Mohammad Salim Bashir Shaikh vs The State Of Maharashtra
2003 Latest Caselaw 403 Bom

JUDGMENT

J.G. Chitre, J.

1. Ms. Savita Surayavanshi, Advocate appointed for defence of the appellant in this appeal and Shri Saste, Additional Public Prosecutor for the prosecution, have been heard in detail.

2. The appellant is hereby assailing the correctness, propriety and legality of the judgment and order of conviction and sentence passed by Special Judge for Greater Mumbai in NDPS Special Case No. 265 of 1997 whereby he has been convicted for offences punishable under provisions of Section 21 read with Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act for convenience), and sentenced to undergo RI for 10 years and to pay fine of Rs. 1 lac, in default of payment of fine, to suffer RI for six months.

3. The prosecution case in brief is that PI Hargude of Shivaji Nagar Police Station received information on 12.3.1997 at about 3.15 or so that the appellant is likely to come near municipal school, Nine Feet Road, Rafiq Nagar Slum Area, Govandi. He dispatched that information to his superior and through PSI Daddikar called the panch witnesses. The said information was revealed to panch witnesses and the colleagues and thereafter the raiding party went to the spot for effecting the raid on the appellant. The appellant came to the spot at about 6 or 6.30 p.m. and after verifying his description with the information received, the members of the raiding party caught him. As per the prosecution case, the appellant was informed about his right under provisions of Section 50 of the NDPS Act. He was also told that PSI Hargude was a gazetted officer. The appellant, as per prosecution case, did not desire to be searched by a gazetted officer or magistrate but preferred to be searched by the members of the raiding party. Search was taken and in the search from the pocket of his pant a paper packet was found which after opening was found to be containing three gms. of heroin. A sample packet was prepared. The panchanama was drawn and the appellant was arrested. The said sample packet was dispatched to Deonar Police Station which was received by the same police station and it was kept in the custody of PI Hargude. On 13.3.1997, messenger PW-5 Palande was called by PI Hargude and the said sample was given to him for carrying to the F.S.L. He gave it on the same day. After the same packet was chemically examined it was found to contain Diacetyl morphine (heroin), a narcotic drug. The charge sheet was prepared and filed against the accused in the Court which resulted in the trial in which the appellant was convicted and sentenced as stated above.

4. Ms. Savita Suryavanshi, counsel appearing for the appellant, submitted that there has been no compliance of Section 50 of the NDPS Act at all. No option was given to the appellant. On the contrary, by suggesting that PI Hargude was a gazetted officer, the appellant was induced to be searched by him and the members of the raiding party. Thus, the important right of the appellant was frustrated at his prejudice and, therefore, the appellant is entitled to be acquitted and as he has not been acquitted, this Court be pleased to acquit him.

5. Shri Saste, Additional Public Prosecutor appearing for the prosecution, submitted that there has been thorough compliance of Section 50 of the NDPS Act and the submissions advanced by the counsel appearing for the appellant be dismissed.

6. In Baldev Singh's case , the Supreme Court has pointed out that the compliance of Section 50 should be in its real spirit. In the said judgment the Supreme Court went on observing that there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.

7. The tendency to flout the provisions of Section 50 is at increasing rend, the officers of the raiding party, the members of the raiding party are not really concerned with the spirit of Section 50. They tell the accused that he is entitled to get searched before a magistrate or a gazetted officer but immediately they tell him that one amongst the members of the raiding party happens to be the gazetted officer. Is it not indirectly polluting his options? Is it not inducing him to go for being searched by the members of the raiding party? Is it not amounting to a feeler given to such an accused before he thinks of exercising of his right envisaged under section 50 of the N.D.P.S. Act. The tendency speaks of the unscrupulousness of the investigating agency in collecting the evidence against the accused. If the circumstances of the case are showing a prejudice to the accused on other grounds, the evidence in respect of such aspect of the case becomes a serious matter to be considered by the Court while judging the innocence or guilt of such an accused. In this case, what was the necessity of informing the appellant immediately that one of the members of the raiding party happens to be a gazetted officer. Why he was not permitted to think over exercising of his right as envisaged by provisions of Section 50 of the NDPS Act? Therefore, touching this aspect, this Court would probe further while considering the straightforwardness or the defaulting stance of the investigating agency while going for collecting the evidence against the accused.

8. Ms. Suryavanshi submitted that when the information received was that the appellant was to come there for selling "pudies" (small packets) to intending purchasers, how he could be with only one "pudi" (packet) and that too containing three grams of heroin. She further submitted that the prosecution case is by itself unnatural on this point because when the information was that he was to sell those packets to intending purchasers, the members of the raiding party should have waited for any transaction to have been transacted. But before that, as soon as he appeared on the scene, the members of the raiding party poured on him and arrested him. Saste tried his best to justify this situation.

9. There is substance in the submissions advanced on behalf of the appellant on this point. When the information was that he was to come to the spot for selling packets to intending purchasers, it is unnatural phenomena that he was with a single packet and that too containing three grams of heroin with its paper weight. Rs. 45/- were found in the possession of the appellant as panchanama shows. That could not have been the amount of sale effected by him prior to moment of his arrest or prior to the moment of his appearance on the view keeping in view the normal market price of heroin. A small packet of heroin even could not have been expected to be sold for Rs. 45/- or within that sum, if at all that was the amount collected by him by effecting the sale of some small packets. The offender would not take the risk of committing the offence under N.D.P.S. Act for such small amount when punishment is severe.

10. Total quantity of the amount of heroin found with the appellant was three grams. The members of the raiding party prepared only one sample pocket and that of three gms which was meant for sending for chemical examination. It means that the members of the raiding party were sure that the powder which was seized was nothing but a narcotic drug. They did not find it proper to reserve a packet which was to be produced in the Court in view of provisions of Section 55.

11. The Rules published by Central Government provide that the sample which is to be dispatched to F.S.L. or Chemical Analyser for examination should be of at least 5 gms. and at least two samples be prepared which would facilitate the investigating agency to end it to other laboratory than one to which it has been forwarded, in case of need. In this case, no such precaution has been taken at all. That also hampers the prosecution case and its credibility.

12. After the said raid was over, the said sample packet was kept in the custody of the same police station of which PI Hargude was incharge. It is against the spirit of Section 55 of NDPS At. the accused and the samples are to be sent to nearest police station. The idea is to avoid possibility of any tampering with the contents. of the sample packets. It further provides that the officer in whose custody such samples are deposited should permit the raiding officer to affix his own seal on the sample. The officer in whose custody the samples are to be kept is also permitted to affix his own seals on it so as to see that the samples are not tampered with. It indirectly means that the leader of the raiding party should not be the officer in charge of the police station in which such seized samples are kept for "Safe custody". Interestness in success of the raid would pollute the "safeness of the custody." In the present case, the necessary safeguard has not been taken and that also adds to the damaging situation of the prosecution.

13. Ms. Suryavanshi submitted that the said heroin was meant for self consumption of the appellant and, therefore, he stands exempted from the prosecution. Shri Saste submitted that no such defence can be permitted to be taken at the appellate stage because no such defence has been taken by the appellant at the time of trial. The judgment shows that the said point was agitated at the time of arguments by the counsel appearing for the appellant in the trial Court though a specific stand to that effect was not taken by the appellant when he was examined under Section 313 of the Code of Criminal Procedure, 1973.

14. The raid was in the year 1997. The conviction was recorded on 17.10.1997. By recent amendment, the definition of "small quantity" has been changed. Now "small quantity" has been changed. Now "small quantity" means heroin of 5 gms or less than 5 gms. The present amendment has been brought into force on 19.10.2001. In view of the present amendment and when this point was agitated at the time of argument, this Court comes to a conclusion that the appellant is entitled to agitate this point and take and plea that the appellant stands on a different footing in view of the changed definition of "small quantity". he is entitled to have the benefit of that.

15. Whether the appellant should be treated to be in possession of small quantity of heroin would depend on this Court coming to a conclusion that the prosecution has proved that on the said date, time and spot the appellant was found possessing three grams of heroin in a packet. But, after appreciating the evidence on record, this Court comes to the conclusion that the prosecution failed to establish so beyond reasonable doubt keeping in view the infirmities exhibited by the prosecution evidence produced by it is support of proving the charge against the appellant. Even though appellant was alleged to have been found in possession of three grams of heroin (small quantity), prosecution failed to establish his guilt beyond reasonable doubt. The appellant is entitled to get the acquittal.

16. The trial Court has not appreciated the evidence in proper spirit. The trial Court failed in appreciating the material infirmities in the prosecution evidence and, therefore, landed in error of recording the order of conviction and sentence against the appellant. Therefore, appeal will have to be allowed and the order passed by the trial Court convicting and sentencing the appellant will have to be set aside.

17. The appeal is allowed. The order of conviction and sentence passed against the appellant is hereby set aside. He be set free if not required for any investigation, proceeding, trial. He be also not released if he is undergoing any sentence for any other offence. This order be communicated to the accused as early as possible because he is in jail since long and in a condition which does not permit him to engage a lawyer.