Judgment

S. M. JAIN, J.

( 1 ) THIS appeal is directed against the Judgment dated July 27, 1987, of the Sessions Judge, Jalore, convicting and sentencing the appellant for the offence under section 18 of {he Narcotic Drugs and Psycho tropic Substances Act, 1985, (hereinafter referred to as the Act), to 10 yearst R. I. and a fine of Rs. one lakh and in default of payment of fine to further undergo 1 years R. I.

( 2 ) THE prosecution case, in brief, was that on Feb. 26. 1986, Shri Swaroop Singh, Station House Officer, Bheenmal, arranged a naka-bandi near the Neel Kanth Mahadev temple on Bheenmal Joojani Road. At about 12. 30 p. m. , a motorcycle P. N. Z. 2167 came from Joojani side. Accused Shantilal was driving the said motor-cycle. The Police party made a signal to stop the cycle but the accused did not comply. He took it into the kacha, where it stopped. The accused was apprehended. He had a canvas bag which contained opium in liquid form weighing 5 Kg. and 600 gms The opium was seized and sealed. A sample of 30 gms. was taken and sent for analysis to the State Forensic Science Laboratory, Rajasthan, Jaipur. On chemical examination, it was found to contain opium having 3. 4% morphine. After investigation the police filed a challan against the accused in the court of Munsiff and Judicial Magistrate, Bheenmal, who committed the case for Trial for the Court of Sessions.

( 3 ) THE accused was charged for the offences under sections 8/18 of the Act. He pleaded not guilty and claimed to be tried.

( 4 ) AFTER trial, the Sessions Judge, Jalore, by his judgment dated July 27, 1987, convicted and sentenced the appellant for the offence under section 18 of the Act to 10 years R. I. and a fine of rupees one lakh and in default of payment of fine to further rigorous imprisonment for one year.

( 5 ) AGGRIEVED by the aforesaid judgment of the learned Sessions Judge, Jalore, the appellant has filed the preilent appeal in this court.

( 6 ) I have heard Shri R. N. Bishnoi, learned counsel for the appellant and the Public Prosecutor for the State.

( 7 ) SHRI Bishnoi, learned counsel for the appellant has contended that Shri Swroop Singh, Station House Officer, Police Station, Bheenmal, had no authority to detain, search or arrest the accused as he was not a duly empowered officer as contemplated by section 42 of the Act. The incident, in the present case, took place on Feb. 26, 1936, and the notification, authorising the police officer, including the Station House Officers, as required by section 42 of the Act was issued by the Government for the first time on October 16, 1986. There is substance in the submissions made by the counsel for the appellant. This very question came up for consideration before this Court at two occasions. Honble V. S. Dave, J. , in Nand Lal v. State of Rajasthan1, elaborately considered the question and summed up the position of law as under: Thus, it is clear that police officers up to the rank of Inspector had no jurisdiction on the date of the occurrence i. e. on 23rd November, 1985 to investigate under section 42 of the Act and the: 1. 1987 Cr. L. R. (Raj.) 698. powers came for the first time on 16. 10. 86. Amanulla Khan who was author of the FIR and who was P. W. 1 stated that he searched the opium and took the accused in custody thereafter he was taken to the police station, was not even an officer of the rank of Inspector or Sub-Inspector. He was only a literate Head Constable who does not fall within the persons of the authorised category rather he has been excluded. Obviously for the person that the legislature has made the law so strict that anybody found guilty of offence under sections 8/18 or the Act has to undergo minimum sentence of 10 years and a fine of Rs. 1 lakh. When the gravity of the offence is so severe and the legislature in its own 11 wisdom excluded any investigation or search by a constable it cannot be appreciated that Amanulla did it rightly, TIJ have carefully gone through the cases cited above and have no hesitation in reaching the conclusion that for launching the prosecution or for initiating the proceedings the authority has unambiguous power. In criminal cases while enacting such provision the legislature puts a complete ban on the authorities beyond one mentioned in the Section to carry out the functions under the Act. In section 42 of the Act the legislature has clearly empowered the persons mentioned therein or who are authorised to do so by notification. The legislature intended that a Peon, sepoy or constable should in no case be empowered to enter, search or seize or arrest a person without warrant. It also did not empower in the Act even the police officers unless there was a notification in that behalf and as quoted by me above the officers of the police department had been empowered only by notification, dated October 16, 1986 and thereto the Government authorised the Inspectors of Police and Subinspectors of Police who too were posted as Station House Officers. A person accused of a crime particularly like the one where the legislature provides a minimum sentence of ten years and a fine of Rs. 1,00,000. 00, it is essential that the intention of the legislature must be carried out in letter and spirit. The accused has a right to expect a fair investigation and a fair trial keeping in view the basic concept that justice should not only be done but it should appear to have been done, has facing a trial by itself as an ordeal. A Head constable is also a constable and is certainly not a Sub-Inspector or Inspector of Police and in the instant case P. W. 1 Amanulla Khan was admittedly not Station House Officer of GRP Police Station, Ajmer. I have also quoted his statement in existence where he has admitted that he had gone to the police station after ten minutes of the search of which he had no jurisdiction express or implied. Even the SHO P. W. 6 Ram Chandra had no jurisdiction vested in him on November 21, 1985 and as such very foundation of the case is without proper authority of law. I need not go into other points raised as, this alone in sufficient to dispose of this case. TOn the second occasion, in Umrav v. State of Rajasthan2 Honble Farooq Hassan J. , followed the aforesaid decision and stated the position as under: Applying the proposition of law extracted above, I am of the opinion that in the instant case, where the search was made by a police constable without jurisdiction and investigation was also made by an officer who was not empowered to do so under section 42 of the Drugs Act by a special order of the State Government on the day when the offence is said to have been committed by the appellant. Umrav, because admittedly, Chhaganlal (P. W. 8) SHO had no jurisdiction express or implied even vested in him on August I, 1986 the day of occurrence and the powers were only conferred upon such officers like Chhaganlal. , after the notification dated October 16, 1986 came into effect; and as such, very foundation of the case is without authority of law. And the conviction against the appellant under section 17 of the Drugs Act cannot sustain warranting acquittal of the accused. In view of the peculiar circumstances, other points raised need not be gone into as the aforesaid point 2. 1988 Rajasthan Cr. Cases. 113. all alone is sufficient to dispose of this case,

( 8 ) THUS, the point urged by Mr. Bishnoi is no more res-integra and stands decided by the aforesaid Judgments of this Court.

( 9 ) THEREFORE, I have no alternative but to hold that the detention, search and arrest of the accused in the present case by Swaroop Singh held on Feb. 26, 1986, were un-authorised and legally bad. As held by the two learned Judges of this court in the cases noted above, this infirmity goes to the root of the matter and vitiates the trial itself.

( 10 ) ACCORDINGLY, the appeal is allowed the conviction and sentence of the appellant for the offence under section 18 of the Act, passed by the Sessions Judge, Jalore, by the judgment dated 27. 7. 87 are set aside. The accused is in jail. He shall be set at liberty forthwith, if not required in any other case. Appeal allowed.