Dr.ARIJIT PASAYAT,J.
Challenge in these appeals is to the judgment of a learned Single Judge of
the Rajasthan High Court allowing the appeals filed by the respondents Manoj
Sharma and Mohammed Rafiq in S.B.Crl. No. 53/98 and 98/98. The accused-
respondent No. 1 Manoj Sharma faced trial for alleged commission of offence
punishable under Section 8 read with Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short the 'Act'). Accused No. 2 Mohammed
Rafiq was charged for offence punishable under Section 8 read with Section 29 of the
Act for offence for abatement of commission of offence. The trial Court convicted the
accused persons. The High Court directed acquittal on the ground that there was
inconsistency in the evidence and non-compliance of the provisions of Section 50 of
the Act apart from other
inconsistencies. So far accused Mohammed Rafiq is concerned the High Court noted
that there was deficiency in change regarding place of seizure. As regards the
accused Manoj Sharma, it was observed that it was non-compliance with
requirement of Section 50 of the Act. Independent witnesses were not procured.
Accordingly, the High Court directed acquittal.
In support of the appeal, learned counsel for the appellant -State submitted
that since the seizure was from a place inside the house and not from the person of
the accused, Section 50 has no application.
Additionally, it was submitted that the difficulties encountered by the
official in getting independent witnesses has not been considered by the High Court.
It was clearly brought on record that inspite of efforts no independent witness could
be procured as the accused persons were known ruffians.
Inspite of service of notice, there is no appearance on behalf of the
respondent.
So far as the alleged noncompliance with the requirements of Section 50
are concerned, this Court in several cases held that the provision has no application
when the search is not of a person. In the instant case, the seizure was not from
person of accused, but from inside the house. That being so, Section 50 of the Act
had not
application to the facts of the case. The High Court does not appear to have kept in
view the definite evidence laid by the State to show that how it was not possible to get any independent witness. That being so, the acquittal of accused Manoj Sharma
cannot be maintained. However, it appears that the quantity seized was 8 gram in
view of notification dated 327 E dated 16/7/1996 of the Central Government issued in
exercise of power under Section 27 of the Act which provided that if an accused is
found in possession upto 25 gms. of opium then such accused can be awarded such
sentence according to the Act meant for “small quantity”.
The provision of Section 27 relating to personal use has clear application.
Therefore, the accused person Manoj Sharma has to be convicted in terms of Section
27 of the Act. It appears from the record that the accused has suffered custody of
about 2 years. The sentence is reduced to the period already undergone.
So far as Mohammed Rafiq is concerned, the High Court has indicated in
great detail deficiency in change. That being so, we are not inclined to interfere with
the acquittal of Mohammed Rafiq as directed by the High Court.
The appeals are accordingly disposed of.
((ASOK KUMAR GANGULY) New Delhi, March 03, 2009.