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2007 DIGILAW 428 (BOM)

Sherkhan s/o Salbatkha v. State of Maharashtra

2007-03-23

C.L.PANGARKAR

body2007
ORAL JUDGMENT: (Per C.L.Pangarkar,J) 1. This is an appeal by an accused who was convicted by the Special Judge, Nagpur under Section 36-A of the Narcotic Drugs and Psychotropic Substances Act,1985 and was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- and in default to suffer further rigorous imprisonment for six months. 2. The facts giving rise to this appeal are as follows - Head Constable Mr.Lawrance Samual Jivankar, who was attached to Police Station, Sitabuldi was proceeding on petrolling duty along with two constables on 18/9/2002, as those were the days of Ganpati festival. He left the Police Station around 21.35 hrs. after taking an entry in the station diary. While they were so proceeding, they came near Ganesh Tekadi line and saw one person standing infront of the Madhya Pradesh State Transport Corporation Bus stand. He was having one brown coloured bag with him. Policemen suspected that it might contain some contraband. Accordingly, they went near that person. They called two panchas namely Dinesh Shelke and Asaram Parate and they told the accused that they want to have his search. The accused gave his name as Sherkha Salbatkha of Nizamabad. He was taken beneath an electric Pole. He refused to take the personal search of the Policemen and thereafter search of the bag of the accused was taken, in which Ganja weighing of 9 kgs. was found. A constable was sent to bring a weighing machine. He brought weighing machine and sample of 25 gms. was taken. A panchanama was drawn at the spot. The accused was arrested and brought to the Police Station. 3. A sample was sent to the Chemical Analyser, who reported THAT the sample contains Ganja. Upon this, charge-sheet came to be filed. 4. The Sessions Judge framed a charged. Accused pleaded not guilty. Upon consideration of the evidence recorded by the Sessions Judge, he found the accused guilty and convicted. Being aggrieved by that, this appeal has been preferred. 5. I have heard the learned counsel for the appellant/accused and the Additional Public Prosecutor for the State. 6. The learned counsel for the accused urged only two grounds before me. A first ground is with regard to compliance of Section 42 and second is with regard to compliance of Section 50 of the N.D.P.S.Act. 5. I have heard the learned counsel for the appellant/accused and the Additional Public Prosecutor for the State. 6. The learned counsel for the accused urged only two grounds before me. A first ground is with regard to compliance of Section 42 and second is with regard to compliance of Section 50 of the N.D.P.S.Act. Section 42 of the Act contemplates that a search can be taken by an Officer superior to Sepoy or constable or any such Officer being an officer superior in rank to a peon, sepoy or constable of revenue, central excise or police department if he is so empowered. The learned counsel for the appellant contended that the present Head Constable, who conducted the search of the appellant was not so empowered. The submission has no force. The learned Additional Public Prosecutor for the State has placed before me the Notification issued by the Home Department of Government of Maharashtra on 14th November, 1985. It shows that all Police officers of the Police Department of and above the rank of Head Constable are authorised to take search under the N.D.P.S.Act. In view of this, the submission has no force. 7. The learned counsel for the appellant/accused contended that appellant was not warned that he was entitled to have the search in presence of the Gazetted Officer, which is mandatory under Section 50 of the Act. The evidence does show that the accused was not warned of such a right. Shri Sonak, Additional Public Prosecutor for the State, however, contended that such a warning was not necessary, as search of person of the accused was not taken but search of the baggage of the accused was taken. In support of his submission he relied on two decisions of the Supreme Court in A.I.R. 2001 SC 1002 (Gurbax Singh .vs. State of Haryana) . In this case, Their Lordships have made the following observations. .8. In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right his extension of right conferred under Section 100(3) of the Criminal Procedure Code. In this case, Their Lordships have made the following observations. .8. In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right his extension of right conferred under Section 100(3) of the Criminal Procedure Code. Sub-section (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in, or being in charge of such place, shall on demand of the officer or other person executing the warrant, and on progress thereto, and afford all reasonable facilities for a search therein. Sub-section (3) provides that where any person in or about such place a reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is searched under sub-section (3) a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under Section 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the N.D.P.S.Act would be applicable only in those cases where the search of the person is carried out.. In A.I.R. 2000 S.C.402 (Kalema Tumba .vs. State of Maharashtra) it is observed as follows - 5. Ms.M.Quamaruddin, learned counsel for the appellant, submitted that the mandatory requirement of Section 50 of the NDPS Act was not complied with and therefore the evidence regarding recovery and seizure of heroin should be regarded as illegal. She further submitted that the appellant could not have been convicted on the basis of that evidence. It was submitted by her that the appellant was not told before the search by the officers of the Narcotic Control Bureau that he had a right to be searched in presence of a Gazetted Officer or a Magistrate. This contention deserves to be rejected because only when a person of an accused is to be searched then he is required to be informed about his right to be examined in presence of a Gazetted Officer or a Magistrate. This contention deserves to be rejected because only when a person of an accused is to be searched then he is required to be informed about his right to be examined in presence of a Gazetted Officer or a Magistrate. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab .vs. Baldev Singh: (1999) 4 JT (SC) 595: 1999 AIR SCW 2494: AIR 1999 SC 2378 : (1999 Cri LJ 3672), this court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when person of the accused is to be searched. The decision of this court in State of Punjab v. Jasbir Singh. (1995) 9 JT (SC), 308, wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in Baldev Slingh's case (supra). If a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his 'person'. In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate.. 8. In the case at hand, the search of the baggage with the accused was taken. From the ratio as laid down by Their Lordships of the Supreme Court, it is obvious that such a warning is not mandatory in case of search of the baggage but it is mandatory only when the search of the person of the accused is taken. Hence, in this case, even if the accused was not warned, that does not affect the veracity of the prosecution case. No other point was urged. There is, therefore, enough evidence to hold that accused was found in possession of Ganja and it was seized from him. The report of the Chemical Analyser also goes to show that what was seized from the accused was, in fact, ganja. No other point was urged. There is, therefore, enough evidence to hold that accused was found in possession of Ganja and it was seized from him. The report of the Chemical Analyser also goes to show that what was seized from the accused was, in fact, ganja. There is, therefore, no manner of doubt that the accused was found in possession of ganja in contravention of provisions of N.D.P.S.Act. 9. The learned counsel for the appellant, however, contended that the court may take a lenient view in the matter, in as much, the accused is resident of a very far away place and he has not met his family since last four years. There is nobody to look after his family and the children are small. The accused was arrested on 18/9/2002 and is in custody since then. He has completed four years and six months in jail. He is sentenced to undergo five years rigorous imprisonment and fine of Rs.50,000/- and in default of payment of fine to undergo six months rigorous imprisonment. Considering the submission that the accused is resident of far away place and has not met to his family since then and has small children, I find that the substantive sentence imposed on the accused needs to be reduced to four years from five years. However, sentence of fine and sentence in default of payment of fine needs to be maintained. Hence, appeal is partly allowed. The conviction of the accused is confirmed. The sentence, however, is modified to the extent that instead of five years rigorous imprisonment, the accused is sentenced to undergo rigorous imprisonment for four years. The sentence as regards payment of fine and imprisonment in default is confirmed.