Babu Ram Vs. State of Rajasthan - Court Judgment

Excerpt:
narcotic drugs & psychotropic substances act, 1985 - section 50--search and seizure--non-compliance of mandatory provision--in case of personal search, accused shall be asked whether he wants to be searched before the magistrate or gazetted officer which was not done in present case--compliance of mandatory provisions of section 50 of the ndps act has not been made in the present case and the non-compliance of the mandatory provisions of section 50 of the ndps act vitiates the entire trial against the accused appellant and the accused appellant is entitled to acquittal on this ground alone.;narcotic drugs and psychotropic substances act, 1985 - section 50--search--mandatory provision--accused--appellant not informed of bis right to be searched before gazetted officer or magistrate by searching officer before conducting search--non-compliance of mandatory provisions of section 50--trial vitiated--accused-appellant entitled to acquittal.;appeal allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 8. these provisions have been made in order to protect the interests of the citizens from irregular and illegal invasion on his liberty by the authorities as well as in the interest of the state to secure the evidence bearing upon the commission of the crime and necessary to enable the justice to be done shall not be withheld from the course of law on merely formal or technical grounds.garg, j.1. this appeal has been filed by the accused appellant against the judgment and order dated 31.8.1987 passed by the learned sessions judge, balotra in sessions case no. 10/86 by which he while acquitting the accused appellant for the offence under section 18 of the narcotic drugs & psychotrophic substances act, 1985 (hereinafter referred to as 'the ndps act'), convicted him for the offence under section 17 of the ndps act and sentenced to undergo ten years rigorous imprisonment and to pay fine of rs. one lac, in default of payment of fine, to further undergo ri for one year.2. it arises in the following circumstances;-pw8 abdul majid, s.h.o. police station mandli district barmer lodged fir ex.p/11 on 24.1.1986 with the police station mandli district barmer stating inter-alia that on that day, he alongwith gomaram, head constable (pw4), gumnaram, head constable (pw6), khet singh, constable (pw3) and some other police officials proceeded as per secret information of mukhbir and reached near heeraram-ki-dhani, where they saw a boy having a bag in his hand proceeding towards west side of heeraram-ki-dhani and that boy was apprehended after encircling him and at that time, two motbirs, namely, pw7 jeta ram and pw5 bhagwanaram were also called and on being asked, that boy told his name as babu ram (accused appellant) and then, the bag, which was in his hand, was checked and on opening it, back substance was found and it was assessed that it was nothing, but contraband opium. thereafter, it was weighed and its weight was found to be 3 kg., out of which, one sample of 30 grms. was taken for the purpose of chemical analysis and sealed separately on the spot and the remaining opium was also sealed separately on the spot. pw8 abdul majid prepared the fard of search and seizure on the spot and the same is ex.p/3. the accused appellant was arrested through arrest memo ex.p/4. pw8 abdul majid handed over the seized articles to malkhana incharge pw4 gomaram, who deposited the same in the malkhana and made entries in the malkhana register ex.p/5a. thereafter, through ex.p/6a, the sample was sent to sp, barmer, where it was checked by pw1 pemaram and, thereafter, vide letter ex.p/1, the sample was sent to fsl, jaipur through pw2 sukharam and the receipt of depositing the sample in fsl, jaipur is ex.p/2 and the fsl report is ex.p/12 where it was reported that the sample was found to be of opium having 1.61% (one point six one percent) morphine.after usual investigation, police submitted challan against the accused appellant in the court of magistrate and from where the case was committed to the court of session.on 4.8.1986, learned sessions judge, balotra framed charges for the offence under sections 17 and 18 of the ndps cases against the accused appellant. the charges were read over and explained to the accused appellant. the accused appellant denied the charges and claimed trial.during trial, the prosecution in support of its case examined as many as 8 witnesses and got exhibited some documents. therefore, statement of the accused appellant under section 313 cr.p.c. was recorded. in defence, one witness was produced by the accused appellant.after conclusion of trial, the learned sessions judge, balotra through his judgment and order dated 31.8.1987 acquitted the accused appellant for the offence under section 18 of the ndps act, but convicted him for the offence under section 17 of the ndps act and sentenced in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under section 17 of the ndps act only.aggrieved from the said judgment and order dated 31.8.1987 passed by the learned sessions judge, balotra, this appeal has been filed by the accused appellant.3. in this appeal, many submissions have been raised by the learned counsel appearing for the accused appellant, but his one of the most important submissions is that in this case, compliance of mandatory provisions of section 50 of the ndps act was necessary as it was a case of personal search and since compliance of mandatory provisions of section 50 of the ndps act has not been made in any manner, therefore, the whole trial against the accused appellant stands vitiated and the accused appellant is entitled to acquittal on this ground alone.4. on the other hand, the learned public prosecutor supported the impugned judgment and order passed by the learned sessions judge, balotra.5. i have heard the learned counsel for the accused appellant and the learned public prosecutor and perused the record of the case.6. to appreciate the above contention, first the legal aspect of section 50 of the ndps act has to be mentioned here.object and purpose of section 50 of the ndps act7. the purpose of informing a suspect that search could be taken in the presence of a gazetted officer was to ensure that there was safeguard against planting any incriminating article.8. these provisions have been made in order to protect the interests of the citizens from irregular and illegal invasion on his liberty by the authorities as well as in the interest of the state to secure the evidence bearing upon the commission of the crime and necessary to enable the justice to be done shall not be withheld from the course of law on merely formal or technical grounds.9. the object of making it peremptory on the part of the officer so as to ensure that the officer, who is charged with the duty of conducting the search, to conduct it properly and not to harm or wrong, such as planting of offending drugs by any interested party and to prevent fabrications of any evidence.10. the provisions of section 50 of the ndps act have been made with the intention to act as a safeguard against the vexatious and unfair dealings. the provisions have also been incorporated in order to protect and safeguard the interest of an innocent person. if a person is searched before a gazetted officer or before a magistrate, as the case may be, then it will provide a weapon to the law enforcing agency against the common allegation that the opium has been planted by the investigating agency. it also provides a protection to the law enforcing agency.11. the rational behind this provision is manifest. a search before a gazetted officer or a magistrate would impart much more authenticity and credit worthiness to the proceedings. it would, varily, strengthen the prosecution.12. the hon'ble supreme court in so many cases has held that the provisions of section 50 of the ndps act are mandatory in nature and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial.13. so far as applicability of section 50 of the ndps act in the present case is concerned, from the statements of pw8 abdul majid, pw6 gumnaram and pw3 khet singh, it is very much clear that when the accused appellant was seen by them, the was caught hold and from his personal search, a beg was recovered and on opening it, alleged opium was found in it. therefore, it is a case which can be classified as a personal search and in the case of personal search, compliance of mandatory provisions of section 50 of the ndps act is necessary.14. apart from this, it may be slated here that it is not a case of chance recovery as pw8 abdul majid proceeded on a secret information of mukhbir. therefore, from this point of view also, the compliance of mandatory provisions of section 50 of the ndps act was must in the present case.15. hence, it is held that compliance of mandatory provisions of section 50 of the ndps act was necessary in the present case.16. now it is to be seen whether the compliance of mandatory provisions of section 50 of the ndps act has been made or not.17. from the evidence on record and the fard of search and search ex.p/3, it does not appear that before search of the accused appellant, he was asked whether he wanted to be search before the magistrate or the gazetted officer. no separate fard under the provisions of section 50 of the ndps act informing the accused appellant whether he wanted to be searched before the magistrate or gazetted officer, has been prepared. hence, it is a case of no compliance of section 50 of the ndps act at all.18. thus, it is held that the compliance of mandatory provisions of section 50 of the ndps act has not been made in the present case and the non-compliance of the mandatory provisions of section 50 of the ndps act vitiates the entire trial against the accused appellant and the accused appellant is entitled to acquittal on this ground alone.19. for the reasons stated above, the findings of learned sessions judge convicting the accused appellant for the offence under section 17 of the ndps act are liable to be set aside and this appeal deserves to be allowed.accordingly, this appeal filed by the accused appellant babu ram is allowed and the impugned judgment and order dated 31.8.1987 passed by the learned sessions judge, balotra are set aside and the accused appellant is acquitted of the charge for the offence under section 17 of the ndps act.since the accused appellant is on bail, he need not surrender and his bail bonds stand cancelled.