Bombay High Court
Nandkishore Alias Bhimkumar ... vs The State Of Maharashtra on 5 January, 2018
Bench: A.M. Badar
(902)APEALNo.2942012(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.294 OF 2012
WITH
CRIMINAL APPLICATION NO.1016 OF 2017
IN
CRIMINAL APPEAL NO.294 OF 2012
WITH
CRIMINAL APPLICATION NO.12 OF 2018
IN
CRIMINAL APPEAL NO.294 OF 2012
Nandkishore @ Bhimkumar
Bhajuman Singh, Age 25 yrs,
Occu.: Agriculturist, Resident of
Dardori, Post Dangari, Tal-Kudra,
Dist- Kaimoor, Bhaguva, Bihar State.
(Presently lodged in Kolhapur
Central Prison, Kalamba) ... Appellant/Applicant
V/s.
The State of Maharashtra ... Respondent
.....
Mr.Nitin S. Nevshe, Advocate for the Appellant/Applicant.
Mr.Prashant Jadhav, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 5th JANUARY 2018.
ORAL JUDGMENT :
1 By this appeal, the appellant/accused is challenging
the Judgment and Order dated 30/12/2011 passed by the learned
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Additional Sessions Judge, Jaysingpur, District Kolhapur in
Sessions Case No.4 of 2010 thereby convicting the
appellant/accused of the offence punishable under Section 20(b)
(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as 'N.D.P.S.Act' for the sake of brevity) and
sentenced to suffer rigorous imprisonment for a term of 10 years
apart from directing him to pay fine of Rs.75,000/- and in default
to suffer further rigorous imprisonment for three years.
2 The facts of the prosecution case are thus :
(a) On 16/01/2010, P.W.No.6 Pruthviraj Patil API Jaysingpur
Police Station had received information that an accused in Crime
No.9 of 2010 registered with Police Station, Gaonbhag,
Ichalkaranji for the offence punishable under Section 302 of the
Indian Penal Code is likely to pass from Ankli Toll Naka of village
Udgaon. Hence, P.W.No.6 Pruthviraj Patil API had decided to take
up nakabandi of the road meaning thereby to block the road for
apprehending the said accused. He along with his colleague police
officials left at about 8.20 p.m. of 16/01/2010 and reached Ankli
Toll Naka and started nakabandi. After some time, they noticed
one person coming from Sangli side carrying a hoar sack on his
shoulder. The police party suspected him and asked him to stop.
However, that person started running away from the police party.
He was chased and apprehended by the police party and was
brought near the police vehicle, which was parked near the toll
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naka. Upon being asked, the said person told his name as
Nandkishore @ Bhimkumar Bhajumansingh. He also disclosed to
police that he is resident of village Daldori of Bihar State. It is
case of the prosecution that said person i.e. applicant also
disclosed to the police upon being inquired that he is carrying
ganja in the bag, which he was carrying. Police then availed
services of two persons passing from the said road as panch
witnesses. Those were P.W.No.2 Ranjit Rajput and Rajendra
Adake. Police party gives personal search to the panch witnesses
and personal search of panchas was also taken by police.
Thereafter, personal search of appellant/accused was conducted in
presence of panch witnesses. An amount of Rs.5,700/- came to be
recovered from his person. Then search of the bag, which was
carried by the appellant/accused was conducted. It was found to
be containing ganja. By making telephonic call to the Police
Station, H.C. Annappa Kamble was directed to send necessary
sealing materials as well as weighing scale to the spot. On
direction of H.C. Annappa Kamble, P.W.No.3 Ananda Chaugule,
H.C. contacted P.W.No.4 Shekhar Gadekar Goldsmith. P.W.No.3
Ananda Chaugule and P.W.No.4 Shekhar Gadekar then went to
the spot carrying with them the electronic weighing scale, sealing
wax and other necessary articles. Ganja found in the bag carried
by the appellant/accused was weighed on the weighing scale by
P.W.No.4 Shekhar Gadekar, which was found to be weighing 2
kgs. 100 gms. Two samples each weighing 50 gms. were drawn
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from the said contraband. Those samples were sealed. Remaining
ganja was also kept in the brown envelope and that envelope was
also sealed. Necessary panchanama was prepared. Police party
then returned to the police station along with appellant/accused
as well as seized muddemal. At Police Station, Jaysingpur,
P.W.No.1 Shahaji Bandgar ASI lodged a report which has resulted
in registration of Crime No.1 of 2010 against the
appellant/accused. After completion of routine investigation, such
as recording of statements of witnesses, sending the seized
muddemal for chemical analysis, the appellant/accused came to be
charge-sheeted.
(b) Upon hearing the parties the learned Sessions Judge,
Jaysingpur was pleased to frame charge for the offence punishable
under Section 20 (b) (ii) of the N.D.P.S. Act. The charge so framed
was explained to the appellant/accused. He abjured guilt and
claimed trial.
(c) In order to bring home the guilt to appellant/accused,
prosecution had examined as many as six witnesses and had also
relied on documentary evidence. First Informant Shahaji Bandgar
ASI is examined as P.W.No.1 and report lodged by him is at
Exhibit 48. Panch witness Ranjit Rajput is examined as P.W.No.2
and seizure panchanama is at Exhibit 54. Ananda Chaugule H.C. is
examined as P.W.No.3. Shekhar Gadekar goldsmith, who weighed
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the contraband is examined as P.W.No.4. Carrier constable
Ananda Kadam is examined as P.W.No.5. Pruthviraj Patil API
Jaysingpur Police Station is examined as P.W.No.6. The defence of
the appellant/accused as gathered from the line of cross-
examination of prosecution witnesses as well as his statement
under Section 313 of the Criminal Procedure Code is that of total
denial.
(d) After hearing the parties, the learned Sessions Judge
by the impugned Judgment and Order was pleased to convict the
appellant/accused for the offence punishable under Section 20 (b)
(ii) of the N.D.P.S.Act and the appellant/accused is convicted
accordingly as indicated in opening paragraph of this Judgment.
3 I heard the learned Advocate appearing for the
appellant/accused. He argued that when, according to the
prosecution case, the appellant/accused had informed the police
party that he is carrying ganja in the bag, it was incumbent on the
part of the police to call the Gazetted Officer or the Magistrate or
to take the appellant/accused to the Gazetted Officer or Magistrate
for conducting his personal search. The learned Advocate
appearing for the appellant/accused attempted to capitalize the
typing mistake found in recording the deposition of P.W.No.6
Pruthviraj Patil API to the effect that ganja was found in the pocket
of the appellant/accused. But at this stage itself, it needs to be
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made clear that the Marathi deposition, which prevails over the
English deposition, candidly shows that the ganja was not found in
the personal search of the appellant/accused, but in the bag
carried by him. The learned Advocate appearing for the
appellant/accused argued that there is discrepancy in the timings
coming on record from the evidence of P.W.No.1 Shahaji Bandgar
as well as P.W.No.6 Pruthviraj Patil API. He argued that P.W.No.1
Shahaji Bandgar API has deposed that he was directed by
P.W.No.6 Pruthviraj Patil API to go for nakabandi, but
immediately P.W.No.1 Shahaji Bandgar has deposed that even
P.W.No.6 Pruthviraj Patil API was accompanying them. The
timings coming on record are varying from 8.20 p.m. to 8.55 p.m
and, therefore, the case of the prosecution becomes suspect. The
learned Advocate further argued that even evidence of P.W.No.3
Ananda Chaugule shows that work of carrying out panchanama
took time of two hours and here also there is discrepancy in
respect of timing. The learned Advocate further argued that for
want of compliance of Section 50 of the N.D.P.S.Act, the
impugned Judgment and Order convicting the appellant/accused
can not be sustained.
4 The learned Additional Public Prosecutor argued that
the case in hand is that of a chance recovery. The learned APP
further argued that contraband was not recovered from the
personal search and as such provisions of Section 50 of the
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N.D.P.S.Act is not applicable to the case in hand. The learned APP,
therefore, supported the impugned Judgment and Order of
conviction.
5 I have carefully considered the rival submissions and
also perused the Record and Proceedings including depositions of
witnesses and documentary evidence adduced by the parties.
6 Offence punishable under Section 20 (b) (ii) of the
N.D.P.S. Act was held to be proved against the appellant/accused
and the learned Sessions Judge had held that the
appellant/accused was found to be in possession of ganja weighing
2 Kg. 100 Gms that is lesser than commercial quantity but greater
than the small quantity. Let us, therefore, at the outset, examine
whether the appellant/accused was found to be in conscious
possession of ganja weighing 2 Kg. 100 Gms. on 16/01/2010 at
about 8.55 p. m. near Ankli toll naka of Udgaon. The prosecution
had heavily relied on evidence of P.W.No.1 Shahaji Bandgar,
P.W.No.2 Ranjit Rajput panch witness and P.W.No.6 Pruthviraj
Patil API in order to establish possession of contraband by the
appellant/accused. Let us, therefore, scrutinize evidence of these
three witnesses in order to ascertain whether they are witness of
truth or whether their evidence needs to be discarded being infirm
and lacunic.
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7 P.W.No.1 Shahaji Bandgar at the relevant time was
working as ASI with Jaysingpur Police Station. He is the First
Informant in the instant case. It is in his evidence that on
16/01/2010 at about 8.00 p.m. P.W.No.6 Pruthviraj Patil API had
directed him to proceed for nakabandi at toll naka. Therefore, by
police Jeep he along with the police officials including API Patil
went for nakabandi. This witness further deposed that at toll
booth, road block was set up. A person carrying hoar sack over
shoulder was found to be coming from direction of Sangli and,
therefore, police personnel tried to stop him. P.W.No.1 Shahaji
Bandgar further testified that the said person then started running
and by chasing him police party apprehended him. The said
person then told his name. He further told that he is carrying
ganja in the bag carried by him. P.W.No.1 Shahaji Bandgar then
further deposed that thereafter two panchas were summoned and
personal search of panchas and police party was taken.
Subsequently, personal search of the appellant/accused, who was
apprehended by the police party on the spot was conducted and
an amount of 5,700/- came to be recovered from his person. As
stated by P.W.No.1 Shahaji Bandgar then search of bag carried by
the appellant/accused was conducted and ganja was found in it.
Then API Patil (P.W.No.6) telephoned Annappa Patil HC, who at
the relevant time was at Jaysingpur Police Station. He was
directed to send weighing scale, sealing wax and other sealing
articles. P.W.No.1 Shahaji Bandgar further deposed that then
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P.W.No.3 Ananda Chaugule H.C. came with the necessary
material. P.W.No.1 Shahaji Bandgar further deposed that
P.W.No.4 Shekhar Gadekar also came and ganja was weighed on
electronic scale. It was found to be weighing 2 kg. and 100 gms.
Then two samples each weighing 50 grams were also taken out
from that ganja and were separately sealed in presence of panchas
by sealing wax. The remaining contraband was also packed and
sealed and seizure panchanama was effected. This is what is the
crux of the chief-examination of P.W.No.1 Shahaji Bandgar.
8 Now, let us see what is elicited from his cross-
examination by the defence. It is brought on record from cross-
examination of P.W.No.1 Shahaji Bandgar that he did not leave
the police station for nakabandi at 8.00 p.m. but left the Police
Station on 8.20 p.m. In roll call taken at 8.15 p.m. of
16/01/2010, he was present at the Police Station. The duty chart
of 15/01/2010 shows that he was on reserve duty on 16/01/2010.
This witness further admitted that entries in the log book of the
vehicle are taken after 10 to 15 days. It is further brought on
record that the appellant/accused was apprehended by four to five
constables and was brought towards vehicle. It is further brought
on record from the cross-examination of this witness that the
appellant/accused informed that he is carrying ganja in his bag
and thereafter P.W.No.6 Pruthviraj Patil immediately telephoned
Police Station and asked Head Constable Kamble to send sealing
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wax and sealing articles along with weighing scale. The defence
has further brought on record from cross-examination of P.W.No.1
Shahaji Bandgar that two panchas took personal search of police.
It is also elicited from the mouth of P.W.No.1 Shahaji Bandgar that
P.W.No.3 Ananda Chaugule H.C. and P.W.No.4 Shekhar Gadekar
reached the spot at about 8.55 p.m. and P.W.No.4 Shekhar
Gadekar weighed ganja and, he was asked to separate the sample
from seized ganja. All this material brought on record from cross-
examination of P.W.No.1 Shahaji Bandgar ASI in no way make his
evidence suspect but cement his evidence. Presence of the
appellant/accused on the spot, apprehending on the spot by four
to five constables, summoning panch witnesses, summoning
weighing scale and sealing material, calling P.W.No.3 Ananda
Chaugule and P.W.No.4 Shekhar Gadekar with sealing material
and weighing scale is brought on record from cross-examination
by the learned defence counsel. This material fully supports
version of P.W.No.1 Shahaji Bandgar ASI narrated in chief-
examination by him and, therefore, there is no scope to infer that
P.W.No.1 Shahaji Bandgar ASI is not a witness of truth. Minor
discrepancy in respect of timing of leaving the Police Station in no
way cast cloud of doubts on version of P.W.No.1 Shahaji Bandgar.
In fact, there is no variation in respect of timing in his evidence.
What he has stated is direction to him to go for nakabandi given at
8.00 p.m. and leaving the police station at 8.20 p.m. This does
not amount contradiction in his version.
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9 To crown this all, the defence has brought on record
from cross-examination of P.W.No.1 Shahaji Bandgar even
compliance of Section 50 of the N.D.P.S.Act though the same was
not at all mandatory. In paragraph 5 of cross-examination of
P.W.No.1 Shahaji Bandgar, the defence has brought on record that
P.W.No.6 Pruthviraj Patil API has informed the appellant/accused
that his personal search is required to be taken in presence of
Gazetted Officer and the appellant/accused was further informed
that he has right to get him searched in presence of the Gazetted
Officer. The defence has brought on record that this information
was given to the appellant/accused in Hindi which was a language
known to the appellant/accused. The defence has further brought
on record that the appellant/accused had refused to get himself
searched in presence of the Gazetted Officer and the
appellant/accused had given his no objection for personal search
by police party. Thus, this material elicited from cross-
examination of P.W.No.1 Shahaji Bandgar no way furthers the
defence of the appellant/accused.
10 Principles of appreciation of evidence of witnesses is
succinctly explained by the Honourable Apex Court in the matter
of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat reported
in AIR 1983 SC 753. It is held therein that ordinarily a witness
cannot be expected to recall accurately the sequence of events
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which take place in rapid succession or in a short time span. A
witness is liable to get confused, or mixed up when interrogated
later on. Discrepancies which do not go to the root of the matter
and shake the basic version of the witnesses cannot be annexed
with undue importance.
11 To sum up, evidence of P.W.No.1 Shahaji Bandgar
which is tested on the touchstone of cross-examination and as
discussed in foregoing paragraphs does not allow me to infer that
the same is unreliable or untrustworthy. On the contrary, the
same is corroborated by promptly lodged FIR (Exhibit 48) by the
said witness.
12 P.W.No.2 Ranjit Rajput is an independent witness, who
is neither concerned with the police nor with the
appellant/accused. He along with his associates Rajendra Adake
were passing from Sangli to Jaysingpur on 16/01/2010 when
police party called them and requested them to act as panch
witness on apprehending the appellant/accused. Evidence of
P.W.No.2 Ranjit Rajput shows that they had taken personal search
of the entire member of the police party and then personal search
of the appellant/accused was taken. An amount of Rs.5,700/-
came to be recovered from his person. Thereafter, as testified by
P.W.No.1 Shahaji Bandgar, bag carried by appellant/accused was
searched and it was found to be containing ganja. Police then
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called necessary articles such as weighing scale, as well as sealing
material. P.W.No.2 Ranjit Rajput deposed that after arrival of the
necessary material ganja found in the bag was weighed and found
to be weighed 2 kg. 100 gms., two samples each weighing 50 gms
were separated from that ganja and were sealed in his presence.
The remaining ganja was also kept in the packet and the same was
also sealed. In the witness box, this witness has identified his
signatures on the sealed packets.
13 In cross-examination of P.W.No.2 Ranjit Rajput, the
defence has elicited that P.W.No.6 Pruthviraj Patil API had asked
the appellant/accused as to whether he wants to be searched in
presence of the superior officer. It is also brought on record from
evidence of this witness that he left Sangli at 8.30 p.m., however,
there is no further cross-examination on this aspect by the defence.
Evidence of P.W.No.2 Ranjit Rajput shows that after weighment
and drawing samples, seizure panchanama was prepared by police
on the spot and the said panchanama (Exh.54) is bearing his
signature.
14 Over all scrutiny of evidence of P.W.No.2 Ranjit Rajput
does not show any discrepancy in his evidence for discarding the
same. His evidence is duly corroborated by contemporaneous
seizure panchanama. His signatures were found to be present on
the packets which were prepared after weighment of the
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contraband. There is no iota of evidence to infer that P.W.No.2
Ranjit Rajput is a got up witness. Hence, I see no reason to
disbelieve the version of this witness.
15 The third witness in whose presence the contraband
was seized is P.W.No.6 Pruthviraj Patil API, who lead the police
team in nakabandi. His evidence shows that on 16/01/2010, he
received information that an accused in Crime No.9 of 2010 for
offence punishable under Section 302 of the IPC registered with
Gaonbhag Police Station, Ichalkaranji is to pass from Ankli toll
naka of Udgaon village and, therefore, he arranged nakabandi.
This witness deposed that he along with his staff reached the spot
at 8.25 hours of 16/01/2010 and at about 8.55 p.m. they saw a
person walking towards them from direction of Sangli. When that
person was asked to stop, he attempted to flee and, therefore, by
chasing him he was apprehended. P.W.No.6 Pruthviraj Patil API
further deposed that he made inquiry from the said person i.e. the
appellant/accused, who disclosed his name as well as address.
The appellate further informed that he is carrying ganja in his bag.
Therefore, two panch witnesses were summoned by stopping them
on the spot itself. P.W.No.6 Pruthviraj Patil further deposed that
panch witness took personal search of the police party and
thereafter personal search of the appellant/accused was conducted
and cash of Rs.5,700/- came to be recovered. The bag which was
carried by him was found containing ganja and, therefore, he
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telephoned Police Station and directed the concerned staff to send
sealing material as well as weighing scale. That is how the sealing
material and weighing scale was brought on the spot by P.W.No.3
Ananda Chaugule and P.W.No.4 Shekhar Gadekar. Evidence of
P.W.No.6 Pruthviraj Patil shows that ganja was weighed by
P.W.No.4 Shekhar Gadekar and was found to be weighing 2 kg.
100 gms. Two samples each weighing 50 gms. were separated
and sealed. The remaining ganja was also packed and sealed.
This witness has also deposed about preparation of seizure
panchanama (Exhibit 54).
16 Cross-examination of P.W.No.6 Pruthviraj Patil API is
however infested with insignificant stuff. Most of the part of the
cross-examination of P.W.No.6 Pruthviraj Patil is devoted to non-
compliance of Section 50 of the N.D.P.S. Act as well as discrepancy
in the muddemal register. It was sought to be discredited by
suggesting to him that the muddemal was not handed over to the
muddemal clerk of the Police Station.
17 Let us, therefore, examine whether such discrepancy
sought to be brought on record from cross-examination of
P.W.No.6 Pruthviraj Patil discredit him. Exhibit 80 is the station
diary of Jaysingpur Police Station. It shows that by taking entry
No.26 at 20.20 hours, police party left the Police Station for
apprehending accused in Crime No.9 of 2010 registered with
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Gaonbhag Police Station, Ichalkaranji. Entry No.27 taken at 9.05
p.m. of 16/01/2010 is to the effect that that the police was
informed that the appellant/accused was apprehended and as he
is stated that he is carrying ganja, police station was informed to
send sealing material, weighing scale etc. Station diary No.28
recorded at 9.25 p.m. is to the effect that then P.W.No.3 Ananda
Chaugule PHC had left the Police Station with seal, sealing
material with instruction to take weighing scale from the village.
This evidence of P.W.No.6 Pruthviraj Patil is duly corroborated by
contemporaneous entries in the station diary.
18 Exhibit 54 is the seizure panchanama. Cross-
examination of P.W.No.6 Pruthviraj Patil is clearly reflecting the
fact that the seized muddemal was handed over to muddemal
clerk of the Police Station vide endorsement (Exhibit 70) on the
seizure panchanama. This endorsement reflects that the entry of
the muddemal is taken in Part 6 of the Muddemal Register i.e.
Muddemal No.1 of 2010. It is seen that cross-examination of
P.W.No.6 Pruthviraj Patil in respect of the muddemal register is
totally without substance because perusal of muddemal register
from the record shows that it is divided in six parts - part No.6
contains Entry No.1 of 2010 in respect of the muddemal in the
present case. Earlier blank pages of the muddemal register
appearing to be in respect of muddemal pertaining to other types
of cases. Perusal of this Entry No.1 in part 6 of the muddemal
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registrar found with the record shows that subsequently, the
muddemal was handed over to the carrier constable P.W.No.5
Ananda Kadam vide Entry (Exhibit 65). This entry is got proved by
the defence by cross-examining P.W.No.5 Ananda Kadam - carrier
constable.
19 It is thus established from trustworthy and cogent
evidence of P.W.No.1 Shahaji Bandgar, P.W.No.3 Ananda
Chaugule and P.W.No.6 Pruthviraj Patil API that in between 8.25
p.m. to 8.55 p.m. of 16/01/2010, the appellant/accused was
found to be in possession of contraband weighing 2 kg. 100 gms.
at Ankli toll naka of Udgaon village. Evidence of P.W.No.1 Shahaji
Bandgar, P.W.No.2 Ranjit Rajput and P.W.No.6 Pruthviraj Patil
give further corroboration to evidence of P.W.No.3 Ananda
Chaugule and P.W.No.4 Shekhar Gadekar goldsmith. Evidence of
P.W.No.3 Ananda Chaugule H.C. shows that H.C. Annappa
Kamble, on receipt of telephonic message from P.W.No.6
Pruthviraj Patil had directed him to go the spot with sealing
material as well as weighing scale and, therefore, he proceeded to
the spot by taking with him P.W.No.4 Shekhar Gadekar -
goldsmith who was owning a electronic weighing scale. Evidence
of P.W.No.3 Ananda Chaugule H.C. shows that he had carried
necessary sealing material. Evidence of P.W.No.4 Shekhar
Gadekar also shows that on request of P.W.No.3 Ananda Chaugule
at about 9.15 p.m. of 16/01/2010, he took weighing scale from his
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shop and accompanied him to the spot. P.W.No.4 Shekhar
Gadekar testified that he weighed ganja at Udgaon toll naka and
found it to be weighing 2 kg. 100 gms. This witness deposed about
drawing samples from the seized muddemal.
20 P.W.No.5 Ananda Kadam is the carrier constable. His
evidence shows that he took the muddemal in the instant case and
carried it to the Forensic Laboratory at Pune. His signature for
token of acceptance of muddemal is found in muddemal register
vide Entry No.65. Evidence of this witness shows that muddemal
was delivered in sealed condition to the Forensic Laboratory.
Exhibit 68 is the report of the chemical analysis of the seized
muddemal. This report shows that the ganja which was indicated
in the Muddemal at Exh.1 sent for chemical analysis by Jaysingpur
Police.
21 All this evidence adduced by the prosecution
unerringly points out that the appellant/accused was found to be
in possession of ganja weighing 2 kg. 100 gms. in the intervening
hours of 16/01/2010 at Ankli toll naka of Udgaon village.
22 Evidence on record shows that police party had no
reason to believe or it was not having prior information that
during the course of nakabandi they would come across a person
carrying narcotic drugs. The recovery was a chance recovery. In
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the matter of State of Himachal Pradesh v. Sunil Kumar
reported in (2014) 4 Supreme Court Cases 780, it is held thus :
"20 We are not in agreement with the view of the
High Court that since the police officers had a positive
suspicion that Sunil Kumar was carrying some
contraband, therefore, it could be said or assumed that
they had reason to believe or prior information that he
was carrying charas or some other narcotic substance
and so, before his personal or body search was
conducted, the provisions of Section 50 of the Act ought
to have been complied with. The recovery of charas on
the body or personal search of Sunil Kumar was clearly a
chance recovery and, in view of State of Punjab vs.
Baldev Singh (1999) 6 SCC 172, it was not necessary for
the police officers to comply with the provisions of
Section 50 of the Act."
23 In the matter of State of Punjab v. Baldev Singh
reported in (1999) 6 SCC 172, it is held thus :
"On its plain reading, Section 50 would come into play
only in the case of a search of a person as distinguished
from search of any premises etc. However, if the
empowered officer, without any prior information as
contemplated by Section 42 of the Act makes a search or
causes arrest of person during the normal course of
investigation into an offence or suspected offence and on
completion of that search, a contraband under the NDPS
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Act is also recovered, the requirements of Section 50 of
the Act are not attracted."
It is thus clear that in case of chance recovery
requirements of Section 50 of the N.D.P.S. Act are not attracted.
24 The learned Advocate for the appellant/accused placed
reliance on Judgment in the matter of Mohinder Kumar v State,
Panji, Goa reported in (1998) 8 Supreme Court Cases 655 and
State of Rajasthan v Gurmail Singh reported in (2005) 3
Supreme Court Cases 59. The matter of Mohinder Kumar
(supra) was in respect of compliance of Sections 42 and 50 of the
N.D.P.S. Act. It was in respect of personal search of the accused.
The matter of Gurmail Singh (supra) was in respect of absence of
link evidence. Such is not the case in hand. Hence, both these
Judgments are not applicable to the facts of the case in hand.
25 Moreover, the case in hand is not a case of personal
search. Contraband was not found on person of the
appellant/accused. Section 50 of the N.D.P.S. Act is applicable
only where search of the person is involved and said provision is
not only attracted where no search of person is involved. Search
and recovery from a bag, briefcase or container etc does not come
within the ambit of Section 50 of the N.D.P.S. Act. Valuable
reference can be added to this proposition from the Judgment of
the Honourable Apex Court in Ajmer Singh v. State of Haryana
reported in (2010) 3 SCC 746, Jarnail Singh v. State of Punjab
Gaikwad RD 20/21
(902)APEALNo.2942012(J)
reported in AIR 2011 SC 964, State of Punjab v. Balwant Rai,
reported in 2005 CRI.L.J. 1739 and State of Himachal Pradesh
v. Pawan Kumar reported in 2005 CRI.L.J. 2208.
26 Even otherwise, the defence itself has brought on
record from cross-examination of P.W.No.1 Shahaji Bandgar ASI
and P.W.No.2 Ranjit Rajput that there was communication of right
to the appellant/accused to get himself searched in presence of
Gazetted Officer though this was not a mandatory requirement in
the facts of the instant case. Hence, there is no question of non-
compliance of provision of Section 50 of the N.D.P.S.Act in the
case in hand.
27 In the result, no lacuna can be found in conviction of
the appellant/accused in respect of the alleged offences. The
quantum of sentence imposed on him is also in pursuant to the
provisions of the N.D.P.S. Act and the same cannot be held to be
disproportionate to the facts of the case in hand.
28 In the result, the appeal is devoid of substance and the
same is dismissed.
29 In view of disposal of this appeal, Criminal
Applications bearing Nos.1016 of 2017 and 12 of 2018 also stand
disposed of.
(A.M.BADAR J.)
Gaikwad RD 21/21
