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2011 DIGILAW 1087 (BOM)

Suleman Oguk @ Soni v. State of Maharashtra

2011-09-02

ABHAY M.THIPSAY

body2011
Judgment : 1. The Appellant was the Accused No.1 in N.D.P.S. Special Case No.36 of 2004. The Special Court constituted under the provisions of Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as “the NDPS Act”), convicted him and the other accused – the Accused No.2 Sadruddin Hussain Mohammad Jamadar Shah – of an offence punishable under Section 21 of the NDPS Act. The Appellant was sentenced to suffer R.I. for 10 months and to pay a fine of Rs.5,000/, in default to suffer R.I. for 3 months. The Accused No.2 Sadruddin was sentenced to suffer R.I. for 6 months and to pay a fine of Rs.1,000/, in default to suffer R.I. for 1 month. The Appellant, being aggrieved by the said Judgment and Order of conviction and sentence, has filed the present Appeal. 2. I have heard Mr. S.S. Bhandari, the learned Advocate for the Appellant and Smt. V.R. Bhosale, the learned APP for the Respondent-State. I have gone through the evidence adduced before the trial Court and other relevant record. I have taken into consideration the authoritative pronouncements of various High Courts and of the Supreme Court of India, which have been relied upon by the learned Counsel. 3. The prosecution case before the trial Court was as follows : That, on 29th January, 2004, PSI Gajanan Gulhane attached to Anti Narcotics Cell, received secret information that two persons: namely, Sony alias SulemanAfrican (the Appellant) and Sadruddin H. alias ChachuAfrican (the original Accused No.2) would be coming near Regal Cinema, Shyamaprasad Mukherjee Chowk, Mumbai between 3:30 p.m. to 5:00 p.m. to sell Cocaine. PSI Gulhane recorded this information in the Station House Diary and submitted the copies thereof to the Deputy Commissioner of Police, Assistant Commissioner of Police and Senior Inspector of Police, of Anti Narcotics Cell. The Deputy Commissioner of Police formed a team under the leadership of Police Inspector Shinde which included PSI Gajanan Gulhane (PW5) himself, PSI Sanjay Patil (PW3), a lady Police Constable Smt. Kharat and Police Constables Dalvi and Ghatge, etc. Two Panchas – one Atul Akhil Sarkar (PW4) and Smt. Sabina Sangle (PW2) – were called and selected to work as such. After drawing a pretrap Panchanama in the office of the Anti Narcotics Cell, the Police Party and Panchas left for the spot, taking with them the necessary material for sealing and labelling, drug testing kit, weighing scales, etc. Two Panchas – one Atul Akhil Sarkar (PW4) and Smt. Sabina Sangle (PW2) – were called and selected to work as such. After drawing a pretrap Panchanama in the office of the Anti Narcotics Cell, the Police Party and Panchas left for the spot, taking with them the necessary material for sealing and labelling, drug testing kit, weighing scales, etc. The search of the Panchas was taken by the Police personnel and the search of the Police personnel was offerred to and taken by the Panchas to ensure that nothing objectionable or incriminating was possessed by any of them. The Police party and the Panchas parked their vehicle near Magestic, M.L.A. Hostel and took positions near Regal Cinema, by forming two groups. At about 3:00 p.m., two persons – the Appellant and the original Accused No.2 – came and stood near American Express Foreign Exchange Building. PSI Gulhane thought that they were the same persons, to whom the information received by him related. A signal was, therefore, given by him to both the groups of the Police party and the Panchas. The Appellant and the other accused were then surrounded by the Police party and Panchas. P.I. Shinde informed them about the information received and explained that he wanted to take their personal search. That, the Appellant as well as the other Accused were told, inter alia, that their search could be taken in the presence of a Magistrate or a Gazetted Officer and arrangements necessary for that purpose could be made, if so desired by them. However, the Appellant as well as the other Accused declined the offer given to them and permitted the Police to take their search in the presence of Panchas. Thereafter, the personal search of the Appellant and the other Accused was taken by PSI Gajanan Gulhane (PW5). In the pant pocket of the Appellant, three small plastic boxes were found. These boxes were found containing Cocaine weighing 3 gms. The other Accused was also found possessing two plastic boxes in which Cocaine weighing 2 gms. Was found. After completing the procedural requirements regarding seizure, sealing etc. under a Panchanama, the Appellant and the other Accused were arrested. PSI Sanjay Patil (PW3) lodged the F.I.R. on the basis of which the C.R. No.13 of 2004 came to be registered. The other Accused was also found possessing two plastic boxes in which Cocaine weighing 2 gms. Was found. After completing the procedural requirements regarding seizure, sealing etc. under a Panchanama, the Appellant and the other Accused were arrested. PSI Sanjay Patil (PW3) lodged the F.I.R. on the basis of which the C.R. No.13 of 2004 came to be registered. The seized articles were kept in the Azad Maidan Stores and on the next day, on the instructions of P.I. Shinde, Police Constable Rajendra Sonawane (PW1) took the same to the Forensic Science Laboratory at Kalina. The articles were deposited for chemical analysis and opinion, report in respect of which was received in due course. 4. Since the Appellant and the other Accused pleaded not guilty to the charge that was framed against them, the prosecution was required to adduce evidence and as such examined five witnesses before the Special Court. All these witnesses have been referred to above. After considering the evidence adduced before it, the trial Court convicted and sentenced the Appellant as aforesaid. 5. It is submitted by the learned Counsel for the Appellant that the conviction of the Appellant, as recorded by the trial Court, is not proper and legal. According to him, apart from the other aspects which create a doubt about the truth of the prosecution version, the conviction is vitiated on account of non compliance with the provisions of Section 50 of the NDPS Act. He has led emphasis basically on this aspect of the matter. 6. The Supreme Court of India and the various High Courts, have, time and again, discussed the provisions of Section 50 of the NDPS Act. 7. Section 50 has been incorporated with the obvious intent to avoid any harm to innocent persons. It requires that, if a person to be searched so requires, the officer who is about to search him under the provisions of Sections 41, 42 or 43 of the NDPS Act, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 or to the nearest Magistrate. There was divergence of view on the question whether the person to be searched was required to indicate his choice, or the Concerned Authority was required to inform him of the available options. 8. There was divergence of view on the question whether the person to be searched was required to indicate his choice, or the Concerned Authority was required to inform him of the available options. 8. In the case of State of Punjab vs. Balbir Singh, reported in JT 1994 (2) S.C. 108, the Supreme Court of India interpreted the expression “if the person to be searched so requires” occurring in Section 50(1), as making it an imperative requirement on the part of the officer intending to search, to inform the person to be searched of his right that, if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. The decisions delivered thereafter by the Supreme Court of India also make it clear that it is to be taken as an imperative requirement on the part of the officer intending to search, to inform the person to be searched of his right that, if he so chooses, he sha listrate. 9. The question whether is imperative for the Investigating Officer to inform the suspect, orally or in writing, about his right to be searched before a Gazetted Officer or a Magistrate again came up for consideration before a Constitution Bench of the Supreme Court of India in the case of State of Punjab Vs. Baldev Singh, reported in (1999) 6 SCC 172 .Their Lordships held, inter alia, that a duty is cast on the Investigating Officer of intimating to the person concerned about the existence of his right that if he shall so require, he shall be searched before a Gazetted Officer or a Magistrate. 10. The learned Counsel for the Appellant has placed reliance on a decision of the Supreme Court of India in the case of K. Mohanan Vs. State of Kerala, reported in 2000 SCC (Cri.) 1228.In that case the claim of the prosecution was that the Appellant before the Supreme Court was asked before the search was conducted, ‘whether he (Appellant) required to be produced before a Gazetted Officer or a Magistrate for the purpose of search’, and that, ‘the Appellant answered in negative’. It was contended on behalf of the Appellant, that this was no compliance with Section 50 of the NDPS Act. Their Lordships noted down the following propositions of law, as had been laid down by the Constitution Bench of the Supreme Court of India. It was contended on behalf of the Appellant, that this was no compliance with Section 50 of the NDPS Act. Their Lordships noted down the following propositions of law, as had been laid down by the Constitution Bench of the Supreme Court of India. “57.(1) That when an empowered officer or a duly authorised officer, acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under subsection (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.” 11. Thereafter, Their Lordships observed as follows : “If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate, it cannot be treated as communicating to him that he had a right under law to be searched so.” [Para 6 of reported Judgment] 12. Thus, in order to make the safeguards provided in Section 50 meaningful, the requirement on the part of the officer taking search to inform the person to be searched of his right to have himself searched in the presence of a Gazetted Officer or a Magistrate was read into Section 50. The observations made in the case of K. Mohanan(supra)further lay down the manner and form in which this information should be conveyed to the suspect. Thus, the scope of the protection made available to the suspect by Section 50, was further expanded in K. Mohanan’scase by laying down that merely asking the suspect whether he required to be searched in the presence of a Gazetted Officer or a Magistrate cannot be treated as a proper communication. The observations made by Their Lordships (reproduced above) leave no manner of doubt that the communication should be specific and what should be communicated to an accused/suspect is that he had a right under the law to be searched so. 13. The observations made by Their Lordships (reproduced above) leave no manner of doubt that the communication should be specific and what should be communicated to an accused/suspect is that he had a right under the law to be searched so. 13. It would not be correct to think that the requirements, which have been read into Section 50, are too technical, and that the form of communication used by the officers taking search ought not to be held so crucialwhile determining the guilt or innocence of an accused. These requirements are not a matter of mere technicalities, but are based on the principles of fairness and substantial justice. The offences under the NDPS Act are of a serious nature and the accused persons, if held guilty, would be subjected to severe punishment. The accused would ordinarily be not released on bail during the trial. A strict compliance with the provisions of Section 50, as expanded by the authoritative judicial pronouncements, would serve a dual purpose :it would reduce the possibility of false implication and, at the same time, would lend weight to the evidence of search and seizure. If the provisions are shown to have been strictly complied with, that would lend great assurance and credibility to the evidence of the search of an accused and recovery of the contraband from him. On the other hand, noncompliance with the requirements of Section 50 would, at once, make the evidence of the search and recovery suspect. The Supreme Court of India, has, in the aforesaid case of State of Punjab Vs. Baldev Singh (supra),observed that ‘the question whether or not the safeguards provided in Section 50 have been duly complied with would have to be determined by the Court on the basis of the evidence led at the trial and a finding on that issue one way or the other would be relevant for recording an order of conviction or acquittal’. 14. In this background, it would be proper now to examine whether the provisions of Section 50 had been complied with in the instant case, by examining the evidence of the prosecution witnesses on this point. The evidence of Rajendra Sonawane (PW1) is not relevant in this context. 15. Sabina Sangale (PW2) was declared hostile and questions in the nature of crossexamination were put to her by the APP with the permission of the Court. The evidence of Rajendra Sonawane (PW1) is not relevant in this context. 15. Sabina Sangale (PW2) was declared hostile and questions in the nature of crossexamination were put to her by the APP with the permission of the Court. Her evidence does state about the accused being apprehended, but it does not assist the prosecution on the aspect of compliance of Section 50 of the NDPS Act. In fact, this witness has categorically denied the suggestion put to her by the APP that the Police had told the accused persons that they had a right to get themselves searched in the presence of Magistrate or Gazetted Officer. 16. In the evidence of Sanjay Patil (PW3), this aspect is unfolded as follows : “They (Accused) were told provisions of NDPS Act. They were told that they had legal right to get them searched in presence of Executive Magistrate or Gazetted Officer, and if they are so demanding they would make arrangement about it. They declined the said offer.” 17. Atul Akhil Sarkar (PW4) states in this regard as follows : “They (Accused) were also told that their search could be taken in presence of Magistrate or Gazetted Officer. They told it was not necessary.” 18. PSI Gajanan Gulhane (PW5) states that PI Shinde informed both the accused that they had a legal right to get themselves searched in the presence of Magistrate or Gazetted Officer at their option, and that the accused declined that offer. 19. Thus, one of the Panchas – Sabina Sangale (PW2) – does not state about such communication by the officer taking search to the accused persons and, as a matter of fact, negatives the theory that the Police had told the accused persons that they had a right to get themselves searched in the presence of Magistrate or a Gazetted Officer. The Police witnesses Sanjay Patil (PW3) and PSI Gajanan Gulhane (PW5) do state that the accused were informed about the said legal right. The Panch Atul Sarkar (PW4), however, though speaks of the accused having been told that their search could be taken in the presence of Magistrate or a Gazetted Officer, does not further state, that they were told that they had a right in that regard, as has been held necessary, in the aforesaid case of K. Mohanan (supra). 20. The Panch Atul Sarkar (PW4), however, though speaks of the accused having been told that their search could be taken in the presence of Magistrate or a Gazetted Officer, does not further state, that they were told that they had a right in that regard, as has been held necessary, in the aforesaid case of K. Mohanan (supra). 20. The first contention advanced by the learned Counsel for the Appellant is that the Panch witness Atul Sarkar (PW4) has not supported the claim of the Investigating Officer having informed the accused persons of their right to have them searched before a Gazetted Officer or a Magistrate. According to him, therefore, it would not be safe merely to rely on the evidence of the Police Officers to the effect that the accused persons were so informed. He also contended that it was particularly so, because the evidence in that regard was discrepant and, further, because PI Shinde, who was the head of the raiding party, was not examined as a witness. 21. I have considered the matter. In the Panchanama (Exhibit10B), the information said to have been given to the accused persons has been reproduced, which reads as under : “As per the NDPS Act, 1985, you have right to give your personal search either in the presence of Executive Magistrate or in the presence of Gazetted Officer. If you are demanding so, we will make an arrangement to that effect.” 22. Now, if this had, indeed, happened, then there was proper compliance with the provisions of Section 50. The question, however, is whether in the absence of the Panch witness deposing about this type of communication in his testimony before the Court, the fact of that communication can be held to be satisfactorily proved merely on the basis of the record of the happenings in the form of Panchanama. It is well known that the substantive evidence before the Court would be the oral evidence given by a Panch witness before the Court, and the Panchanama, which, undoubtedly, would be a contemporaneous record of the happenings, can serve only as a corroboration to that evidence. It is well known that the substantive evidence before the Court would be the oral evidence given by a Panch witness before the Court, and the Panchanama, which, undoubtedly, would be a contemporaneous record of the happenings, can serve only as a corroboration to that evidence. Indeed, if the Panch witness has not stated about the Police having told the accused persons about their right in his oral evidence, whether on the basis of record of Panchanama, that aspect can be said to be proved, is extremely doubtful to say the least. Undoubtedly, the Police witnesses have said about the accused having been informed of their right, but the fact remains, that it is not possible to hold that their statements are supported by the evidence of the Panch witness. The learned Counsel for the Appellant argued, by referring to the observations made by this Court in the case of ShriShiv Kumar Ashok Mishra Vs. Special Judge of N.D.P.S. Court, reported in 1996 Cri. L.J. 1454, that in a case under the NDPS Act, where the search and seizure are the crucial aspects of investigation, the statement of Police witnesses cannot be relied upon unless they are corroborated by at least one independent witness. Indeed, in such cases it would be hazardous to place reliance on the testimony only of the Police witnesses, without requiring any corroboration from Panch witnesses, or other independent witnesses. In the present case, though it is not that the Panch witness is totally silent about the aspect of the necessary communication to the accused persons, the form of communication stated by him in his evidence is not in consonance with the legal requirements. In my opinion, therefore, a doubt is cast on what was actually communicated to the Appellant and the other accused, and whether such communication was in consonance with the requirements of Section 50 of the NDPS Act, as laid down from time to time by the Apex Court. 23. There is another aspect of the matter which is more important, in my opinion. The second contention on the relevant aspect, as advanced by the learned Counsel for the Appellant, is that the appraisal of their right to the accused in this case was not in consonance with the legal requirements, by reason of it being a ‘joint appraisal’. 23. There is another aspect of the matter which is more important, in my opinion. The second contention on the relevant aspect, as advanced by the learned Counsel for the Appellant, is that the appraisal of their right to the accused in this case was not in consonance with the legal requirements, by reason of it being a ‘joint appraisal’. It is contended by him that the evidence does not show that the Appellant and the other accused were, both, separately appraised of the right to be searched before a Magistrate or a Gazetted Officer. According to him, a joint communication to both the accused in this regard, would not be in compliance with the provisions of Section 50. In support of this contention, he has placed reliance on the decision of a Division Bench of this Court in the case of DharmaveerLekhram Sharma & Anr. Vs. The State of Maharashtra & Ors.,reported in 2001 (5) Bom.C.R. 9.In that case, four accused persons were jointly appraised of their right, as contemplated under Section 50(1) of the NDPS Act. It was contended that there was no valid compliance with the said provision of law. This Court observed, by placing reliance on a decision of the Punjab & Haryana High Court in the case of ParamjitSingh & Anr. Vs. State of Punjab, reported in 1997 (1) Crimes 242, that it was necessary for the officers of the raiding party to appraise the accused persons individually, regarding their right contemplated under Section 50(1) of the NDPS Act so as to facilitate contemplation about such right. It was observed : “......................................, it was necessary for the officers of the raiding party to apprise the accused persons individually regarding their right contemplated under section 50(1) of the N.D.P.S. Act so as to facilitate contemplation about such right. In our view, it should be manifest from the record, and testified to in the substantive evidence by the witnesses, that every individual accused was appraised of such right regarding the search under Section 50 of the said Act. In absence of such evidence, we are of the view that there is no proper compliance of the mandatory provision of section 50 of the N.D.P.S. Act in this case.” [Para 11 of reported Judgment] [Emphasis supplied] 24. In absence of such evidence, we are of the view that there is no proper compliance of the mandatory provision of section 50 of the N.D.P.S. Act in this case.” [Para 11 of reported Judgment] [Emphasis supplied] 24. In the present case, the evidence of Sanjay Patil (PW3) in this regard is as follows : “PI Shinde told the information they had received against both of them (i.e. accused) and he told them that he wanted to take their searches in that case. They were told provisions of NDPS Act. They were told that they had legal right to get them searched in presence of Executive Magistrate of gazetted Officer, and if they are so demanding, they would make arrangement about it. They declined the said offer.” 25. What the Panch Atul Sarkar (PW4) states on this aspect has been mentioned earlier in a different context, but it would be convenient to reproduce the same here, in the present context also. “PSI Gulhane showed them (i.e. the accused) his identity card. He introduced officers and constables to both of them. I was also introduced to both the accused. The information received by police was told to both of them. Then both of them were told that police wanted to take their personal search. They were also told that their search could be taken in presence of Magistrate or Gazetted Officer. They told it was not necessary.” 26. The evidence of PSI Gajanan Gulhane (PW5) on this aspect is as follows : “PI Shinde then told both the accused individually the information received by me. This was told in English. He told both of them that he wanted to search both of them. Individually both the accused persons were told by PI Shinde that they had legal right to get themselves searched in the presence of Magistrate or Gazetted Officer at their option and arrangement could be made for their search in presence of either of them. They declined the offer and told us that in presence of panchas both of them could be searched.” 27. Indeed, this witness has claimed that both the accused persons were ‘individually’ told by PI Shinde about their legal right, held to be implicit in Section 50. They declined the offer and told us that in presence of panchas both of them could be searched.” 27. Indeed, this witness has claimed that both the accused persons were ‘individually’ told by PI Shinde about their legal right, held to be implicit in Section 50. Thus, this witness, on the basis of information received by whom the whole operation was conducted, is the only witness, who comes up with a theory of the Appellant and other accused, both, having been individually appraisedof their said right. Since the other Police witness and the Panch witnesses have not stated about both the accused being individually appraised of their right and since PSI Gajanan Gulhane (PW5) was obviously a highly interested witness, his evidence to this effect needs to be subjected to careful scrutiny. In that context, if the Panchanama (Exhibit 10B), which is a contemporaneous record, is examined to see whether it lends any support to the claim of PSI Gajanan Gulhane (PW5), it becomes clear that it does not speak of the accused being ‘individually’ and separately appraised of the relevant aspect. The relevant part of the Panchanama reads as under : “HINDI” (Emphasis supplied) 28. It becomes clear that the Marathi equivalent for the word “individually”, which could be “HINDI”%, is not found in the Panchanama. This record, therefore, does not support the claim made by PSI Gajanan Gulhane (PW5). 29. Thus, the evidence of PSI Sanjay Patil (PW3) and the Panch Atul Sarkar (PW4) does not show that the Appellant and the other accused were individually and separately appraised of the right contemplated under Section 50. This claim is made only by PSI Gajanan Gulhane (PW5); and even this claim is not supported by the record of the Panchanama (Exhibit10B).It would be hazardous, therefore, to rely on the evidence of PSI Gajanan Gulhane (PW5), which is neither corroborated by the contemporaneous record of the happenings in the form of Panchnama, nor corroborated not only by the evidence of the Panch Witness, but also by the evidence of his colleague Police Officer. 30. Moreover, what is significant, in my opinion, is that it would, indeed, be difficult to make a joint communication to two persons at the same time and to get their replies. The manner in which the witnesses, (except PSI Gajanan Gulhane (PW5)), have deposed about this aspect had already been examined earlier. 30. Moreover, what is significant, in my opinion, is that it would, indeed, be difficult to make a joint communication to two persons at the same time and to get their replies. The manner in which the witnesses, (except PSI Gajanan Gulhane (PW5)), have deposed about this aspect had already been examined earlier. The statements like ‘they were told’, ‘they were informed’, ‘they were asked’, ‘they said no’, in my opinion, indicate that the version put forth is not precise and the sequence of events, that might have taken place, has not been chosen to be disclosed. Looked at from this angle, even the evidence of PSI Gajanan Gulhane (PW5) that ‘both the accused were “individually” asked’, that ‘they were “individually” told’, that ‘they declined the offer’ does not carry much meaning. It gives an impression that since the requirement of each accused being individually told is known to this witness, he is introducing the word “individually” in the hope that the communication to the accused persons would meet the requirements of law. If both the accused were, indeed, individually, told, one of them must have been told about it earlier and the other later. Similarly, one of them must have responded to such communication or offer earlier and the other later. A natural narration of the happenings was expected to reveal these aspects rather than saying, that, ‘both the accused were ‘individually’ asked’. Interestingly, while stating about the search, PSI Gajanan Gulhane (PW5) did not state that the Police Party took the search of both the accused ‘individually’. In this context, he states that first he took search of the Accused No.1, i.e. the Appellant. He then states what was found with him and then states that the other accused was then searched. In the matter of appraising the accused persons of their right, however, he does not tell the sequence. 31. There is also another aspect of the matter. It is that PI Shinde who was the head of the team has not been examined as a witness. No reasons for not examining him have been mentioned. It is contended by the learned Counsel for the Appellant that non-examination of PI Shinde as a witness is fatal to the prosecution case. According to him, an adverse inference should be drawn against the prosecution for having failed to examine PI Shinde who was the most material witness. 32. No reasons for not examining him have been mentioned. It is contended by the learned Counsel for the Appellant that non-examination of PI Shinde as a witness is fatal to the prosecution case. According to him, an adverse inference should be drawn against the prosecution for having failed to examine PI Shinde who was the most material witness. 32. I have considered the matter. Though I am not inclined to lay down a proposition that the head of a trap party or raiding party must invariably be examined as a witness, and that failure to examine as a witness without any satisfactory reasons, must always be fatal to the prosecution case, but, so far as the present case is concerned, I do think that non-examination of PI Shinde has weakened the case of prosecution considerably. It is particularly because, according to the case of the prosecution, it was PI Shinde who had appraised the accused persons of their right. 33. In my opinion, in this case, there was no satisfactory evidence to show that the requirements of Section 50 were duly complied with. First of all, the communication, which is claimed to have been made to the Appellant and the other accused in the context of the requirements of Section 50, does not seem to be proper and in consonance with the requirements so far as the requirement to inform the accused of the existence of right in that regard, is concerned. Secondly, the communication appears to be a joint communication to the Appellant as well as to the other accused and though PSI Gajanan Gulhane (PW5) has claimed that both the accused were individually communicated in that regard, it is not safe to accept this claim (which does not get support from the contemporaneous record in the form of the Panchanama (Exhibit10B) in the absence of any corroboration from the evidence of the Panch witness Atul Sarkar (PW4) and even the evidence of the other Police witness Sanjay Patil (PW3). It becomes still less safe because of the non-examination of PI Shinde, who, according to the case of the prosecution, had appraised the Appellant and the other accused of their said right. 34. A perusal of the judgment delivered by the Special Court shows that the learned Judge had not apprehended the evidence in proper perspective. It becomes still less safe because of the non-examination of PI Shinde, who, according to the case of the prosecution, had appraised the Appellant and the other accused of their said right. 34. A perusal of the judgment delivered by the Special Court shows that the learned Judge had not apprehended the evidence in proper perspective. While dealing with the contention on behalf of the accused persons that there was no proper compliance with Section 50 of the NDPS Act, the learned Judge has, apparently, read something which is not actually there in the evidence. While holding that the decision in the case of K. Mohanan (supra)was not applicable to the facts and circumstances of this case, the learned Judge, inter alia, observed that PSI Gajanan Gulhane (PW5) and Panch Atul Sarkar (PW4) have, both, stated that PI Shinde had told both the accused individually that they had legal right to get themselves searched in the presence of Magistrate or a Gazetted Officer. Now, Atul Sarkar (PW4) has not stated about both the accused being ‘individually’ told and, secondly, he had not stated about the accused being informed of the legal right available to them to that effect. Moreover, Atul Sarkar (PW4) had stated not about PI Shinde telling to the accused persons, but had stated that PSI Gajanan Gulhane (PW5) had told both the accused that they could be searched in the presence of Magistrate or a Gazetted Officer. This variance between the evidence of PSI Gajanan Gulhane (PW5) and the Panch witness Atul Sarkar (PW4) on ‘what was told to the accused persons’, ‘by whom it was told’, has been ignored by the learned Judge. The learned Judge has misread the evidence of the Panch witnesses on the relevant aspects. 35. Considering the various infirmities, as appearing in the evidence, and considering the total effect thereof, a doubt, indeed, arises about the truth of the prosecution version, with respect to the aspect of compliance with the provisions of Section 50 of the NDPS Act. 36. It is doubtful whether the provisions of Section 50 had, indeed, been complied with in the present case. Such doubt results in a reasonable doubt about the truth of the prosecution version as regards seizure and recovery of Cocaine from the Appellant and the other accused. 36. It is doubtful whether the provisions of Section 50 had, indeed, been complied with in the present case. Such doubt results in a reasonable doubt about the truth of the prosecution version as regards seizure and recovery of Cocaine from the Appellant and the other accused. This vitiates the conviction of the Appellant – and even the other accused (who, I am told, has been released after serving the sentence) –, who were entitled to be acquitted. 37. In the result, the Appeal succeeds. 38. The Criminal Appeal is allowed. 39. The impugned Judgment and Order dated 15th October, 2004, passed by the NDPS Special Court, Greater Bombay, in Special Case No.36 of 2004, is set aside. 40. The Appellant stands acquitted. Fine, if paid, be refunded to the Appellant. P.C. : 1. For the reasons separately recorded in the Judgment, the Criminal Appeal is allowed. 2. The impugned Judgment and Order dated 15th October, 2004 passed by the N.D.P.S. Special Court, Greater Bombay, in Special Case No.36 of 2004, is set aside. 3. The Appellant stands acquitted. Fine, if paid, be refunded to the Appellant.