1999 Supreme(Bom) 663

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
J.N. Patel S.D. Gundewar, JJ.
Ashok s/o Hatimji Kutarmare another..... Appellant.
Versus
State of Maharashtra ..... Respondent.
Criminal Appeal No. 101 and 172 of 1998, decided on 1-9-1999.
Advocates appeared :
M.R. Daga, for appellant.
A.P.P., for State.

The court interpreted and applied various provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, including sections 21, 29, 42, 43, and 50, in the context of the facts of the case, and concluded that the appellants were guilty of the offenses charged.

Headnote:

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTIONS 21, 29, 42, 43, 50 - INTERPRETATION AND APPLICATION - FACTUAL MATRIX - EVIDENCE - WITNESS TESTIMONIES - CHEMICAL ANALYSER REPORTS - LEGAL PROVISIONS - COMPLIANCE - DISCOVERY OF CONTRABAND - PERSONAL SEARCH - FEMALE PANCHAS - PRIOR INFORMATION - SECTION 42(2) - SECTION 50(4) - SECTION 27 OF THE EVIDENCE ACT - RATIO DECIDENDI - CONVICTION AND SENTENCE - CONFIRMATION - APPEALS DISMISSED.

Fact of the Case:

The appellants, Ashok Hathuji Kutarmare and Prema Pramila, were convicted and sentenced under sections 21 and 21 r/w section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possessing and selling brown sugar. The prosecution's case was that the appellants were found in possession of brown sugar during a raid conducted by the police based on secret information. The appellants denied the allegations and claimed that they were falsely implicated.

Finding of the Court:

The court found that the prosecution had established beyond doubt that the appellants were in possession of brown sugar and that they had abetted each other and criminally conspired to sell the brown sugar. The court also found that the provisions of the NDPS Act, including those relating to personal search, discovery of contraband, and compliance with section 42(2) and section 50(4), were duly complied with.

Issues: 1. Whether the provisions of section 42 of the NDPS Act were applicable in the present case, considering that the appellants were found in a public place and not inside a building? 2. Whether the discovery of 9 grams and 290 milligrams of brown sugar from the house of the appellant Prema's mother was a prior information requiring compliance with section 42(2) of the NDPS Act? 3. Whether the personal search of the appellant Prema by a female police officer without the presence of female panchas violated the provisions of section 50(4) of the NDPS Act? 4. Whether the appellant Ashok was informed about his right to have his personal search conducted before a Gazetted Officer or a Magistrate, as required under section 50 of the NDPS Act?

Ratio Decidendi: 1. The court held that the provisions of section 43 of the NDPS Act, which deal with the seizure and arrest of suspected persons in a public place, were applicable in the present case since the appellants were found in a public place. Therefore, the requirement of reducing the secret information into writing and sending a copy to the immediate superior officer under section 42(2) was not applicable. 2. The court held that the discovery of 9 grams and 290 milligrams of brown sugar from the house of the appellant Prema's mother was not a prior information requiring compliance with section 42(2) of the NDPS Act. It was a discovery made at the instance of the appellant Prema under section 27 of the Evidence Act, and therefore, the provisions of section 42 were not attracted. 3. The court held that the personal search of the appellant Prema by a female police officer without the presence of female panchas did not violate the provisions of section 50(4) of the NDPS Act. The intention of section 50(4) is to protect the modesty of a woman and prevent invasion of privacy by unscrupulous investigating agencies. In this case, the appellant Prema was searched by a female police officer in a secluded place, and there was no male pancha present. Therefore, the court found that there was no non-compliance with section 50(4). 4. The court held that the appellant Ashok was informed about his right to have his personal search conducted before a Gazetted Officer or a Magistrate, as required under section 50 of the NDPS Act. The evidence of the police officer and the written document indicated that both appellants were informed of their rights, and they declined to have their searches conducted before a Gazetted Officer or a Magistrate.

Final Decision: The court dismissed both appeals, confirming the conviction and sentences imposed on the appellants by the trial court.