Andhra HC (Pre-Telangana)
Matta Prasad vs State Of A.P. Represented By ... on 27 October, 2004
JUDGMENT P.S. Narayana, J.
1. The appellant/accused was charged with Section 8(c) r/w. Section 17 of Narcotic Drugs and Psychotropic Substances Act 1985, hereinafter in short referred to as "Act" for the purpose of convenience and convicted and sentenced to undergo Rigorous Imprisonment for a period of ten years and a fine of Rs.1,00,000/- also had been imposed, in default to suffer Imprisonment for three years by Judgment dated 20-11-1998 in S.C.No.40/98 on the file of Special Judge for Cases under Narcotic Drugs and Psychotropic Substances Act-cum-Metropolitan Sessions Judge, Visakhapatnam. Hence the Criminal Appeal.
Facts:
PW-4, Prohibition & Excise Inspector, Visakhapatnam, Station-I, on receipt of credible information about the crime under the Act on 12-8-1998 made an entry in the General Diary, sent information to superiors, secured the presence of mediators PW-1 and another Subbaraju, proceeded along with Sub-Divisional Inspector, his staff and mediators in two jeeps to Panja junction of Chengalraopeta in Visakhapatnam City. It is also the version of the prosecution that all of them laid in wait at Ganneru veedhi near the junction and at 4 p.m. they noticed the accused coming on a scooter and stopped in front of a tiled house bearing D.No.21.29.12 situate by the side of Ganneru veedhi and immediately the raiding party rushed towards the accused and surrounded him and PW-4 stated to the accused that he received information about the accused transporting opium and that he is proposing to conduct a search of the scooter possessed by him. PW-4 further informed the accused that he brought PW-1 Dr.D.S.Patnaik, the Casualty Medical Officer, King George Hospital, Visakhapatnam, who is a Gazetted Officer with him and if he agrees the search will be conducted in his presence he would further proceed and the accused accepted for the search before the said Dr.D.S.Patnaik-PW-1, and PW-4 served the search notice on the accused in the presence of mediators and proceeded with search of the scooter of the accused. It is also the version of the prosecution that the dickey of the scooter bearing No.AP-31-M-4422 possessed by the accused at the relevant point of time was opened and three opium slabs were found in the front dickey of the scooter and on interrogation by PW-4 the accused disclosed his identity and stated that he purchased the opium from one Mr.Hussain of Orissa State at the rate of Rs.5000/- per 1 Kg. at Visakhapatnam Railway Station and he would sell the same for profit. It is also the version of the prosecution that the accused stated that he had been doing the said business since five years for eking out his livelihood. Then PW-4 sent LW-7 Prohibition & Excise Head Constable to get the weighing machine and the weighing man and PW-2 was brought who weighed the opium slabs and certified that the first opium slab was weighing 2.350 kgs., the second opium slab was weighing 2 kgs. and the third opium slab was also was weighing 2 kgs and issued certificate that the total weight of opium was 6.350 kgs. PW-4 took two samples of 100 gms. each from each opium slab, covered the samples and the opium slabs in polythene papers, sealed them and affixed identification labels and seized the contraband and the scooter and affected arrest of the accused under the cover of mediators report Ex.P-1 drafted at the place of occurrence. He brought the accused and the property seized and the mediators report to the Excise Station at 6.30 p.m., registered a case in P.R.No.182/97-98 under Section 8(c) r/w. 17 of the Act and forwarded the original F.I.R. and original mediators report to the Court and also produced the accused and property before the Court along with the remand report and sent the information regarding the registration of crime to his superior officials and sent the sample packets to the Chemical Examiner, Visakhapatnam through Court for analysis. It is also the version of the prosecution that the further investigation revealed that PW-1 is the owner of the scooter aforesaid and it is also stated that PW-3 had stated that the accused was his class mate in Intermediate and he gave the scooter to the accused. The Chemical Examiner after due analysis of the contents of the samples opined that they are opium and after completing the investigation PW-6 lodged the charge sheet. On appreciation of the evidence available on record, the learned Judge had recorded the conviction and sentence as aforesaid. Hence the Appeal.
Evidence on record:
PW-1 is the mediator, a Gazetted Officer i.e., Dr.D.S.Patnaik, PW-2 is Sri Appalraju who weighed the opium, PW-3 is Sri Kanaka Prasad, owner of the scooter, PW-4 is Sri Bhaskar Rao, Prohibition & Excise Inspector, PW-5 is Sri Ramana, Prohibition & Excise Inspector and PW-6 is Sri Prem Prasad, Sub-Divisional Prohibition & Excise Inspector. Ex.P-1 is the mediators report, Ex.P-2 is the weighment certificate, Ex.P-3 is a carbon copy of search notice, Ex.P-4 is F.I.R. in P.R.No.182/97-98 of Excise Station, Circle I, Visakhapatnam, Ex.P-5 is a copy of letter of advise forwarding M.Os.5 to 10 to the Chemical Examiner, Ex.P-6 is the report of Chemical Examiner and Ex.P-7 is the rough sketch of the scene of offence. MO-1 is the Bajaj chetak scooter bearing No.AP-31-M-4422, MOs.2 to 4 are packets containing 2 kgs. of opium, MOs.5 to 10 are sample packets and MO-11 is one key chain with keys of MO-1.
Findings recorded by the learned Judge:
PW-3, the owner of the vehicle did not support the prosecution and the evidence is unnatural. The evidence of PW-1, PW-2, PW-4 and PW-5 can be relied upon in relation to the factum of recovery from the accused. The offence was noted at a public place and hence Section 43 of the Act is applicable and not Section 42 since the accused was found with opium in the scooter in a public street. Information need not be reduced into writing. Panja junction is a public place. No material was placed that the accused was appraised of his option of his being searched before a Magistrate. A finding also had been recorded that the prosecution is not vitiated for violation of Sections 41, 42 and 50 of the Act.
Submissions of Sri Padmanabha Reddy:
Sri Padmanabha Reddy, the learned Senior Counsel representing the appellant/accused would submit that the PW-4 did not depose that he is the empowered officer and hence competency of PW-4 to conduct search and make seizure itself is highly doubtful. The learned Senior Counsel also would contend that PW-1 is a stock witness. Apart from this aspect of the matter, the evidence of PW-1 cannot be relied upon in view of the inconsistent versions given by him. The learned Counsel also commented that the learned Judge erred in holding that the evidence of PW-3 cannot be believed. The learned Senior Counsel while further elaborating his submissions would contend that even otherwise clear findings had been recorded that the mandatory provisions of Section 42 of the Act had not been complied with and hence the search and seizure definitely are vitiated. The finding recorded by the learned Judge that Section 43 of the Act would be applicable definitely cannot be sustained. The learned Counsel placed reliance on certain decisions to substantiate his submissions.
Submissions of Additional Public Prosecutor:
The learned Additional Public Prosecutor Mr.Mohd. Osman Shaheed had placed before this Court the notification G.O.Ms.No.184, Revenue-E, dated 14-2-1986 wherein it was specified "In exercise of powers conferred by sub-section (1) of Section 42 of the Act, the Government of Andhra Pradesh hereby empowers the Officers of State Excise Department, including Enforcement Wing, not below the rank of Sub-Inspector and all the Officers of Police Department not below the rank of Sub-Inspector to exercise the powers under the said sub-section." The learned Additional Public Prosecutor would submit that judicial notice can be taken relating to this notification and hence the mere fact that PW-4 had not deposed that he is an empowered officer would not alter the situation in any way. The learned Additional Public Prosecutor also would contend that on a careful reading of Sections 42 and 43 of the Act, inasmuch as search and seizure had been at a public place, a public street and from a scooter, the rigor of Section 42 of the Act cannot be made applicable and Section 43 of the Act alone is applicable and hence the findings recorded by the learned Judge may have to be confirmed. The learned Counsel also would submit that PW-1 is an independent mediator and definitely PW-1 cannot be styled as one forming part and parcel of the raid party as such and hence the search and seizure is in accordance with law. The learned Additional Public Prosecutor to substantiate his submissions placed reliance on certain decisions.
2. Heard both the Counsel and perused the evidence available on record and also the findings recorded by the learned Judge.
3. The learned Judge after recording certain findings on appreciation of evidence mainly proceeded on the ground that the provisions of Section 42 of the Act which are more rigorous cannot be made applicable in a case of this nature inasmuch as the search and seizure was from a scooter in a public street. PW-1 deposed that he is a Gazetted Officer and he was at K.G.Hospital office on his personal work and one Mr.Nagabushanam, Sub-Inspector of Excise, Visakhapatnam came to him at about 2.05 or 2.10 p.m. with a requisition from Inspector of Excise and he took him along with him to Panja junction and the other Excise staff also followed them. PW-1 further deposed that he was also a mediator and they reached Panja junction at about 3 p.m. and were waiting at the junction from 3.30 p.m. onwards and at about 4 p.m. a person came by a scooter which is of pale grey colour bearing registration No.A.P.31.M.4466 and the person is the accused who was present in the Court. The accused stopped the scooter in front of the tiled house which is situate about 50 yards from the place where they were standing. The Excise people rushed up to the accused and surrounded him and the Excise people told the accused that they had information that he was transporting opium illegally. They further told the accused that he (PW-1) is a Gazetted Officer and they wanted to check him and his belongings in his presence. The accused did not protest and they opened the front scooter dickey and there were separate bags. The Circle I, Excise Inspector opened the bags and there was opium in all the three bags. The Inspector of Excise deputed one constable to get the weighing balance and this witness also deposed about the other aspects of weighing. Ex.P-1 is the mediators report and he signed in the mediators report. MO-1 is the Bajaj Chetak scooter and MOs.2, 3 and 4 are the packets. MOs.5 to 10 are the sample packets of opium. MO-11 is the key chain with keys. This witness also deposed that the accused was arrested and he stated that MO-1 scooter belongs to his friend. This witness was cross-examined at length and no doubt submissions at length were made that the evidence of this witness cannot be believed since he is a stock witness and it is highly doubtful whether he was present at the spot in the light of inconsistent versions deposed by PW-1.
4. PW-2 simply deposed about the weighing. PW-3, the owner of the vehicle was declared hostile. PW-4 deposed that he was working as Prohibition & Excise Inspector, Visakhapatnam since 4-8-1997 and on 12-8-1998 on the information received by him he made entry in the General Diary and sent information to his higher officials and at 3 p.m. he left the station along with his staff and the Sub-Divisional Inspector and staff and mediators i.e., PW-1 and Subbaraju (LW-2) in two jeeps and proceeded to Panja junction of Chengalraopeta area and laid in wait at Ganneru veedhi and at about 4 p.m. they noticed the accused coming by a metallic grey colour scooter and proceeding towards East and he stopped the scooter in front of the house bearing No.21-29-12 and it is a tiled house and with the help of the staff he surrounded the accused and stated that he received information that the accused was transporting opium and that he wanted to check his scooter. PW-4 further deposed that he also told the accused that he brought the mediators and one of the mediator is a Gazetted Officer Dr.Patnaik (PW-1) and enquired the accused whether search can be made in the presence of PW-1 or he wants the search to be made in the presence of any other Gazetted Officer. The accused stated that he is acceptable for the search before PW-1 and thereafter PW-4 served the search notice on the accused and Ex.P-3 is the search notice. Thereafter PW-4 opened the front dickey of the scooter in the presence of PW-1 and another mediator and found three packets covered with polythene papers and verified the packets and found that they contained opium. PW-4 further deposed that thereafter he deputed the Head Constable Chandrasekhar to get the weighman and he had deposed about the weighing and also the arrest of the accused and also deposed about the mediators report Ex.P-1 and also M.Os. and returning to the station and registering P.R.No.182/97-98 under Section 8(c) r/w. Section 17 of the Act and informing the matter to his superior officials.
5. Ex.P-4 is the F.I.R. This witness also deposed about sending of sample packets with a letter of advise through Court for analysis. Ex.P-5 is the letter of advise. After receiving the report of analysis Ex.P-6 he handed over the case to LW-11, the Sub-Divisional Prohibition and Excise Officer and Ex.P-7 is the rough sketch of the scene of offence prepared by him. This witness was cross-examined at length and he deposed that it is not mentioned in Ex.P-1 that he opened the dickey and he prepared Ex.P-3 search proceedings at the scene of offence. This witness further deposed that it is mentioned in Ex.P-3 that he called out the accused and made enquiries and that both the mediators are not the inhabitants of Chengalraopeta or Ganneru street. This witness also deposed that he orally asked the accused that he had an option to be searched in the presence of a Magistrate, but he did not incorporate the same in Ex.P-1 mediators report and in F.I.R. the time of registration of the case was not mentioned. There is difference between occurrence report and mediators report and Ex.P-4 F.I.R. was registered basing on the occurrence report and he did not enclose the information received and entered by him in his personal diary with Ex.P-4 and he did not affix his personal seal on Exs.P-1 to P-3. Certain other suggestions also put to this witness had been denied. This witness also deposed that he personally went to LW-11 and conveyed the information and he did not reduce the information into writing and conveyed the same to superior officers.
6. PW-5 deposed in detail and supported the version of PW-4 in all material particulars. PW-6 deposed that he had taken up investigation from PW-4 and after receiving the report from chemical analyst filed charge sheet against the accused. This witness also deposed that PW-1 stated before him as in Ex.D-1. This is the evidence available on record.
7. In SINGARASU VENKAYAMMA Vs. STATE, 1999(1) ALD (Crl) 935 (A.P.) it was held at para-15 as hereunder :
"According to this section, as far as State Government is concerned any officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department who is empowered by general or specific order of the State Government has the power of entry, search and seizure without warrant or authorization. This section further requires that power under Section 42 can be exercised by an authorized officer if he has reason to believe that an office punishable under Chapter IV has been committed. In case of information received from some other source not being personal knowledge there is further rider that it must be reduced to writing. These safeguards in Section 42 are mandatory and the facts of the present case reveal that the search was conducted on the basis of information received by the Excise Officials which was not reduced to writing, even the Inspector stated that he was not aware of the procedure to be followed under N.D.P.S. Act. Therefore, there has been a violation of Section 42. The prosecution also has not at any point of time stated that the Excise Inspector was an Authorised Officer within the meaning of Section 42 of the Act. It is not sufficient to be an Inspector of Excise or an Officer of the Government above a certain rank to have the powers of entry, search, seizure and arrest without warrant but it is necessary for such officials that they must have been authorized by the Government either by a general order or by a special order. Neither in the statement of witnesses nor from the record of the case it has been shown that the witnesses who conducted the search, arrested the accused were authorized by the State Government in terms of Section 42 of the N.D.P.S. Act".
8. In the present case no doubt PW-4 did not depose that he is an empowered officer but however by virtue of G.O.Ms.No.184, Revenue (E) dated 14-2-1986 which was published in A.P. Gazette Part-I Extraordinary dated 27-3-1986 there cannot be any doubt or controversy that PW-4 is the empowered officer and in view of the notification aforesaid the Court can definitely take judicial notice of the same and hence the ground of competency of PW-4 cannot be a question in controversy. Submissions at length were made that the evidence of PW-1, a stock witness, and whose presence is doubtful in view of his evidence, cannot be believed.
9. It is no doubt true that PW-3 was declared hostile. It is also true that though PW-1 is a Gazetted Officer, he is not a mediator from the locality nor the other mediator is of that locality. Submissions at length were made that in as much as PW-1 also to be taken as forming part and parcel of the raid party his evidence cannot be considered as that of an independent mediator. It may be that PW-4 secured PW-1 for the purpose of conducting search and seizure on the fateful day and no doubt there are inconsistencies in the evidence of PW-1. The main question in controversy which had been argued in elaboration by both the Counsel is whether the findings recorded by the learned Judge that Section 43 of the Act would be applicable and not Section 42 of the Act can be sustained or not. The learned Additional Public Prosecutor placed strong reliance on LACHHO DEVI Vs. STATE, 1991 Crl.L.J. 2793 (Del) and RASHID Vs. STATE OF RAJASTHAN, 1991 Crl.L.J. 733 (Raj). The learned Senior Counsel representing the appellant placed strong reliance on ABDUL RASHID IBRAHIM MANSURI Vs. STATE OF GUJARAT, 2000(1) ALD (Crl) 404 (SC) and also PENTAPATI VENKATA SATYANARAYANA MURTHY Vs. STATE, 1999(1) ALD (Crl) 496 (A.P.).
10. It is not in dispute or controversy that the search and seizure was conducted in relation to a scooter in a public street. Section 42 of the Act dealing with Power of entry, search, seizure and arrest without warrant or authorization reads as hereunder :
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) to the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any Narcotic Drug, or Psychotropic Substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in a building, conveyance or enclosed place, may between sunrise and sunset -
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure and freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours sent a copy thereof to his immediate official superior.
11. It is no doubt true that Section 42(1)(a) of the Act specifies "....enter into and search any such building, conveyance or place". Sub-section (2) of Section 42 specifies "Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours sent a copy thereof to his immediate official superior". Sub-section (1) of Section 42 also specifies : "...if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any Narcotic Drug, or Psychotropic Substance, or controlled substance in respect of which an offence punishable under this Act has been committed...". Section 43 of the Act dealing with Power of seizure and arrest in public place reads as hereunder :
Any officer of any of the departments mentioned in Section 42 may -
(a) seize in any public place or in transit, any Narcotic Drug or Psychotropic Substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any Narcotic Drug or Psychotropic Substance or controlled substance in his stipulation and such possession appears to him to be unlawful, arrest him and any other person in his company.
12. Explanation: For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
13. Section 43(a) specifies "...in any public place or in transit, any Narcotic Drug or Psychotropic Substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act....". The Explanation to Section 43(a) specifies that for the purpose of this Section "public place" includes any public conveyance, hotel, shop or other place intended for use by, or accessible to, the public. It is no doubt true that the rigor of procedure contemplated by Section 42 of the Act had not been incorporated in Section 43 of the Act. Section 50 of the Act deals with Conditions under which search of persons shall be conducted and sub-section (5) of Section 50 may not be applicable in the present case in view of the date of offence.
14. There cannot be any controversy that in view of the evidence of PW-4 it is clear that if the provisions of Section 42 of the Act are to be made applicable unless the mandatory provisions of the said provisions had been complied with, the search and seizure were vitiated. Strong reliance was placed on the decision referred (5) supra. No doubt there has been some cleavage of opinion relating to the applicability of Section 42 or Section 43 of the Act while interpreting the word or expression "public place" and reliance was placed on certain decisions in this regard. In the light of the pronouncement of the Apex Court by a three Judge Bench in the decision referred (4) supra which is a binding precedent there cannot be any further doubt or controversy in this regard. The Apex Court in the aforesaid decision while dealing with a case of apprehension of accused on prior information and contraband recovered from his auto rickshaw and when there was failure on the part of the Officer to record the prior information and send the same to the superior Officer, held at paras 14, 15 and 16 as hereunder :
"But the more important contention advanced by Shri Sudhir Nandrajog, learned amicus curiae was that there was non-compliance with Section 42 of the Act which was enough to vitiate the search as a whole. Section reads thus:
...............
...............
For the purposes of this case, PW-2 being a police officer much above the rank of a constable, would be "any such officer" as envisaged in the section. If he had reason to believe from information given by any person that narcotic drug was kept or concealed in any building, conveyance or enclosed place the requirements to be complied with by him before he proceeded to search any such building or conveyance or enclosed place were two-fold. First is that he should have taken down the information in writing. Second is that he should have sent forthwith a copy thereof to his immediate official superior.
In this case PW-2 admitted that he proceeded to the spot only on getting the information that somebody was trying to transport narcotic substance. When he was asked in cross-examination whether he had taken down the information in writing he had answered in negative. Nor did he even apprise his superior officer of any such information either then or later, much less sending a copy of the information to the superior officer. However, the learned Counsel for the respondent-State of Gujarat contended that the action was taken by him not under Section 42 of the Act but it was under Section 43 as per which he was not obliged to take down the information. We are unable to appreciate the argument because, in this case, PW-2 admitted that he proceeded on getting prior information from a constable and the information was precisely one falling within the purview of Section 42(1) of the Act. Hence PW-2 cannot wriggle out of the conditions stipulated in the said sub-section. We therefore, unhesitatingly hold that there was non-compliance with Section 42 of the Act."
15. This was also a case of search and seizure of auto rickshaw while he was proceeding in the vehicle. In KRISHNA KANWAR Vs. STATE OF RAJASTHAN, while comparing the scope of Sections 42 and 43 of the Act, a two Judge Bench of the Apex Court held that Section 42 comprises of two components - one relates to the basis of information i.e., (i) from personal knowledge, and (ii) information given by person and taken down in writing, and the second is that the information must relate to commission of offence punishable under Chapter IV of the Act and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence and unless both the components exist Section 42 has no application. The two Judge Bench also dealt with compliance with the requirement under Section 42(2) of the Act and also applicability of Section 50 of the Act and the decision of the three Judge Bench referred (4) supra appears to have not been brought to the notice of the two Judge Bench in the decision referred (6) supra. In STATE OF PUNJAB Vs. BALDEV SINGH, it was held at para-32 as hereunder :
"However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible - it cannot be disregarded by the prosecution except at its own peril."
16. In the light of the binding decision of the Apex Court referred (4) supra wherein the decision of five Judge Bench of the Apex Court referred (7) supra also had been referred to, this Court is of the considered opinion that in the light of the facts referred to supra, the prosecution cannot take aid of Section 43 of the Act so as to wriggle out of the rigor imposed by Section 42 of the Act and hence in view of the fact that the mandatory provisions of Section 42 of the Act had not been complied with, the search and seizure are vitiated and accordingly the conviction and sentence are hereby set aside and the Appeal is hereby allowed. It is needless to say that the appellant is entitled to the refund of fine amount, if any paid by him in this regard.