P. Simanchal Patra Vs. State - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - it is obligatory on the part of such officer to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial.a. pasayat, j. 1. in this appeal judgment of conviction and sentence passed by the learned second additional sessions judge, ganjam, berhampur in sessions case no. 26 of 1993 is under challenge.2. p. simanchal patra (hereinafter referred to as the 'accused') faced trial on the accusations of having committed an offence punishable under section 15 of the narcotic drugs and psychotropic substances act, 1985 (in short, the 'act'), for being in possession of 1 kg. 400 grams of opium poppy capsules without any authority, in contravention of section 8 of the act.3. the accused pleaded innocence.4. placing reliance on the evidence of four witnesses examined to further the prosecution case, and the documents brought on record, the accused was found guilty, convicted and sentenced to rigorous imprisonment for ten years and to pay a fine of rs. 1,00,000/- with a default stipulation of two years' rigorous imprisonment. 5. in support of the appeal, mr. h. s. misra, learned counsel arged that there was non-compliance of the mandatory requirements of sections 42 and 50 of the act. so far as section 42 is concerned, it is stated that the requisite recording of reasons was not done. so far as section 50 is concerned, it is urged that the accused was not given the chance of being searched in presence of the prescribed officer.learned counsel for the state on the other hand submitted that section 42 has been complied with, and in any event there is no prejudice caused to the accused. so far as alleged non-compliance of section 50 is concerned, with reference to the statement of pw 4 it is stated that offer was made to the accused to be searched in presence of any of the prescribed officers, but the accused declined to accept the offer and volunteered to be searched in presence of pw 4.6. section 42 of the act deals with power of entry, search, seizure and arrest without warrant or authorisation. as observed by the apex court in 1994 (i) olr (sc) 327 state of punjab v. balbir singh and ors. : (1994) 7 ocr (sc) 283, under section 42(1) the empowered officer, if has a prior information given by any person, that should necessarily be taken down in writing. but if he has reasons to believe from personal knowledge that offences under chapter iv have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest of search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. but under the proviso to section 42(1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. to this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. if there is total non-compliance of this provision the same affects the prosecution case. to that extent, the provision is mandatory. but if there is delay whether it was undue or whether the same has been explained or not will be a question of fact in each case. on prior intimation the empowered officer or authorised officer while acting under section 41(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or magistrate as provided thereunder. it is obligatory on the part of such officer to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. the question whether such person opted for such a course or not would be a question of fact.on the facts of the present case. i find that pw 4 has stated that he had informed the accused as to whether he wanted to be searched in presence of an authorised officer or magistrate. he has stated that the accused did not opt to such a course. no material was placed before the trial court to show that in fact no offer was made or that the statement in that regard was not acceptable. in that view of the matter, it would not be justified to accept the plea of learned counsel for accused that mandatory requirements of section 50 was not complied.7. coming to the plea relating to non-compliance of requirements of section 42(1) of the act, i find that there is nothing on the record to show that reasons of belief were recorded. the explanation offered that if the empowered officer has reason to believe from personal knowledge that offences under chapter iv have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset, has no application to the facts of this case. this is a case where the officer claims to have got prior information. therefore, there is clear non-compliance of the provisions of section 42(1) of the act thereby affecting the prosecution case and vitiating the trial.8. in view of aforesaid conclusion, other points urged by the learned counsel for accused-appellant about infirmity in the procedure adopted need not be diluted. the appeal is allowed, and the order of conviction and sentence is set aside. let the accused be set at liberty forthwith, unless he is required to be in custody in connection with any other case.