Back
2014 Supreme(Bom) 1185
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
REVATI MOHITE DERE, J.
Shaikh Ibrahim Shaikh Usman - Appellant
V/s.
The State of Maharashtra - Respondent
CRIMINAL APPEAL NO.985 OF 2010
Decided on: 19th June, 2014
Mr. Sherali S. Khan, for the Appellant.
Mrs. P.P. Shinde, APP for the State.
Noncompliance with Section 50 of the NDPS Act vitiates the search and the conviction.
Headnote:
NDPS Act - Noncompliance of Section 50 - [FACT OF THE CASE] The appellant was convicted for the offence under Section 20(b)(ii) of the NDPS Act based on the seizure of ganja from him. The appeal challenged the conviction on the grounds of noncompliance with Section 50 of the NDPS Act. [FINDING OF THE COURT] The court found that there was noncompliance with Section 50 of the NDPS Act, as the person of the appellant was also searched in addition to the aluminum tin box, and the prosecution failed to give an offer to the appellant of being searched by the Executive Magistrate or the Gazetted Officer. The non-examination of the panchas further weakened the prosecution's case. [ISSUES] The main issue was whether there was compliance with Section 50 of the NDPS Act. [RATIO DECIDENDI] The court held that when the person of the appellant was searched in addition to the aluminum tin box, Section 50 of the NDPS Act applied, and the noncompliance with this provision vitiated the search and the appellant's conviction. The non-examination of the panchas further weakened the prosecution's case. [FINAL DECISION] The appeal was allowed, and the appellant was acquitted of the offences punishable under Section 20(b)(ii) of the NDPS Act.
1. This Appeal is directed against the Judgment and Order dated 13th December, 2010, passed by the learned Additional Sessions Judge, Malegaon in Sessions Case (NDPS) No.11 of 2004, convicting the Appellant for the offence punishable under Section 20(b)(ii) of the NDPS Act. For the said offence, the Appellant has been sentenced to undergo R.I for 7 years and to pay a fine of Rs.15,000/, in default to suffer R.I. for 1 year and 9 months. The said Judgment and Order of conviction and sentence of the Appellant is challenged by way of this appeal.
2. According to the prosecution, on 20th August, 2004, PW.2 – API Ashok Bagul, was called by the Dy.S.P – Kumbhare, to his cabin. At that time, PW.2 – API Bagul was a member of the special squad of Dy.S.P. The Dy.S.P – Kumbhare passed on the information to PW.2 – Ashok Bagul, that the present Appellant was going to bring ganja to his house for selling the same. Accordingly PW.2 – API Bagul passed on the said information to his officers. Panchas, photographer and Tahsildar were called. All of them were informed about the purpose of the raid. The secret information so received was also communicated to the Superintendent of Police, on paper, by a special messenger. Accordingly, all entries to that effect were made in the station diary.
3. Thereafter, the police party along with the panchas, photographer and Tahsildar & Executive Magistrate, proceeded towards the house of the appellant. The raiding party saw the appellant coming by the Kusumba road with an aluminum utensil. PW.2 – API Bagul and the Tahsildar are stated to have stopped the appellant and ascertained his name. On search, 1 kg ganja was found in the bags, pursuant to which samples and photographs were taken and panchanama came to be prepared, vide Exhibit – 25. Thereafter, PW.1 ASI Subhash Aher, lodged a complaint as against the Appellant for the aforesaid offences. Thereafter, the samples which were collected during the raid, came to be sent to the Chemical Analyst on the very next day i.e. 21st August, 2004. After investigation, chargesheet came to be filed and the case came to be committed to the Court of Sessions, Malegaon, the case being Sessions triable. The appellant pleaded ‘not guilty’ and claimed to be tried.
4. The prosecution in support of its case examined 7 witnesses. PW.1 ASI Subhash Aher, the complainant, PW.2 – API Ashok Bagul ; PW.3 – Datatraya Handage – Police Naik; PW.4 API Abdul Gaffar Sardar Shaikh, recorded statement of witnesses and arrested the appellant ; PW.5 – Vijaykumar Bhangare, who at the relevant time was Tahsildar as well as the Executive Magistrate, Malegaon ; PW.6 Sanjay Gunjal, the police constable who carried the samples and deposited the same with the Chemical Analyser and PW.7 – Mohammad Yunus Mohammad Yusuf, the photographer.
5. Mr.Sherali S. Khan, learned counsel for the Appellant advanced several submissions with regard to the noncompliance of the provisions of Sections 41, 42(1) (2) and Section 50 of NDPS Act, non –examination of panchas, with regard to seizure and sealing of contraband. He submitted that PW.5 – Bhangare was not authorised to conduct the raid. He contended that this Appeal ought to succeed principally on the ground of noncompliance of Section 50 of the NDPS Act.
6. The question that arises for consideration in the said case, is whether Section 50 of the NDPS was complied with or not. It is therefore necessary to consider the evidence of the prosecution witnesses with regard to the same. At the relevant time, PW.1 – ASI Aher, was attached to the Ayesha Nagar Police Station, Malegaon and was a member of the Special Squad of which PW.2 – API Bagul and PW.3 Handage were members. PW.1 Aher has deposed that Dy.SP. Anil Kumbhare had received information on 20th August, 2004, about the appellant bringing ganja for sale. The said information was passed on by the Dy.SP to PW.2 – API Bagul. Accordingly, PW.2 – API Bagul called PW.1 and four constables and disclosed to th
