Bombay High Court
Man Bahadur vs State Of Goa on 9 October, 1995
Equivalent citations: 1996CRILJ1389
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
JUDGMENT Vaidyanatha, J.
1. This is appeal against Judgment dated 23-1-1995 in Special Criminal Case No. 14 of 1994 on the file of the Special N.D.P.S. Act, Mapusa, Goa. Heard the learned counsel for the Appellant and the learned Public Prosecutor for the State.
2. The Appellant and three others were prosecuted by the police for an offence under Section 20(b)(ii) of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as "the said Act").
The prosecution case is that when the police party was on rounds on 23-12-1993 at about 8.00 p.m. they noticed the two accused persons, the Appellant and one another, who are arrayed as Accused-1 and Accused 2 in the Court below, moving in suspicious manner; the police suspected them to be dealing in drugs. Then A-1 and A-2 were apprehended and were interrogated. Then A-1 and A-2 led the police party to a particular house when the police called the panchas. When they entered the house and took search of the house, they found in a drawer of the cupboard, the key of which was found with A-1, 2 kgs. of Charas. They also found 6.5 kgs. of Charas in a suit-case. A-3 and A-4 were inside the room. The Charas was seized under a panchanama in the presence of panchas. All the 4 accused were arrested.
After due investigation chargesheet was filed for the offences punishable under Section 20(b)(ii) of the said Act against all the 4 accused.
3. The defence of all accused was one of total denial.
4. After trial, the learned Special Judge held that the prosecution has proved its case against A-1 and convicted A-1 and sentenced him to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/- or in default to suffer R.I. for 1 more year. A-2 to A-4 were acquitted. Being aggrieved by the conviction and sentence, A-1 has preferred this appeal.
5. The learned counsel appearing for the Appellant has questioned the correctness and legality of the impugned order. It was maintained that the prosecution has not proved its case and even otherwise, the trial is vitiated since the Investigating Agency has not followed the mandatory provisions of the said Act. On the other hand, the learned Public Prosecution supported the impugned order.
6. The point for consideration is whether the Appellant's conviction and sentence is sustainable in law or not.
7. As far as the search and seizure are concerned, we have the evidence of 2 Sub-Inspectors of Police and one panch witness. The prosecution produced the Landlady to give evidence that she had let out her one room to the accused persons. Then there is also evidence of the expert of having done chemical analysis of the seized drugs.
8. In our view, the Appeal has to succeed on a short legal ground. Admittedly, the search in this case is from a house and that too between 9.00 p.m. and onwards, which is after sunset and before sunrise. In such a seizure the provisions of Section 42 of the said Act are attracted. In particular we are concerned with the first proviso to Section 42(1) of the said Act, which is as follows :
"Provided that if such officer has reason to believe that a search warrant or authorisation 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."
The learned Counsel of the Appellant has contended that in this case admittedly no such record was made by the Investigating Officer before he entered the premises and therefore, he has violated the proviso to Section 42(1) which has been held to be mandatory by the apex Court.
9. In Balbir Singh's case the apex Court had occasion to consider number of provisions of the said Act and ultimately held that certain provisions of the Act are mandatory in nature and that the violation of which will vitiate the trial. We are only concerned with the proviso to S. 42(1) of the said Act. At page 1888, in paragraph 26(2)(c), the apex Court has observed :
"26(2). Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief."
We have mentioned above that the contravention of the same would vitiate the trial. Same view has been reiterated by the apex Court in a recent Judgment reported in Mohinder Kumar v. State, Panaji, . That was a case where the police had made a chance recovery of drugs in a house after sunset and before sunrise. The question was whether in those circumstances the Investigating Agency had violated proviso to Section 42 of the said Act. The Supreme Court observed that once the drugs were recovered during such a search then the provisions of the said Act will have to be followed by the Investigating Agency from that stage. The relevant portion of the observations of the apex Court in para 3 of the reported Judgment reads as follows :
"3. ........ Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of Charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the proviso to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazette Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case, it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted."
In our view, the above observations of the case are fully attracted to this case. Even the learned Public Prosecutor did not dispute this position but tried to make out a case of a search in a public place to bring it under Section 43 of the said Act, wherein the case of search in a public place, the police can search at any time without warrant and without restriction mentioned in Section 42 of the said Act. He also invited our attention to the evidence of the Landlady P.W. 3 on this point. We have considered this evidence and his argument and we find that there is no merit in the same.
10. The Landlady is examined as P.W. 3 in this case. No doubt, P.W. 3 has stated that she has let out one room to the accused in her examination-in-chief, though she stated that in the beginning she was not willing to give the same. This clearly shows that it was a private house and not a public place. However, in cross-examination she admitted that the room had not been registered with the Tourist Department and the relevant time for the purpose of accommodation for the tourists. This also shows that it was a private building not meant for public use as of right at the relevant time. Section 43 of he said Act applies if the "place of search" is a public place. But we are concerned in this case of search in a private building. The Explanation to Section 43 of the said Act reads as follows :
"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".
The Explanation makes the position clear that the place must be intended for use by or for accessible to the public. By any stretch of imagination it cannot be said that a private building is intended for use by the public or accessible to the public. Hence in our view, the place in question cannot be brought within the meaning of "public place" as provided under Section 43 of the said Act, in view of the admission of P.W. 3 and the facts and circumstances of this case. Further such argument was not even addressed before the trial Court by the State.
11. The Investigating Officer in this case has clearly admitted that he has not made any record about the reasonable belief as provided under first proviso to Section 42(1) of the said Act. In view of the law declared by the apex Court in the two decisions mentioned above, we are constrained to hold that the search in this case is vitiated for violation of a mandatory provision and consequently the trial itself is vitiated. On this short ground the Appellant-accused is entitled to be acquitted. In view of this, we need not embark on the discussion of the evidence on the merits of the case.
12. In the result, the Appeal is allowed. The conviction and sentence of the Appellant are hereby set aside. The Appellant is acquitted of the offence for which he was charged and tried. He shall be released forthwith if not required in any other case.
13. Appeal allowed.