CR.A/340/1989 of RAJPUT MOTI BAHVAN Vs STATE OF GUJARAT on 13 December 1995

1. Whether Reporters of Local Papers may be allowed to see the judgment? No

2. To be referred to the Reporter or not? No

3. Whether their Lordships wish to see the fair copy of judgment? No

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No

5. Whether it is to be circulated to the Civil Judge? No

.......T.......T......JT.....J..T........T.......T......JT.....J..T......--------------------------------------------------------------- Shri H.M. Chinoy, Advocate, for the Appellant Shri S.R. Divetia, Addl. Public Prosecutor, for the Respondent

---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.(Date: 13th December 1995)

ORAL JUDGMENT (per Divecha, J.)

The judgment and order of conviction and sentence passed by the learned Sessions Judge of Banaskantha at Palanpur inSessions Case No. 39 of 1988 is under challenge in this appealat the instance of the original accused.

2. It it not necessary to set out in detail the factsgiving rise to this appeal. It may be sufficient to note thatthe then Police Inspector of the Rural Police Station at Deesa,named, Shri S.C. Parmar (the complainant for convenience), wasinvestigating the First Information Report registered in CrimeRegister No. 154 of 1987 for the offences punishable undersections 454, 457 and 380 of the Indian Penal Code, 1860 (theIPC for brief) on 20th June 1987. In the course ofinvestigation, someone informed him that some person was to comefrom Vithodar (Rajasthan) for the purpose of selling opium.Thereupon the complainant arranged a watch in the company ofseveral other police officers and officials. Two panchwitnesses were also summoned. Around that time the appellantwas found coming from Vithodar with something in his hand. Hewas detained. His name and whereabouts were ascertained.Thereafter his person was searched and from his person was foundpills of opium in all weighing 2 Kgs 500 gms. Thereupon thecomplainant lodged his complaint charging the appellant with theoffences punishable under sec. 66A of the Bombay ProhibitionAct, 1949 (the Prohibition Act for brief) and sections 17 and 42of the Narcotic Drugs and Psychotropic Substances Act, 1985 (theNDPS Act for brief). The proceeding arising from that complaintultimately came to be registered as Sessions Case No. 39 of1988 in the Court of the Sessions Judge of Banaskantha atPalanpur. On conclusion of the trial, it ultimately came to beculminated into conviction of the present appellant of theoffence punishable under sec. 17 of the NDPS Act and sentenceof rigorous imprisonment for 10 years and fine of Rs. 1 lakh indefault further rigorous imprisonment for 2 years. It may bementioned at this stage that no charge was framed against theappellant with respect to the offence punishable under theProhibition Act though the complaint specifically mentioned it.The aggrieved appellant has thereupon invoked the appellatejurisdiction of this court by means of this appeal forquestioning the correctness of his conviction and sentence.

3. Since this appeal can be disposed of on one short groundbased on the mandatory provisions contained in sec. 42(1) ofthe NDPS Act, we have not chosen to deal with several rivalsubmissions urged before us with respect to this appeal.

4. The provisions of sec. 42(1) of the NDPS Act are heldto be mandatory by the Supreme Court in its binding ruling inthe case of State of Punjab v. Balbir Singh reported in AIR1994 SC 1872. The aforesaid statutory provision requires theofficer named therein to reduce to writing any informationreceived from any person inter alia with respect to possessionof any narcotic drug or psychotropic substance in respect of anoffence punishable under Chapter IV of the NDPS Act has beencommitted. In para 3 of his cross-examination the complainant at Ex. 19 has clearly admitted that he had made no noting ofthe information given by someone regarding some personapproaching from Vithodar (Rajasthan) for the purpose of sellingopium while the complainant was investigating into the crimementioned in the complaint at Ex. 20. It thus becomes clearthat the mandatory provisions contained in sec. 42(1) in thatregard have not been complied with. In view of the aforesaidbinding ruling of the Supreme Court, such non-compliancevitiates the trial.

5. In view of our aforesaid discussion, we are of theopinion that the impugned judgment and order of conviction andsentence cannot be sustained in law.

6. In the result, this appeal succeeds. The judgment andorder of conviction and sentence passed by the learned Sessionsof Banaskantha at Palanpur on 23rd May 1989 in Sessions Case No.39 of 1988 convicting the appellant of the offence punishableunder sec. 17 of the NDPS Act and sentencing him to rigorousimprisonment for 10 years and fine of Rs. 1 lakh in defaultrigorous imprisonment for 2 years is quashed and set aside. Weare told that the appellant has been in jail since the date ofhis arrest on 20th June 1987. He is ordered to be set atliberty if no longer required in any other case. The muddamalis ordered to be disposed of according to law.

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