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Madhya Pradesh High Court · body

1998 DIGILAW 803 (MP)

Anil Kumar Gupta v. State of M. P.

1998-10-29

V.K.AGRAWAL

body1998
JUDGMENT 1. The accused/appellant stands convicted under Section 20(b)(i) r/w. Sec. S of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act' for short) and sentenced to suffer R.I. for Five years and 10 pay tine of Rs. 5,000/-, in default of which, he has further to undergo R.I. for 3 months, by judgment dated 18.2.1998 in Special Cr. Case No. 192 of 1997 by Special Judge, (NDPS), Raipur. 2. Prosecution case, stated in brief, is that on 26.4.1997, S.H.O., D.S. Bais (PW 5), P.S. Tarbahar, District Bilaspur, received an information that a person wearing brown pant and balck-stripe shirt, standing at the private bus stand, Bilaspur, was having Ganja in his possession. S.H.O., D.S. Dais (PW 5) prepared Panchnama (Ex.P-1) regarding the said information and then went to the Bus Stand. He found the accused/appellant standing there wearing the dress as per the above information received by him. He inquired from the accused/appellant about the contents of the suit-case and the bag in possession of the accused/appellant. The accused/appellant admitted that he was in possession of Ganja. After giving an intimation to the accused/appellant, as per Ex.P-2 and after the appellant expressing his consent to be searched by the S.H.O., D.S, Dais (PW 5), he searched him. Ganja was found kept in the suit -case as well as in the bag in possession of the accused/appellant. It was got weighed as per Panchnama (Ex,P-3), and seized, as per EX.P-4. The bus-ticket of the accused/appellant was also seized. First Information Report (Ex.P-19) was recorded. Offence was registered. Seized Ganja was sent for chemical examination to FSL, Raipur. The reports (Ex.P-17) from the FSL, Raipur confirmed the seized article to be Ganja. After concluding investigation, charge-sheet was filed. 3. The accused/appellant adjured guilt to the charge framed under Section 20(b)(i) r/w. Sec. 8 of 'the Act'. The learned trial Court held that Section 50 as well as other mandatory provisions of 'the Act' were duly complied and that the accused/appellant has been held to be in possession of seized Ganja. He was accordingly convicted and sentenced, as noticed earlier. 4. The learned counsel for the accused/appellant has urged that the mandatory provisions of Section 50 of 'the Act' was not duly complied with. He was accordingly convicted and sentenced, as noticed earlier. 4. The learned counsel for the accused/appellant has urged that the mandatory provisions of Section 50 of 'the Act' was not duly complied with. In this connection, he has referred to State of Punjab v. Balbir Singh ( AIR 1994 SC 1872 ) and Mohinder Kumar v. The State of Panaji, Goa ( AIR 1995 SC 1157 ). It has further been urged on behalf of the accused/appellant that the prosecution evidence indicates that the proceedings of search and seizure were not conducted at the spot and, therefore, the conviction of the accused/appellant was not justified. However, the learned counsel for the respondent/State has supported the conviction as well as the sentence of the accused/appellant. 5. The statement of Investigating Officer D.S. Bais (PW 5) is that he received an information from an informer that a person wearing grey coloured full pant and a shirt with black strips was standing at the waiting room of Private Bus Stand and having Ganja in his possession. He prepared Panchnama (Ex.P-1) regarding the said information and sent the intimation (Ex.P-13) to the C.S.P. After recording his departure, as per Ex.P-14, he went to the Bus Stand along-with police force and witnesses. The accused/appellant was wearing similar clothes as was his information and was standing at the Private Bus Stand. When D.S. Bais (PW 5) inquired from him, the accused/appellant admitted that he was having Ganja kept in the suit-case and the bag. He, therefore, gave a memo (Ex.P-2) to the accused/appellant and inquired as to whether he wanted to be searched by him (SHO, D.S. Bais) or by a senior police officer or a Magistrate. "The accused/appellant consented to be searched by SHO, D.S. Bais (PW 5). Thereafter, the bag and the suit-case were searched. They were found to contain Ganja. Sample was taken out. The Ganja as well as the sample was seized Seizure Memo (Ex.P-4) was prepared. The Ganja was got weighed. the Panchnama thereof is EX.P-3. 6. Learned counsel for the accused/appellant has urged in the above context that the intimation (Ex.P-2) does not fulfill the requirements of Section 50 of 'the Act', inasmuch as, it does not intimate the accused/appellant of his right in terms of the ~aid provision. 7. The Ganja was got weighed. the Panchnama thereof is EX.P-3. 6. Learned counsel for the accused/appellant has urged in the above context that the intimation (Ex.P-2) does not fulfill the requirements of Section 50 of 'the Act', inasmuch as, it does not intimate the accused/appellant of his right in terms of the ~aid provision. 7. It would appear from Section 50 of 'the Act' that when any officer duly authorised u/S. 42 of 'the Act' is about to search any person under the provisions of Sections 41, 42 or 43 of 'the Act', he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any Department mentioned in Section 42 of 'the Act' or to the nearest Magistrate. In the case of Balbir Singh (supra), the Supreme Court has laid down that the provisions of Section 50 of 'the Act' are mandatory and it is the duty of the person proposing to take search, to inform the accused of his right. It has further been observed that if the right of the accused as above is violated, the trial is vitiated. The law as above has been reiterated in Mohinder Kumar (supra). On consideration of the statement of D.S. Bais (PW 5) and memo (Ex.P-2) prepared by him, it appears that the appellant was intimated as to whether he would like to be searched by the SHO himself or by a "senior police officer" and Magistrate. Thus, the statement of D.S. Bias (PW 5) or the memo (Ex.P-2) do not indicate that the accused-appellant was apprised of his right to be searched by a Gazetted Officer as is the letter and spirit of Section 50 of 'the Act', though the accused/appellant was intimated that he could be searched by a Magistrate. 8. Thus from the above evidence, it would appear that the compliance of mandatory provision of Section 50 of 'the Act' was not fully made and if at all, it was only a partial or half-hearted compliance of the said provision, inasmuch as, the appellant was not apprised that he could be taken before search to the nearest Gazetted Officer. 8. Thus from the above evidence, it would appear that the compliance of mandatory provision of Section 50 of 'the Act' was not fully made and if at all, it was only a partial or half-hearted compliance of the said provision, inasmuch as, the appellant was not apprised that he could be taken before search to the nearest Gazetted Officer. In this connection, reference may be made to the decision of Orissa High Court in case of Gopal Reddy v. State [ 1995(2) CRIMES 155 )] in which the accused before search was only asked if he wanted to be taken before a Magistrate, but no offer was given to be taken before a Gazetted Officer. It was held that since there was only partial compliance of Section 50 of 'the Act' and since the accused was not properly apprised of his right for being searched before a Gazetted Officer or Magistrate, such partial compliance would not meet the mandatory requirements of Section 50 of 'the Act'. Similar view has been expressed by the Delhi High Court in case of Manak Chand Jain v. State reported in [ 1994(3) Crimes 442 ]. 9. Therefore it appears that the Investigating Officer, D.S. Bias (PW 5) did not fully and duly comply with the mandatory provision of Section 50 of 'the Act'. In the above context, it may also be noticed that the Panch Witness Narad Ram Kewat (PW 2) in whose presence the proceedings of search and seizure as above in the case were made by SHO, D.S. Bais (PW 5), has in his statement not supported the statement of D.S. Bais (PW 5) that the accused/appellant was apprised of his right to be searched before a Magistrate or a Gazetted Officer. He has in para 3 denied that any such intimation was given to the accused/appellant. The above witness has not been declared hostile by the prosecution and, in fact, he has supported the prosecution case regarding the information received by D.S. Bias (PW 5) and the search and seizure made by him. Therefore, it appears that Narad Ram Kewat (PW 2) is not speaking a falsehood, when he says that no intimation to the accused/appellant was given before the search and seizure as above were made from him. 10. It also appears that the weighment of the articles found in appellant's possession was made before the seizure. Therefore, it appears that Narad Ram Kewat (PW 2) is not speaking a falsehood, when he says that no intimation to the accused/appellant was given before the search and seizure as above were made from him. 10. It also appears that the weighment of the articles found in appellant's possession was made before the seizure. The weighing Panchnama is EX.P-3. In the said weighing Panchnama crime number has been mentioned. It may, however, be noticed in the above context that till the proceedings of weighment and thereafter seizure, as per seizure memo (Ex.P-4) were made, •the offence was not registered and FIR (Ex.P-19) was not recorded, as is clear from the circumstances of the case and as is also the specific statement of D.S. Bias (PW 5) that the FIR was recorded by him after the formalities of search, weighment and seizure were conducted at the Bus Stand and only after he came back to the Police Station. Therefore, at the time when weighment Panchnama (Ex.P-3) was prepared, no offence was registered. In the circumstances, the mention of the crime number in weighment panchnama (Ex.P-3) raises serious doubt regarding the proceedings as above, having taken place at the spot where search and seizure was allegedly made. Therefore, the search and seizure on the spot, are not proved to have been actually held beyond reasonable doubt where the accused/appellant was found. Moreover, as noticed earlier, the mandatory requirement of Section 50 of 'the Act' was also not fully and duly complied with. Therefore, the conviction of the accused/appellant cannot be sustained. 11. The appeal is, therefore, allowed and the conviction as well as the sentence of the accused/appellant is set-aside. He stands acquitted. He be set at liberty forthwith, if not required to be detained in any other offence.