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2015 (8) TMI 339 - RAJASTHAN HIGH COURT

2015 (8) TMI 339 - RAJASTHAN HIGH COURT - TMI - Search and seizure without warrant Non-Compliance Appellant alleged his conviction for non-compliance of Section 42 of NDPS Act, 1985 and also that prosecution failed to establish link evidence Held that :- All prosecution witnesses consistently stated that during nakabandi, appellants-accused were searched and illegal contraband was recovered from their possession Search was made on public place in transit and not in building or place thus .....

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nterfere with impugned judgment Appeal dismissed Decided against appellant. - S. B. Criminal Appeal No. 451 of 1988 - Dated:- 8-5-2015 - Banwari Lal Sharma,J. For the Appellants : Mr. Vineet Jain For the Respondent : Mr. Jagat Tatia, Special Public Prosecutor ORDER By the Court : The appellants have preferred this appeal against the judgment of conviction and order of sentence dated 29.10.1988 passed by the learned Sessions Judge, Barmer in Sessions Case No.117/1987, whereby the appellants-a .....

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a.m., two persons were seen coming there, who were stopped and searched. During inquiry, one persons named himself as Jugat Singh and other as Kamal Singh and both were having bags in their hands. On search of bags, 11 packets of charas were found in the bag hold by Jugat Singh weighing 10.850 kg. and 5 packets of charas were found in the bag hold by Kamal Singh weighing 5 kg. The samples were taken and were sent for chemical examination. After completion of investigation, filed charge-sheet ag .....

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trial. To substantiate the charges, the prosecution examined as many as 5 witnesses. The appellants-accused were thereafter examined under Section 313 Cr.P.C., wherein they denied the prosecution case and examined five witnesses in defence. After trial, the learned trial court, convicted and sentenced the appellants-accused vide impugned judgment dated 29.10.1988 as aforesaid. Hence, this appeal. I have heard Mr. Vineet Jain, learned counsel for the appellant and Mr. Jagat Tatia, learned Special .....

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yed that the appeal may be allowed and the appellants-accused may be acquitted. He has placed reliance upon the judgments delivered in the cases of Raju Premji Vs. Customs, NER, Shilong Unit [(2010) 3 SCC 344] , Sukhdev Singh Vs. State of Haryana [(2013) 2 SCC 212] and Noor Aga Vs. State of Punjab & Anr. [(2008) 16 SCC 417]. Per contra, the learned Special Public Prosecutor supported the impugned judgment and order and submitted that in the present case, provisions of Section 42 of the NDPS .....

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in the cases of Mohd. Hussain Farah Vs. Union of India [(2000) 1 SCC 329], Veer Singh Vs. State of Rajasthan [RLW 2013 (1) Raj. 216] and Kanhaiyalal Vs. Union of India [(2008) 4 SCC 668] . I have considered the rival submissions made at the Bar and perused the material available on record. Before parting with the judgment, I deem it appropriate to scan the evidence led before the trial court. Virendra Narang (PW-1), in his statement, deposed that on 29.08.1987, he was posted as Superintendent, .....

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ustoms Department, Barmer and RS Meena (PW-3) Revenue Intelligence Officer, Revenue Intelligence Directorate, Sub Division Jaisalmer also corroborated the statement of Virendra Narang (PW-1). Chainaram (PW-4) is a motbir, in-front-of whom, recovery was made and he proved seizure memo (Ex.P/1), arrest memo of appellants-accused (Ex.P/7 and Ex.P/8). Hameera Ram (PW-5) also corroborated the statement of Virendra Narang (PW-1). Hukma Ram (DW-1), in his statement, deposed that on 28.08.1987, he was p .....

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for which Jugat Singh filed a complaint. It was also stated that Hameera Ram pressurized Jugat Singh to withdraw the case otherwise to face the music. Kosla (DW-3) stated that his dhani is situated near Harsani Phata and he did not know Chena Ram. Nawal Singh (DW-4), in his statement, deposed that he was Sarpanch from 1980-1981 to 19988 of Village Jalipa and he knew Osna Ram and his dhani is situated 1½ km. away from Harsani Phanta and no other man of this name lives in the Jalipa. Het Da .....

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d from their possession, illegal contraband charas was recovered. All the prosecution witnesses have consistently stated that during the nakabandi, the appellants-accused were searched and illegal contraband was recovered from their possession. Thus, the search was made on public place when the appellants-accused were in transit. Hence, it is to be seen that whether provisions of Section 42 of the NDPS Act are applicable or Section 43 of the NDPS Act are applicable, for which the provisions of b .....

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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 .....

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lding, 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 a .....

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r 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 subsection (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 43 of the NDPS Act reads as under:- "43. Power of seizure and arrest in public place.- Any officer of any of th .....

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der this Act 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 V A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any o .....

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et information, the team went at the place from where the appellants-accused were to come and when they reached, they were searched and were found in possession of illegal contraband. Hence, the search was made on public place in transit and not in a building or place. Thus, there is no non-compliance of any statutory provision. In the matter of Sukhdev Singh (supra), the Hon'ble Supreme Court held that Section 42 of the NDPS Act is a mandatory provision and should be complied with strictly. .....

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g. From the perusal of the record, it reveals that Sohanraj Khandelwal (PW-2), who was the malkhana incharge, clearly deposed that after recovery, the articles were seized and sealed and deposited in the malkhana and to that effect entry was made in the malkhana register (Ex.P/5A) and a memo of specimen seal affixed on the packets of recovered contraband was also prepared as Ex.P/6. From a bare perusal of FSL Report (Ex.P/13), it also reveals that the seal remained intact when it reached the lab .....

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