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IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL APPEAL NO. 48 OF 2017

Chidi Oscita Okonkowa,

Presently in Judicial Custody

at Colvale, Goa.

...... Appellant

V e r s u s

1.

The State of Goa,

Shri V. A. Kavlekar,

Investigating Officer

Thr. Anjuna Police Station,

Anjuna Goa.

2.

Public Prosecutor

High Court.

Panjim, Goa.

...... Respondents

Mr. T. George John, Advocate for the Appellant.

Mr. Pravin Faldessai, Additional Public Prosecutor for the

State-Respondents.

CORAM : M. S. JAWALKAR, J.

RESERVED DATE: 13

^th January, 2021

PRONOUNCED ON : 29

^th January, 2021

JUDGMENT

The present Appeal is filed by the appellant being

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aggrieved by the judgment and order convicting the

appellant in Special Criminal Case No. 41/2014 (NDPS) by

Sessions Judge, North Goa, Panaji vide order dated

19.08.2017. Accused was found guilty of the offence

punishable under Section 21(b) of the NDPS Act and was

awarded rigorous imprisonment for two years and payment

of fine of Rs.50,000/-.

2.

The charge against the accused was that on

17.02.2014, between 14:30 hours to 17:30 hours, near St.

Antony's Chapel at St. Anthony Prias waddo, Anjuna, Goa,

the accused was found in illegal possession of narcotic drug

known as cocaine weighing 4.90 grams worth Rs.50,000/-.

3.

The Appeal is filed on the ground that the learned

Sessions Judge showed complete non application of mind and

also failed to consider written arguments. It is vehemently

argued by the learned Advocate T. George John that

mandatory provision of Section 50 of the NDPS is not

complied with. So also, there are omissions in the deposition

of the witnesses.

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4.

He relied on citation Arif Khan alias Agha Khan

Vs. State of Uttarakhand, AIR 2018 SC 2123 and

submitted that it is mandatory to search a suspect in

presence of a Magistrate or Gazetted Officer. He also relied

on the judgment of this Court in Criminal Appeal No.

57/2016 dated 12.10.2020 in the case of Ivan Miguel Vs.

State & Another, wherein this Court after relying on the

decision in the case of Arif Khan alias Agha Khan (supra)

allowed the Appeal and the order of conviction was set aside.

5.

As against this, the learned Additional Public

Prosecutor relied on the judgment of the Constitution Bench

of the Hon'ble Apex Court in the case of Vijaysinh

Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC

609 and the following decisions of this Court:

(a)

Criminal Appeal No. 82/2018 decided on

04.09.2020 in the case of Mr. Raymond Locke

Vs. the State of Goa;

(b)

Criminal Appeal No. 9/2017 decided on

17.09.2020 in the case of Kushal Puri Vs.

State & Another and

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(c)

Criminal Appeal No. 57/2016 decided on

12.10.2020 in the case of Ivan Miguel Vs.

State & Another.

6.

Heard learned Counsel for appellant as well as

learned APP Shri Pravin Faldessai for the respondent-State.

The main ground in appeal appears to be that mandatory

provision under Section 50 of NDPS Act, is not complied by

the Investigating Officer and, on that count only, the order is

liable to be quashed and set aside.

7.

Learned Counsel for the appellant relied on Arif

Khan (supra) in support of his contention. On perusal of the

said citation, it clearly appears that before proceeding to

consider the facts, the Apex Court referred Vijay Sinh

Chandubha Jadeja (supra) for referring requirements of

Section 50 of the NDPS Act, which are mandatory. It is held

that it is imperative on the part of the Police Officer to

apprise the person intended to be searched of his right under

Section 50 to be searched only before