Bombay High Court
Mohanlal Khetaram Jangid vs State Of Maharashtra on 14 January, 1998
Equivalent citations: 1998(5)BOMCR771, (1998)1BOMLR647
Author: A.P. Shah
Bench: A.P. Shah, S.S. Parkar
ORDER A.P. Shah, J.
1. These two appeals arise out of judgment and order dated 29th June, 1994, passed by the Special Judge, Greater Bombay in N.D.P.S. Special Case No. 695 of 1991 convicting accused Nos. 1 and 2 under section 21 read with section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("N.D.P.S. Act" for short) and sentencing them to suffer R.I for ten years and to pay a fine of Rs. 1,00,000/- in default to suffer further R.I. for six months.
2. Briefly stated, the case of the prosecution is as follows:
On 4th August, 1991 the Narcotic Cell, M.I.D.C. Unit, Mumbai, received information that one Sharma i.e. accused No. 1 and one Mohanlal i.e. accused No. 2 were likely to come in the same afternoon opposite Ellora Guest House, Borivli (E), Mumbai, for Narcotic transactions. Immediately this information was noted down in book maintained in the Narcotic Cell as per Ex. 15A. Police Constable Naik was directed to call two persons to act as panchas. After the panchas were brought, the panchas took search of the Police Officers and the police took search of the panchas. So also the vehicle was also searched. Drug identification kit, weighing scale and sealing material were collected and a pre-trap panchanama was drawn and the raiding party thereafter proceeded to the spot. On reaching the spot, the members of the raiding party got down from the vehicle and they stood in scattered position and kept a close watch at the entrance of the guest house. At about 12:15 noon, two persons (accused Nos. 1 and 2) were seen coming along the road and each of them was carrying a polythene bag in his hand. They stopped opposite Ellora Guest House. In the meantime, four other persons came and joined them and they started talking amongst themselves. At that time the police apprehended those persons and disclosed their identity.
The officers then informed the accused and the other persons that they want to take their search and at the same time understanding was given to them that they had a right to be searched in presence of a Gazetted Officer, if they so desire. It was also disclosed to them that P.I. Singh and P.I. Ghuge, who were members of the raiding party were also Gazetted Officers. The accused, however, declined to be searched in presence of the Gazetted Officer. The raiding party searched the accused in the presence of the two panchas, namely, Hamid Shaikh and Samuel Francis.
During the search, accused No. 1 was found in possession of a polythene bag containing brown sugar weighing one k.g. The accused No. 2 was also searched in the presence of the panchas and was found to be in possession of a plastic bag containing one k.g. of brown sugar. Separate samples were taken from the brown sugar recovered from accused Nos. 1 and 2 and they were marked as A-1 and A-2 and B-1 and B-2, respectively. The other four persons were also searched but nothing incriminating was found in their possession. Panchanama was drawn and the muddemal property was seized. The panchanama was signed by the panchas and S.I. Sawant and the muddemal property was placed In possession of P.I. Ghuge. On the next day the seized property was sent to the head office of the Narcotic Cell. P.I. Singh deposited the seized property excepting the sample packets after making necessary entry in the muddemal register. On 6th August, 1991 sample packets were carried by Police Constable Revenkar to the chemical analyser alongwith forwarding letter and the C.A. report revealed that the packets contained brown sugar. On completion of the investigation charge-sheet was filed against the accused on 21st October 1991.
3. During the course of the proceedings before the Special Court, all the accused persons were prosecuted. However, accused Nos. 3 to 8 were discharged as nothing incriminating was found against them. Only accused Nos. 1 and 2, against whom substantial material was found, were tried. Charge was framed against the accused on 20th July, 1993. It was read over and explained to the accused and they pleaded not guilty and claimed to be tried. As the trial proceeded the prosecution examined four witnesses and proved certain documents on record. On appreciation of evidence produced by the prosecution and the circumstances of the case, the Special Court found both the accused guilty of offence under section 21 read with section 8(c) of the N.D.P.S. Act.
4. The main contention raised by Mr. Keswani and Mr. Kulkarni, learned Advocates appearing for the appellants is that the conviction and sentence cannot be sustained since there has been non-compliance with the provisions of section 50 of the N.D.P.S. Act which have been held to be mandatory in the recent decisions of the Apex Court in State of Punjab v. Balbir Singh, and Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, . Mr. Borulkar, learned Addl. P.P. on the other hand, supported the judgment and order of the Special Court.
5. The short question which falls for our consideration is whether the mandatory requirement of section 50 has been complied with. It cannot be disputed that protection given by section 50 is a valuable right to the offender and compliance thereof intended to be mandatory. In State of Punjab v. Balbir Singh (supra ) the Supreme Court, after referring the principles laid down in Miranda v. Arizona, 1966(384) U.S. 446 has observed as follows.
"When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under section 50 in the context is all the more important and valuable. Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of section 50 are mandatory."
" Both under sections 41 and 42, the officers empowered can enter and search the place and also arrest the person suspected to have committed the offence either on the basis of his own knowledge or on the basis of information reduced to writing. If an arrest is made and a person is to be searched, then as noted above section 50 comes into operation and the search of the person has to be carried out in the manner provided thereunder. Some of the High Courts also have taken the same view. In Jang Singh v. State of Haryana, 1988(1) Crimes 446 (P & H), it was held that it is an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate and failure to do so warrants his acquittal. In State of Himachal Pradesh v. Sudershan Kumar alias Kala, 1989(3) Crimes 608: (Him. Pra.) a Division Bench of the High Court held that the provisions of section 50 Sub-section (1) are mandatory and violation thereof per se would be fatal to the prosecution case."
6. The principle laid down in Balbir Singh's case was reiterated by the Supreme Court in the case of Ali Mustaffa Abdul Rahman Mosa (supra). The learned Advocates appearing for the appellants also drew our attention to a recent decision of a Supreme Court in State of Punjab v. Jasbir Singh & others, . In that case the learned Additional Sessions Judge did not accept the evidence of the Police Officers on the ground that it was open to them, at the time of the search to take in writing from the accused that they had no objection to the search being conducted and that they were informed of their right and they waived the search in the presence of a Gazetted Officer. It was observed by the Supreme Court that it is a matter of appreciation of evidence and that having considered the totality of the facts and circumstances, the learned Judge was not inclined to accept the prosecution case in the absence of anything in writing. It was further observed that the view expressed by the Additional Sessions Judge cannot be said to be unwarranted or unjustified.
7. The learned Advocates for the appellants also heavily relied upon a decision of a Division Bench of this Court in Hamidkhan Hussainkhan v. State of Maharashtra, . In the case before the Division Bench, on the basis of information received by the police that the accused was in possession of 'Gard', search was carried out by the raiding party and 600ml. gms of 'Gard' was found with the accused. In the panchanama as well as in the report it was stated that the Police Sub-Inspector had informed the accused about his right as to whether he would like to give his search before other higher authorities or Magistrate. However in his deposition during the trial the Sub-Inspector did not mention about the option, the option to be searched by a Magistrate but only mentioned Gazetted Officer or other Officer. The trial Court relying on his testimony convicted the accused of the offence punishable under section 21 of the N.D.P.S. Act. In appeal by the accused it was held by Division Bench that the report, panchanama or seizure memo were not substantive pieces of evidence. The substantive pieces of evidence was the deposition of the Police Sub-Inspector before the Court. In his deposition, he had not mentioned about 'Magistrate'. All he had stated was 'Gazetted Officer' or other 'Officer'. A person of the status of the Sub-Inspector was expected to interpret the language of section 50 in correct perspective. In criminal law, the word 'Magistrate' assumes special significance. Failure to give option to be searched before the Magistrate is non-compliance of section 50 of the Act and consequently the conviction of the accused was not sustainable.
8. The learned Advocates also strenuously urged that where two or more co-accused are apprehended in a narcotic case, the offer of being searched in the presence of a Gazetted Officer must be given to each accused individually. It was pointed out by them that there is nothing to show that the option was separately given to each accused individually and, therefore, there is non-compliance with the provisions of section 50. In support of this argument, reliance is placed on a judgment of a Single Judge of the Punjab & Haryana High Court in Paramjit Singh & another v. State of Punjab, .
9. Mr. Borulkar, learned Addl. P.P. vehemently contended that the provisions of section 50 have been fully complied with. Mr. Borulkar urged that even if the option was given to the accused only to be searched in the presence of a Gazetted Officer, and not in the presence of a Magistrate, it cannot be said that there is non-compliance with the provisions of section 50. Mr. Borulkar argued that the prosecution has established that the accused were made aware of their right of being searched before a Gazetted Officer and the accused have declined to be searched before him. Section 50 does not confer an absolute choice on the accused to choose in between a Gazetted Officer or a Magistrate. Once an accused exercises his option of being searched before either a Gazetted Officer or a Magistrate, he does not have a further option to choose one between the two. Once the choice is exercised, it is upto the officer concerned to take him to either of them. Hence, the option which is contemplated in section 50 is not to choose between Gazetted Officer and a Magistrate but only to exercise an option of being searched before either of them. In support of his contention, Mr. Borulkar relied upon an unreported decision of this Court (Coram: Ashok Agarwal and T.K. Chandrashekara Das, JJ.,) in Sayeed Ahmed Qureshi v. The State of Maharashtra, Criminal Appeal No. 268 of 1994, decided on 10th October, 1996. Mr. Borulkar pointed out that the Division Bench judgement in Hamidkhan's case (supra) has been considered by the Division Bench of Ashok Agarwal and T.K. Chandrashekara Das, JJ., and it has been categorically laid down that notice given by the raiding party to the accused to be searched in the presence of either of the authorities is sufficient compliance with the provisions of section 50 of the N.D.P.S. Act.
10. After having considered the arguments advanced at the bar and the relevant evidence on record, we are of the opinion that the prosecution has failed to prove compliance of section 50. On this aspect PSI Sawant (P.W.4) has deposed as under:
"P.I. Ghuge then told them that they have to take their search. He further gave them understanding that they had a right to be searched in presence of a Gazetted Officer if they desire so as provided under the law. It was also disclosed to them that he himself and PI Singh were also Gazetted Officer who were in the raiding party. Those 2 accused person declined that they did not want to go before the Gazetted Officer for their search."
The above evidence shows that the accused were made aware of their right of being searched before a Gazetted Officer. However, the evidence of P.S.I. Sawant does not tally with the contents of panchanama Ex. 'X'. The relevant portion of the panchanama reads as follows:
"The above mentioned persons were asked whether they wanted to be searched by a Gazetted Officer as provided under section 50 of N.D.P.S. Act. 1985. However, they said that they did not want to be searched by a Gazetted Officer. Nevertheless, they were told that RIs. Ghuge and Singh present with the raiding party were Gazetted Officers."
What is recorded in the panchanama is that the accused were asked whether they wanted to be searched by a Gazetted Officer. It is also indicated in the panchanama that the accused were told that PI Ghuge and PI Singh present with the raiding party were Gazetted Officers. Amit Shaikh, who is the panch-witness, has deposed as follows :
"Then that tall officer asked them whether they want to be searched in presence of a Gazetted Officer and he told that he himself was a Gazetted Officer. They declined to say anything."
11. Thus the evidence of the panch-witness read with the panchanama Ex.'X' indicates that the accused were told by P.S.I. Sawant that whether they would like to be searched in the presence of a Gazetted Officer and he told them that he himself was a Gazetted Officer. In substance, the officer told the accused that they had a right to be searched before a Gazetted Officer and he himself being a Gazetted Officer would proceed with the search himself. This in our opinion, is hardly a compliance with the provisions of section 50 of the Act. The object of section 50 is clear. It intends, to ensure that search, if so required by the accused should be taken in front of an independent and a responsible officer. This independent and responsible officer in section 50 has been mentioned as either a Gazetted Officer or a Magistrate . Even though the raiding party could be accompanied by a Gazetted Officer, surely such a Gazetted Officer would not be an independent or responsible officer contemplated by section 50, as he cannot be considered to be an independent officer. Hence, when the accused is informed that he will be searched in the presence of a Gazetted Officer who is a member of the raiding party, same will not amount to compliance with the provisions of section 50. (see in this connection an unreported decision) in Criminal Appeal No. 53 of 1994 with Criminal Appeal No. 538 of 1994, Muhamed Phiroz Hanif Ansari v. State of Maharashtra & another (tm), decided (by N.D. Vyas & Smt. R.P. Desai, JJ.,) on 10th June, 1996 . In any event, there are three conflicting versions given by the prosecution as far as compliance with the mandatory provisions of section 50 is concerned. In the panchanama it has been stated that the accused were asked whether they would like to be searched by a Gazetted Officer. In the evidence of the I.O. it has been stated that an option was given whether the accused wanted to be searched in the presence of a Gazetted Officer and incidentally they were also made aware of the fact that there are two Gazetted Officers in the raiding party. The evidence of Ami! Shaikh, however, indicates that the officer told the accused whether they would like to be searched in the presence of a Gazetted Officer and that he himself is a Gazetted Officer. It is difficult to reconcile these three conflicting versions. We have, therefore, no hesitation to hold that prosecution has failed to establish compliance with the provisions of section 50 of the N.D.P.S. Act.
12. In view of the foregoing discussion, the conviction and sentence of the accused under section 21 read with section 8(c) of the N.D.P.S. Act, 1985, recorded by the trial Court vide judgement and order dated 29th June, 1994, is set aside and the appellants are directed to be released forthwith if not required in any other case. Appeals are accordingly allowed.
13. Appeals allowed.