Gulam Mohamad Gulam Ahmad vs State Of Maharashtra, N/Cell, Cb, ...
2003 Latest Caselaw 915 Bom

JUDGMENT

S.B. Parkar, J.

1. This appeal is filed challenging the Judgment and Order dated 7th August, 2000 delivered by Special Judge, N.D.P.S. Act, Greater Bombay, convicting the appellant for offence under Section 8(c) read with Section 20(b)(ii) of the N.D.P.S. Act and sentencing him to RI for 10 years and to pay fine of Rs. 1 lac in default RI for three months.

2. Briefly narrated the prosecution case is as follows:-

On 18/1/2000 PSI Ravindra Ranshewre while on duty received information on telephone around 10.25 a.m. that one Abudl, one Gulam Mohd. aged about 60 years and one Nazir Baban aged about 50 to 55 years dealing illegally in Charas in Mumbai were expected near Fire Brigade, Malwani Gate No. 1, Marve Road, Malad (W) between 14.15 hrs. to 15.15 hrs. for selling Charas to their customers by name Rashid and a lady by name Rehana. The descriptions of the customers were also given in the information. On receipt of the said information PSI Ranshewre attached to Anti Narcotic Cell, CB, CID entered the gist of the information in the station diary at about 10.30 hrs. He showed the station diary to PI Tele and apprised him about the said information. That time PSI Upparkar was also present in the cabin of the Narcotic Cell Office. The extract of the said station diary entry was handed over to the Sr.PI Jadhav as well as ACP and DCP. On the direction of PI Tele two persons from Cuff Parade area were procured to act as panch. The search of the panchas was taken and they were apprised about the information received by PW 5. The search of police staff was also taken. Nothing incriminating was found. The office seal was taken by PI Tele from Sr.PI and other requisite material for the raid was collected. The panchanama of above events was drawn in the office of Anti Narcotic Cell. After making entry in the station diary at Sr.No. 10, the raiding party left the office in official vehicle MH-01-4425. The said vehicle was also searched but nothing incriminating was found. A panchanama to that effect was prepared. Thereafter the raiding party reached near Municipal School, Malwani, Malad (W) at 13.45 hrs. The members of the raiding party got down from the vehicle and reached near Fire Brigade, Gate No. 1, Malwani after walking for 7 to 8 minutes. At about 14.20 hrs. one person alighted from the bus and went near Fire Brigade Station. He was holding a carry bag with the inscription thereon as "Benzer". The person conformed to the description given of Gulam Mohd. He was waiting for somebody near Fire Brigade. All the members of the raiding party went and apprehended him. PI Tele introduced himself to the said person and showed his identity card. He also introduced other members of the raiding party and panchas to the said person. On inquiry the person gave him name as Gulam Mohd. Gulam Ahmed Padai and gave his Mumbai address of Aram Palace hotel. He also gave his address of State of Kashmir. The person was told about the information received by the officer that he was possessing Charas and they wanted to take his search. He was told that he had a right to give his search in the presence of nearest Magistrate or Gazetted Officer. But the declined the offer. On being asked the accused handed over his bag to PI Tele. When the same was opened there was one more plastic bag in that bag. There were 15 ball shaped black coloured hard pieces of different sizes and 7 half broken balls. When the same was tested the substance was found to be Charas. All the balls and pieces of substance weighed around 2 kgs. Two samples of 25 gms. each were prepared and kept in two different plastic packets. The plastic packets were stapled and thereafter put in two different envelopes. The remaining quantity of Charas was put in the same white coloured carry bag and wrapped in a Khaki cover. The said packet was marked as "A". Two sample packets were marked as "A1" and "A2". The empty carry bag having inscription as "Benzer" was folded and put it in an envelope and marked as "B". On the personal search of the accused cash of Rs. 160/- was found with him which was also put in a brown packet and market as "C". On all the five packets labels bearing signatures of two panchas and of PW 5 were affixed. All the packets were pested at the spot and sealed. Accused declined to put his signature on the packets. The accused was arrested by PI Tele, who also took all the packets in his custody. Panchanama of all the events was drawn and read over to both the panchas and their signatures were obtained. The said panchanama was also countersigned by PW 5. Copy of the panchanama was given to the accused and his signature was obtained. The raiding party then returned to the office along with the panchas and the accused. PI Tele deposited seized property to Sr. PI under memo Exh. 19. Statement of the panch Ashtamkar PW 4 was recorded. PSI Upparkar lodged FIR which is at Exh. 7. The crime was registered under C.R. No. 2 of 2000 against the accused. The station diary entries were made about the registration of the offence etc. The accused was detained at Azad Maidan Police Station. One of the sample packets was obtained by PW 5 from Sr.PI under memo Exh.21. He prepared forwarding letter Exh.22 and sent to C.A. On 19/1/2000 the belongings of the accused were checked in hotel Palace, but nothing incriminating was found. On the same day special detailed report about the events was sent to Sr.PI, ACP and DCP by PW 5, a copy whereof is produced at Exh.23. C.A. report dated 3/2/2000 received on 26/2/2000 is produced at Exh.11. As per the C.A. report the sample was found to be of Charas. After completion of the investigation charge-sheet was filed in the Court of Special Judge on 6/4/2000.

3. The Special Judge framed charges against the accused for offence under Section 8(c) read with Section 29 of N.D.P.S. Act and for offence under Section 8(c) read with Section 20 of the said Act, to which accused pleaded not guilty. On behalf of the prosecution five witnesses have been examined. PW 1 is PSI Tulsidas Upparkar. PW 2 is Smt. Manda Patil, attached to Narcotic Cell, who had taken the sample packets to the office of C.A. PW 3 is Mahadeo Mestrekar, the Assistant Chemical Analyser working in the Forensic Science Laboratory, Kalina, Mumbai. PW 4 is Jojeph Ashtamkar, who acted as panch. Lastly, PW 5 is PSI Ravindra Ranshewre, attached to Narcotic Cell, CB, CID. The defence of the accused was of total denial.

4. After considering the entire evidence on record the learned Special Judge by his impugned Judgment and Order dated 7th August, 2000 held the appellant guilty for offence under Section 8(c) read with Section 8(b)(ii) of the N.D.P.S. Act and sentenced him to RI for 10 years and to pay fine of Rs. 1 lac in default RI for three months. The said Judgment and Order is under challenge in this appeal by the appellant-accused.

5. On behalf of the accused only point urged is that there is non-compliance with Section 50 of the NDPS Act. It is pointed out that while in the depositions the witnesses have stated that the accused was given choice, if he wished, to be examined in the presence of either Magistrate or Gazetted Officer, in the FIR as well as in the panchanama what is mentioned is that the accused was told that he had a choice if he wanted to be examined in the presence of either Judicial Magistrate of Gazetted Officer. It is argued that the depositions of the witnesses cannot be accepted as they have made improvement in their evidence. Reliance is placed on the judgment of this court delivered by me in the case of Ashwinikumar Sarvansingh Chauhan v. State of Maharashtra reported in 2002 All MR (Cri) 569.

6. It is not in dispute that the provisions of Section 50 of the N.D.P.S. Act are mandatory and non-compliance of the same would vitiate the trial and would result in acquittal of the accused. In my opinion the reliance on the judgment of this court in Ashwinikumar's case (Supra) will not help the appellant in this case in as much as the accused in Ashwinikumar's case was acquitted not simply on the ground that the choice was given to the accused between the Judicial Magistrate and the Gazetted Officer but it was found that the evidence of the PSI was not at all supported by the independent witness i.e. panch. In that case, as noted in para 9 of the judgment, the panch did not make a mention at all about the alleged offer or appraisal of the right under Section 50 made to the accused persons. On the contrary he contradicted the Investigating Officer as he deposed that the accused were asked whether they had a desire to get the panchanama drawn in the presence of a Magistrate. Thus there was only testimony of the police officer without corroboration by the panch and, therefore, relying on the judgment of the Supreme Court in the case of K. Razak v. State of Kerala reported in 2000 SCC (Cri.) 829 this court set aside the order of conviction and sentences passed against the accused and acquitted him.

7. So far as this case is concerned, the panch has supported the police officer and deposed that the accused was given choice to be examined in the presence of either a Magistrate or a Gazetted Officer though in the panchanama Exh. 13 it is mentioned that the accused was given choice to be examined in the presence of Judicial Magistrate (Nyayadandadhikari) or Gazetted Officer. Same version is given in the FIR Exh. 7. This would show that the actual offer of choice given to the accused was between Judicial Magistrate instead of Magistrate and Gazetted Officer. But at the time of deposition all the witnesses, including PW 1 and PW 5 i.e. two police officers as well as panch PW 4, referred to the Magistrate and not Judicial Magistrate as mentioned in the FIR as well as Panchanama of seizure.

8. Thus, In this case even if it is accepted that while apprising the right of the accused under Section 50, he was given choice to be examined in the presence of either Judicial Magistrate or Gazetted Officer, it cannot be said that there was contravention of Section 50 of the Act. The accused was told that he could be searched in the presence of a Gazetted Officer as laid down in the Act. However. instead of informing the accused that he could be alternatively examined in the presence of a Magistrate he was told that he could be searched in the presence of a Judicial Magistrate. But the accused had not opted to be searched in the presence of either of them and, therefore, it cannot be said that if the accused had been given option of a Magistrate instead of Judicial Magistrate he would have opted to be examined in the presence of a Magistrate.

9. Recently I have come across the Judgment of the Supreme Court in the case of Munna Mohammad Hasan Ansari v. State of Maharashtra delivered by a two Judge Bench of the Supreme Court consisting of Justice R.C. Lahoti and Justice N. Santosh Hegde on 3/5/2001 in Criminal Appeal No. 1383 of 1999. That was a case where the accused was apprised of his right to be taken to a Magistrate only and being searched in his presence without being told that he could be taken to and searched in the presence of a Gazetted Officer also as laid down under Section 50 of the Act. The accused had declined the offer of being examined in the presence of a Magistrate. Negativing the argument advanced on behalf of the accused that there was no compliance of Section 50 of the NDPS Act for not being given option of being examined in the presence of a Gazetted Officer, if was observed in the last paragraph of the judgment as follows:

"...It cannot be contended that the accused appellant, who had failed to avail the right of being searched in the presence of a Magistrate, would have availed a search being conducted in the presence of a gazetted officer, if only that would have been told to him, the offer given by PW-1 and PW-4 that the accused could be searched in the presence of a Magistrate if he so wished satisfied the requirements of compliance of Section 50 of the NDPS Act...."

10. In this case the police officer had asked the accused the choice of being examined in the presence of either a Judicial Magistrate or a Gazetted Officer and he did not opt for either and allowed the police officer himself to search him. This is mentioned in the FIR as well as in the Panchanama and only because the officers and the panch made improvement white giving evidence, it cannot be said that the accused was not appraised of his right and not given any choice at all. The accused had not opted to be examined in the presence of either a Judicial Magistrate or a Gazetted Officer and, therefore, it cannot be said that if the accused had been given the choice of a Magistrate instead of Judicial Magistrate along with a Gazetted Officer he would have opted to be examined in the presence of a Magistrate.

11. This is not a case where it can be said that there was no corroboration at all and the court has to rely only on the evidence of the PSI as was the case in Ashwinikumar's case (Supra). In that case the panch had given contradictory version that the accused were asked whether they had a desire to get the panchanama drawn in the presence of a Magistrate. It was in that context, following the judgment of the Supreme Court in K. Razak's case the accused was given benefit of non-compliance of Section 50 of the Act. The accused was not acquitted in that case on the sole ground that the choice was given between a Gazetted Officer and a Judicial Magistrate instead of a Magistrate.

12. Assuming that the choice was given to the accused between a Gazetted Officer and a Judicial Magistrate, in view of the Judgment of the Supreme Court in Munna Ansari's case referred to above, in my opinion, there was substantial compliance with the provisions of Section 50 of the Act.

13. The frail attempt was made by the defence advocate to argue that there was no compliance of Section 42 of the Act. However, from the record I find that as soon as the information was received by PW 5 PSI Ranshewre, he reduced it to writing in the station diary and brought it to the notice of his superior officer PI Tele and the extract of the said entry was handed over to Sr.PI Jadhav as well as ACP and DCP. The extract of the station diary entry made at Sr.No. 5 is produced at Exh. 15 on which there is acknowledgment by ACP of the same date i.e. 18/1/2000. Thus, there is substantial compliance with Section 42 of the Act. The information which was entered into station diary is the gist of information received by PSI Ranshewre.

14. In the circumstances I see no reason to interfere in the order of conviction and sentence recorded by the trial court. The sentence imposed by the trial court is a minimum sentence prescribed under the law.

15. In the result, the order of conviction and sentence recorded by the Special Judge against the appellant-accused in NDPS Special Case No. 53 of 2000 on 7/8/2000 is confirmed and the appeal is dismissed.