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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
J.N. Patel S.D. Gundewar, JJ.
Mohd. Zafar s/o Mohd. Sikandar..... Appellant.
Versus
State of Maharashtra..... Respondent.
Criminal Appeal No. 22 of 1999, decided on 1-9-1999.
Advocates appeared :
Habibuddin Ahmed, for appellant.
A.P.P., for State/respondent.
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 42, 43, 50 - SEARCH AND SEIZURE - PROCEDURE - COMPLIANCE - RIGHT TO BE SEARCHED BEFORE GAZETTED OFFICER OR MAGISTRATE - SECTION 50(1) - NON-COMPLIANCE - EFFECT.
Fact of the Case:
The appellant was convicted under section 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act for possessing 450 milligrams of heroin. He challenged the conviction on the grounds that the search and seizure procedure under sections 42 and 50 of the NDPS Act was not followed.
Finding of the Court:
The court held that section 42 of the NDPS Act was not applicable in this case because the information received by the police was about a person selling contraband in a public place, not in a building, conveyance, or enclosed place. Therefore, the police were not required to follow the procedure under section 42. The court also held that the requirement of section 50(1) of the NDPS Act, which gives the accused the right to be searched in the presence of a gazetted officer or magistrate, was complied with. The police had informed the appellant of his right to be searched in the presence of a gazetted officer or magistrate, and he had declined.
Issues: 1. Whether the search and seizure procedure under sections 42 and 50 of the NDPS Act was followed. 2. Whether the appellant was informed of his right to be searched in the presence of a gazetted officer or magistrate.
Ratio Decidendi: 1. Section 42 of the NDPS Act is not applicable to cases where the information received by the police is about a person selling contraband in a public place. 2. The requirement of section 50(1) of the NDPS Act, which gives the accused the right to be searched in the presence of a gazetted officer or magistrate, is complied with if the police inform the accused of his right and he declines.
Final Decision: The court dismissed the appeal and upheld the conviction and sentence imposed by the trial court.
2. It was the prosecution's case that on 9-11-91 P.S.I. Sakharkar alongwith other police officers of the Crime Branch, N.D.P.S. Cell, Nagpur left for patrolling duty in order to conduct raid in respect of Gard, Charas and other Narcotic substances. In front of Timki Police Chouki they received information through informant that a person named Mohd. Zafar Mohd. Sikandar i.e. accused was selling Gard (Heroin) to specific customers at Mominpura Masumshaha Takiya in front of Hafiz Bakery and that he was carrying Gard packets with him. Therefore, on receiving such information at about 17.30 hours P.S.I. Sakharkar called for two panchas and conveyed to them the information received by him and explained the object and purpose of calling them for the purpose of conducting raid and personal search of the concerned person. It is prosecution's case that said information was conveyed to A.C.P. Paraskar on telephone from Timki Police Chouki who permitted them to conduct the raid immediately and so police party alongwith panchas proceeded on foot to Hafiz Bakery and when they went to Hafiz Bakery they found the appellant accused near the electric pole in front of Hafiz Bakery. The accused was accosted by the police party. The police party introduced themselves to the accused. Panchas were also introduced and the appellant accused was informed that they want to take his personal search for Gard (Heroin- Brown Sugar). The appellant accused was specifically asked that whether he wants to give personal search before Executive Magistrate or Gazetted Officer of any other department, he declined on this, the police staff and panchas give their personal search to him. After this the appellant accused was searched in the presence of panchas, in the search yellow coloured plastic bag of popcorn was found in the left side pocket of the shirt of accused, it was containing 9 small paper packets. The paper packets were opened in presence of panchas, they were found to be containing Gard weighing 50 milligrams each; the contents were weighed together and total weight was about 450 milligrams of the value of Rs. 225/-. In addition to this a cash of Rs. 25/- was also found in denomination of 2 currency notes of Rs. 10/- and one currency note of Rs. 5/-; which was found in the same pocket. Out of the total Gard about 150 milligram of Gard powder was taken out separately in a blank paper by way of sample. The sample packet as well as the packet containing Gard Powder were thereafter wrapped tied and sealed. One more packet was prepared in which the plastic bag and blank papers which were found in the packet also came to be seized. The appellant accused having been found in possession of Gard he was informed that he has committed offence punishable under section 22 of the N.D.P.S. Act and came to be arrested. The police party thereafter came to Police Station Tahsil, Sub-Division Kotwal; where P.S.I. Sahkarkar lodged a report (F.I.R. Exhibit 18). Police Inspector Bhadilkar who was present at the Police Station registered Crime No. 22/91 against the appellant accused for having committed offence under section 22 of the N.D.P.S. Act. P.S.I. Sakhakar handed over sealed packet to P.I. Bhadilkar alongwith C.A. forms and requisitioned for sending the sample to the Chemical Analyser for analysis. Thereafter, P.S.I. Sahkarkar reported the matter to the Deputy Commissioner of Police and also sent its copy to A.C.P. of having successfully conducted the raid. As the Chemical Analysis report was positive and investigation was concluded
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