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1998 Supreme(Guj) 538
Gujarat High Court
Judgename :J.N.Bhatt, A.L.DAVE
Bherulal Viraji Kumavat - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 815 of 1990
Decided On : 09/24/1998
Headnote:(a) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 50 - It is obligatory on the part of officer to inform about his statutory right to be searched in presence of a Gazetted Officer or a Magistrate if the person so requires - Search conducted by the P.I. who was a Gazetted Officer & empowered under Secs. 41(2) & 42(1) of the Act - Held, provisions of Sec. 50 are not attracted & there is no non-compliance of the provisions.
Obviously, any officer below the rank of Gazetted status is, therefore, statutorily obliged to follow provisions of Sec. 50 and to ensure free and fair exercise of power, to follow the provisions of Sub-sec. (1), must take such person, without unnecessary delay, to the nearest Gazetted Officer of any one of the departments mentioned in Sec. 42 or to the nearest Magistrate, if, on being asked, such person so requires. This process and the Legislative scheme lends assurance that when an officer is exercising powers under the NDPS Act and who is not a Gazetted Officer, by taking the person upon his choice of being asked to the nearest Gazetted Officer or the Magistrate, that there shall be just and free process of search, seizure and arrest. It, therefore, becomes evident that this statutory mandate is attracted or is coming into play only in a case of an officer, who is duly authorised under the provisions of Sec. 42 and who is not a Gazetted Officer, whereas in the present case, the search was effected by a Police Inspector, who is, admittedly, enjoying a status of Gazetted Officer, as per the relevant State Government notification and, again, it was done at the behest of, under the direction of Superintendent of Police, who is still higher than Police Inspector in hierachy. Again, the S.P. or the P.I., for that purpose, is an empowered officer under Sec. 41 (2) and not 42 (1) of the NDPS Act. Therefore, in our opinion, the provisions of Sec. 50 do not come into play.
[Para 20]
The Gazetted Officer or any officer higher in rank that of the status of a Gazetted Officer empowered under the provisions of Sec. 40 (1) (2) is not obliged to follow the provisions of Sec. 50.
[Para 22]
(b) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 42(2) - Secret information not reduced into writing - It is not required to be complied with if the Officer himself is a Gazetted Officer - Held, provisions of Sec. 42(2) are not attracted.
When an officer takes down any information, in writing, under Sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall, forthwith, send a copy thereof to his immediate superior officer. It is, therefore, obligatory only in a case when an officer, duly authorised under Sec. 42(1), who is not a Gazetted Officer, receives such communication or information.
It shall not apply in a case of exercise of the powers of search and seizure by any such officer of Gazetted rank, as contemplated under Sub-sec. (2) of Sec. 41.
[Para 24]
(c) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 52 - Grounds of arrest - P.I. Malik communicated the grounds of arrest immediately after the arrest - No reason to disbelieve the testimony - Held, provisions duly complied with.
Immediately, after effecting the arrest of the accused, the grounds thereof were communicated and conveyed to the accused. Therefore, there would not arise any question of infraction of any provisions of Sub-sec. (1) of Sec. 52,
[Para 25]
(d) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 57 - Sending of report of search, arrest & seizure within 48 Hrs. - P.I. sent the report to Addl. Police Commissioner on next day.
The special report contemplated by the provisions of Sec. 57 had been sent and it is quite manifest from the testimony of P.I., Mr. Malek, at Ex. 32.
The special report under Sec. 57, Ex. 37 was sent on the very next day, without any loss of time. Again, it has been held that the provisions of Secs. 52 and 57 of the NDPS Act are not mandatory. No. question would arise, in the present case, as to whether any prejudice has been caused in not following the directory provisions.
[Para 26]
(e) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sec. 20(b)(ii) - Recovery of Charas from possession of accused - All provisions duly complied - Held, Trial Court has not committed any error in convicting the appellant.
Article seized from the possession of the accused was CHARAS, which is an illicit and contraband substance. The accused is, rightly, held guilty for the said offence and again, he is rightly, sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1 lakh.
[Para 29]
( 1 ) IN this appeal under Sec. 374 of the Code of Criminal Procedure, 1973 ("code"), against the judgment of conviction under Sec. 20 (b) (ii) of Narcotic Drugs and psychotropic Substances Act, 1985 ("ndps Act"), and sentence of 10 years rigorous imprisonment and fine of Rs. 1,00,000/-, in default further imprisonment of 2 years and conviction under Sec. 66 (l) (b) of the Bombay Prohibition Act, 1949, and sentence rigorous imprisonment for 3 months and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for 15 days, recorded by learned City Civil and Additional sessions Judge, Court No. 9 Ahmedabad, on 20. 8. 1990 in Sessions Case No. 62 of 1990, we are called upon to determine and decide as to whether the impugned order of conviction and sentence is justified or not.
( 2 ) THE appellant is original accused and the respondent is State of Gujarat. The appellant, hereinafter, will be referred to as "accused" for the sake of convenience and brevity. Accused was prosecuted before the trial Court. At this stage, therefore, let us have a relevant spectrum of material facts giving birth to this appeal. As per the prosecution case, Police Inspector of Maninagar Police Station, Ahmedabad, Mr. I. M. Malek, P. W. 8 who is examined at Ex. 32, received secret information, at about 11. 00, a. M. , on 19. 12. 1989, when he was on duty at the Police Station.
( 3 ) THE information received was to the effect that, a person dressed in a white pant and bush shirt, and wearing a woolen pull-over of dark brown colour has brought a huge quantity of CHARAS and was to deliver the same to some person near Shah-Alam darwaja, at Ahmedabad, before 2. 00 P. M. Superintendent of Police, Mr. S. G. Bhati, was also present when such information was received by the P. I. That is how P. I. , Malek, decided to conduct a raid and search, for which he called two Panchas, P. W. 1 Rajbahadur nathusing, Ex. 11 and P. W. 2-Chandrakant Chunilal, Ex. 12, at the Police Station and apprised them of the contents of the secret information he had received. Thereafter, preliminary Panchnama came to be drawn in presence of Panch between 11. 15 and 11. 30 hours on the same day.
( 4 ) THE police party with the Panchas started its voyage for the place where they suspected the contraband article and the person to be, as per the secret information received. They kept a watch in the vicinity of area known as "f" Colony corner, near shah-Alam Darwaja, Ahmedabad. 15 minutes thereafter, one person of the description stated in the said information was seen approaching on the road leading from Shalimar talkies to Shah-Alam Darwaja. P. I. , Mr. Malek, having spotted him, invited the attention of the Panchas and officers of the Police, who were present, including S. P. Mr. Bhati. They found that the suspected person was carrying two bags, one made of a black rexine and the other a cloth bag of dark colour and there was heavy weight in both the bags.
( 5 ) P. I. Malek stopped him and inquired of him. He was asked to give his name and address. That person narrated his name as Bherulal Viraji Kumavat, appellant-original accused. He was a resident of Pali, in the State of Rajasthan. On further inquiry, the bags carried by the said person were checked and upon the checking, some material in plastic bags was found from the black rexine bag. 14 packets of black colour substance wrapped in red colour plastic papers were found below "loincloth" of green colour with design. Out of the said 14 packets, 8 packets were bigger in size, admeasuring 11 "x7 1/2", whereas remaining 6 packets were, comparatively, smaller, admeasuring 11" 6". On each packet there was a writing in the Urdu script on both ends.
( 6 ) IN the other bag of dark colour, again 20 packets of 11" x 8 size were found. These packets were wrapped in red coloured plastic papers and contained a black colour substance. The substance contained in the said 34 packets was suspected to be CHARAS from the smel
