1999 Supreme(Guj) 527

Gujarat High Court
Judgename :H.R.Shelat, M.S.Parikh
RAVISHANKAR BHAGVATIPRASAD - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 774 of 1995
Decided On : 10/05/1999

Headnote:(a) Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) - Sec. 50 - Search - Searching Officer was himself a Gazetted Officer - Nearest Gazetted Officer or a Magistrate - Both the options given to accused - Held, there is no non-compliance of the mandatory provisions of Sec. 50.

       The provisions does not speak about informing the accused that the accused has a right to be searched in presence of a nearest gazetted officer or a nearest Magistrate. It speaks about informing the accused as to whether he would require to be searched in presence of a nearest Gazetted Officer or a nearest Magistrate.

       [Para 5]

       Mr. Kapadia read before us the evidence of the Investigating Officer, Mohammed Sadiq Suleman Khara, where he has testified about having asked the accused whether he wanted to be searched in presence of a Magistrate. But after going through the Panchnama Ex. 14, it could be noticed that both the options were given and, therefore, that question does not arise in the present appeal. Even if such question arises, in our considered opinion, the same would be covered by our aforesaid decision in Salimuddins case.

       [Para 6]

       (b) Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) - Sec. 41(2) - Search after sun set - Contention that search could not be conducted after sun set - No evidence of sunset on record - Searching Officer was himself a Gazetted Officer & empowered to conduct search without any authorisation - Search conducted of person only - Held, no illegality in the search.

       Court does do not have any evidence or statements before the learned Sessions Judge that the accused came to be searched after Sunset. It is true that at and after 7.00 OClock in the evening the incident as a whole had taken place. However, what is spoken to in the aforesaid provision is that any officer of a gazetted rank of the department stated in the provision may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place.

       The searching officer in this case was a gazetted officer, namely the Police Inspector. In the second place, the argument would not be available bearing in the mind the search contemplated under the provision is that of a building, conveyance or place. Therefore, the submission that in the absence of authorisation for carrying out a search by day or by night, the search of the person of the accused carried out at and after 7.00 p.m. on the day of the incident would be illegal will not hold good.

       [Para 7]

       (c) Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) - Sec. 42(2) - Plea of non-recording of the information & non-sending of copy to immediate superior - Information received when P.I. was on patrolling duty - Case of personal search - Facts recorded in complaint & Panchnama & copy send to immediate superior after the occurrence - Recording grounds of information & to forward forth with to immediate superior Officer is not necessary - No non-compliance of the provisions.

       When the P.I., Mr. Mohammed Sadiq Suleman Khara and his colleagues were on a prohibition patrolling, suddenly the information in question was received. There would not be time enough to record in writing the information and send it to the higher officer in advance. The whole effort of locating or preventing the crime would be frustrated.

       [Para 8]

       (d) Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) - Sec. 55 - Plea of non-putting seal by P.S.O. on the samples - P.I. handed over the sealed sample & article - It is not necessary for incharge of Police Station to affix a separate seal on the sample - Sample sent to FSL on the same day - No possibility of temper-with of the sample - Plea is not tenable.

       The box containing the muddamal article duly sealed came to be handed over to the police station officer who had preserved the same in the same condition and the whole of the muddamal duly sealed was sent to the FSL.

       In case the Officer seizing the articles has affixed the seal at the place of seizing the articles or at any other place and after that, the articles are delivered to the officer in charge of the Police Station, it will not be necessary for the Officer in charge of the Police Station to affix his seal. Section 55 does not provide for any such procedure.

       Court Might note that similar is the present case but on a better footing inasmuch as on the same day the muddamal article has been arranged to be sent to the Forensic Science Laboratory and there was no action of separating the samples from the muddamal article and sending the same to the FSL.

       [Para 10]

       (e) Criminal Trial - Investigation - Investigation done by the person who accompanied the raiding party - It neither affect the prosecution nor cause any prejudice to accused - Credibility of prosecution not doubtful & trial is not vitiated.

       Even if Mr. Mahendrasingh Ratnasinh Chavda, PW. 8 Ex.29 was present at the time of the incident carried out the subsequent investigation with regard to the other accused, as would appear from his evidence, it would neither affect the prosecution case nor cause any prejudice to the accused. It might be noted that Mr. Mahendrasinh Ratnasinh Chavda is not the self-same person searching the accused and attending to the inident as a searching officer. This fact cannot be disputed. Having gone through the evidence as a whole, we find that the alleged infirmity would hardly reflect on the credibility of the prosecution case.

       [Para 11]