S. M. JAIN, J. - (1.) THIS appeal by the accused is directed against the judgment dated June 26, 1987, of the Additional Sessions Judge No. 1, Hanumangarh camp at Sangaria, convicting and sentencing the accused under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as 'the Act') to ten years R. F. and a fine of rupees one lack, in default of payment of fine to 2-1/2 years further imprisonment.
(2.) THE prosecution case is that on December 18, 1985, Shri Dalu Ram, Assistant Sub-Inspector of Police,was informed that a person was selling intoxicating drugs near the bus stand of Sangaria. Shri Dalu Ram went to the spot and found the accused selling the intoxicating tablets. THE accused was arrested and 31 tablets were recovered from his possession. He was not having any licence for the same. Shri Dalu Ram packed and sealed the tablets. A sample of five tablets out of the said lot was packed and sealed separately for being sent to the State Forensic Science Laboratory, Rajasthan, Jaipur. THE sample tablets as also the other remaining 26 tablets were sent to the State Forensic Science Laboratory for examination. On examination, the Deputy Director, State Forensic Science Laboratory found that the tablets contained Methaqualone as active ingredient along with sugar and starch. He was of the opinion that the preparation was covered under the category 'dangerous drugs'. After investigation, the In-charge Police Station, Sangaria, submitted a charge-sheet against the accused in the Court of Judicial Magistrate, Sangaria, for the offences under section 8/21 of the N. D. P. S. Act, 1985 Learned Magistrate committed the accused for trial to the Court of Additional Sessions Judge No. 1, Hanumangarh, camp at Sangaria. The Additional Sessions Judge charged the accused under Section 8/21 of the Act. After trial, the accused-appellant has been convicted and sentenced as aforesaid. Aggrieved, the accused has filed the present appeal through Jail. As the accused was un-represented. Shri S. G. Ojha, Advocate, was appointed Amicus curiae, to conduct the case on behalf of the accused. I have heard Shri Ojha, Amicus curiae and Shri Vimal Mathur, Public Prosecutor for the State. Shri Ojha has contended that the occurrence took place on Dec. 18, 1985, when Shri Dalu Ram, Assistant Sub-Inspector of Police was not authorised under section 42 and 43 to effect the arrest of the accused, make any search or seizure of the goods under the Act. Therefore, argues Shri Ojha, that the entire investigation was un-authorised and the trial stands vitiated. The question involved in the present case is no more 'res-integra'. It is covered by a series of judgments of this Court. Hon'ble Mr. V. S. Dave, J. in Nand Lal vs. State of Rajasthan (1) sumed up the position of law as under: - "thus, it is clear that police officer upto the rank of Inspector had no jurisdiction on the date of the occurrence i. e. on 23rd November, 1985 to investigate under section 42 of the Act and the power came for the first time on 16. 10. 86. Amanulla Khan who was author of the FIR and who as PW 1 stated that he searched the opium and took the accused in custody thereafter he was taken to the police station, was not even an officer of the rank of Inspector or Sub-Inspector. He was only a literate Head Constable who does not fall within the persons of the authorised category rather he has been excluded. Obviously, for the person that the legislature has made the law so strict that anybody found guilty of offence under section 8/18 of the Act has to undergo minimum sentence of 10 years and a fine of Rs. 1 lakh. When the gravity of the offence is a severe and the legislature in its own wisdom excluded any investigation or search by a constable it cannot be appreciated that Amanulla did it rightly. " xx xxx xxx "i have carefully gone through the cases cited above and have no hesitation in reaching the conclusion that for launching the prosecution or for initiating the proceedings the authority has unambiguous power. In criminal case while enacting such provision the legislature puts a complete ban on the. authorities beyond one mentioned in the Section to carry out the functions under the Act. In section 42 of the Act the legislature has clearly empowered the persons mentioned therein or who are authorised to do so by notification. The legislature intended that a Peon, Sepoy or Constable should in no case be empowered to enter, search or seize or arrest a person without warrant. It also did not empower in the Act even the police officers unless there was a notification in that behalf and as quoted by me above the officers of the police department had been empowered only by notification, dated October 16, 1986 and thereto the Government authorised the Inspectors of Police and Sub-Inspectors of Police who too were posted as Station House Officers. A person accused of a crime particularly like the one where the legislature provides a minimum sentence of ten years and a fine of Rs. 1,00,000, 00/- it is essential that the intention of the legislature must be carried out in letter and spirit. The accused has a right to expect a fair investigation and a fair trial keeping in view the basic concept that justice should not only be done but it should appear to have been done, has facing a trial by itself as an ordeal. A Head Constable is also a constable and is certainly not a Sub-Inspector or Inspector of Police and in the instant case PW 1 Amanulla Khan was not admittedly S. H. O. of G. R. P. Police Station, Ajmer. I have also quoted his statement in existence where he has admitted that he had gone to the police station after 10 minutes of the search of which he had no jurisdiction expressed or implied. Even the SHO PW. 6 Ramchander had no jurisdiction vested in him on Nov. 21, 1985, and as such very foundation of the case is without proper authority of law. 1 need not to go into other points raised as this alone is sufficient to dispose of this case. "
(3.) IN Urnrao v. State of Rajasthan (2) Hon'ble Farooq Hassan, J. , following the aforesaid decision held as under: - "applying the preposition of law extracted above, I am of the opinion that in the instant case, where the search was made by a police constable without jurisdiction and investigation was also made by an officer who was not empowered to do so under section 42 of the Drugs Act by a special order of the State Government on the day when the offence is said to have been committed by the appellant. Umrao, because admittedly, Chhaganlal (PW 8) S. H. O, had no jurisdiction express or implied even vested in him on August 1, 1986 the day of occurrence and the powers were only conferred upon such officers like Chhaganlal, after the notification dated October 16, 1986 came into effect; and as such, very foundation of the Case is without authority of law. And the conviction against the appellant under section 17 of the Drugs Act can not sustain warranting acquittal of the accused. IN view of the peculiar circumstances, other points raised need not be gone into as the aforesaid point all alone is sufficient to dispose of this case. " Nand Lal's case was further followed by Hon'ble G. K. Sharma, J, in Raju vs. State of Raj. (3) and also by me in Shanti Lal vs. State of Rajasthan (4 ). The aforesaid decisions conclude the question involved herein. I, therefore, hold that the arrest, search and seizure effected by Dalu Ram, Assistant Sub-Inspector on Dec. | 18, 1985, was un-authorised and this infirmity goes to the root of the case arid vitiates the trial. Accordingly, the appeal is allowed, the conviction and sentence of the accused appellant for the offence under section 8/21 of the Act passed by the Additional Sessions Judge No. 1, Hanumangarh, camp at Sangaria, by the Judgment dated 26. 6 87 are set aside and the accused is acquitted of the charge levelled against him. He shall be released forthwith, if not required in any other case. . ;