State Of Rajasthan vs Shanti

JUD GMENT

Dr. ARIJIT PASAYAT,J.

Heard learned counsel for the State and for the respondent.

Challenge in this appeal is to the judgment of the learned single

Judge of Rajashtan High Court at Jodhpur dismissing the appeal filed by the

State questioning the correctness of the judgment of acquittal recorded by learned Additional District and Sessions Judge No.2, Hanumangarh. Two

persons faced trial for alleged commission of offences under Sections 8 and

18 of the Narcotic Drugs and Psycotropic Substances Act, 1985 (in short the

`NDPS Act').

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Allegation was that on 18/1/1999 the Station House Officer, Police

Station Pilibanga received secret information that the respondent Shanti and her son Darshan alongwith her husband

Shankar Lal were habitually indulging in the sale and purchase of opium and

the respondent Smt. Shanti was expected to come with opium near a

particular place. The police officer reached the place and found that the

respondent was carrying a bag in her hand. She was stopped and searched.

The bag was found to carry about 10 kgs. of opium. On the information given

by her, another 20 kgs. were seized from near her residential house. Accused

Shankar Lal was also arrested in connection with the second recovery of 20

kgs. of opium. Charge-sheet was filed after investigation. As the accused

persons pleaded innocence trial was held. The trial Court found that there

was violation of the provisions of Section 42 (2), 50, 55 and 57 of the NDPS

Act and acquitted the accused. Questioning the acquittal, the High Court was

moved by the State. The High Court did not find any substance in the appeal

filed by the State and dismissed it.

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So far as the present appeal is concerned, it has to be noted that the

special leave petition was dismissed against the respondent No.2 i.e. Shankar

Lal and notice was issued qua the present respondent.

Learned counsel for the appellant stated that Section 50 had no

application because there was no personal search. It is also pointed out that

Sections 55 and 57 are not mandatory. The prosecution version was clearly

established. Learned counsel for the respondent on the other hand submitted that the trial Court and the High Court have found that there was non-

compliance with the requirement of Sec.42(2).

So far as the conclusions regarding Sec.50 recorded by the trial

Court and the High court are concerned, they same are not in line with what

this Court has said. Section 50 has application only when there was

personal search. In the instant case the samples were collected, after

seizure, from her bag. Nevertheless, there has been non-compliance with the

requirement of Sec.42(2) as recorded both by the trial Court and the High

Court. That being so there is no merit in this appeal.

The appeal is dismissed accordingly.

................ .J. (Dr. ARIJIT PASAYAT)

...................J. (ASOK KUMAR GANGULY) New Delhi, April 21, 2009.