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2003 Supreme(Guj) 702
Gujarat High Court
Judgename :A.L.DAVE, K.R.VYAS
IQBALKHAN AYUBKHAN PATHAN - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL 413 of 1999
Decided On : 12/19/2003
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) - Sec. 20(4)(2) read with Sec. 24 - Conviction - Validity - Conviction challenged on ground of non-compliance with Sec. 42(1) & Sec. 50 - On facts challenge is not sustainable - A written offer was made to accused appellants if they wanted to be searched in presence of a Gazetted Officer or Magistrate - Accused persons declined the offer - Further in the facts complainant was justified in conducting the search of premises without complying with the requirement of Sec. 42(1) - Court consequently confirmed the conviction of appellants.
It is, clear that the written offer was made to all the accused as to whether they would like to be searched in presence of a Gazetted Officer or Magistrate and after acknowledging the said offer, they turned down the offer orally and, therefore, naturally that fact did not form part of Exh. 21. Thus, the procedure adopted by the complainant cannot be criticised as violative of Sec. 50 of the Act. We accordingly see no substance in the first submission advanced on behalf of the accused.
[Para 8]
The Court, while construing provisions of law, should not strictly interpret it so literally so as to render its compliance, impossible. In other words, if in a case, the following of mandate strictly results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. Considering the facts and circumstances of the present case, in our opinion, the complainant Mr. Gohil was justified in raiding the premises without following requirement of Sec. 42(1) of the Act.
[Para 9]
( 1 ) THE appellants (original accused nos. 1 to 5) of Sessions Case No. 117 of 1998 have filed these appeals under section 374 of the Code of Criminal Procedure against the common judgment and order dated 10. 3. 1999 passed by the learned Addl. City Sessions Judge, Court No. 10, Ahmedabad convicting accused for offences punishable under sections 20 (b) (ii) read with section 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing each of the accused to suffer R. I. for ten years and to pay a fine of Rs. 1 lac, in default, to undergo further R. I. for one year. It may be stated that Firozabibi who is shown as accused no. 6 in the judgment, is the accused in Sessions Case No. 321 of 1998. Both the Sessions Cases were tried together and by common judgment, the said Firozabibi was acquitted.
( 2 ) THE facts giving rise to the prosecution case may be briefly stated as under: on 12. 1. 1998 at about 23. 55 hours, Raisinh Shivubha Gohil, who at the relevanttime was serving as Police Inspector, Dariapur Police Station, received written information from Police Constable Balvantsinh. He entered the said information in Station Diary Ex. 60 vide Item No. 29. He contacted Assistant Commissioner of Police through mobile and conveyed the information received by him. The Asstt. Commissioner of Police Mr. Sadhwani informed him that he was coming at the police station. In the meantime, PI Gohil prepared a written report and enclosed the copy of the information and kept it in a sealed cover. ACP entered the chamber of PI Gohil at about 0. 5 hours. PI Gohil obtained signature of ACP in Despatch Book and handed over sealed cover to him and also made necessary entry in the Station Diary. Police Constable Surendrasinh was thereafter sent to call panchas. The panchas were thereafter read over the information received by PI Gohil. Preliminary panchanama Ex. 147 was drawn at the police station duly signed by the panchas as well as PI Gohil and ACP Mr. Sadhwani. The raiding party including panchas as well as ACP and other staff members thereafter proceeded towards Sultan Maholla. After entering into Khajuri street, they entered yellow colour building situated near electric pole. After climbing steps, they entered the room and saw six persons sitting there. They were made to sit in the same position. However, one person tried to escape from the western door leading to gallary. He jumped from the gallary and fell down on tin sheet. After causing some damage to the tin sheet, he fell down on the ground. Head Constable Rambhai and Police Constable Abdul immediately caught hold of the said person. The blood was oozing out from the head of that person. On being inquired about him, he disclosed his name to be Rameshchandra Maneklal, A5. On being inquired about the names of the persons in the room, they disclosed their Iqbalkhan, A1, Firozkhan Mahmad, A2, Aslamkhan, A3 and Abdul Hamid,a4. One boy Shahnavaz Khan Alamkhan was also present in the room. PI Gohil thereafter informed those persons in writing as to whether they would like to be searched in presence of a Gazetted Officer or an Executive Magistrate and obtained their signatures and the signatures of panchas on the said writing at Ex. 21. All the accused were given separate copy of Ex. 21. The accused did not show any inclination to call either a Gazetted Officer or Magistrate at the time of search. Those persons were also informed about the information received by PI Gohil. The search of A5 was carried out first in point of time. From the right pocket of his pant, the raiding party recovered smoking pipe. The same was seized and thereafter wrapped in a Khakhi paper and put in a cover. The cover was thereafter closed. The slips containing signatures of PI Gohil as well as panchas were affixed by applying sealing wax bearing the name of PI Dariapur. A5 was thereafter sent to Civil Hospital by police for the purpose of treatment. From the search of A1, from his right
