Samsun Donald Dokubo vs The State Of Maharashtra
2015 Latest Caselaw 210 Bom

    YBG                                                                                     1
                                                                                cri app.692-15




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                     CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL.NO.692 OF 2015




                                                        
                                   WITH
                   CRIMINAL APPLICATION NO.757 OF 2015

    Samsun Donald Dokubo                                 ..       Applicant




                                                       
         -Versus-
    The State of Maharashtra                             ..       Respondent

    Ms.Sartaj Shaikh for applicant




                                               
    Ms. Anamika Malhotra, APP for State
                                   ig   CORAM   :   A.R.JOSHI, J.
                                        DATE    :   24th August 2015
                                 
    JUDGEMENT

1] Heard the rival submissions on this appeal, preferred by

the appellant challenging his conviction in the matter of offences

punishable under section 8(c) read with section 21(b) of Narcotics

Drugs and Psychotropic Substances Act, 1985 (for short the Act).

2] Presently, the appellant is in jail and already has undergone

imprisonment for more than one year and six months, out of the total

imprisonment of two years awarded against him.

3] The challenge in the present appeal is to the judgement and

cri app.692-15

order dated 23rd March 2015 passed by Special Judge under the

NDPS Act. The appellant was sentenced to suffer R.I. for two years

and to pay a fine of Rs.5000/-. In default of payment of fine, he was

to suffer S.I. for three months.

4] The case of the prosecution in nutshell is that, the police

officer, P.W.4 then attached to Anti Narcotic Cell of Bandra received

secret information in the afternoon of 6 th February 2014 regarding

one named African national coming at a particular place in front of

Tunga International Hotel, MIDC Andheri (East), for selling heroin to

his customer at about 5.00 to 6.00 p.m. The description as to the

clothes of the said person was also mentioned in the information.

After recording down the said information, it was passed on to the

superiors. Station diary was made. A pre-trap panchanama

procedure was adopted at Bandra office after calling two pancha

witnesses. Various articles required for the raid were collected,

including brass seal and also computer and printer. Thereafter, raid

was conducted at the given place. The present appellant arrived at

about 5.00 p.m. at the said place and the police officer P.W.5

ascertained that he was the same person, as mentioned in the

cri app.692-15

secret information. Thereafter, the police party and panchas

proceeded further and surrounded the appellant. After disclosing

identity of the police officers, the appellant was apprehended and he

was appraised, apparently, regarding his right under section 50 of

the Act. Thereafter, his search was conducted during which from his

pant pocket total 92 grams of heroin was found. It was tested on the

field testing kit and two samples of 5 grams each were prepared and

panchanama was prepared and signed by the raiding party

members, panchas and also by the appellant. The appellant was

taken to the unit office and offence was registered and during

investigation sample packet was sent for chemical analysers report

and C.A. report was obtained. On conclusion of the investigation,

charge sheet was filed and the matter was tried before the special

court and ended in conviction as mentioned earlier.

5] It is the case of the prosecution that total 92 grams of Heroin

was found with the appellant and it being non commercial quantity

and falling between small quantity and commercial quantity, he was

appropriately charged and was sentenced to suffer R.I. for two

years.

cri app.692-15

6] The main thrust of the argument on behalf of the appellant is

of non compliance of the mandatory provisions of section 50 of the

Act. To substantiate this argument, the attention of this court is

drawn towards the evidence of P.W.4, P.W.5, P.W.6 and P.W.7, who

are important witnesses, insofar as this compliance with section 50

of NDPS Act is concerned. P.W.4 is the complainant, who initially

received the information and reported it to the superior P.W.5, Police

Officer, Mr.Raorane. P.W.6 was also raiding party member and he

carried out investigation and P.W.7 is pancha witness. So far as

compliance with section 50 of the Act is concerned, it was the job

allegedly done by P.W.5 police officer, Mr.Raorane. So far as the

appraisal of right under section 50 is concerned, the substantive

evidence of P.W.4 to P.W.7 is also of significance. In order to

appreciate the arguments advanced on behalf of the appellant, the

actual words used by these witnesses insofar as compliance with

section 50 of the Act is concerned, are reproduced hereinunder for

sake of ready reference.

P.W.4 in his notes of evidence in para 5 mentioned to the

cri app.692-15

following effect:-

"then P.I. Raorane disclosed him the information received by

him and also told him provisions of section 50 of NDPS Act about

search and seizure and his right. Then, the letter in English was

given to the accused about his right and on the said letter he put the

endorsement that the raiding party can take his search and also sign

the same."

The substantive evidence of P.W.5, who is a police officer who

has allegedly appraised the accused of the rights under section 50

is as under:-

"I then disclosed him the information received by H.C.Tupe

and also told him about his right under section 50 of NDPS Act and

then issued letter in writing to him. The contents of the letter were

that he has a right to give search in front of Magistrate or gazetted

officer and if he desires the arrangements will be made. He orally

told that he do not want to be searched before the Magistrate or

gazetted officer and police can take his search. He also put

cri app.692-15

endorsement on the letter that police can take his search and signed

the same."

Now the substantive evidence of P.W.6 on this aspect is as

follows:-

"Then P.I. Raorane explained him in English about his right of

search. He replied that police can take his search. The letter in

writing was also issued to him by P.I. Raorane. He had endorsed on

the said letter that police can take his search. The contents of the

letter were about the provisions of section 50 of the NDPS Act and

the same was that he can intimate to the nearest Magistrate for his

search. The said letter was signed by the accused and panch

witness. The letter was signed by P.I. Raorane also. I have not

signed the letter."

6] The above substantive evidence of this prosecution witness is

to be read in juxtaposition of the contents of the said letter which is

at Exh.31. The contents are as under:-

cri app.692-15

"As per section 50 of the NDPS Act, 1985 you have right to

give your personal search either in presence of nearest Magistrate

or gazetteed officer. If you demand so, we will make arrangement to

that effect."

7] This Court has carefully gone through the substantive

evidence of the prosecution witness P.W. 4, 5 and 6 and specifically

the substantive evidence of P.W.5. It must be said that none of

these witnesses have stated that P.W.5 specifically appraised the

appellant accused that he has a right of taking his search in

presence of Magistrate or gazetted officer. All these witnesses

speak regarding such right without giving the details but they have

reiterated the details as mentioned in the letter Exh.31. This aspect

has been dealt with in detail and in fact the ratio propounded in the

authority of K. Mohanan Vs. State of Kerala, reported in 2000 S.C.C.

(Cri.) 1228 was taken shelter of on behalf of the appellant. In fact,

this was the case also cited before the trial court but the trial court

did not appreciate the ratio propounded by the said authority and

came to the conclusion that there was compliance of the mandatory

provision of section 50 of the Act. In the considered view of this

cri app.692-15

court, specifically in the light of substantive evidence of P,W.5

coupled with the evidence of P.W.4 and 6, it must be said that the

said mandatory provisions of section 50 are not complied with in the

letter and spirit. Moreover, on this aspect the observations of this

court in the case of Nilkanth s/o. Mahadeo Chandekar Vs. State of

Maharashtra reported in 2000(supp) Bom. C.R. 685 (Nagpur Bench)

and in the case of Shiv Kumar @ Ashok Mishra Vs. Special Judge of

NDPS Court reported in 1997 Bom. C.R. (Cri) 865 (Panaji bench)

are of much significance. In the first authority, it is specifically

observed, based on the facts of that matter, by Nagpur bench of this

Court that the police officer concerned had not stated that the

accused was made aware of his right to be searched in the

presence of gazetted officer or a Magistrate and it was further

observed that the evidence was restricted to issuance of notice in

writing that he was asked as to whether he would want to take

search of police and the panch and thereafter, the search of the

accused was taken.

8] Needless to mention that in number of decisions of the Hon'ble

Apex Court, the matter of compliance of section 50 of NDPS Act by

cri app.692-15

I.O. who carries out search and seizure is emphasised and treated

as valuable right given to the accused and the compliance of such

right is treated as mandatory requirement of NDPS Act.

9] Considering the mandate of law as to establishment of

compliance with section 50 of NDPS Act must be spelt out by the

concerned officer taking search, in the opinion of this Court, in the

present matter, there is no such clear understanding given to the

appellant accused of his rights of taking his search in the presence

of Magistrate or Gazetted officer and as such on this ground itself,

the case of prosecution must fail.

10] Apart from the above, there is another discrepancy brought to

the notice of the court to the effect that the panchnama, Exh.35, on

the contents of which panch witness was cross examined show that

both the panchas were called at Anti Narcotics Cell at Bandra unit

on 6th February 2014 at 13.30 hours. As against this, admittedly,

according to the case of the prosecution, information was received

by police officer Tupe P.W.4 at 13.30 hours itself. Thereafter, it was

reduced into station diary vide Exh.34 and it was done at 13.50 hrs.

cri app.692-15

Definitely, thereafter, the information was passed on to the superiors

and then pre-trap panchanama procedure was conducted and then

panchas were brought to the anti narcotics cell. If this sequence of

events is accepted, then, it cannot be said that panchas were called

at 13.30 hrs. By pointing out this, it is submitted on behalf of the

appellants that doubt has been created as to whether the raid was

conducted in the manner as stated by the police witness and in that

event benefit of doubt is required to be given in favour of the

appellant accused.

11] For the reasons mentioned above and mainly for the reason

that there is no strict compliance with section 50 of the NDPS Act, it

must be stated that the prosecution has failed to establish the

charge against the appellant accused beyond reasonable doubt and

in that event, the present appeal must succeed and the same is

accordingly disposed of with the following order:-

(a) Appeal is allowed. Impugned judgement and order

dated 23rd March 2015 is quashed and set aside;

cri app.692-15

(b) the appellant be released from custody, if not required in

any other matter;

(c) Fine amount if already paid by the appellant accused be

refunded back to him;

(d) Passport of the appellant which is reportedly taken in

custody during his arrest by the investigating agency be returned to

him on usual undertaking.

( A.R.JOSHI, J.)