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2002 Supreme(Bom) 898
IN THE HIGH COURT OF BOMBAY
Chitre J.G., J.
Rashidi Ally Chigale another .... Appellants.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 487 of 1997, decided on 28-8-2002.
Advocates appeared :
M.P. Tiwari, for appellants.
Shringarpure, A.P.P., for respondent.
Strict compliance with the provisions of the N.D.P.S. Act, particularly section 50 and section 55, is essential in evidence collection to safeguard the accused's rights and ensure the legitimacy of the judicial process.
Headnote:
N.D.P.S. - Narcotic Drug and Psychotropic Substances - Section 50, Section 55 - The court discussed the compliance of section 50 and section 55 of the N.D.P.S. Act in the context of the appellants' search and seizure. The judgment emphasized the importance of complying with the provisions of section 50 in its real spirit, highlighting the right of the accused to be searched before a nearest Gazetted Officer or a Magistrate and the necessity of affixing the seal of the officer-in-charge of the Police Station on seized samples to prevent tampering before dispatch to F.S.L. The court found non-compliance with these provisions, leading to the acquittal of the appellants.
Fact of the Case:
The appellants were found in possession of narcotic drugs at the airport. The prosecution collected evidence during an illegal search, leading to the appellants' conviction. The appellants challenged the conviction and sentence, citing non-compliance with N.D.P.S. Act provisions.
Finding of the Court:
The court found that the prosecution failed to comply with the provisions of section 50 and section 55 of the N.D.P.S. Act, leading to the evidence being suspect and the conviction being vitiated. The judgment highlighted the importance of safeguarding the accused's rights and the necessity of strict compliance with the law in collecting evidence.
Issues: Non-compliance with N.D.P.S. Act provisions, legality of evidence collection, and the sufficiency of evidence for conviction.
Ratio Decidendi: The judgment emphasized the importance of complying with the provisions of section 50 in its real spirit, highlighting the right of the accused to be searched before a nearest Gazetted Officer or a Magistrate and the necessity of affixing the seal of the officer-in-charge of the Police Station on seized samples to prevent tampering before dispatch to F.S.L.
Final Decision: The appeal was allowed, the order of conviction and sentence was set aside, and the appellants were acquitted of the charge. The court emphasized the need for strict compliance with the law in evidence collection and highlighted the importance of safeguarding the accused's rights.
2.Few facts need to be mentioned for unfolding the prosecution case and the allegations which were made against the appellants which initiated the trial. On 18-3-1995 at about 11 p.m. P.W. 2 V.N. Godbole was doing his duty at Sahar Airport and at that time Pakistan Airline Staff members pointed out one passenger, who was to board flight P.K.-277 for Karachi and was to fly at 11.50 p.m. At that time Godboles Superior Officers, A.C.P. Bodhawade and Senior P.I. Gaikwad who were Gazetted Officers were with him. The person who was pointed out by the Pakistan Airlines Staff members was, as per prosecution case, appellant No. 1. P.W. Godbole and those Police Officers apprehended appellant No. 1 by coming to hold No. 6. He was detained there. P.W. Godbole and those Police Officers decided to take his search and therefore, two panch witnesses were called. P.W. Godbole introduced himself, A.C.P. Shri Bodhawade, Senior P.I. Shri Gaikwad as Gazetted Officers to appellant No. 1 and Godbole asked about his personal search before panchas and such Gazetted Officers. At the same time appellant No. 1 was also informed, whether he wished to have a search to be taken before a Magistrate. The appellant No. 1 did not insist for his search before a Magistrate but agreed for his search before said two Police Officers. His person was searched. He was asked whether any other person was accompanying him in the journey and at that time appellant No. 1 disclosed about appellant No. 2, who had already boarded the flight. He was asked to board out from the flight and was detained in hold No. 6.
3.The appellant No. 1 was wearing jeans pant which was thoroughly examined by P.W. Godbole and he found that around the waist lining under the belt of the said jeans pant there was concealed and packet stitched with both the sides of frontal portion. The said lining was got opened and from it two packets containing brown coloured powder were found. The said powder was packed in two polythene packets and it was surrounded by brown tape for sealing. Both polythene bags were opened and the powder was tested by test kit. It answered positively and P.W. Godbole was satisfied that it was a narcotic drug.
4.The person of appellant No. 2 was also examined and searched. At that time appellant No. 2 was informed that, those two Police Officers were Gazetted Officers and P.W. Godbole asked him, whether he wished to be searched before a Magistrate or Gazetted Officer to which he declined and agreed for being searched before A.C.P. Bodhwade and Senior P.I. Gaikwad. He was wearing a pant and similar type of concealed packet was found in inner lining near belt portion of the pant. The said concealed packet was also wrapped and sealed by tape of brown colour. It was got opened and the powder, which was found was collected and was tested by test kit. It gave positive result and Godbole was satisfied that it was a narcotic drug.
5.The brown powder which was found in possession of both the appellants was separately collected in sample packets. Six sample packets, three from each of 5 gram were prepared in context with each of the appellants in presence of panch witnesses. The cutting of lining and secret packets, collection of the brown powder, testing of it and sealing was all done in presence of panch witnesses, who were called and were present. Panchanamas were prepared, which were signed by panch witnesses. The appellant No. 1 was possessing 200 grams of said powder (which was later on detected to be heroin). The appellant No. 2
