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Madhya Pradesh High Court · body

2010 DIGILAW 41 (MP)

Zubedabi w/o Rehman Bux v. State of M. P.

2010-01-12

I.S.SHRIVASTAVA

body2010
JUDGMENT It has been argued on behalf of the respondent State that 9 kg. of opium was seized from the possession of the accused Zubeda. The prosecution case was proved before the trial Court and she has been rightly convicted. The appeal being devoid of merits, be dismissed. It has been argued on behalf of the appellant that for the search of a lady, provisions under S.50 of the Act were not complied with. According to S. 50(4) of the Act no female shall be searched by any one except by a female. But the accused was not searched by a female. Lady constable Shobha Minj PW.9 was examined by the prosecution to prove this fact. According to statement of Shobha Minj PW.9, she reached Banjli Petrol Pump along with ASI J.S. Pawar PW.7. When she reached there she saw a lady was sitting in the bus. They asked her about the constents of the basket and on search, opium was found in it. She does not remember the actual quantity of opium but as per her approximation it was 8 kg. Thereafter with the lady and opium they came to the police station. Where after testing, opium was confirmed. This witness was declared hostile and in cross examination, she has again confirmed that lady was sitting in the bus on a seat which was for two persons. She took out the basket from the bus which was being kept on a seat of the bus. She deposed that it is correct to say that she did not go to the spot from Ratlam. It is also correct that she did not see any bus nor Zubeda was alighting from any bus before her. It is correct to say that she was Zubeda at Police Station in Ratlam. In this way she has not supported the fact that basket was seized from Zubeda near a petrol pump but she has confirmed the fact that Zubeda was sitting in bus and from the bus she took out a basket. Inthis way she has not supported the fact that she searched the person of Zubada. She has said that she searched the basket in the bus and found opium in it but this is not prosecution case. Prosecution case is about the seizure of opium from the basket possessed by Zubeda near petrol pump. Inthis way she has not supported the fact that she searched the person of Zubada. She has said that she searched the basket in the bus and found opium in it but this is not prosecution case. Prosecution case is about the seizure of opium from the basket possessed by Zubeda near petrol pump. Therefore this witness Shobha Minj PW.9 has not supported the prosecution story and also not supported the fact that she searched the person of Zubeda. IN this way compliance of S.50 is not proved. The above statement of Shobha Minj PW.9 who is a police constable, goes the root of the case because according to prosecution story, on receiving information of the informer and the statement of JS Pawar- PW. 7 and Umesh Bajpai- PW.8, Zubeda was not arrested from the bus but as soon as she was alighting from the motorcycle, she was caught on road. Hence due to difference of facts, the prosecution story becomes doubtful. It is not desirable that a lady be searched in the presence of male witness and at public place which violates the basic right of a female to be treated with decency and proper dignity. This simply shows that search of Jubeda by constable Shoba Minj was only a foramality. It is to be noted that Shobha Minj PW.9 in her statement has not supported the fact that at Banjali Petrol pump she took a search of Jubeda. In her cross examination she had admitted that she did not go to the place of incident. Therefore, whenever a female is to be searched under the provisions of the Act, proper care should be taken that she should be searched before a gazetted officer or before nearest magistrate, as desired under S.50. If available, the Iwitnesses must be lady witnesses and searching officer must necessarily be lady officer so that the search of the female may be carried with decency and proper dignity of the female. Therefore, the appeal is accepted and the conviction and sentences of the appellant Zubeda under S 8\18(B) of the Act is set aside. She be released if not required in any other offence. The fine if deposited, be returned to her.