Bindersing Nirmalsing Kaili & another vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 279

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Patil G.D. Patil J.A., JJ.
Bindersing Nirmalsing Kaili another .... Appellants.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 59 of 1997, decided on 6-5-1998.
Advocates appeared :
M.R. Daga, for appellants.
K.S. Dhote, A.P.P., for respondent.

Headnote:Section 212(1)-Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Section 18 and Bombay Prohibition Act, Section 66(1)(b) - Charge reading that on 13.5.1996 at about 12.30 hours you were found in possession of 3.40 kg. opium worth Rs. 4,300/- in contravention of the provisions of Narcotic Drugs and Psychotropic Substances Act, and thereby an offence under Section 18 of the said Act-Charge did not specify place of offence-Read in question was carried out between 00.30 hours and 2.30 a.m., the charge mentioned the time as 12.30 hours, i.e. in the afternoon-As per the seizure panchanama the total opium found in 95 packets weighed 1.340 Kgs.- The charge mentioned the weight as 3.40 kgs.- The charge framed contained material errors and as such it was defective-Non-mentioning of the place of offence and mentioning of incorrect time as well as quantity of opium found in the charge would mislead accused and resulted in failure of justice.
       Section 18-Search and Seizure-Place where contraband drugs found being open and accessible to all-No evidence that accused was in exclusive and conscious pos~ session of such drugs-Held, conviction not maintainable.
       Section 18-Seizure of contraband opium from dhaba owned by accused-Contraband opium was found not inside the dhaba but outside it-The place where polythene bag containing opium packets was found was open and accessible to all and was not in exclusive possession of accused only-It could not be said that accused were in exclusive and conscious possession of contraband opium.
       Sections 18, 42 and 43 - Seizure of contraband opium from dhaba of accused-Search of public place-Section 42 will be applicable and clauses (a) and (b) of Section 43, therefore, will not have any application. 19991 Cri LJ 2980; Distinguished.
       Sections 18 and 42(1), (2)-Accused found in possession of contraband liquor and opium-Search carried out in the midnight between sunset and sunrise-Failure of officer to forward copy of information to superior officer or to record reasons for the belief contemplated by provisions Section 42(1) of NDPS Act would amount to non-compliance of mandatory provisions of Section 42(2) of the Act. AIR 1994 SC 1872, Relied on.
       Sections 42 and 43--Seizure and Arrest.-For recovery of contraband opium from accused after seizure and arrest from a public place, the proper section applicable was Section 42 and not Section 48.
       Section 42(1)-Carrying out search and seizure of contraband substance by police officer between sunset and sunrise time-Ground of belief of such necessity must be recorded and copy sent to superior officer-Failing to record such grounds vitiates trial.-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 sunset and sunrise and this provision does not -mandate that he should record his reasons of belief. It was further pointed out that 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. To this extent, these provisions are mandatory and contravention of the Same would affect the prosecution case and the trial.

JUDGMENT - PATIL J.A., J.:---This appeal by original accused Nos. 1 and 2 is directed against the judgment dated 20-1-1997 passed in N.D.P.S. Case No. 2/96 by the Additional Sessions Judge, Khamgaon. The learned Judge tried both the accused along with other two accused for the offences punishable under section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the N.D.P.S. Act" for short) and under section 66(1)(b) of the Bombay Prohibition Act. The learned Judge acquitted the remaining two accused but held accused Nos. 1 and 2 guilty of the abovementioned offences and sentenced each of them on the first count to suffer rigorous imprisonment for ten yeas with a fine of rupees one lakhs, in default to suffer simple imprisonment for three years and on the second count to suffer rigorous imprisonment for six months. Feeling aggrieved by the order of conviction and sentence, accused Nos. 1 and 2 have preferred this appeal.

2. The prosecution case in brief is that on 12-5-1996 at about 10.30 p.m. P.S.I. Sasthe of Nandura Police Station received an information that opium and country liquor were illegally kept at the Dhaba of Lakhwindersingh (accused No. 3) near Naigaon Fata on Nandura Malkapur Road. On receipt of the information, P.S.I. Sasthe contacted on phone the Executive Magistrate Vairale and Circle Police Inspector, Nandura, Wankhede and apprised them of the information received. He further requested them to come to the Police Station. P.S.I. Sasthe also arranged to call two panchas and informed them about the information which he had received. Thereafter at about 00.30 hours the raiding party comprising of P.S.I. Sasthe. C.P.I. Wankhede, Executive Magistrate Vairale, other police staff and two panchas proceeded in two jeeps to the Dhaba of accused No. 3. Both the jeeps were stopped at some distance from the Dhaba and thereafter the members of the raiding party went to the Dhaba on foot.

3. At that time, accused Nos. 1 and 2 were present in the Dhaba. On enquiry, both the accused disclosed their names and stated that they were running the said Dhaba. P.S.I. Sasthe introduced himself as well as C.P.I. Wankhede and Executive Magistrate Vairale to both the accused and gave search of all the members of raiding party. In the presence of two panchas search of the Dhaba was taken and ten sealed bottles each of the capacity of 750 ml. containing country liquor were found in a wire bag by the side of the counter. One of the sealed bottles was taken as a sample bottle. It appears that since no opium was found in the Dhaba, the surrounding area was searched for that purpose. At that time, a polythene bag was found kept concealed under a heap of dried banana leaves on the embankment of a banana orchard behind the dhaba. It was found that there were 86 small packets in all containing 890 grams of opium. In addition there were 9 big packets containing in all 450 grams of opium. Thus, the total quantity of opium found was 1.340 kg. and it was of the value of Rs. 4,300/-. In the personal search of accused No. 1 cash amount of Rs. 2,300/- was found. Out of the 95 packets of opium, one small packet and one big packet were taken as samples. These two packets weighed 60 grams. All the above mentioned articles were then seized under a panchnama. The samples of liquor and opium as well as the remaining quantity thereof were duly sealed and labelled. Both the accused were taken in custody and thereafter the raiding party returned to the Police Station where P.S.I. Sasthe lodged his complaint Exh. 29 against the two accused for the offences punishable under sections 20 and 27 of the N.D.P.S. Act and under section 66(1)(b) of the Bombay Prohibition Act. The initial investigation was carried by P.S.I. Sasthe who found that accused Nos. 3 and 4 were partners of accused Nos. 1 and 2 in the said business of dhaba. Therefore, on 13-5-1996 he arrested accused Nos. 3 and 4 also. The further investigation of the case was carr

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1998 Supreme(Bom) 279

IN THE HIGH COURT OF BOMBAY(NAGPUR BENCH)Patil G.D. Patil J.A., JJ.Bindersing Nirmalsing Kaili another .... Appellants.VersusState of Maharashtra.... Respondent.Criminal Appeal No. 59 of 1997, decided on 6-5-1998.Advocates appeared :M.R. Daga, for appellants.K.S. Dhote, A.P.P., for respondent.

Judicial Analysis