REPORTABLE

       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)

J U D G M E N T

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

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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

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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.

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The appeals are accordingly disposed of.

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

             ....................J.                          ((ASOK KUMAR GANGULY)

New Delhi, March 03, 2009.