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2005 DIGILAW 95 (CAL)

ZAMIL AKHTAR v. STATE OF WEST BENGAL

2005-02-10

ALOK KUMAR BASU, P.K.DEB

body2005
BASU, J. ( 1 ) THIS appeal is at the instance of the convict-appellant Zamil akhtar from Jail challenging his conviction and sentence passed by the learned Judge, Special Court under the N. D. P. S. Act in connection with t. R. Case No. 23 of 1997. ( 2 ) THE prosecution case in short was that on 15lh May, 1997 at about 21. 05 hour the officer of the Golabari P. S. under the leadership of the inspector of Golabari P. S. detained the present appellant along with another and recovered 1 gm. of heroine from the possession of the said appellant in presence of witnesses. According to the prosecution, after due compliance of all the necessary provisions of law, seizure of the said article was made on the spot and samples was also taken in presence of witnesses. In course of investigation samples so taken was sent for chemical examination and after ascertaining the identity of the said sample to be heroine, charge-sheet was submitted against the present convict-appellant under Section 21 of the N. D. P. S. Act. ( 3 ) DURING trial the learned Judge after recording the evidence of prosecution witness and after considering the seizure list along with the chemical report and also after taking into consideration the submissions of both the prosecution and the defence came to the conclusion that on the date and time as stated by the prosecution the contraband article was found from the possession of the appellant and seizure of the same was made in due compliance with the relevant provision of the Act. The learned Judge also concluded that the seized contraband was nothing but heroine and hence considering the quantum of the article seized, the learned Judge found that the prosecution was successful to bring home the charge under section 21 of the N. D. P. S. Act against the convict-appellant. ( 4 ) AFTER holding the convict guilty of the offence under Section 21 of the N. D. P. S. Act the learned Judge passed the sentence in accordance with law which was 10 years R. I. and also to pay of fine of Rs. 1 lakh, in default, further R. I. for a period of two years. ( 5 ) IN support of the present appeal Mr. Roy with Mr. 1 lakh, in default, further R. I. for a period of two years. ( 5 ) IN support of the present appeal Mr. Roy with Mr. Ghosal, appearing for the appellant, submits that they would like to take up only one point of law in support of their contention to challenge the present judgment and order impugned in this appeal. ( 6 ) MR. Roy contends that there is no denying of the legal position now established through a plethora of decision pronounced by the Hon'ble the supreme Court that Section 50 of the N. D. P. S Act is not a mere legal ritual but it casts a serious legal obligation on the part of the prosecuting agency before booking a person under the said Act since there is stringent provision of punishment underthe N. D. P. S. Act. Mr. Ray contends that the provision of Section 50 of the said Act came up for judicial scrutiny before the Apex court on time without number and it has been uniformly held by the Apex court that there must be strict compliance of the said section before a person is searched by the police personnel or other personnel entrusted with the task of searching in connection with the N. D. P. S. Act. ( 7 ) MR. Ray has raised a question as to what would amount to true and actual compliance of Section 50 within the meaning of the statute and to this Mr. Ray submits that according to the correct interpretation of Section 50, the officer before conducting the search should not only inform the person concerned that he may require the presence of a Gazetted Officer or a Magistrate and it is his legal right to get searched of his person in presence of such Gazetted Officer or Magistrate. Mr. Ray submits that mere informing the person that he may require the presence of Gazetted Officer or Magistrate would not fulfil the requirement of Section 50 of the said Act unless the person concerned is apprised of his legal right about such presence. Mr. Ray to substantiate his point has relied on a decision of the apex Court in the case of Vinod v. State of Maharashtra reported in 2003 scc (Cri) 14. ( 8 ) MR. Ray submits with reference to the desposition of P. Ws. Mr. Ray to substantiate his point has relied on a decision of the apex Court in the case of Vinod v. State of Maharashtra reported in 2003 scc (Cri) 14. ( 8 ) MR. Ray submits with reference to the desposition of P. Ws. 5 and 6 that although both the officers, as it appears from the statement, disclosed to the appellant that he may require the presence of Gazetted Officer or a magistrate, it was not stated specifically that the appellant had legal right to require such presence and this omission has vitiated the entire process of search as there was non-compliance of Section 50 of the N. D. P. S. Act in its truest sense and in violation of the mandate of the Apex Court as stated in this connection. Mr. Ray, therefore, submits that when the entire process of search appears to be vitiated in law, the entire judgment and order of the learned trial Court on the basis of such search and seizure must be held to be non-sustainable in law and the said judgment and order is liable to be set aside and the convict appellant must be set at liberty. ( 9 ) MISS Banerjee, learned Advocate for the State-respondent, has strongly opposed the contention of Mr. Ray. It is the specific submission of miss Banerjee with reference to the evidence of P. Ws. 5 and 6 that there was due compliance of Section 50 of the N. D. P. S. Act both in its letter and spirit and there is no scope to hold otherwise. ( 10 ) MISS Banerjee submits that it will appear from the depositions of p. Ws. 5 and 6 that the Inspector of "golabari P. S. as P. W. 6 was present at the place of search and seizure and that the said officer held the rank of a gazetted Officer and when he disclosed his identity as a Gazetted Officer which has not been challenged either by Mr. Ray or by the defence during cross-examination of this witness, it can be taken for granted that the searching party conducted the search and seizure in due compliance of section 50 of the N. D. P. S. Act. ( 11 ) MISS Banerjee submits that the decision of the Hon'ble the supreme Court relied on by Mr. Ray or by the defence during cross-examination of this witness, it can be taken for granted that the searching party conducted the search and seizure in due compliance of section 50 of the N. D. P. S. Act. ( 11 ) MISS Banerjee submits that the decision of the Hon'ble the supreme Court relied on by Mr. Ray has got no application in the background of the present case since in the said reported case no Gazetted Officer was present during the search and seizure and in that background the Apex court held that by mere mentioning before the accused person that he might require the presence of Gazetted Officer or Magistrate would not serve the purpose unless the accused is made aware of his legal right to that effect and in that background the Apex Court held that there was non-compliance of Section 50 of the said Act which would vitiate the entire process of trial resulting the order of conviction and sentence. ( 12 ) WE have considered the submission of Mr. Ray and Miss Banerjee and we have also considered the entire fact and evidence on record. There is no denying of the fact that the interpretation given by the Hon'ble Supreme court regarding Section 50 of the N. D. P. S. Act is mandatory for any personnel conducting/search and seizure under the provisions of the said Act. ( 13 ) THE main purpose behind incorporating the protective provision of Section 50 was to ensure fair-play in the matter of conducting search and seizure so that no person is made a victim of official excess in the name of maintaining law and order so as to compel to face stringent punishment as provided under the said Act. Undoubtedly, the provision of punishment under the N. D. P. S. Act is serious and deterrant and since there is little faith on the impertiality and unbiased action on the part of our lawenforcing machinery, the Apex Court took it up on its shoulder to ensure fair-play in the matter of search and seizure under the said Act to protect the valuable personal freedom of a person. There is plethora of decision from the Hon'ble Supreme Court regarding compliance of Section 50 of the said Act and the main theme of those decisions is that the learned trial court, or for that matter, the High Court on appeal must ensure that there is fair-play in the matter of search and seizure and there has been due compliance of Section 50 of the said Act. ( 14 ) IT should be borne in mind that it was never the intention of the apex Court to deal with hyper-technicality, but, the Apex Court was very serious about maintaining the individual freedom the liberty of a man and not to make that freedom and liberty a cheap prey in the hand of any unscrupulous police personnel. ( 15 ) IN the above background we are to Judge the compliance of section 50 of the N. D. P. S. Act in the background of a particular case. The decision in the case of Vinod v. State Maharashtra (supra) was rendered by the Apex Court in the background of a particular fact that there the search and seizure was conducted by a non-gazetted officer and the officers conducting the search and seizure only informed the persons concerned that they may require the presence of Gazetted Officer or Magistrate and, according to the prosecution case, since the persons concerned did not insist for presence of Gazetted Officer or Magistrate, the search and seizure was performed. In that background the Hon'ble the Supreme Court was of the view that there was non-compliance of Section 50 of the said Act, because, mere denial from the part of the person under search and seizure cannot absolve the law-enforcing/authority from the duty of informing the person that law enjoind a duty on them and provides a right on the person concerned to have the presence of Gazetted Officer or Magistrate in the matter of search and seizure and hence the Supreme Court disbelieved the prosecution case that there was due compliance of Section 50 of the n. D. P. S. Act since the person concerned himself did not insist for presence of any Gazetted Officer or Magistrate. ( 16 ) IN the present case we find from the entire evidence which has not been disputed that the search and seizure was conducted in presence of an Inspector of a police station who holds the rank of Gazetted Officer and it is also available from the evidence, not undisputed or challenged, that such officer disclosed his identity before the accused person and he also made offer that in addition to his presence the accused, if so desires, may require the presence of any other Gazetted Officer or Magistrate. In the background of this factual position, we are to decide in the light of the ratio of the decision rendered in the case of Vinod v. State of Maharastra (supra) whether there has been due compliance of Section 50 of the n. D. P. S. Act in the present case. ( 17 ) WE have already observed that the main reason for strict compliance of Section 50 of the said Act has been to ensure fair-play and unbiased search and seizure of a person under the Act. From a reading of section 50 of the said Act it is available that search and seizure is required to be made in presence of Gazetted Officer and where no such Gazetted officer is present, the person must be informed that he may require the presence of such Gazetted Officer and such presence is not mere formality, but, it relates to his valuable personal right. ( 18 ) NOW the question would come up if such search and seizure is made in presence of a Gazetted Officer and if the person is already made aware of the presence of such Gazetted Officer and when the person concerned has declined the presence of any other Gazetted Officer, whether that would amount to violation of Section 50 of the N. D. P. S. Act. In our considered opinion the answer would be 'no' because in that case the presence of Gazetted Officer and the acceptance of the person of such presence would automatically satisfy the compliance of Section 50 of the said Act both in its letter and in spirit. ( 19 ) ACCORDINGLY, having regard to the submission of both Mr. In our considered opinion the answer would be 'no' because in that case the presence of Gazetted Officer and the acceptance of the person of such presence would automatically satisfy the compliance of Section 50 of the said Act both in its letter and in spirit. ( 19 ) ACCORDINGLY, having regard to the submission of both Mr. Ray and Miss Banerjee and having regard to the fact and evidence on record, we are of the view that the learned Trial Court rightly concluded that search and seizure in the present case was done in due compliance with the provision of Section 50 of the N. D. P. S. Act, and since that was the only point urged by Mr. Ray on behalf of the appellant and we also on perusal of the facts and evidence do not find any other infirmity to call in question the order of convictioned and sentence, we are inclined to hold that there is no merit in the present appeal. ( 20 ) ACCORDINGLY, the instant appeal is dismissed. The order of conviction and sentence passed by the learned Trial Court is hereby confirmed. Let a copy of this judgment and order along with the L. C. R. be forwarded to the Court of the learned trial Judge at once. Let a copy of this order be transmitted to the Superintendent of Jail or the "correctional Home where the convict-appellant is lodged.