Legaldata 2364671

Mohan Singh vs State Of Bihar
Jharkhand High Court

Mohan Singh vs State Of Bihar on 30 November, 2000
Equivalent citations: 2001 (49) BLJR 243, 2001 CriLJ 578
Author: D Prasad
Bench: D Prasad
JUDGMENT D.N. Prasad, J.
1. This appeal is directed against the Judgment of conviction dated 24.8.1998 and order of sentence dated 27.8.1998
passed by the learned Sessions Judge-cum-Special Judge, Dhanbad, in G.R. Case No. 2950 of 1996, whereby and
where-under, he convicted the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as 'the N.D.P.S. Act') and sentenced him to undergo rigorous Imprisonment for four
years.
2. The prosecution case in brief as stated is that on 27.9.1996 at about 2.00 p.m. while the informant was passing
through Balika Vidyalaya near Bagan Dhowra with a constable noticed that a person was coming on a bicycle from
the side of Kumardhubi Market and he had a Jhola on his bicycle and on seeing them, he started fleeing away but he
was chased and caught. On search, four kilograms of ganja was recovered from his jhola but he failed to produce any
document in respect of the said ganja. accordingly, seizure list was prepared in presence of the independent
witnesses. The first information report was lodged accordingly. The police investigated the case and submitted
charge-sheet against the appellant.
3. The appellant appeared before the Special Judge and charge under Section 20(b)(1) of the N.D.P.S. Act was
framed which was read over to which he pleaded not guilty.
4. Witnesses were also examined in the Court below and after hearing both sides, the learned trial Court convicted
and sentenced the appellant in the manner as stated above.
5. On being aggrieved by the impugned judgment of conviction and sentence passed by the learned court below, the
appellant preferred this appeal on the grounds that the learned court below committed serious error in convicting the
appellant though there is an illegality in preparation of seizure list and the provision of Section 50 of the N.D.P.S.
Act has not been complied with. It is also claimed that the informant i.e. the police official lodged the first
information report and he also took up investigation and submitted charge-sheet which is quite illegal and Improper
in the eyes of law and. as such, the impugned judgment is fit to be set aside.
6. Learned counsel appearing on behalf of the appellant submitted at the very outset that Section 50 of the N.D.P.S.
Act, which is mandatory has not been complied with in the instant case. In this connection he relied upon the
decisions of the Supreme Court in the case of C. Ali v. State of Kerala. (1999) 7 Supreme Court Cases 88 and Babu
v. State of Kerala, (1999) 8 Supreme Court Cases 499. It is further submitted that the police official is himself the
informant of the case and lodged first information report against the appellant and he also investigated the case
which is not proper and on this score, learned counsel for the appellant also relied upon the decision or the Supreme
Court in the case of Megha Singh v. State of Haryana, 1995 Cri LJ 3988.
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7. It is further argued that the alleged ganja has never been weighed in presence of the seizure list witnesses and as
such, the said recovery is also very suspicious and, in the above circumstances, the impugned judgment is fit to beset
aside.
8. Obviously provision of Section 50 of the N.D.P.S. Act which is mandatory, has not been complied with. It is well
settled that the officer concerned is obliged to inform the accused of his right to be searched in presence of the
Gazetted Officer or the Magistrate and there is no material to show that the accused-appellant was ever informed to
this effect. Section 50 of the N.D.P.S. Act reads as follow :
"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 Gazetted 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 sub-section (1).
(3) The Gazetted 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."
9. PWs. 1 and 2 are the seizure list witnesses and they have admitted in their cross-examination that the said ganja
was never weighed in their presence. PW 3 is also a Constable who is said to have accompanied with the informant
are the relevant time. It is also clear from their evidence that the said ganja was never produced in the court during
their evidence.
10. PW 4 is the informant/Investigating Officer. He also admitted in his cross-examination that he had not seen the
report of Forensic Science Laboratory. He further admitted that he had not written the word garya in the seizure list
and as such the seizure list does not indicate that actually the said ganja was recovered and seized at the relevant
time.
11. The appellant/accused was examined under Section 313 of the Code of Criminal Procedure and he denied the
allegation. Obviously the appellant was not informed by the police officer/informant that he had right to be searched
in presence of the Magistrate or a Gazetted Officer. It is the obligation of the Police Officer to inform the appellant
of his right to be searched in presence of a Gazetted Officer or a Magistrate if the person of the accused is to be
searched. Since the mandatory provision was not complied with as well as there appears much Infirmity in
conducting the case as the informant being the complainant has lodged the First Information Report, he should not
have proceeded with the investigation of the case. In the above facts and circumstance, I find that the prosecution has
totally failed to establish the charge levelled against the accused-appellant beyond all reasonable doubt and the
appeal is bound to succeed on the above score.
12. In the result, I find merit in this appeal which is, accordingly, allowed. The judgment of conviction and sentence
passed by the learned court below is set aside. The appellant, namely. Mohan Singh, is hereby acquitted and set at
liberty. He is discharged from the liability of his ball bonds.
13. Appeal allowed.
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Mohan Singh vs State Of Bihar

Jharkhand High Court

JUDGMENT D.N. Prasad, J.

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

13. Appeal allowed.

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