Mohd. Hafiz S/O Habibulla vs State Of Maharashtra
2002 Latest Caselaw 1135 Bom

JUDGMENT

R.K. Batta, J.

1. The appellant was tried for possession of 8 gms. 300 mg. of brown sugar under Section 21 of the N.D.P.S. Act. The prosecution had examined seven witnesses in support of the charge. The Special Judge, N.D.P.S. Court vide judgment dated 1-7-1999 held the appellant guilty for the said charge under Section 21 of the said Act. The appellant was sentenced to R. I. for ten years and fine of Rs. 1,00,000/-, in default, R. I for one and half years. The period of detention during the trial was set off. The appellant challenges the said order in appeal.

2. The prosecution case, in brief, is that on prior information, which was reduced in writing and sent to the higher authorities, the appellant was accosted in front of Mayur Beer Bar. The appellant was searched and from his personal search, the contraband in question was found. Samples of contraband were sent to the Chemical Analyser, who found that the sample contained heroine (diacetyl-morphine) and falls under Section 2(xvi)(e) of the N.D.P.S. Act, 1985.

3. Learned Advocate for the appellant mainly advanced arguments on the question of non compliance of the mandatory provisions of Section 50 of the Act besides inter se discrepancies in recovery between the evidence of the incharge of the raiding party (PW-6) P.S.I. Chate and that of Pancha (PW-7) Vasant Parate. Learned Advocate for the appellant pointed out that the notice given to the appellant does not satisfy the requirement of Section 50 inasmuch as the appellant was not informed of his right of being search before the Gazetted Officer or the Magistrate but that the said notice only speaks of a provision to the effect and that in case the appellant so desire, arrangement could be made in accordance with the said provisions. After relying upon the judgment of this Court in Criminal Appeal No. 13 of 1997 Mohammad Ismail s/o Karim Patel Ansari v. The State of Maharashtra to which I was party, it was urged that there has been failure on the part of the Investigating agency of intimating the appellant of his right to be searched before the Gazetted Officer or the Magistrate. He also pointed out that Panch (PW-7) does not even state that the appellant had declined to accept the offer made by the police vide the said notice (Exh. 32). Therefore, according to the learned Advocate for the appellant on account of non compliance of mandatory provisions of Section 50, the appellant is entitled to be acquitted.

4. On the other hand, learned A.P.P., urged before me that there is substantial compliance of the provisions of Section 50 of the N.D.P.S. Act and the notice (Exh. 32) does acquaint and apprise the appellant of his right to be searched before the Gazetted Officer or Magistrate. He further contends that P.S.I. Chate (PW-6) has categorically stated in his deposition that the appellant was informed that he was entitled to get the search done in the presence of the Gazetted Officer or the Magistrate and as such in view of this deposition of P.S.I. Chate (PW-6) there is a compliance of mandatory provisions of Section 50 of the Act. According to him, there is no merit in the appeal. The appeal should be dismissed.

5. Section 50 of the Act reads as under :--

50. Conditions under which search of persons shall be conducted. - (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 of to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in Sub-section (1).

(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female."

6. The written notice which has been given by P.S.I. Chate (PW-6) to the appellant as also the reply of the appellant which has been recorded thereunder reads as under:--

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7. I had occasion to deal with a similar notice in Criminal Appeal No. 13 of 1997 Mohammad Ismail s/o Karim Patel Ansari v. The State of Maharashtra, After referring to the rulings of the Apex Court in State of Punjab v. Balbir Singh, ; State of Punjab v. Baldev Singh etc, etc. reported in 7999 Cri.LJ, 3672 and K. Mohanan v. State of Kerala had arrived at the following conclusion.

"This notice only speaks of a provision relating to personal search in the presence of Executive Magistrate or Magistrate or Gazetted Officer as also that if the appellant so desired, arrangement could be made for the same. This notice, in my opinion, in the context and evidence on record, does not apprise the appellant of his right but only points out the existence of such provision. The accused must be made aware of the right in clear, unambiguous and categorical terms that he has a right to get himself searched before the Gazetted Officer or the Magistrate and that if he so desires he can be taken to a Gazetted Officer of a Magistrate. The notice in question falls short of the requirement under Section 50(1) of the N.D.P.S. Act."

The notice in the said criminal appeal was exactly similar to the one which is found in the appeal under consideration, namely Exh. 32.

8. P.S.I. Chate (PW-6) did try in the course of his deposition that the appellant was informed that he was entitled for asking the presence of Gazetted Officer of any other department or the Magistrate at the time of search and he can ask for the same and that if he wanted the same could be arranged. However, this deposition is improvement over notice (Exh. 32) wherein the appellant was not informed of the said right. Moreover, according to P.S.I. Chate (PW-6), the appellant had replied that he did not want the presence of either Gazetted Officer or the Magistrate and that he permitted him to take his search. This has been reduced in writing and the signatures of the Panch and the appellant were taken. However, Panch (PW-7) Vasant Parate does not support the prosecution case on this aspect. In his examination in chief, he has stated that after the appellant was surrounded by the police, P.S.I. Chate told him that he wanted to take his search. P.S.I. Chate asked the accused to take his search, but the accused refused. He further states that then P.S.I. Chate took personal search of the accused and earlier to it, some papers were written, but he did not remember about it. Accordingly, learned A.P.P. was allowed to put questions in the nature of cross examination and then PW-7 stated that the P.S.I. Chate told the accused that he can ask for the presence of the Gazetted Officer or the Magistrate for his search. This as already pointed out does not amount to acquainting the appellant of his right to be searched before the Gazetted Officer or the Magistrate that he was entitled to his search before them in case he so desired. The Panch does not at all speak of any reply given by the appellant after he was informed of the contents of notice (Exh. 32), but he has stated that the appellant informed that he was unable to read or write and could sign only in Urdu. He does not state anywhere that the appellant had declined the offer as to his right to get himself searched before the Gazetted Officer or the Magistrate. Even the reply recorded below Exh. 32 does not show that the appellant had in fact refused to avail of the said right of search before the Executive Magistrate or the Gazetted Officer and the reply is, 'Bahar Ke Kisi Aadmi Ki Jarurat Nahi Hain'. This reply does not even clearly indicate as to whether the appellant had even understood the contents of Exh. 32 because if the appellant had declined for search before the Executive Magistrate or Gazetted Officer, after he was informed of the said right, it should have been specifically recorded that there was no need of any Gazetted Officer or Executive Magistrate.

9. In view of the above, I am of the considered opinion that the requirement of Section 50 has not been complied with. On account of non compliance of the requirement of Section 50(1) of the N.D.P.S. Act, the recovery of illicit articles becomes suspect and it vitiates the conviction and sentence since conviction and sentence is recorded only on the basis of possession of illicit article recovered from the person of the appellant during search conducted in violation of the provisions of Section 50 of the Act. The law laid down by the Apex Court in State of Punjab v. Baldev Singh (supra) in sub-paras (1), (2) and (3) of paragraph 55 squarely applies to the case under consideration. Therefore, the conviction of the appellant on the basis of recovery of illicit article from his possession cannot be sustained and is required to be set aside.

10. In view of the above, the appeal is accordingly allowed. The conviction and sentence recorded by the Special Judge, N.D.P.S. Court, vide judgment dated 1-7-1999 in Special Criminal Case No. 3/1998 is hereby quashed and set aside. The appellant is ordered to be acquitted of the charge and he shall be set at liberty in case he is not required in any other case.