2002 Supreme(Bom) 616

IN THE HIGH COURT OF BOMBAY
J.G. Chitre, J.
Koyappakalathil Ahamed Koya .... Appellant.
Versus
A.S. Menon, Inspector of Customs (P)
Narcotics Cell another.... Respondents.
Criminal Appeal No. 337 of 1998, decided on 1/2 3-7-2002.
Advocates appeared :
Ms. Y.N. Katpitia with Ms. R.B. Amrolia, for appellant.
Prakash Thakur, for respondent No. 1.
A.S. Gadkari, for respondent No. 2.

Headnote:

Appellant was convicted for offences punishable under provisions of section 21 read with section 8(c) and section 28 read with section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "N.D.P.S. Act" for convenience). The appellant challenged the correctness, propriety and legality of the judgment and order passed by Additional Sessions Judge, Greater Mumbai in N.D.P.S. Special Case No. 106 of 1997 wherein the appellant has been convicted for the said offences.

Fact of the Case:

In the night between 11th and 12th of December, 1996 Superintendent of Customs, Preventive Unit, Shri Babulal Vedprakash Gautam was on duty at N.I.P.T. Sahar, along with other Customs Officers and Intelligence Officers, namely, Albert John Issac (P.W. 1), Shri Bichhu Borkar. As per the prosecution case either Shri Issac or Gautam saw the appellant moving in a suspicious way carrying hand bag in his hand in the premises of the said airport. He was accosted and after accosting him, P.W. Issac stopped him. P.W. 1 Issac brought two witnesses from assistants of Air India Staff. One of them was Balchandran (P.W. 3). The appellant was searched in transit lounge after telling him that he was entitled to be searched before nearest Gazetted Officer or a Magistrate. The appellant, as per the prosecution case, opted to be searched by Gautam, Issac, Bichhu Borkar and panch witnesses. When the said bag was opened, it was noticed that it was having an inner compartment which was opened and it was found that two polythene bags containing some powder were kept in the said secret chamber. Those polythene bags were emptied on a piece of paper. Thereafter sample packets were taken for Chemical Analysis and remaining powder was packed in the packet. Sample packets as well as the bag containing remnants of the powder was packeted and sealed, a panchanama was drawn and the appellant was taken to Police Station building of Sahar Police Station. The same sample packets and the remaining packet were handed in possession of Shri Menon who impressed his seal on it and kept those packets in his custody till sample packets were dispatched per messenger for chemical analysis.

Finding of the Court:

The appellant was convicted for offences punishable under provisions of section 21 read with section 8(c) and section 28 read with section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "N.D.P.S. Act" for convenience).

Issues: 1. Whether the appellant was found holding the bag or whether that bag was collected from Module II and not from the hands of the accused-appellant. 2. Whether the provisions of section 50 of the N.D.P.S. Act were complied with. 3. Whether the appellant was informed about his right to be searched before a Gazetted Officer or Magistrate, as required by section 50 of the N.D.P.S. Act.

Ratio Decidendi: 1. The court held that the prosecution failed to prove beyond a reasonable doubt that the said bag was found in possession of the appellant or the appellant was found holding that bag. The possibility of the said bag being foisted upon the appellant and the appellant being implicated for some other as a scape goat cannot be ruled out. 2. The court held that the provisions of section 50 of the N.D.P.S. Act were not complied with. The appellant was not informed about his right to be searched before a Gazetted Officer or Magistrate, as required by section 50 of the N.D.P.S. Act. The court held that the failure to inform the appellant of his right to be searched before a Gazetted Officer or Magistrate vitiated the conviction and sentence of the appellant. 3. The court held that the appellant was not informed about his right to be searched before a Gazetted Officer or Magistrate, as required by section 50 of the N.D.P.S. Act. The court held that the failure to inform the appellant of his right to be searched before a Gazetted Officer or Magistrate vitiated the conviction and sentence of the appellant.

Final Decision: Appeal allowed. The judgment and order of conviction passed by the learned Additional Sessions Judge against the appellant stands set aside. He stands acquitted. He be set at liberty if not required for any other enquiry, proceedings or trial. He be also not released if he happens to be convicted for any other crime and happens to be undergoing the sentence.