ABID BEIG Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Having been convicted for offences under Sections 8/21 of the NDPS Act ('the Act', for short), and having been sentenced to ten years of rigorous imprisonment, having been imposed with a fine of Rupees one lac, and further directed to undergo one year of rigorous imprisonment, in default thereof, vide judgment dated 20.7.2004 passed by Special Court, (NDPS Cases), Jaipur, the appellant has approached this Court. The brief facts of the case are that on 31.8.2003, around 1:15 PM, the SHO, Police Station Kotwali. Mr. Surendra Singh (PW. 10), received a secret information that there is a person standing in Govind Dev Colony, behind Chogan Stadium, in front of a shop belonging to Genesh Agency. The person is wearing blue and white striped shirt, and coca coloured trousers. He is about forty to forty-five years old. The informant further told him that the person is carrying smack in large quantity. Having received the said information, the said information was sent to the higher officers in compliance with Section 42 of the Act. Devendra Prasad (PW. 2), FC was directed to procure the presence of two independent witnesses. Subsequently, at about 1:30 PM, the police party left for the designated place. At 1:35 PM, Devendra Prasad (PW. 2) brought two independent witnesses, who were informed about the purpose of the raiding party. Around 1:45 PM, the party reached the destination, where they saw a person standing who matched the description given by the secret informant. When the person saw the police party, he tried to run away. The police party caught hold of him, and asked his name. He informed the police that his name is Abid Beig. After giving him a notice under Section 50 of the Act, Abid Beig was searched; from his personal search, 1 Kg. 8 grams 680 milligram of smack was recovered from inside his shirt. Out of this quantity, the police took out 50 grams by way of sample and placed it in a polythene bag. The polythene bag was subsequently placed in a while cloth bag and was properly sealed. Subsequently, the police filed a chargesheet against the appellant for offences under Sections 8/21 of the Act. In order to prove its case, the prosecution examined ten witnesses and submitted twenty-one documents. The defence did not examine any witness, but did submit two documents. After going through the oral and documentary evidence, the learned Judge convicted the appellant as aforementioned. Hence, this appeal before this Court.

(2.) Mr. Anshuman Saxena, the learned counsel for the appellant, has raised the following contentions before this Court: firstly, that Section 50 of the Act lays down the procedure for personal search of a person. According to Section 50 of the Act, the recovery has to be made by an authorized person. In terms of Section 42 of the Act, the SHO of the police station is authorized. Mr. Surendra Singh (PW. 10) has admitted in his cross-examination that although the recovery was made under his supervision, but he did not carry out "the personal search" of the accused. Therefore, according to the learned counsel, the requirement of Section 50 of the Act has not been fulfilled. Since the mandatory provision of Section 50 of the Act has been violated, the trial stands vitiated.

(3.) Secondly, although the FSL Report (Ex. P.18) was tendered in evidence and was used as evidence, but the provisions of Section 293 Cr. P.C. have not been followed. According to Section 293(2) Cr. P.C. an opportunity should have been given to the accused to challenge the finding of the FSL and for calling the expert for cross-examination. However, no such opportunity was ever given to the appellant. Thus, the appellant's right to a fair trial has been violated. In order to buttress this contention, the learned counsel has relied on the case of Keshav Dutt vs. State of Haryana, 2010 9 JT 25.