JUDGMENT S.S. Parkar, J.
1. The appellant convicted under Section 21 of the N.D.P.S. Act and sentenced to R.I. for 10 years and to pay a fine of Rs. 1 lac in default to suffer R.I. for two years has filed this appeal challenging the order of conviction and sentence recorded against him by the Special Court, Pune under the N.D.P.S. Act by the Judgment and Order dated 15.7.1998 in N.D.P.S. Sessions Case No. 10 of 1996.
2. Briefly stated the prosecution case is as follows:
On 27.12.1995 A.P.I. Konde, attached to Vigilance Department at Pune, received information at about 2.15 p.m. that a person by name Basavraj alias Bablu Yellappa Pujari was selling gard powder in Laxminagar, Yeravada. After receiving information he made entry in the information register, scribed it on one paper and placed it before the Superior Officer and obtained permission to conduct raid. Two panchas were called and they were apprised of the information. The Police party, which included A.P.I. Konde (P.W. 3), P.I. Jadhav and panchas, had gone to the said place carrying with them kit box and chemical box required for the purpose of raid in a jeep. The raiding party got down from the jeep on the back side of Parnakuti Police Chowky in Laxminagar and walked down up to the spot mentioned in the information. They saw accused standing near public latrine who conformed to the description given in the information. The raiding party approached him and the identity of the raiding party was disclosed and he was told about the information. He was asked whether he wanted his search to be taken in the presence of a Gazetted Officer or a Magistrate to which he declined. In the personal search of the accused 8 pudies of gard powder in the pocket of his shirt were found. One plastic bag containing gard powder was also found in his pant pocket. The 8 pudies recovered from the shirt pocket were collected in one plastic bag. When the powder from both the bags were tested by using chemical, the powder answered positive for gard powder. Both the plastic bags were sealed with lac seal and thereafter they were put in separate envelopes which were closed and thereafter pasted with slip bearing signatures of panchas and Police Officer. The panchanama of seizure was drawn, a copy whereof was given to the accused by obtaining his signature on the same. The seizure panchanama is produced at Exh. 17. The report about the seizure was prepared by P.W. 3 and thereafter the raiding party came back to the Yeravada Police Station along with accused and the seized property. The report was given to P.S.O. for registration of the offence and the property was deposited with the Muddemal Clerk of the Police Station. Crime was registered under C.R. No. 921 of 1995 for offence under N.D.P.S. Act. The statements of the Head Constable Gaikwad and Police Naik Relekar were recorded. The muddemal property was sent to C.A. along with Head Constable Gaikwad with a forwarding letter dated 28.12.1995 Exh. 10. The C.A. Report is at Exh. 22, according to which the muddemal samples were found to be of gard powder. After the investigation was over, charge-sheet was filed and the case was committed to the Sessions Court before the Special Judge.
3. Before the Special Judge charge was framed against the accused under Section 21 of the N.D.P.S. Act on 21.11.1996. As the accused pleaded not guilty the prosecution had examined four witnesses. P.W. 1 is Namdeo Mane who was Muddemal Clerk attached to Yeravada Police Station. P.W. 2 is Dada Gaikwad, Police Head Constable who carried the sample packets to the office of C.A. P.W. 3 is Duryodhan Konde, A.P.I, attached to Vigilance Department, who received the information and investigated the case. Lastly, the prosecution had examined panch to the seizure, Raje Swami as P.W. 4. The Defence of the accused was of total denial and false implication. He has filed short written statement stating that on 27.12.1995 at about 7 p.m. when he came back home from his work he was taken to the police station in an autorickshaw by two Police Officers and he was involved in a false case. After considering the evidence on record, the Special Court convicted the accused and sentenced him under the provisions of the N.D.P.S. Act as stated above. The said order of conviction and sentence is impugned in this appeal.
4. Mr. Jamdar the learned defence Advocate raised mainly two contentions. According to him the prosecution case should not be believed on the sole testimony of Police Officer who was of the rank of A.P.I, which is not corroborated by independent witness. He pointed out that it is the case of P.W. 3 A.P.I. Konde, the Investigating Officer, that muddemal property was handed over for safe custody to the Muddemal Clerk on the day of the seizure i.e. 27.12.1995 and the admission of P.W. 1, the Muddemal Clerk Namdeo Mane shows that the muddemal property of this case was entered at Sr. No. 692 of the Muddemal Register, extract of which is produced at Exh. 8 which is supposed to be of 27.12.1995. The subsequent two entries in the said Register at Sr. Nos. 693 and 694 are dated 29.11.1995 i.e. about for weeks prior to the date when the muddemal of this case was deposited. Mr. Jamdar submitted that if the muddemal had been deposited on 27.12.1995 at Sr. No. 692 the said entry ought to have been made after the entries dated 29.11.1995 which are at Sr. Nos. 693 and 694. No doubt, the Muddemal Clerk examined as P.W. 1 has not at all explained how the entries of later date came to be made at earlier serial number in the Muddemal Register than the two entries of earlier date, this, by itself, would not, in my view, falsify the prosecution case. If at all, the doubt can be created as regards the genuineness of entries at Sr. Nos. 693 and 694 dated 29.11.1995.
5. Mr. Jamdar has next contended that the compliance with the mandatory provision under Section 50 of the Act is not proved beyond reasonable doubt. In this respect he placed reliance on the evidence of P.W. 3, I.O., who deposes that before the personal search of the accused was taken the accused was asked whether he wanted his search to be taken in the presence of a Gazetted Officer or a Magistrate to which he declined. Thereafter his personal search was taken in which the aforesaid contraband was found in his shirt and pant pockets. This is no doubt also mentioned in the seizure panchanama Exh. 17. This version, however, is not supported by P.W. 4, panch witness Raje Swami. The panch in his deposition states as follows:
...Then the Police Officer told him that he has to take his search and if that person was to call any person known to him, then he may call him, to which he declined. Then the signature of that person was obtained by police on one paper. Thereafter police took search of the said person....
Thus, according to the panch, the accused was not apprised of his right to be searched in the presence of a Gazetted Officer or a Magistrate. According to the panch the accused was told that if he wished, his search would be taken in the presence of any person known to him but he declined.
6. Mr. Jamdar relied on the judgment of the Division Bench of this Court in the case of Wessel Van Beelan v. State of Goa 2000 (1) Cri. 271. In that case the Police Officer had told the panchas about offer made by him to the accused in compliance with Section 50 of the Act and the same was mentioned in the panchanama also. However, panchas were not told before the search of the accused was taken that the accused was apprised of his right under Section 50 and was made offer accordingly. The conversation between the Police Officer and the accused was in English and there was nothing on record to show that the panchas knew English and the panch had not been able to repeat exact words used by Police Inspector while giving offer to the accused. Mr. Jamdar also relied on the decision of the Division Bench of this Court, to which I was a party, in the case of Audumbar Digambar Jagdane and Anr. v. State of Maharashtra 1999 Cri.L.J. 1936, in which it was held that the statement under Section 164 cannot be accepted as substantive evidence and submitted that the statement under panchanama cannot be used even if it corroborates the Police Officer when the same is not supported by panch in his deposition. In my view the above judgment in Jagdane's case does not support the contention of Mr. Jamdar.
7. So far as this case is concerned, the panch P.W. 4 has stated in his deposition that he could read and write English and Tamil languages only. The seizure panchanama Exh. 17 is admittedly written in Marathi and there is no endorsement at the end of the seizure panchanama about the contents having been explained to the panchas. As per P.W. 4 what the accused was told by the A.P.I. was only whether the accused wanted to call any person known to him, which is not in compliance with Section 50 of the Act. When the panch witness, who has not been declared hostile, has given version as regards the appraisal of right of the accused under Section 50 inconsistent with the deposition of the I.O. so also the mandatory provision of Section 50, it may not be safe to base the conviction only on the sole testimony of the A.P.I. for an offence which is attended with severe punishment. As held by the Supreme Court in the case of Koluttumottil Razak v. State of Kerala , that, "the graver the consequences the greater must be the circumspection to be adopted." In this case the panch having deposed contrary to the contents of the panchanama, the latter cannot be used to corroborate the version of the Police Officer.
8. In the aforesaid circumstances, in my view, the prosecution case is not proved beyond reasonable doubt in compliance with mandatory provision of Section 50 of the Act and, therefore, benefit should go to the accused. The non compliance with mandatory provision of Section 50 of the Act makes the search and seizure suspect and the conviction based on such search and seizure is liable to be quashed as held in several judgments of the Supreme Court, including that of the Constitution Bench in the case of State of Punjab v. Baldev Singh .
9. In the result, this appeal is allowed and the conviction and sentence recorded against the appellant in N.D.P.S. Sessions Case No. 10 of 1996 by order dated 15.7.1998 is quashed and set aside and the appellant is acquitted. The appellant shall be released from custody unless required in any other case.