Yusuf Kamruddin Momin vs U.R. Kulkarni, Supdt., Central ...
2001 Latest Caselaw 623 Bom

JUDGMENT

S.S. Parkar, J.

1. The appellant convicted and sentenced under the provisions of N.D.P.S. Act has preferred this appeal challenging the order of conviction and sentence recorded against him by the Special Court, under N.D.P.S. Act, Pune in N.D.P.S. Sessions Case No. 29 of 1993 by Judgment and Order dated 4.1.1999.

2. Briefly, the prosecution case is as follows :

On the basis of prior information the officers of Central Excise and Customs, Preventive Branch had searched the house of the appellant on 11.10.1987 under a search warrant. During the course of the search 430 gms. of Ganja was found kept in one german pot in his house along with empty packets of brown colour. Thereafter personal search of the appellant was taken and from the pocket of his trouser 230 gms. of Opium was recovered. The raiding party had with them the panchas. The sample packets of 5 gms. each were prepared from both the contraband. The contraband was seized under Seizure Panchanama Exh. 17. The accused was brought to the police station along with muddemal and he was arrested. The sample packets were sent to the office of C.A. As per C.A. Report Exh. 30, samples contained ganja and opium. After investigation was complete.

complaint was filed and process was issued under Sections 18 and 20(b)(i) of the N.D.P.S. Act. Charges were framed against the appellant for offences under Sections 18 and 20(b)(i) of the N.D.P.S. Act as well as under Sections 66 and 66(A) of the Bombay Prohibition Act. The accused pleaded not guilty. His defence was of total denial and false implication.

3. On behalf of the prosecution four withnesses were examined. PW1 is Ghanasham Mahamuni who acted as panch to the search and seizure. PW 2 is Gulab Sable, the then Inspector in Central Excise, Preventive Branch, Pune, who was the member of the raiding party for search and seizure of the contraband. PW3 is Ramdas Deshmukh, who was at that time Inspector of Customs and Central Excise, Pune and was incharge of godown. PW4 is Chitaranjan Pol who was attached to Preventive Branch, Pune at that time and had recorded the statement of the appellant on dictation of PW 2 Gulab Sabale.

4. After considering the entire evidence on record, the Trial Court convicted the appellant under Section 20(b)(1) of the N.D.P.S. Act for having found in possession of Ganja and sentenced him to R.I. for 5 years and to pay a fine of Rs. 50,000/- in default R.I. for one year. The appellant was also convicted for offence under Section 18 of the N.D.P.S. Act for being found in possession of opium and sentenced to R.I. for 10 years and to pay a fine of Rs.1 lac in default R.I. for two years. The said order of conviction and sentence is impugned in this appeal.

5. Mr. Jamdar the learned advocate appearing on behalf of the appellant contended that the conviction of the appellant under Section 20(b)(1) of the N.D.P.S. Act is not sustainable as on the day of the search and seizure and the arrest of the appellant on 11/10/1987 there was no prohibition as regards the possession of ganja. Secondly, he contended that there was non-compliance with Section 50 of the Act as regards the personal search of the appellant in which opium was recovered from the pocket of the trouser of the appellant.

6. As regards the first contention, proviso to Section 8 of the N.D.P.S. Act states that the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use. consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf. Such notification was issued by the Central Government on 30th May, 1989 specifying the 15th May, 1989 as the date from which the prohibition against the cultivation of cannabis plant for the production of ganja shall take effect and 13th December, 1989 was specified as the date from which the prohibition against the production, possession, use, consumption, purchase, sale, transport etc. of ganja was to take effect. Thus, on the date of seizure i.e. 11/10/1987 there was no such prohibition and, therefore, the conviction of the appellant under Section 20(b)(1) of the N.D.P.S. Act is not at all warranted by law and the said conviction is liable to be quashed and set aside.

7. So far as the recovery of opium from the personal search of the appellant is concerned, 1 find there is non-compliance with the provision of Section 50 of the Act, PW 2 Gulab Sabale, who was Inspector of Central

Excise and had taken search and made seizure of opium states in para 3 of his deposition that he asked the appellant whether he wanted that his personal search should be taken before the Gazetted Officer or Magistrate and also told him that the Gazetted Officer was with them to which the appellant said that it was not necessary. Then PW 2 took personal search of the appellant and found opium wrapped in one plastic paper in the pocket of his trouser. PW 2 was referring to one Kulkarni, the Superintendent of Central Excise who was the member of raiding party as a Gazetted Officer.

8. First of all, this version of PW 2 is not supported of any independent wlthness nor is it supported by the contemporaneous document like seizure panchanama Exh. 17 in which there is no reference to such offer having been made to the appellant. There is also no reference made to such offer having been made by PW 1 panch Mahamuni in his deposition. It remains only ipse dixit of the Inspector, Central Excise, which is not corroborated. Secondly, the appellant was told that raiding party had a Gazetted Officer with them referring to the presence of Kulkarni, the Superintendent of Central Excise, who was the member of the raiding party. This cannot be the intent of Section 50 of the Act. The Gazetted Officer contemplated by the said provision can only be an independent Gazetted Officer, who is not a member of the raiding party, to exclude the possibility of search and seizure becoming suspect and to ensure fairness in the investigation of an offence which is attended with severe punishment. As observed 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." Thirdly, the option given to the appellant does not amount to an apprisal or communication of his right under Section 50 of the Act. The appellant was asked for his opinion whether his personal search should be taken before a Gazetted Officer or a Magistrate. In a recent judgment in the case of K. Mohanan v. State of Kerala, the Supreme Court has held that asking the accused whether he wants his personal search to be taken before a Gazetted Officer or a Magistrate is not an apprisal of his right to the accused under Section 50 of the Act.

9. Thus, in my view, there was non-compliance with Section 50 of the Act which is held to be mandatory by the Apex Court in the case of State of Punjab v. Baldev Singh, as a result of which the search and seizure have become suspect and consequently the conviction recorded against the appellant cannot sustain. For the foregoing reasons, the conviction and sentence recorded against the appellant both for possession of ganja as well as opium is liable to be set aside.

10. In the result this appeal is allowed and the order conviction and sentence recorded against the appellant in N.D.P.S. Sessions Case No. 29 of 1993 by the Special Court, under N.D.P.S. Act, Pune by the Judgment and order dated 4.1.1999 is quashed and set aside and the appellant is acquitted. The appellant shall be entitled to be released forthwith from the custody unless required in any other case."