CR.A/156/1989 of JUJARSINH BHERUSINH RAJPUT Vs STATE OF GUJARAT on 6 November 1995

1. Whether Reporters of Local Papers may be allowed to see the Judgment ?

2. To be referred to the Reporter or not ?

3. Whether Their Lordships wish to see the fair copy of Judgment ?

4. Whether this case involves substantial question of law as tothe interpretation of the Constitution of India, 1950 or any order made thereunder ?

5. Whether it is to be circulated to the Civil Judge?

Mr. A.J. Patel, Advocate for the appellant.

Mr. S.R. Divetia, Additional Public Prosecutor for the State.

Coram: A.N. Divecha,J. & H.R. Shelat,J.

(8-11-1995)

ORAL JUDGMENT: (Per: H.R. Shelat,J.)

1. The appellant, having been convicted of the offencesunder Section 66-A of the Bombay Prohibition Act and Section 18of the Narcotic Drugs and Psychotropic Substances Act, 1985, bythe then learned Additional Sessions Judge-Nadiad, in SessionsCase No.156 of 1988 has preferred this appeal.

2. Tersely put and shorn of unnecessary details, the case ofthe prosecution-respondent is that Mr. M.N. Patel, the CirclePolice Sub-Inspector, Dakor with his members of the staff was onpatrolling duty. He came to know during patrolling that oneperson from Rajasthan had gone to Bhagwanji na Muvada with opiumand was near the bus stand. The Circle Police Sub-Inspector then called the panchas and went to the bus stand where, on seeing himand other police personnel that person started to flee but he wascaught hold of. On being interrogated he gave his name and otherparticulars. His search was taken. During the search acloth-bag was found wherefrom a plastic bag containing 520 gramsof opium could be seen. On being questioned that person divulgedthat he was having no permit to possess the opium. That personwas no one else but the appellant. As the police found thatoffences under Section 66-A of the Bombay Prohibition Act andSection 18 of the Narcotic Drugs and Psychotropic Substances Actwere committed, appellant was arrested, and then after undergoingnecessary formalities and investigation as per law, thecharge-sheet was presented before the Court of the JudicialMagistrate, First Class at Dakor. As the learned Magistrate hasno jurisdiction to hear and decide, he committed the case to theCourt of Sessions at Nadiad which came to be registered asSessions Case No. 156 of 1988. The charge was framed and pleawas taken. The appellant pleaded not guilty. The prosecutionthen led necessary evidence. After appreciating the evidence onrecord, the learned Additional Sessions Judge to whom the casewas assigned, convicted the appellant with which he was charged,and sentenced him , for the offence under Section 18 of theNarcotic Drugs and Psychotropic Substances Act,1985 to 10 yearsrigorous imprisonment and fine of Rs.1,00,000/- in default tosuffer rigorous imprisonment for one year more. No separatesentence was passed with regard to the offence under Section 66-Aof the Bombay Prohibition Act. The present appeal is, therefore,filed by the original accused.

3. Mr. Munshi, learned counsel representing the appellant assailed the judgment only on one point submitting that Section50 of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as the 'NDPS Act') was a given a go-by.although to follow was incumbent upon the prosecution. Shri S.R.Divetia, learned Additional Public Prosecutor submits at thisstage that unless in evidence a suggestion is made on behalf ofthe defence, Section 50 cannot be interpreted as canvassed by thelearned Advocate, Mr. Munshi. Section 50 of the NDPS Act runsas under;

50. "Conditions under which search of persons shall be conducted -

(1) When any officer duly authorised under Section 42

is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1);

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made;

(4) No female shall be searched by anyone excepting a female."

As per that provision mandatory in nature, it is incumbent uponthe prosecution to apprise the accused about his right of beingsearched before a Gazetted Officer or a Magistrate and that suchopportunity has to be given. If that opportunity is not givenalthough accused does not say about it to searching agency, itwould be fatal to the prosecution. The Supreme Court, whiledealing with the point in the case of Saiyed Mohd. Saiyed UmarSaiyad & Ors vs. State of Gujarat, 1995 Supreme Court Cases(Cri) 564, - [1995 (2)] XXXVI (2) GLR 1315 has also clearly heldthat it is obligatory on the part of the police officerconducting the search to inform the citizen accused of his rightto have him searched in the presence of a Gazetted Officer or aMagistrate and the prosecution must prove that the accused wasmade aware of his right. Failure to inform accordingly is fatal.No presumption can be drawn that the police officer haddischarged his duty. If no evidence to this effect is given theCourt must assume that the accused was not informed about hisright and consequently the court has to hold that the possessionof the illicit article was not established. The protection givento the accused under Section 50 of the NDPS Act cannot bedisregarded on the technicality namely the point was not raisedin the Trial Court or at the time of evidence suggestion onbehalf of accused was not made.

4. We perused the evidence on record and more particularly the evidence of searching authority. No where we found a wordindicating about the procedure mandated by Sec.50 was followed.The learned Additional Public Prosecutor also failed to point outfrom record that procedure as per Sec. 50 was followed and therewas no breach. In view of the matter and above referred decisionof the Supreme Court, the submission made on behalf of therespondent cannot be sustained and the appellant's contentionoutvies. The result is that the appeal will have to be allowedas the formalities required to be undergone under Section 50 havenot been undergone so far as it relates to the conviction and

5. So far as conviction and sentence under Section 66-A ofthe Bombay Prohibition Act is concerned, Mr. Munshi failed topoint out any thing on record which would justify us ininterfering with the findings of the learned Judge below and hisjudgment and order. Keeping the provisions of Evidence Act andBombay Prohibition Act in mind, we perused the record and we aresatisfied that the conclusions reached by the lower court are notperverse or arbitrary but just and logical consistent with law.In such view of the matter, we maintain the conviction underSection 66-A of the Bombay Prohibition Act. We are of the viewthat when the learned Judge has not passed the sentencespecifically, explicit order is required to be passed.Considering the wrong committed by the appellant and also theprovision of the Bombay Prohibition Act, we are of the view thatthe appellant is required to be sentenced to 3 years rigorousimprisonment and a fine of Rs.10,000/- in default to sufferrigorous imprisonment for one year more because the sentenceawarded by the court below if maintained for the offence underSection 66(1)(b) would not sound reasonable, just and adequate asthe sentence must be commensurating with the crime.

6. In light of the discussion hereinabove, the appeal isrequired to be partly allowed. We accordingly allow the appealpartly. The judgment and order of the lower Court convicting andsentencing the appellant of the offence under Section 18 of theNarcotic Drugs and Psychotropic Substances Act, is hereby setaside and the appellant is acquitted of the same. The convictionunder Section 66-A of the Bombay Prohibition Act is maintained,but the sentence is reduced to 3 years rigorous imprisonment andfine of Rs.10,000/- in default, rigorous imprisonment of one yearmore. The appellant by now must have undergone the sentence wehave awarded and therefore he be set at liberty forthwith if notrequired in any other matter.

.......