State of
Rajasthan Vs. Manoj Sharma & ANR. [2009] INSC 474 (3 March 2009)
Judgement
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL Nos.
303-304 OF 2003 STATE OF RAJASTHAN ... Appellant(s) Versus MANOJ SHARMA &
ANR. ... Respondent(s)
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 -2- 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 -3- 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.
-4- The
appeals are accordingly disposed of.
...................J. (Dr. ARIJIT PASAYAT)
....................J. ((ASOK KUMAR GANGULY)
New Delhi,
March 03, 2009.
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