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2006 Supreme(Guj) 175
Gujarat High Court
Judgename :C.K.BUCH, H.N.DEVANI
AJITBHAI ISMAILBHAI PINJARA - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL 1280 Of 1999
Decided On : 03/09/2006
Non-compliance with the mandatory provisions of Sections 42 and 50 of the NDPS Act and the directory provision of Section 57 of the NDPS Act vitiates the conviction.
Headnote:
In a case involving the seizure of Charas from the appellant under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Gujarat High Court held that the conviction could not be sustained due to non-compliance with the mandatory provisions of Sections 42 and 50 of the NDPS Act and the directory provision of Section 57 of the NDPS Act. The Court found that the prosecution failed to prove substantial compliance with Section 50 of the NDPS Act, and the non-availability of the report prepared under Section 57 of the NDPS Act created serious prejudice to the appellant's case. The Court also held that the appellant was not searched in the presence of a gazetted officer or a magistrate as required under Section 50 of the NDPS Act, and the written intimation allegedly given to the appellant was not prepared in a transparent manner. The Court further observed that the non-production of the copy of the information received by the police officer and the report sent by him to his superior officer raised a big shadow of doubt and gave rise to the argument that the information was materially different from that mentioned in the panchanama. The Court concluded that the recovery and seizure of Charas from the appellant was stained with serious procedural irregularity and that the prosecution failed to establish a trustworthy and adequate case against the appellant.
Fact of the Case:
The appellant was intercepted and searched by a police team led by Police Inspector (PI) Mr. Chauhan, who was a gazetted officer empowered under Section 41 of the NDPS Act. The police team had received information that the appellant was involved in the sale and trafficking of Charas. During the search, a plastic bag containing Charas was found in one of the pockets of the appellant's clothing. The appellant was arrested, and the Charas was seized. The appellant was charged with offenses under Sections 8(c) and 21 of the NDPS Act.
Finding of the Court:
The Gujarat High Court found that the prosecution failed to prove substantial compliance with Section 50 of the NDPS Act, which requires the searching officer to inform the accused of his right to be searched in the presence of a gazetted officer or a magistrate and to obtain the accused's signature on a written intimation to that effect. The Court also found that the non-availability of the report prepared under Section 57 of the NDPS Act, which requires the searching officer to send a report of the arrest and seizure to his immediate official superior within 48 hours, created serious prejudice to the appellant's case. The Court further held that the appellant was not searched in the presence of a gazetted officer or a magistrate as required under Section 50 of the NDPS Act, and the written intimation allegedly given to the appellant was not prepared in a transparent manner.
Issues: 1. Whether the prosecution proved substantial compliance with Section 50 of the NDPS Act? 2. Whether the non-availability of the report prepared under Section 57 of the NDPS Act prejudiced the appellant's case? 3. Whether the appellant was searched in the presence of a gazetted officer or a magistrate as required under Section 50 of the NDPS Act? 4. Whether the written intimation allegedly given to the appellant was prepared in a transparent manner?
Ratio Decidendi: 1. The prosecution failed to prove substantial compliance with Section 50 of the NDPS Act, as the written intimation allegedly given to the appellant was not prepared in a transparent manner and the appellant was not searched in the presence of a gazetted officer or a magistrate. 2. The non-availability of the report prepared under Section 57 of the NDPS Act created serious prejudice to the appellant's case, as it prevented the Court from assessing the genuineness of the search and seizure operation. 3. The appellant was not searched in the presence of a gazetted officer or a magistrate as required under Section 50 of the NDPS Act. 4. The written intimation allegedly given to the appellant was not prepared in a transparent manner, as it was not clear when the intimation was prepared and whether the appellant was given a genuine opportunity to choose to be searched in the presence of a gazetted officer or a magistrate.
Final Decision: The Gujarat High Court allowed the appellant's appeal, quashed the conviction and sentence imposed by the trial court, and ordered the appellant to be set at liberty.
( 1 ) THIS is an appeal against the judgment and order of conviction passed by ld. Special Judge, surendranagar in Special Case No. 1/1998 on 17. 09. 1999 whereby the appellant-original accused has been held guilty of the offences punishable under section 8 (c) R/w section 21 of The Narcotic drugs and Psychotropic Substances Act,1985 (hereinafter referred to as the "ndps Act") and has been sentenced to suffer R/i for 10 Years and to pay a fine of Rs. 1 Lakh (Rs. One lakh only), I/d to further undergo S/i for 2 Years.
( 2 ) WE would like to narrate facts in brief so that the evidence led by the prosecution can be appreciated in the perspective of the evidence that has been led by the prosecution before the trial court. That on 16. 01. 1998, Police Inspector Mr. HK chauhan, Police Inspector of State Narcotic Cell, along with his other staff members, were proceeding towards Surendranagar in a vehicle namely jeep-car and when they stopped at a Tea-stall located somewhere near Gebansha Pir Dargah in between town vadhawan and Surendranagar, Mr. Chauhan got one information regarding appellant accused and his name and physical description was also given to Mr. Chauhan by the informant and he was also informed that appellant accused is likely to pass through vadhawan for going to Surendranagar in the afternoon and that he would be carrying Charas- a contraband substance under the scheme of the NDPS act. On receipt of information, a report was prepared by P. I. Mr. Chauhan and the same was sent in an envelope to Ahmedabad Office by a special messenger i. e. with one Police Constable Mr. Desai and Mr. Desai was asked to deliver said information/envelope to the Supdt. Of Police of narcotic cell. Mr. Chauhan, thereafter visited a std Telephone Booth and talked on telephone with supdt. Of Police at Ahmedabad and arranged for two panchas so that search can be arranged. Mr. Chauhan, along with staff members, placed themselves in a nearby area from where suspect was supposed to pass through. It is the case of the prosecution that meanwhile, a person whose description was given, came there and, therefore, he was intercepted and searched. Before carrying out formal search, he was asked by Mr. Chauhan that if he wishes to get himself searched in the presence of any gazetted officer or a Magistrate, then he may express his wish accordingly, but the appellant accused had refused the offer and permitted Mr. Chauhan to carry out the search. According to the prosecution, appellant accused had put on zabhbha and paizama and from one of the pockets of zabhbha, contraband substance namely charas was found in a plastic/polythene bag. Some part of that bag was found cut-off and substance was smelled and it was found that the same was charas. It is the say of the prosecution that the state Narcotic Cell headed by Mr. Chauhan was carrying with them a testing kit and it was found that the article found from the pocket of the zabhbha of the appellant accused is a Charas. So, the same was seized and after weighing it and completing formalities to take out samples etc. , it was seized on the spot. Three samples were taken. During search, police also found cash amount of rs. 2500/ from one another pocket of zabhbha put on by the appellant accused. That amount was also seized. This entire exercise of search and seizure was carried out in the presence of two panchas i. e. Panch Bhupatbhai and Panch Shankar Keshav and panchanama was prepared. Signature of the accused was also obtained as alleged by the prosecution on the seizure memo as well as document prepared by police with a view to discharge the obligations cast on searching officer under section 50 of the n. D. P. S. Act. Signatures of both the panchas were also obtained on both these documents. This exercise was undertaken somewhere between 18. 15 hours and 19. 15 hours. Thereafter, the accused along with relevant documents and muddamal seized, was taken to Surendranagar Police Station and Mr.
