Bombay High Court
Hamidkhan vs State Of Maharashtra, Through P.S. ... on 8 February, 1996
Equivalent citations: 1997(1)BOMCR179, 1997BOMCR(CRI)~, 1996CRILJ2722, 1996(2)MHLJ258
Author: S.P. Kulkarni
Bench: S.P. Kulkarni
JUDGMENT Ghodeswar, J.
1. This appeal is directed against the judgment and order dated 6-7-91 passed by Additional Sessions Judge, Nagpur in Sessions Case No. 44/91 convicting the accused for the offence punishable under Section 21 of Narcotic Drugs & Psychotropic Substances Act, 1985 and sentencing him to suffer R.I. for 10 years and pay a fine of Rs. 1,00,000/- in default further R.I. for one year.
2. Shortly stated the facts of the case are that P.W. 8 Nathu Damaji, Head Constable of Dhantoli police station received information that one person is possessing 'Gard' near Dhantoli Gymkhana Ground. He took entry of the same in Police Station Diary; informed Asstt. Commissioner of Police; collected two panchas for raid. P.W. 9 P.S.I. Shankar Sitikar was directed by the A.C.P. to accompany the raiding party. P.W. 9 also took station diary entry in Police chowki Dhantoli at Serial Nos. 16 Exh. 32 and 17-Exh. 33. When the raiding party reached Gymkhana Ground, they saw accused sitting on a cart, which is hand driven. He was wearing green coloured shirt. His movements were suspicious. The raiding party questioned him about his name and whereabouts. Then the raiding party asked him for giving search of his person. They also offered themselves for search but the accused declined to do so. Therefore, the raiding party took his search and found 4 packets of 'Gard' weighing 600 Ml. gm. in the right pocket of his full pant. Similarly ornaments worth Rs. 450/- and Rs. 30/- in cash were also found in his possession. The packets were seized and sealed. P.W. 9 prepared panchanama Exh. 17 and seized the property vide seizure Memo. Exh. 18 Thereafter, P.W. 9 took the property and accused to P.I. Deonath and requested him to affix the seal on the seized property. Property was deposited in the Malkhana, P.W. 4 carried one packet to Chemical Analyst under covering letter Exh. 21 dated 5-1-91. C.A. Report showed that the contents of the packet was of 'Heroin'.
3. During trial, prosecution examined in all 9 witnesses. P.W. 1 Mahadeo Salame, P.W. 2 Nandkumar and P.W. 3 Prabhakar, all panch witnesses did not support the prosecution case and, therefore, they were cross-examined on behalf of the prosecution. P.W. 2 and P.W. 3 denied to have made statements before the police recorded under Section 161, Cr.P.C. They were contradicted with their statements. P.W. 4 Devidas, Constable is the carrier of the sample. P.W. 5 Deonathsinga, P.I. registered Crime No. 7/91 and deposited Muddemal in the property room. P.W. 6 Pandharinath-Head Constable was Incharge of Station Diary at the relevant time, and he received the information on telephone and made entry in the station diary. P.W. 7 Sitara H. C. was incharge of property room. P.W. 9 PSI Sitikar made entry in the station diary of the information received, deposited the muddemal in property room as also sent one packet to Chemical Analyst. He was also Investigating officer in this case.
4. The learned Trial Judge believing the evidence P.W. 9 Sitikar P.S.I. as also of other police officers recorded finding of conviction against the accused.
5. The learned counsel for the appellant Shri Gaikwad has contended that the finding of conviction is not only grossly erroneous but also illegal as mandatory provisions of Section 50 of the Act are not complied with. He has also urged that the learned Trial Judge has relied on uncorroborated testimony of P.W. 9 and based his conviction on that sole testimony. The learned A.P.P. on the other hand has supported the impugned order.
6. The only question for consideration in this appeal is whether the provisions of Section 50 of the Act are complied with or not by the prosecution Section 50 reads as under :-
"50(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Sections 41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before him any such person is brought, shall if he sees no reasonable ground for search forthwith discharge the person but otherwise shall direct that search be made."
It is true that in Panchanama Exh. 17, it is mentioned that P.W. 9 - PSI Sitikar has informed the accused about his right as to whether he would like to give his search before other higher authorities or Magistrate. In his report Exh. 23 also, this fact is mentioned. In his deposition before the Court, he has stated that he asked the accused as to whether he desires to give his search before Gazetted officer or other officer. He has not mentioned 'Magistrate' in his deposition. P.W. 8 Nathu H. C. does not speak that P.S.I. Sitikar has asked the accused about this requirement. The learned A.P.P. has submitted that the evidence of P.W. 9 is reliable and the expression 'other officer', which he has used instead of 'Magistrate' includes the Magistrate. The learned counsel for the appellant has relied on the judgment in State of Punjab v. Balbirsingh, reported in 1994 (1) Crimes, 1753 as also on Meher Mohd. Rafiq v. State, 1995 (3) Crimes, 477. In both these cases it is held that if there is partial compliance of Section 50 and not full compliance, then the conviction is unsustainable. On the other hand, the learned A.P.P. relied on the decision in Syed Jamir v. State of Mah., 1995 Mah Law Journal, 314, wherein the learned single Judge of this Bench held as under :-
"Conviction under Section 20(b)(i) challenged on ground of non-compliance of provisions of Section 50 Clear and specific mention in seizure memo that when accused was asked as to whether he wanted search to be taken in presence of panchas or Gazetted officer, he declined Head Constable carrying out search not cross-examined by accused. It could not be said that there was non-compliance of Section 50."
In Balbirsingh's case cited supra, compliance of Section 50 of the Act is held to be mandatory and, therefore, strict compliance of the conditions mentioned in Section 50 of the Act is necessary. It is argued on behalf of the State that P.W. 9 Sitikar was well aware of the provisions of Section 50 and, therefore, he has mentioned in his report Exh. 23 and Panchanama Exh. 17. It may be seen that the report i.e. F.I.R. Exh. 23 or Panchanama Exh. 17 or Seizure Memo. Exh. 18 are not substantive pieces of evidence and the substantive piece of evidence is deposition of P.W. 9 before the Court. In his deposition, he has not mentioned about 'Magistrate'. He has also not mentioned the same fact in any of the above documents. All he has stated is 'Gazetted Officer or other officer'. A person of the status of P.S.I. is expected to interpret the language of Section 50 in the correct perspective. Therefore, it is very difficult to agree that expression 'other officer' includes 'Magistrate'. In a Criminal Law, the word, 'Magistrate' assumes special significance. We, therefore, find that there is no strict compliance of Section 50 of the Act. In Syed Jamir's case, cited supra, Investigating Officer, P.W. 2 Khillare had asked the accused whether he would like to give his search before the panchas or the Gazetted Officer and the accused declined. The facts of this case are distinguishable because there is no substantive evidence of P.W.9 Sitikar about this requirement. In that case, non-mention of the word, 'Magistrate' was not the matter for consideration. In Maher Mohd. Rafiq's case, it is held as under :-
"Search of accused conducted in presence of A.C.P., a Gazetted officer, but without any option to accused to be searched before a Magistrate is a partial compliance of mandatory Section 50 of N.D.P.S. Act, conviction cannot be sustained."
In this case, Balbirsingh's case and other cases are also relied upon. In this view of the matter, failure to give option to be searched before the Magistrate is non-compliance of Section 50 of the Act and, therefore, the conviction is not sustainable. The finding of conviction recorded by the Trial Judge is, therefore, liable to be quashed and set aside.
7. In the result, the appeal is allowed. Conviction and sentence awarded by the Additional Sessions Judge is quashed and set aside and the appellant is set at liberty forthwith if not required in any other case.
8. Appeal allowed.