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2001 Supreme(Guj) 791
Gujarat High Court
Judgename :AKSHAY H.MEHTA, K.R.VYAS
IQBAL AHMED MOHMAD HASAN MOMIN - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 1147 of 1995
Decided On : 11/29/2001
Headnote:Narcotic Drugs & Psychotropic Substances Act, 1985 (Central Act 61 of 1985) — Secs. 8(c), 22, 43 & 50 and Chapter IV — Search & seizure of `Charas — Neither wish of accused was ascertained nor search was carried out in presence of Gazetted Officer or Magistrate — Held, mandatory requirement of Secs. 43 and 50 not followed — Hence, trial against accused appellant is illegal and bad in law — Impugned order of Addl. Sessions Judge convicting and sentencing accused to imprisonment and fine was quashed and set aside — Direction issued to the respondent State to release the accused forthwith.
Conjoint reading of Sec. 43 and Sec. 50 of the NDPS Act makes it clear that before effecting any search of any person, the concerned authorised officer is required to take such person to the Gazetted Officer or to any nearest Magistrate without unnecessary delay. By necessary implications the search is required to be carried out in presence of the Gazetted Officer or the nearest Magistrate. The concerned authorised officer is under an obligation to inform the concerned person to exercise the option. This is the minimum the concerned authorised officer is required to do under these provisions. In other words, before giving such option to the concerned person, the concerned empowered officer is not authorised to effect search and seize the narcotic drug or psychotropic substance.
It is clear that no opportunity to the appellant to be searched before a Gazetted Officer or a Magistrate was given to him nor he was made to aware of that right and, therefore, prosecution in the instant case, in Court opinion, has not complied with the provisions of Sec. 50, which in turn would affect the prosecution case and vitiate the trial.
It is clear that if a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrest a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of the Code of Criminal Procedure and when such search is completed at that stage Sec. 50 of the NDPS Act would not be attracted. In the instant case, as per the evidence of the complainant, the appellant was caught when he was found in a suspicious condition and on making interrogation he informed the police that he is having Charas tablets. Thereafter superior officer was immediately called and search was carried out. Thus, the concerned officer in the instant case is already having information that the appellant is carrying the narcotic drug and he is also having reason to believe that an offence punishable under Chapter IV has been committed; in that event he is expected to follow the provisions of Sec. 50, namely that the appellant is having an option that the search is to be carried out in presence of the Gazetted Officer or a Magistrate. Thus, the Ld. trial Judge having misread the law laid down by the Apex Court in the case of Balbir Singhs reported in 1994 (3) SCC 299 and committed error in convicting the appellant.
[Para 7]
( 1 ) THE appellant by this appeal has challenged the judgment and order of conviction and sentence dated 25th July, 1995 passed in Sessions Case No. 100/1993 by the Ld. Addl. Sessions Judge, Surat convicting him for the offences punishable under Sections 8 (C) and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ndps Act) and sentenced him to suffer RI for 10 years and to pay fine of Rs. 1,00,000. 00, in default to undergo simple imprisonment for one year.
( 2 ) P. S. I. Mr. Mahmedkha Ahmedkha Baloch, P. W. 5 Exh. 13 is the complainant, who has filed complaint at Exh. 14. It is alleged against appellant that on 20/2/1993 at about 0. 15 hours the complainant with other police officers were on patrolling duty in Athwa Police Station area. The appellant was found near public urinal in a suspicious condition. After searching his person, a small packet was recovered from the pocket of the shirt. After opening the same there were severe smaller packets each containing tablets of Charas weighing 10 grams. The same were seized under panchnama and the appellant was arrested for possessing illegal Charas without pass or permit. Exh. 15 is the report submitted by the Assistant Director, Forensic Science Laboratory, Ahmedabad, wherein he has opined that the brownish black material weighing 8. 530 grams seized from the appellant is found to be Charas. Exh. 16 is also a report of botanical tests of the substance carried out by Forensic Science Laboratory. It also confirms that the material sent by Athwa Line Police Station contained botanical material of cannabis sativa (Charas ).
( 3 ) IN order to bring home the charge levelled against the appellant the prosecution has mainly relied upon the evidence of complainant Mahmedkha Baloch P. W. 5 Exh. 13, the then Police Inspector Harkishan Pritamdas P. W. 1 Exh. 6 and Chhotubhai Bhanabhai Patel P. W. 4 Exh. 10. Two panchas examined in the present case, namely Saiyed Nasruddin Sirajuddin, P. W. 2 Exh. 7 and Mahmed Rafik Abdul Karim P. W. 3 Exh. 8 were declared hostile.
( 4 ) THE Ld. Addl. Sessions Judge, Surat, who tried the case, at the end of the trial, found that the prosecution has successfully established the case against the appellant. He, therefore, convicted the appellant and imposed punishment as stated hereinabove.
( 5 ) LEARNED counsel Mr. Supehia appearing for the appellant submitted that the prosecution in the instant case has not followed the mandatory requirement of sections 43 and 50 of the NDPS Act in as much as neither the wish of the appellant was ascertained u/s. 50 of the NDPS Act nor search was carried out in presence of the Gazetted Officer or the Magistrate and, therefore, the order of conviction and sentence is bad and unsustainable in law. To substantiate his argument, reliance is placed on certain authorities. We will refer to them at an appropriate stage. Mr. H. H. Patel, Ld. APP on the other hand supported the judgment of the trial Court in toto.
( 6 ) P. S. I. Mr. Baloch is the complainant in the instant case. According to him on 20/2/1993 he was serving as P. S. I. in Athwa Line Police Station, Surat. At about 0. 15 hours he in the company of Police Inspector Shri Sharma and other staff members had gone for night patrolling. At about 0. 30 hours they saw appellant in suspicion condition near public urinal at Bhagol Cotsfil road. On being interrogated, he has given his name as Iqbal Ahmed Mohmed Hasan Momin of Surat city and has further informed that he is having tablets of Charas. The complainant thereafter informed S. P. Shri Patel by wireless. Shri Patel immediately reached the spot and he was told the facts. The Panchas were thereafter called and panchnama was prepared. Thereafter search of the person of appellant was carried out and one packet containing small 7 packets having Charas tablets, from the pocket of the shirt of the appellant was found. They were seized under panchnama. After applying seal, nec
