Bombay High Court
Ashwinikumar Sarvansingh Chauhan vs State Of Maharashtra on 12 June, 2001
Equivalent citations: (2002)104BOMLR353
Author: S.S. Parkar
Bench: S.S. Parkar
JUDGMENT S.S. Parkar, J.
1. These two appeals arc filed by two accused separately against the judgment and order dated 4.2.1997 delivered by the Special Judge under N.D.P.S. Act, Pune convicting both of them under Section 20(b) read with Section 29 of the N.D.P.S. Act and sentencing each of them to R.I. for ten years and to pay a fine of Rs. 1,00,000/- in default R.I. for one year, in Sessions Case No. 6 of 1996 arising out of common prosecution against them. Since both the appeals arise against the judgment in common prosecution they were heard together and are being disposed of by this common judgment.
2. Briefly the prosecution case is as follows:
P.S.I. Langhe attached to the Crime Branch, Pune received information on 5.1.1996 around 10.30 a.m. through an informer that one person wearing particular clothes with fair complexion was to deliver large quantity of charas at that time to accused No. 2 Babu Panwala, the owner of a pan stall situated near the compound wall of Jayprakash Garden in front of Green Hotel, Pune which is near Pune Railway station. The said information was reduced to writing on a piece of paper through his writer and signed by the officer. It is produced at Exh. 28, He also gave report in writing to his superior officer Inspector Jadhav, which is produced at Exh. 29 bearing endorsement and signature of P.I. Jadhav to proceed to take action in accordance with law and report back to him. The said information was also entered into the information book called "Khabri Pustak". The entry in the said book made at Sr. No. 19 is produced at Exh. 30. He received the permission of P.I. Jadhav. Before that P.S.I. Langhe directed the Head Constable Bhilare (P.W. 3) to call two panchas. When the panchas arrived they were informed about the purpose of calling them. Thereafter raiding party along with the panchas left the Bund Garden Police Station and went to the place as per the information after making entry in the Station Diary at Sr. No. 15 which is produced at Exh. 32. The police stopped near the statute of Mahatma Gandhi situated near Pune Railway Station. After some time the person with the description given by the informer came to the place and went to the pan stall. He took out a packet from his carry bag and handed over to the person sitting in the Pan Stall. The raiding party went to Pan shop and apprehended the persons. The offer under Section 50 of the N.D.P.S. Act was made by the P.S.I. to both the accused informing them their right to be searched in the presence of either Gazetted Officer or Judicial Magistrate. Both the accused persons declined the offer. On their search a packet containing 810 grams of charas was recovered from accused No. 1 while a packet weighing 1 kg. of charas was recovered from accused No. 2. When the contents of those packets were tested by using some chemical, it was confirmed that the substance found with both the accused was charas. 20 grams of sample packets were prepared out of both the packets and were kept in different polythene pouches. Panchanama of seizure was prepared which is at Exh. 22. Both the accused were given copies of the seizure panchanama and their signatures and thumb impressions were obtained in token thereof on Exh. 22. Accused were arrested and were taken to the Bund Garden Police Station along with the muddemal and sample packets. F.I.R. was lodged by P.W. 4 which is at Exh. 33. The C.R. was registered. Report was prepared which is at Exh. 34. Entry was made about filing of the complaint in the station diary at Sr. No. 27 which is at Exh. 35.
3. The sample packets were sent to the office of the C.A.C.A. report is at Exh. 37 according to which the contents of the sample packets were charas. After the investigation was over charge-sheet was filed and both the accused were tried before the Special Judge, Pune.
4. At the trial on behalf of the prosecution four witnesses were examined. P.W. 1 is V.R. Munde who acted as panch at the time of raid and seizure panchanama. P.W. 2 is E.B. Jadhav, Head Constable attached to the 8und Garden Police Station who was muddemal clerk with whom the muddemal property was deposited. P.W. 3 is D.N. Bhilare, Police Constable attached to Crime Branch, Pune who carried the sample packets to the office of the C.A. Lastly P.W. 4 is P.S.I.S.D. Langhe attached to the Bund Garden Police Station who received the information and conducted the raid, carried out the investigation and filed the charge-sheet. The defence of the appellants was of denial and false implication. According to accused No. 1 he was picked up from the lodge and was arrested on suspicion three-four days after his interrogation and was involved in this ease. The defence of accused No. 2 also is that he was falsely implicated.
5. After considering the entire evidence on record the learned Special Judge convicted and sentenced each of the appellants accused as stated above. The order of conviction and sentence recorded against the appellants is under challenge in these two appeals.
6. After taking me through the evidence of the witnesses and seizure panchanama (Exh. 22) the learned defence Advocate contended that there was non-compliance with the mandatory provision under Section 50 of the Act. He also contended that the panch has not fully supported the prosecution case as narrated by P.S.I. Langhe P.W. 4 and, therefore, no reliance can be placed on the prosecution case. According to the defence Advocate the presence of the panch at the time of raid and seizure itself is in doubt as he has not fully supported the contents of the seizure panchanama (Exh. 22).
7. So far as Section 50 of the Act is concerned, the provisions thereof are undoubtedly mandatory as held by the Constitution Bench of the Supreme Court in the case of State of Punjab v. Baldev Singh , and non compliance thereof would make the search suspect and the accused is entitled to be acquitted. When the empowered officer or authorised officer is acting on prior information he has to apprise the accused of his right to be searched in the presence of the nearest Gazetted Officer of any of the Departments mentioned in Section 42 or in the presence of the nearest Magistrate. As per the decisions of the Apex Court including that of the Constitution Bench in Baldev Singh's case (supra) the accused has to be informed of this right and in case he opts he should be taken to the nearest Gazetted Officer or nearest Magistrate for his personal search. In this case according to the prosecution the contraband was recovered in the personal search of both the accused and, therefore, it was imperative on the part of the prosecution to apprise the accused of their right to be searched in the presence of either of the aforesaid two officers and the choice should have been left to the accused. As per the evidence of P.W. 4 P.S.I. Langhe, in para 6 of his deposition, the offer was made to both the accused to get searched in the presence of Gazetted Officer or Judicial Magistrate, The relevant portion from para 6 of his deposition is quoted hereinbelow:
...I gave an offer to both the accused persons to get searched in the presence of a. Gazetted Officer or a Judicial Magistrate. Both the accused persons declined the officer.
(Emphasis supplied.)
8. When Section 50 provides that at the discretion of the accused he could be searched in the presence of a Gazetted Officer or a Magistrate, the appraisal is not quite in consonance with the provisions of Section 50 as choice was given between a Gazetted Officer and a Judicial Magistrate and not a Magistrate. In the context of Section 50 it appears that Magistrate means other than Metropolitan Magistrate or Judicial Magistrate who have been empowered in the earlier provisions, e.g. Section 48 of the Act, to order attachment of opium poppy, cannabis plant or coca plant etc. Even otherwise the searches are not made in the presence of the Metropolitan Magistrates or Judicial Magistrates but in the presence of Executive Magistrate and, therefore, the reference to Magistrate made in Section 50 would mean Executive Magistrate or Special Executive Magistrate or Special Metropolitan Magistrate or District Magistrate who are non Judicial Magistrates. Even perusal of the seizure panchanama (Exh. 22) shows that the offer was made by the P.W. 4 to the accused for being searched either in the presence of a Gazetted Officer, who has been referred to in the panchanama written in Marathi as "Rajpatrit Adhikari" or "Nyay Dandadhikari" i.e., Judicial Magistrate. According to the English Marathi Legal Dictionary by Vasant Bhange, 1992 Edition Judicial Magistrate means "Nyayik Dandadhikari" while Magistrate means "Dandadhikari". Thus the appraisal of the right under Section 50 seems to have been conveyed wrongly to the accused.
9. Not only that but the version of the P.S.I. is not supported by an independent witness like panch V.R. Munde who was examined as P.W. 1 by the prosecution. P.W. 1 Panch witness does not make a mention about the alleged offer or appraisal of their right under Section 50 made to the accused persons. What he states in para 4 of his deposition is as follows:
...We put our signature on the Panchanama. Police had asked both these persons as to whether they had a desire to get the Panchanama drawn in the presence of a Magistrate but both these persons who were held by the police.
10. Thus according to the panch witness the accused were asked by the police whether they had a desire to get the panchanama drawn in the presence of a Magistrate. He does not say that this offer was made before their search. According to him they were asked whether the panchanama was to be drawn in the presence of a Magistrate which stage comes after the search of the accused. The contraband recovered in the search is seized under the Panchanama. The panch does not even make reference to the Gazetted Officer. Thus the Court has to rely only on the ipse dixit of the P.S.I. which is also not in consonance with Section 50 of the Act.
11. Reliance is placed on behalf of the appellants on a recent Judgment of the Supreme Court in the case of K. Razak v. State of Kerala 2000 SCC (Cri.) 829. That was a case where the Apex Court found that there was non compliance with both the mandatory provisions of Section 42 as well as Section 50 of the Act. In that case P.W. 1 had stated that the search was not conducted in the presence of a Gazetted Officer or a Magistrate as envisaged under Section 50 of the Act because the accused himself had told that he did not require the presence of any such officer, Said version of the Police Officer was not supported by any independent witness. In that context, it was observed by the Apex Court in para 8 of the judgment as follows:
...P.W. 1 in his cross-examination said that he arrested the appellant at 5.20 p.m. and the body of the appellant was searched only after that. When law requires that the appellant must be afforded with an opportunity to have the presence of a Gazetted Officer or a Magistrate the appellant has a right to be taken to the nearest Gazetted Officer or Magistrate for the purpose of conducting search in his presence. The said right cannot be sidelined as a mere formality....
12. Following the Judgment of the Constitution Bench of the Supreme Court in Baldev Singh's case (supra) the Apex Court acquitted the accused, inter alia, for non compliance of Section 50 of the Act observing in para 10 that, "The graver the consequences the greater must be the circumspection to be adopted."
13. Thus on the aforesaid grounds both the accused in these appeals are entitled to be acquitted. The defence Advocate has also brought to my notice the Judgment of the Division Bench of this Court in the case of Milan Sarcanski v. State 1997 All M.R. (Cri.) 496 : 1997 Cr.L.J. 2028 : 1997 Bom. C.R. (Cri.) 257 wherein the accused was acquitted on the ground that the panch witness had not supported the seizure as he could not identify the bag shown to him which was allegedly seized from the person of the accused and, therefore, it was held that the seizure of charas from the person of the accused was not established. In this case also the compliance with Section 50 was not supported at all by the panch witness P.W. 1.
14. In the result I allow both the appeals and set aside the order of conviction and sentences passed against the appellants by the impugned judgment and order of the Special Judge in N.D.P.S. Sessions Case No. 6 of 1996. Both the appellants are directed to be set at liberty unless required in any other case.