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IN THE HIGH COURT OF BOMBAY
V.P. Tipnis I.G. Shah, JJ.
Usman Haidarkhan Shaikh ... Appellant.
Versus
State of Maharashtra... Respondents.
Criminal Appeal No. 422 of 1989, decided on 6-7-1990.
Advocates appeared :
A.P. Mundargi, for the appellant.
Smt. Vijaya Kapse Tahilramani, Additional Public prosecutor, for the State.
Section 50-Conviction under Section 19 (b) (ill-Recovery of charas tablets by police raiding party from accused-Appeal-Police officer not informed accused of searched in presence of gazetted officer.
Held-Obligatory under Section 50 to informed accused of his aforesaid right. In absence of compliance of section 50, evidence of police officer cannot be relied upon simplicity be base conviction.
Sections 20 (b) (ii), 42, 50 and 57-Conviction and sentence- Provision of Sections 42, 50 and 57 not complied -Panch witness acted as panch witness in several other cases under Narcotic Act lodged by very same Head constable - Thus such panch witness not reliable- For compliance of provisions of Section 57- Magistrate not immediate Superior Officer than PSI - Instead D. C. P. was Superior Officer but be was not informed-Held, convictions and sentence liable to be Set aside.
In the present case the Accused definitely was not informed about his right provided under Section 50 of the Act. There is also no compliance of. Section 57 of the said Act. Section 57 provides that whenever any person makes any arrest or seizure under the said Act, he shall within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. Admittedly, the P. S. I. who was the main member of the raiding party, did not report about the said arrest or seizure to his immediate official superior, the prosecution it appears, tried to contend before the learned Sessions Judge that in the remand memo submitted to the Magistrate seeking the remand of the Accused when he was produced before, the Magistrate on the next day, the particulars of arrest and the seizure are mentioned and the Magistrate could be considered as an immediate official superior. The learned Sessions Judge also accepted the said contention and held that there was sufficient compliance of the provisions of Section 57. It is difficult to agree with the view taken by the learned Session Judge. The Magistrate definitely could not be considered as the immediate official superior of the P. S. I. In the present case, there is definitely evidence on record that the D. C. P. was the immediate official superior of the P. S. I. It is clear that this provision is definitely made with a view to have a check on the investigating officer. It is his superior in the department who alone can keep check on the investigating officer and, therefore, there is absolutely no doubt that by immediate official superior the Legislature intended to mean the official superior of the department only. In the present case, therefore, there is no compliance of the said provision also.
When there is non-compliance of othese provisions, it must be held that at any rate the evidence of the police officer who failed to comply with the said provisions, cannot be relied upon implicitly to base the conviction.
Once the evidence of the Panch witness P. W, 2, Pujari is rejected, the prosecution necessarily bas to fall back only on the evidence of the police witnesses. In the circumstances, it would be hazardous to accept the evidence of the police witnesses as trustworthy and hold that the Accused was found in possession of the contraband articles the learned Sessions Judge therefore, was in error in bolding the Accused guilty of the offence punishable under Section 20 (b) (ii) of the N. D. and P. S. Act.
Section 42-Provisions of Section 42-Non-compllance thereof-Raiding party received information of offence of selling charas - Party not recording this information in writing - Plea that time was short as accused was to be apprehended immediately-Held, such plea can not be accepted.
Section 42 of the said Act provides that if information is received from any person in respect of the offence punishable under Chapter IV of the said Act the officer who received the said information must taken down in writing the said information. Admittedly no such writing was effected. The explanation which is sought to be given by the prosecution and which has been readily accepted by the learned Sessions Judge, is that they had no time to reduce to writing the said information as they had to immediately raid the accused. the said explanation definitely cannot be accepted in view of the fact that it is clear from the evidence of the witnessess on record that after the informant gave the information. Head Constable Kasurde called for the panchas. Necessarily some time must have elapsed between the receipt of the information from informant and the arrival of the panch witnesses. There were several persons including P.S.I. in the raiding party and, therefore, in this period the information which was only that the accused was selling charas tablets sitting on the parapet wall of the wall, definitely could have been reduced to writing.
Section 57-Compliance of Section 57-Repors of arrest or seizure-To be submitted to superior officer within 48 hours-Instead of reporting matter to his superior officer, accused produced before Judicial Magistrate-Held, it is no compliance of Section 57 as Magistrate is not superior officer of PSI.
Section 57 provides that whenever any person makes any arrest or seizure under the said Act, be shall, within 48 hours next after such arrest or seizure make a full report of all the particulars of such arrest or seizure to his immediate official superior. Amittedly, the P.S.I. who was the main member of the raiding party did not report about the said arrest or seizure to his immediate official superior. The prosecution it appears, tried to contend before the learned Sessions Judge that in the remand memo submitted to the Magistrate seeking the remand of the accused when he was produced before the Magistrate on the next day, the particulars of arrest and the seizure are mentioned and the Magistrate could be considered as an immediate official Superior. The learned Sessions Judge also accepted the said contention and held that there was sufficient compliance of the provisions of .Section 57. It is difficult to agree with the view taken by the learned Sessions Judge: The Magistrate definitely could not be considered as the Immediate official superior of the P.S.I.
In the present case, there is definitely evidence on record that the D.C.P. was the immediate official superior of the P.S.I. It is clear that this provision is definitly made with a view to have a check On the Investigating Officer. It is his superior in the department who alone can keep check on the Investigating Officer and, therefore there is absolutely no doubt that by immediate official superior the legislature intended to mean the official superior of the department only, In the present case, therefore; there is no compliance of the said provision also. It appears that the learned Sessions judge felt that the said provisions in respect of which, as stated earlier, there has been a breach, are not mandatory and, therefore, even if there is some breach in respect of them, it would not affect the prosecution case.
Now without entering into the question as to whether the said provisions are mandatory or not, it must be said that the said provisions definitely have been made with a purpose. The purpose obviously would be to have certain checks on the investigating agency as the offences under Chapter IV of the N.D & P.S. Act are very serious offences and are punishable to the minimum sentence of 10 years and fine of Rs. 1.00,000/-. When there is non-compliance of these provisions, it must be held that at any rate the evidence of the police officer who failed to comply with the said provisions, cannot be relied upon implicitly to base the conviction. Once the evidence of the panch witness P.W.2 -Pujari is rejected the prosecution necessarily has to fail back only on the evidence of the police witnesses. In the circumstances, as stated above, it would be hazardous to accept the evidence of the police witnesses as trustworthy and hold that the accused was found in possesssion of the contraband articles.
2. Briefly stated the facts giving rise to this appeal are as under:---
Accused Usman is a resident of Bhiwandi. P.S.I. Jadhav, Head Constable Kasurde Head Constable Pathan and Constable Gaikwad of Bhoiwada Police Station, Bhiwandi were attached to the Divisional Detection Branch, Bhiwandi in September, 1987. On 23-9-1987 they were on patrolling duty after about 5.00 p m. and while they were patrolling and when they reached near a hotel by name Tohfa on Kalyan Road at about 6.45 p.m. an informant approached them and gave them information that the accused was selling charas tablets in front of Apsara Talkies find that he was sitting on a parapet wall of a well. The police. Therefore, called two panchas and proceeded along with the panchas and the informant towards the reported scene of offence and the informant pointed out from a distance the accused who was sitting on a parapet wall of a well, The informant then went away. The police thereafter want near the accursed and caught him and affected, search of his person. In the search a plastic bag containing 69 tablets of charas is alleged to have been found in the pocket of the trouser of the accuser. Police seized the said contraband articles and after completing the formalities of effecting panchanama of seizure of the said articles, took the accused and the contraband Articles seized from the accused to Bhiwandi Town Police Station and the same were then produced before the Head Constable Kadam who was the Police Station Officer. An offence under C R. No. III-232-87 was registered and P.S.I. Dhonnar was entrusted with the investigation. On completion or investigation and receipt of the C.A. report in respect of the contraband articles alleged to have been seized from the accused, a charge sheet was filed against the accused.
3. The learned Sessions judge before whom the accused was tried, framed charge in respect of the offence under section 20(b)(ii) of the N.D. P.S. Act. The accused pleaded not guilty and claimed to be tried. His defence was of total denial.
4. On the strength of evidence led before the learned Sessions judge, he found that the prosecution had established that the accused was found in possession of charas as claimed by the prosecution and, therefore, convicted and sentenced the accused as stated earlier. Being aggrieved by the said order of conviction and sentence, the appellant-accused has come in appeal to this Court.
5. On behalf of the appellant accused, it is contended that the evidence produced by the prosecution is not trustworthy and suffers from number of infirmities and, therefore, the learned Sessions Judge was in error in holding that the prosecution has proved that the accused was found in possession of the contraband articles as claimed by the prosecution. It is also contended that the various provisions of the N.D. P S. Act which are mandatory were not complied by the police while raiding the accused and, therefore, also the alleged seizure of contraband articles from the accused cannot be relied upon.
6. The prosecution in order to prove the case against the accused, examined P.W.1-Head Constable Kasurde, P.W. 2 . Pujari, the panch witness, P.W. 3-Head Constable Pathan and P.W. 4 P.S. I Dhonnar. The learned Sessions judge has accepted the evidence of the bald prosecution witnesses as reliable and relying on their evidence he found that the prosecution had established that the accused was in possession of the contraband articles.
7. On behalf of the accused, it is contended that the prosecution no doubt has examined panch witness Pujari P.W. 2, but it is clear from hi
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