Hiralal vs Union of India (UOI)

B. Prasad, J.—This appeal has been filed by appellant Hiralal against the judgment dated 5-8-1999 passed by the learned Special Judge, N. D. P. S. Cases, Chittorgarh in Sessions Case No. 4/1998 whereby he was found guilty for the offence u/s 8/18 of N. D. P. S. Act and has been awarded 12 years R. I. and a fine of Rs. 1,00,000/- in default of payment of fine to further undergo 1 year R. I.

The prosecution story in nut-shell is to the effect that on 14-10-1997 in the day at about 3'' o clock, P. W. 8 M. K. Pippal, Sub-Inspector, Narcotics Bureau, Neemuch received a secret information to the effect that four residents of village Chiksi were in possession of illicit opium. The information was recorded in writing in DRI and submitted to Shri P.K. Sinha, Superintendent, Office of Assistant Narcotics Commissioner, Neemuch and the copy of information allegedly dispatched to the Assistant Commissioner, Narcotics, Gwalior by P.K. Sinha, Superintendent, P. W. 9. On the information, a preventive force was constituted and the narcotics official including P. W. 8 Mahendra Kumar Pippal, M.L. Malecha, District Opium Officer P. W. 11, Dharmendra Singh and Hotilal Verma proceeded to village Chiksi. Two motbirs Rajesh Mandawara P. W. 3 and Banshi Lal P. W. 4 were summoned and in their presence allegedly, the house of appellant was searched and three packets containing opium weighing 10.300 kgs. were recovered allegedly from the house of the appellant. Sample weighing 25 grams each were separated. The appellant Hiralal was arrested and further at the instance of Hiralal, the members of preventive force reached at the house of Satya Narain s/o Shanker Lal Jat and it is alleged that 15.650 kgs. opium was recovered in three packets from the house of Satya Narain. Samples of 25 grams were separated. After usual investigation, a complaint was filed in the Court of learned Special Judge, N. D. P. S. Act Cases, Chittorgarh. Charge was framed for offence u/s 8/18 of N. D. P. S. Act. The appellant denied the charge and claimed trial. During the trial, the prosecution examined 12 witnesses and also exhibited documents as Ex. P/1 to Ex. P/21. Thereafter, the appellant was examined u/s 313 Cr. P. C. After hearing the final arguments, the learned trial Judge found the appellant guilty and sentenced him as mentioned above.

I have heard the learned counsel for appellant as well as the learned Special Public Prosecutor and have perused the record of the trial Court.

Learned counsel for the appellant has contended that the whole story is a concoction and nothing was recovered from the conscious possession of the appellant. It is argued that there is no satisfactory evidence to establish that the premises in question was actually in the possession of the appellant. Further, it is submitted that apart from the three departmental witnesses, there is no independent corroboration of the alleged recovery. Thereafter, the contentions of learned counsel for appellant is to the effect that there was no proper compliance of the provisions of Sections 42(1), 42(2), 55 and 57 of the N. D. P. S. Act. In these circumstances, it was prayed that the appellant deserves to be acquitted.

I have heard the learned counsel for the appellant, learned Public Prosecutor and have given my thoughtful consideration.

The emphasis of the learned counsel for the accused person in this case is that u/s 42(1) of the N. D. P. S. Act, proviso speaks of a contingency wherein, a search is conducted by the officer concerned without any warrant or authorisation. He is required to record reasons. In the instant case, prosecution has not established that the search which was admittedly conducted after 8 p. m., there was any attempt to obtain warrant or authorisation or in absence of same, any reason was recorded. Since, reasons were not recorded, a mandatory requirement of law has been violated as has been held by the Hon''ble Supreme Court in the case of State of Orissa v. Laxman Jena 2002 (2) WLC 186 and Chhunna v. State of M. P. reported in 2003 SCC 1194, that their conviction is not liable to be sustained. Consequently, the appeal is accepted. His conviction and sentence are set aside. He is in jail. He shall be released forthwith, if not required in any other case.