Rajasthan High Court - Jodhpur

Har Lal vs State on 1 August, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 358/1989

Har Lal

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Arjun Rathore For Respondent(s) : Mr. Mahipal Bishnoi, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 21/07/2022 Pronounced on 01/08/2022

1. This Criminal Appeal under Section 374 Cr.P.C. has been

preferred praying for the following reliefs:-

"It is therefore respectfully prayed that

1. Appeal of accused appellant may kindly be allowed.

2. Judgment and order dated 6-9-89 passed by the Additional Session Judge Barmer may kindly be quashed and set aside.

3. Accused appellant may kindly be acquitted of the charge for the offence under section 20 (ii) of the NDPS Act, 1985.

4. Any other appropriate order in favour of the accused appellant which this Hon'ble court thinks fit may also be passed."

2. This Criminal Appeal has been preferred against the

judgment, dated 06.09.1989, passed by the learned Addl.

Sessions Judge, Barmer in Criminal Case No. 24/88 whereby the

appellant was convicted for the offence under Section 20 (ii) of the

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NDPS Act, 1985 ("the Act of 1985") and was sentenced to 10

years R.I. along with a fine of Rs. 1 lakh, in default of payment of

which he was to further undergo 1 year R.I.

3. Brief facts of the case as placed before this Court by the

learned counsel for the appellant are that on 24.09.1987 Bhera

Ram, Head Constable at Police Station, Gudamalani along with two

other officers, Shobh Isngh and Dedaram arranged a blockade at

Ghandhav Pul, Gudamalani, Barmer whereby at about 10:15 a.m.

upon conducting a search of a bus, bearing vehicle no. RRG 8701,

which was travelling from Barmer to Sanchore reached Ghandhav

Pul, a passenger, Har Lal, was found to be carrying his person a

green bag in which 6 cakes of charas were found wrapped in 4

plastic bags, and that the search was conducted in the presence of

motbirs. And that, the accused-appellant Har lal did not have a

permit for the same. And that, upon being weighed it was found to

be of 6 kgs. from which a two samples of 30 gms. each were

collected and sent for F.S.L. while the rest of the contraband was

sealed. And that, the accused-appellant was apprehended and

taken into custody. Upon the investigation being complete, charge

sheet was filed against him for the offences under Sections 21, 22

and 29 of the Act of 1985.

4. Learned counsel for the appellant submits that the

compliance under Section 42 Act of 1985 was not made, and that

the investigating officer in the present case was not authorized to

conduct the search and seizure, against the accused. And that, no

officer below the rank of Inspector / Sub-Inspector posted at the

rank of S.H.O. were authorized for the same. Moreover, the same

is laid down in the statute under Section 50, which requires that

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Sections 42 and 50 of the Act of 1985 are reproduced hereinunder for

the sake of brevity:-

Section 42 - Power of entry, search, seizure and arrest without warrant or authorisation (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

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Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

Section 50 - Conditions under which search of persons shall be conducted

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).

(3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

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(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

5. Learned counsel for the appellant further submits that there

is also non compliance of Section 57 of the Act of 1985, which

further weakens the case of the prosecution whereby it is

mandatory for the concerned officer who has conducted the

search and seizure to make a full report of the same to her

immediate superior officer within a period of 48 hours. And that,

the same was not done in the present case.

Section 57 of the Act of 1985 is reproduced hereinunder for the sake of

brevity:-

Section 57 - Report of arrest and seizure

Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

6. Learned counsel for the appellants further submits that the

Superintendent Customs had no authority to record the statement

of the accused.

7. On the other hand, learned Public Prosecutor opposes the

submissions made on behalf of the appellant and submits that the

impugned order of conviction is well reasoned / has been passed

after looking into the overall facts and circumstances of the case,

and the evidences placed on record.

8. Learned Public Prosecutor submits that the contentions made

on behalf of the appellant herein do not hold water as the

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compliance of Section 50 and 57 are not mandatory, and even if

not fully complied with do not vitiate the case of the prosecution.

9. Heard learned counsel for both parties, and perused the

record of the case.

10. This Court observes that it is a settled position of law that

the non-compliance of Section 57 of the Act of 1985 does not

vitiate the entire case of the prosecution, as held by the Hon'ble

Apex Court in case of Gurmail Chand Vs. State of Punjab: AIR

2020 SC 2161 wherein the position laid down in Sajan

Abraham v. State of Kerala (2001) 6 SCC 692 was reiterated

upon, in the following manner:-

"The provision has been held to be directory and to be complied with but mere not sending the report within the said period cannot have such consequence as to vitiate the entire proceeding. A three Judge Bench of this Court in Sajan Abraham v. State of Kerala (2001) 6 SCC 692 has held that non-compliance of Section 57 would not vitiate the prosecution case. In paragraph 12 following was laid down:

The last submission for the Appellant is, there is non-

compliance with Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest of seizure. The submission is, this has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court, that PW5 has sent copies of FIR and other documents to his superior officer, which is not in dispute. Ext. P-9 shows that the copies of the FIR along with other records regarding the arrest of the Appellant and seizure of the contraband articles were sent by PW5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere

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absence of any such report cannot be said to have prejudiced the Accused. This Section is not mandatory in nature. When substantial compliance has been made, as in the present case, it would not vitiate the prosecution case. In the present case, we find PW5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of Section 57 of the Act."

11. This Court is also conscious the judgment rendered by the

Hon'ble Apex Court in the case of Kallu Khan Vs. State of

Rajasthan 2021(4)Crimes565(SC) : AIR 2022 SC 50 wherein

the following observations with regard to the application of Section

50 N.D.P.S. Act 1985:-

"Simultaneously, the arguments advanced by the Appellant regarding non-compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the Accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar (supra) and Baljinder Singh (supra). Considering the facts of this Court, the argument of non-compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled."

12. This Court further observes that the above-mentioned

judicial precedents of the Hon'ble Apex Court, reveal the settled

position of the law, in regard to the grounds raised by the

appellant herein, and therefore, the impugned judgment does not

warrant any interference by this Court.

12.1 Resultantly, the present appeal is dismissed.

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12.2 The first bail application preferred by the appellant, S.B.

Criminal Misc. Bail Application No. 364/1980, was dismissed by

this Hon'ble Court 22.09.1989 and the second bail application

preferred by the appellant, S.B. Criminal Misc. Bail Application No.

29/1990, was allowed by this Hon'ble Court and his sentence was