PANWAR, J. - (1.) THIS criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short "the Code" hereinafter) is directed against the order dated 19. 12. 2001 passed by Special Judge, N. D. P. S. Cases, Chittorgarh (for short `the trial Court' hereinafter) in Sessions Case No. 67/2001, whereby the trial Court discharged both the accused non-petitioners of the offences under Sections 8/18 and 8/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act' hereinafter ). Aggrieved by the order discharging the accused non-petitioners, the State of Rajasthan through its public prosecutor has filed the instant revision petition.
(2.) I have heard learned public prosecutor and counsel appearing for the accused non-petitioners. Carefully gone through the order impugned and record of the trial Court. Briefly stated the facts of the case to the extent they are relevant and necessary for the decision of this revision petition are that Sub-inspector Harendra Singh, who at the relevant time was holding the charge of Station House Officer, Police Station Chanderiya, received a secret information that both the accused non-petitioners are trading in the opium and on a particular day, transporting the opium on a Hero Honda Motorcycle going towards Rolaheda. The information was found to be reliable and was reduced to writing in Rojnamcha Aam Report. The information, as envisaged under Sub-section (2) of Section 42 of the NDPS Act,was separately written. The information was sent to higher officials i. e. Superintendent of Police and Additional Supdt. Of Police through Constable Ratanlal. Thereafter, Harendra Singh along with the other officials went to the place disclosed in the secret information along with two independent Motbirs namely Narayan Lal and Munir Khan. At about 12. 10 P. M. , two persons were found coming on a Hero Honda Motorcycle from Highway road. They were got stopped. On being asked, they disclosed their names Amar Chand and Bherulal, the accused non-petitioners herein. A notice was served on the accused non-petitioners under Section 50 of the NDPS Act for their search giving option to be searched in the presence of the Magistrate or Gazetted Officer or by sub-inspector Harendra Singh. On being searched, accused non- petitioner No. 1 Amar Chand was found in possession of 4 kg. 200 grams of opium in a plastic bag which the accused non-petitioner No. 1 was holding in his hand. Two samples of 30 grams each were taken. The samples and the remaining opium were sealed on the spot. Both the accused non-petitioners were arrested and Panchnama, seizure memo etc. were prepared including the memo of specimen seal etc. A crime report was registered. After usual investigation, a challan was filed against the accused non- petitioners for the offences noticed above. The trial Court at the stage of framing of charge discharged the accused non-petitioners for the offences solely on the ground that search and seizure made by Harendra Singh, Sub inspector was not an authorized officer as envisaged under Section 42 of the NDPS Act and notification of the State of Rajasthan S. O. 115 dated 16. 10. 1986. It is contended by the learned public prosecutor that at the time of framing of charge which is initial stage of the case, it cannot be gone into by the trial Court that search and seizure made by the officer was not empowered person. This is a question of fact and has to be gone into on appreciation of the evidence which may be adduced at the time of trial. It is further contended that on the relevant date of occurrence, the regular S. H. O. Himmat Singh posted to that particular Police Station was on leave and while proceeding on leave, the charge of Police Station was handed over to sub-inspector Harendra Singh and for all practical purposes, on the relevant date and time, sub- inspector Harendra Singh was the S. H. O. Police Station Chanderiya and therefore, he was empowered as envisaged under Section 42 read with the notification of State of Rajasthan S. O. 115 dated 16. 10. 1986, which provides that in exercise of the powers conferred by Section 42 of the NDPS Act (Act No. 61 of 1985), the State Govt. hereby authorize all Inspectors of police, and Sub- Inspector of police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate effect: Provided that when power is exercised by Police Officer other than Police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or S. H. O. of the Police Station concerned.
(3.) LEARNED public prosecutor has relied on decisions of Hon'ble Supreme Court in State of Himachal Pradesh vs. Shri Pirthi Chand and another, AIR 1996 SC 977 and in Md. Malek Mondal vs. Pranjal Bardalal and another 2005 Cr. L. J. 2613 (SC ). Learned counsel for the accused non-petitioners has relied on decisions of Hon'ble Supreme Court in Ajaib Singh vs. Gurbachan Singh and others 1965 (2) Cri. L. J. 553, in Roy V. D. vs. State of Kerala, 2001 Cr. L. R. (SC) 54, and two decisions of this Court in Kesha Ram vs. State of Rajasthan 2002 (1) Cr. L. R. (Raj.) 197 = RLW 2003 (1) Raj. 575 and Bherulal vs. State of Rajasthan 2004 (1) Cr. L. R. , (Raj.) 612. I have given my thoughtful consideration to the rival contentions raised by learned counsel for the parties. I have scrutinized, scanned and evaluated the evidence on record. ;