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1994 Supreme(Bom) 300
BOMBAY HIGH COURT
(D.B.)
V.A. Mohta and Vijay Bahuguna, JJ.
Nazir Babalal Makandar - Appellant
versus
State of Maharashtra - Respondent
Criminal Appeal No. 94 of 1993
Decided on 7.7.1994
Counsel for the parties:
For the Appellant : Sachin B. Shetye.
For the Respondent: B.G. Vaidya.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 42 to 57 - Noncompliance - Prosecution contravened mandatory provisions of Sections 42 (1) and 50 Conviction recorded not sustainable. (Balbir Singh's case: 1994 S.C.W. 1802 : Followed)
Held: that no entry was made by Police Inspector Kulkarni of the information which he had received before he left the Police Station in the company of the Panch witnesses to arrest the appellant in connection with possession of brown sugar. The learned Standing Counsel could not place any document before this Court which contains the necessary entry in terms of Section 42(1) of the Act. That being so the appellant's case is covered by the aforesaid decision of the Apex Court and the law laid down in para 26(2C) of the Judgment. Non-compliance with the provisions of Section 42(1) of the Act vitiates the entire proceedings and the trial. The prosecution and trial is further vitiated by non-compliance of Section 50 of the Act which has also been held to be mandatory by the Supreme Court in the case of Balbir Singh referred to above. It was mandatory for the Police Inspector Kulkarni to inform appellant that if he so required, he could be produced before a Gazetted Officer or a Magistrate for the purpose of his search. There is nothing in the evidence of Police Inspector Kulkarni that he informed the appellant of his right under Section 50 of the Act. (Para 7)
Result: Appeal Allowed.
Vijay Bahuguna, J. - Appellant-Nazir Babalal Makandar has been convicted under Sections 8( c ) and 20(b) read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by the Sessions Judge, Sangli and awarded sentence of ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/- in default to undergo R.I. for another six months. The accused is in jail.
2. The prosecution story in a nutshell is that Police Inspector Kulkarni waS attached to Sangli City Police Station when on 7th January, 1992 he received an information that the accused-Nazir was selling brown sugar on a cycle in the vicinity of, Sangli Old Railway Station. On receiving the information, P.I. Kulkarni in the company of the informant and two Panch witnesses, viz., Manohar Vithoba Shinde and Appasaheb Baburao Soudi left the Police Station in jeep to Madhavnagar bus stop. They found the accused standing with the bicycle near Srikrishna Hotel and he was apprehended and P.I. Kulkarni disclosed his identity and on his search found one match box in the pocket of the bush-shirt of the appellant and Rs.150/- in his pocket and also cassette in the pocket of the trousers and 8 small packets of brown sugar. The goldsmith in the presence of the accused and witnesses weighed the brown sugar and weight of the brown sugar which was found to be 500 mg. and weight of the plastic cover was 150 mgs. After weighing the brown sugar, it was kept in a plastic cover and the papers in which brown sugar was kept were kept in one plastic cover and all these articles were sealed and signature of the panch witnesses were obtained on the spot. Police Inspector Kulkarni drew detailed panchnama in the presence of the appellant and thereafter brought him to Sangli City Police Station and complaint was lodged with the Police Station Officer, Sangli City Station i.e. P.H.C. Patil and the complaint is Exhibit 19. P.S.I. Patil registered the Crime No. 13/91 under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 under Sections 8(c), 20(b) and 22. The complaint was registered at about 3.45 p.m. The sealed packets of brown sugar were given in the custody of A.S.I. Shinde and entries were made in the record of Muddamal Register and next day with his forwarding letter sealed brown sugar was sent to the office of C.A, Pune for analysis and the report was received on 25thJune, 1992. The defence of the appellant was one of denial.
3. In support of prosecution case P.W.1 Manohar Vithoba Shinde, Panch Witness P.W.2 Vilas Shankar Asagaonkar a goldsmith who weighed the brown sugar, AS.I. Shinde-P.W.3, P.WA-the Police Constable who issued the forwarding letter with the sealed brown sugar to the office of the C.A andP.W.5-Police Inspector Kulkarni, complainant and Investigating Officer of the crime were examined.
4. P.W.5-Police Inspector Kulkarni in his testimony has told that he had received prior informat.ion that the accused-Nazir Babalal Makandar was selling heroin in the area of Sangli Old Railway Station on his bi-cycle and it Was on receiving this information that he thereafter called two panch witnesses viz. Manohar Vithoba Shinde and Appasaheb Baburao Saudi and after disclosing the information to the Panch witnesses he left the Sangli City Police Station and apprehended the appellant with brown sugar in the presence of the Panch witnesses. He has reiterated the prosecution story as narrated above. P.W.1 Manohar Vithoba Shinde the Panch witness deposed that on 7.1.1992 at about 2.00 p.m. he was called in Sangli City Police Station along with other Panch witness Appasaheb Baburao Saudi and was informed by Police Inspector Kulkarni that they were to act as Panch witnesses on the seizure and search which was going to be made pursuant to the information received by him and that the appellant was in possession of arid selling brown sugar near old Sangli Railway Station. He too has supported the prosecution story in its entirety. P.W.2-Vilas Shankar Asga
