Bombay High Court
The State Of Maharashtra vs Sou.Shobha Ganesh Gaikwad on 7 December, 2010
Bench: J. H. Bhatia
1 cri.appeal 127-92
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 127 OF 1992
The State of Maharashtra ...Appellant
vs.
Sou.Shobha Ganesh Gaikwad,
aged about 26 years, residing
at Vandrapada, House No.580,
Ambernath, Dist.Thane ...Respondent
(Orig.Accused)
Shri Y.M. Nakhwa, App for the Appellant-State.
None for the Respondent.
CORAM : J.H. BHATIA, J.
DATED : DECEMBER 7, 2010
ORAL JUDGMENT :-
1 The State has preferred this appeal against
acquittal of the accused-respondent for the offence
punishable under Section 20(b)(i) of the NDPS Act by
the learned Additional Sessions Judge, Thane, in
Sessions Case No.6 of 1990.
2 cri.appeal 127-92
2 Prosecution case in brief is that on 18th
August, 1989, PSI Jadhav and PW2 PSI Manvar attached
to Ambernath Police Station, were present at the
police station. Information was received by them
that a woman wearing red and yellow colour saree
would be proceeding from Ambernath railway station
towards Vandra Pada with a plastic satchel
containing Ganja. PSI Jadhav reported the matter to
his superior officers viz. PI Sawant and PI
Khanvilkar. After taking necessary instructions from
them, he called two panch witnesses and informed
them about the purpose of the raid. Thereafter, PSI
Jadhav and PSI Manvar and two panch witnesses went
to the bus stop near Fatima High School at Vandra
Pada side. Within 5 to 7 minutes, a woman wearing
red and yellow colour saree was seen coming with
white plastic satchel in her hand. Her personal
search was taken. After completing all the
formalities, a plastic satchel in her hand was
opened. It contained about 300 gram Ganja. The said
3 cri.appeal 127-92
packet was then wrapped in a paper and was duly
sealed and seized under panchnama Exhibit-10.
Muddemal property was deposited at the police
station and later on, it was sent to Chemical
Analyser along with covering letter Exhibit-20.
Chemical Analyser at Exhibit 21 confirmed that the
packet contained Ganja. After investigation, charge
sheet was filed against the accused. Charge was
framed and she pleaded not guilty. On behalf of the
prosecution, in all 5 witnesses were examined.
After hearing the evidence, the learned trial court
acquitted the accused mainly on the ground that the
mandatory provisions contained in Section 50 about
taking personal search of the accused were not
followed.
3 Heard the learned APP for the State. None
appears for the accused though it appears that she
has engaged some Advocate. Perused the record and
proceedings of the trial court.
4 cri.appeal 127-92
4 From the record, it appears that panch
witness PSI Jadhav could not be examined because he
was bed-ridden for about a year when the evidence
was recorded. PW 2 PSI Manvar, who was throughout
with PSI Jadhav from the time when the information
was received, was examined. He deposed that after
getting the information at about 12.30 or 1 p.m.,
information was conveyed to PI Sawant and PI
Khanvilkar by PSI Jadhav. He directed PSI Jadhav to
proceed with the raid. Accordingly, two panch
witnesses and other police staff were called. Along
with them, PSI Jadhav and PSI Manvar proceeded to
the bus stop near Fatima High School at Vandra Pada.
Within few minutes, the accused came to that side.
She was wearing red and yellow colour saree and was
having a plastic packet in her hand. She was stopped
and the police officers in presence of panchas told
her that they wanted to take her personal search for
Ganja. During the personal search, the plastic
packet in her hand was opened and it contained about
300 gram Ganja. Therefore, it was wrapped, sealed
5 cri.appeal 127-92
and seized under panchnama - Exhibit 10. This fact
is also supported by PW 1-Subhash Pandurang Bhole
who was the panch witness. After this seizure
panchnama, the accused was taken to police station
where PSI Jadhav lodged a report at Exhibit 13
which is proved by PSI Manvar. Muddemal property was
then deposited in the Muddemal Property Room of
which PW 3 Head Constable Jaywant Jadhav was in-
charge. He
passed receipt Exhibit-15 about the
same. Thereafter, the said sealed packet was sent to
Chemical Analyser along with covering letter
Exhibit-20 through PW4 Nivrutti Kashinath Dhatrak.
The CA report (Exhibit-16) reveals that the packet
was received with intact seals and it contained
Ganja.
5 As noted above, the trial court acquitted
the accused mainly on the ground that the police had
failed to comply with the provisions of Section 43
read with Section 50 of the NDPS Act. Section 43
provides for search and seizure of narcotic drug or
6 cri.appeal 127-92
psychotropic substance from any person in the public
place. Section 50(1) provides that wherever any
search is required to be taken under Section 41,
Section 42 or Section 43, the authorised officer
shall, if such person so requires, take such person
without unnecessary delay to the nearest Gazetted
Officer or to the nearest Magistrate for personal
search. It is settled position in law that being the
mandatory provision, it is the responsibility of the
raiding officer to inform the person to be searched
that he has right to be searched in presence of the
Gazetted Officer or Magistrate, if he so desires. If
such a mandatory provision is not complied with, the
prosecution must fail on that ground itself. In the
present case, from the contents of the panchnama as
well as oral evidence of PSI Manvar and the panch
witness, it is clear that they had taken personal
search of the accused and then the plastic packet in
her hand was opened and it contained Ganja. Neither
the panchnama reveals nor the oral evidence of PSI
Manvar or panch witness shows that the accused was
7 cri.appeal 127-92
informed that if she so desired, her personal search
could be taken in the presence of the Gazetted
Officer or the Magistrate. As she was not informed
about it, naturally, she could not exercise that
legal right available to her under Section 50(1). As
this mandatory provision was not complied with and
without compliance of that provision, personal
search was taken, the search is vitiated and
therefore, the prosecution cannot succeed. In view
of the legal position, no fault can be found with
the acquittal order passed by the trial court.
6 For the aforesaid reasons, the appeal
stands dismissed.
(J.H. BHATIA, J.)
