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IN THE HIGH COURT OF BOMBAY
S.W. Puranik G.H. Guttal, jj.
Manohar Shankar Aarde.... Appellant.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 308 of 1987, decided on 5-12-1988.
Advocates appeared :
R.M. Nakhawa, (appointed), for appellant.
N.D. Hombalkar, Public prosecutor, for State.
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 42 - SEARCH AND SEIZURE - POWERS OF CONSTABLES - CONVICTION QUASHED - SECTION 17 - POSSESSION OF HEROIN - CONVICTION QUASHED - EVIDENCE OF PANCHAS NOT SUPPORTING PROSECUTION VERSION - INVESTIGATION BY CONSTABLES IN CONTRAVENTION OF SECTION 42 OF THE ACT - VITIATED.
Fact of the Case:
The appellant was convicted under section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possession of heroin. The prosecution alleged that two constables found the appellant in possession of seven phials containing heroin at a bus station. The appellant was searched in the presence of two panchas, who later testified that they were not present during the search and that they had merely signed the panchnama without knowing its contents.
Finding of the Court:
The court found that the investigation was vitiated because it was carried out by two constables in contravention of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which excludes constables from the powers of entry, search, and seizure under the Act. The court also found that the evidence of the panchas did not support the prosecution version and that the conviction was not sustainable on merits.
Issues: 1. Whether the investigation was vitiated due to being carried out by constables in contravention of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985? 2. Whether the conviction was sustainable on merits?
Ratio Decidendi: 1. Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, excludes constables from the powers of entry, search, and seizure under the Act. This is to safeguard against frivolous prosecution and unnecessary harassment to citizens. 2. The evidence of the panchas did not support the prosecution version and the conviction was not sustainable on merits.
Final Decision: The court allowed the appeal, quashed the conviction and sentence imposed on the appellant, and acquitted him of the offence under section 17 of the Narcotic Drugs and Psychotropic Substances Act.
2. This order of conviction passed on 9-2-1987 by Sessions Judge, Thane in Sessions Case No. 553 of 1986 is impugned by the convicted accused by this appeal.
3. According to the prosecution, two constables K.D. Shinde and D.K. Gaikwad (P.W. 2) respectively were deputed on Bandobast duty at the S.T. Bus station at Kalyan. At about midnight on 8-6-1986 the said constables noticed the appellant sitting on the bench at the Bus-stand. While they were making enquiries from the nearby passengers, the appellant tried to run away the Bus-stop in a hurry arising his suspicion. The two constables therefore, chased the appellant and caught him nearby.
4. The appellant, was then brought back to the same bench at the bus-stop and two panchas Vani (P.W. 3) and Razak (P.W. 4) respectively were called from the bus-station. A search of the person of the appellant was taken which revealed that he was in possession of seven phials or capsule containing a witish substance. The said phials were taken possession and seized under the panchnama and duly sealed. The appellant was taken in custody and produced at the Police Station Kalyan.
5. Further investigation from the Chemical Analyser revealed that seven seized phials contain narcotic substance heroin. In these circumstances, the prosecution under section 17 of that Act was instituted against the appellant.
6. During the trial, the two constables narrated the story as above with certain variations in their versions. However, the two panchas Vani (P.W. 3) and Razak (P.W. 4) did not support the prosecution version at all. According to panch Vani (P.W. 3), after the entire search was over, he was called by the police merely to sign a panchnama. He further stated that other panch Razak (P.W. 4) was not even present at that time. Same is the version of Razak (P.W. 4) who says that he put his signature without knowing what it was meant for.
7. On the basis of his evidence, the order of conviction and sentence came to be passed.
8. Shri R.M. Nakhawa, learned Counsel (appointed) for the appellant raised a preliminary objection that the entire investigation is vitiated in as much as the same has been carried out by two Police Constables in contravention of section 42 of the Narcotic Drugs And Psychotropic Substances Act, 1985. We find that the said objection is a substantive objection in as much as the power of entry, search, seizure as well as arrest without warrant is defined under section 42 of the said Act and specifically authorises officer superior in rank to a peon, sepoy or constable. Even such officer is empowered in this behalf by general or special order of the State Government or Central Government as the case may be. It is therefore, apparent in the teeth of section 42 of the Act that a person of the rank of a constable is excluded from the powers of entry, search and seizure under this Act.
9. In the instant case, it would have been alright for the two constable at the Bus-station to have merely taken him into custody under suspecion and produced him before an officer superior to them and who duly authorised under the Act to carry out search. The entire investigation in this case in contravention of section 42 of the Act. They have, themselves, exercised powers which in our opinion have been in contravention of section 42 of the Act and the entire investigation is vitiated.
10. It is to be born in mind that this Act dealing with serious offence relating to act narcotic drugs also prescribe a punishment of maximum ten years R.I. and a fine of Rs. 1 lac maximum, if a person is proved to have committed an offence. It is to safeguard against frivilous prosecution and unnecessary harassment to the citizens that ordinary Police Constable, peon and Sipoy have been excluded fro
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