative analysis to be opium within the meaning of Section 2xv of NDPS Act, 1985. " PW6 Prem Raj Rathore gave information of the search and seizure through wireless to Dy. Narcotics Commissioner, Kota and copy of the wireless is Ex. P/11 and a detailed report was also sent by PW6 Prem Raj Rathore to the superior officers on 1. 9. 1994 and the same is Ex. P/12. The copies of Malkhana or Station diary are Ex. P/13 to Ex. P/16. Thereafter, the investigation of the case was taken over by PW7 Girish Chandra, who prepared the site plan Ex. P/18. After usual investigation, PW7 Girish Chandra submitted challan before the learned Special Judge, NDPS Cases, Udaipur against the accused appellant for the offence under Section 8/18 NDPS Act. On 9. 3. 1995, the learned Special Judge, NDPS Cases, Udaipur framed charge under Section 8/18 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial. During trial, the prosecution in support of its case examined as many as seven witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under Section 313 Cr. P. C. was recorded. After conclusion of trial, the learned Special Judge, NDPS Cases, Udaipur through his judgment and order dated 13. 9. 1995 convicted the accused appellant for the offence under Section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter-alia:- `1. That compliance of the provisions of Section 50 of the NDPS Act has been made by PW6 Prem Raj Rathore at the time of search and seizure. 2 That compliance of Section 57 of the NDPS Act has also been made by the prosecution in the present case. 3 That there is no evidence to suggest that seal has been tampered with. 4 That the prosecution has proved its case beyond reasonable doubt for the offence under Section 8/18 of the NDPS Act against the accused appellant. Aggrieved from the said judgment and order dated 13. 9. 1995 passed by the learned Special Judge, NDPS Cases, Udaipur, this appeal has been filed by the accused appellant. In this appeal, the following submissions have been raised by the learned counsel for the accused appellant:- 1. That whole proceedings of the search and seizure in the present case have been conducted by PW6 Prem Raj Rathore, who was Sub Inspector in the Central Narcotic Bureau on the date of incident i. e. 31. 8. 1994 and as per the Notification No. 6/85 dated 14. 11. 1985 issued by the Government of India, officers above the rank of Sub Inspector are only authorised to make search and seizure and thus, whole proceedings stand vitiated and on this ground alone, accused appellant should be acquitted. 2. That in the present case, compliance of Section 50 of the NDPS Act has not been made in the manner as it should have been made as per the mandate of Section 50 of the NDPS Act and from this point of view also, the accused appellant is entitled to acquittal. 3. That in the fard of search and seizure Ex. P/1, there is no mention of the fact that PW6 Prem Raj Rathore used his own seal though there are categorical statements of the prosecution witnesses that PW6 Prem Raj Rathore used his own seal and thus, there is difference in the statements of witnesses with regard to using the seal on all the fards. 4. That in the present case compliance of Section 57 of the NDPS Act has not been made by the prosecution and thus, accused appellant is entitled to acquittal on this ground alone. 5. That there is difference in the statements of prosecution witnesses as to in what packet the sample as well as opium was sealed and from this point of view also, suspicion has arisen and benefit of doubt should be given to the accused appellant. Hence, it is prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. On the other hand, the learned counsel for the respondent- Union of India supported the impugned judgment and order dated 13. 9. 1995 passed by the learned Special Judge, NDPS Cases, Udaipur. I have heard the learned counsel for the accused appellant and the learned counsel for the respondent Union of India and perused the record of the case. Point No. 1
(3.) SO far as the factual position of the present case is concerned, there is no dispute on the point that proceedings of search and seizure were conducted by PW6, Prem Raj Rathore in presence of PW3 Heeralal, PW4 Rakesh Bhargava and PW5 Roshanlal and so far as the preparations of fard of search and seizure memo Ex. P/1, taking of specimen seal on separate paper Ex. P/2, arrest memo Ex. P/3 and sending of reports Ex. P/10 and Ex. P/12 to superior officer are concerned, they all have been done by PW6 Prem Raj Rathore. Thus, it is very much clear that the main proceedings were conducted by PW6 Prem Raj Rathore, who was Sub Inspector at the relevant time and on this point there is no dispute. The question that arises for consideration is whether an officer of the rank of Sub Inspector (in the present case PW6 Prem Raj Rathore) was authorised to make search and seizure or not. To answer this question, the learned counsel for the respondent Union of India placed on record the copy of the Notification No. 6/85 dated 14. 11. 1985 issued by the Government of India, which runs as under:- "notfn. No. 6/85 dated 14. 11. 1985 S. O. 822 (E) In exercise of the powers conferred by sub-section (1) of Section 42 or the Section 67 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (61 of 1985), the Central Government hereby empowers the officers of and above the rank of Sub-Inspector in the department of Narcotics and of and above the rank of Inspector in the Departments of Central Excise, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorises the said officers to exercise the powers conferred upon them under Section 67. " ;