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Gujarat High Court
Judgename :A.K.TRIVEDI, J.N.Bhatt
Mafaji Movataji Thakor - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 742 of 1993
Decided On : 10/08/1998
The accused was searched by PI Mr. Parmar who was acting as authorised Gazetted Officer, under Sec. 41 (2) and not an authorised person under Sec. 42 (1) of the NDPS Act. The question of violation of the provisions of Sec. 50, therefore does not arise in the present case. It was, therefore, not necessary for the PI to comply with the provisions of Sec. 50 of informing the accused about his right to be searched in presence of a Gazetted Officer or a Magistrate. Since he was himself an authorised Gazetted Officer contemplated by the provisions of Sec. 41 (1) and not under Sec. 42 (1) of the NDPS Act, in our opinion, there was no any breach of the mandatory provisions of Sec. 50 of the NDPS Act.
[Para 8]
(b) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 50 - Applicability of provisions - When searching officer is not a Gazetted Officer, compliance of the provision is mandatory & provisions are applicable.
It is true that, it is obligatory on the part of the officer who is not a Gazetted Officer to inform the person to be searched and the officer undertaking the exercise is one of the officers under Sec. 42 (1) and not a Gazetted Officer, he is obliged to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate would tantamount to non-compliance of the provisions of Sec. 50 of the NDPS Act.
[Para 9]
(c) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 20(b)(ii) & Secs. 35 & 54 - Recovery of `Charas from pocket of pant - No inconsistency between evidence of PW. 2 & PW. 3 - Contraband recovered from conscious possession of the accused - Presumption under Secs. 35 & 54 is against the accused & it is the duty of the accused to explain the possession - Contraband was Charas is well corroborated from FSL report - Held, accused is guilty of the offence & conviction upheld.
Both the contradictions or discrepancies are at the micro level and they, in fact, would not, in any way, affect the main core and the substance of the prosecution case, about illegal possession of contraband article, Charas weighing 15 gms. searched and seized from the accused. It is, therefore, very clear from the evidence on record that the prosecution has established, without any doubt, that the accused was in illegal possession of the contraband article, Charas of 15 gms. and since he was found to be in exclusive, conscious possession of the contraband article, without any pass and permit under the NDPS Act, the presumption under Sec. 35 and Sec. 54 would come into play. It is, rightly, held by the trial Court that the accused is guilty of the offence punishable under Sec. 20 (b) (ii) read with Sec. 8 of the NDPS Act, as the contraband article searched and seized from the person of the accused was, positively. certified and reported to be Charas, which is covered under the contraband, prohibited item and any use or possession etc. in respect of such narcotic drug or psychotropic substance under the NDPS Act is an offence and in light of the facts and circumstances and in the clear evidence of the prosecution the Trial Court has, rightly, held the accused guilty of the offence Punishable under Sec. 20 (ii)
[Para 11]
( 1 ) THE short question which surfaces in this appeal before us is, as to whether the order of conviction and sentence recorded by the learned Addl. Sessions Judge, Mehsana, in Sessions Case No. 49 of 1993, on 25-6-1993, holding the accused guilty under Section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is vulnerable, in view of the provisions of Section 50 of the NDPS Act?
( 2 ) THE appellant-original accused was charged before the trial Court, as per Exh. 2, under Section 20 read with Section 8 of the NDPS Act for having possession of 15 gms. of contraband article Charas, which was searched and seized from his pocket of the pant, at about 9. 00 a. m. on 13-12-1992, in the area, known as Ganj Bazar in Mehsana town, to which he denied and claimed to be tried.
( 3 ) THE prosecution case has been that, on the aforesaid day and time, the accused was found in possession of 15 gms. of Charas, on being raided and searched by the Police party led by PW-3 Police Inspector Mr. S. A. Parmar (Exh. 19 ). Upon the prior information, said Mr. Parmar of City Police Station, Mehsana, conducted the raid. As per the prior information, accused Mr. Thaker Mafaji, was dealing with contraband article like Charas without licence and permit. Upon getting the information, panchas were called and they were informed about the intimation received by the police. The first part of the panchnama was prepared in the police station. Thereafter, complainant Mr. Parmar led the team to the Ganj Bazar area. It was noticed by the raiding party that the accused was dealing with and selling Charas in the market known as Ganj Bazar. After observing the necessary formalities, the person of the accused was searched and in the course of the search, 15 gms. of Charas was recovered from the pocket of the pant of the accused. It was wrapped in polythene bag which bore mark of "mahesh Tea". The contraband article was weighed after bringing a scale from a Gold Smith and the said article weighed about 15 gms. Upon being asked, the accused had no any pass, permit or licence required under the NDPS Act.
( 4 ) THE muddamal Charas was collected and packed up in a cloth bag and after stitching it, the signatures of panchas and the officials were put on the cover with a seal of Mehsana Police Station. Thereafter PSI Mr. Barot who was also forming the raiding party lodged the complaint before PI. Mr. Parmar, which is at Exh. 16. The offence came to be registered against the accused with a Yadi of Mehsana Police Station to CPO. The accused was also arrested. The charge-sheet followed, and thereafter the accused was charged, as stated hereinabove, at Exh. 1 by the trial Court, under Section 20 read with Section 8 of the NDPS Act. The muddamal sample which was collected after observing the necessary procedure, was forwarded to the Forensic Science Laboratory (FSL), for opinion and report and upon receipt of the report, produced at Exhs. 9 and 10, it was noticed that the sample collected and seized from the pocket of the accused was contraband article Charas.
( 5 ) IN order to substantiate and fortify the charge against the accused person, the prosecution placed reliance on three prosecution witnesses. PW-1 Chandulal Chimanlal is examined at Exh. 12. He was one of the panchas. He has fully supported the prosecution case. It is evident from his testimony, at Exh. 12 that, along with other panch Girish Parmar, the Police Inspector had raided and searched the accused. When the raiding party in a police jeep reached in the Ganj Bazar area, at that time, the accused, on seeing the police jeep, started fleeing, who was caught by the police and his person was searched in presence of panchas by the police officers. The second part of the panchnama was concluded. It was produced at Exh. 14 before the trial Court. It becomes very clear from the evidence of the panch witness Chandulal that the accused was found in possession of 15 gms. of Cha
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