CRIMINAL APPEAL 03/1998 on 18 December 1998

ORAL JUDGMENT:

.This appeal is filed against the judgment and order passed by the learned Additional Sessions Judge, Parbhani in N.D.P.S. Case No. 03/1998 dated 18th December, 1998 convicting the appellant for the offence punishable U/Sec. 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing her to suffer rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- with a default clause.

2. The prosecution case is that :

On 11th March, 1998, the police along with panch went to the house of appellant and on search they found ganja (cannabis) stored in her house in a gani bag. The weight of the material was about 11.50 Kg.

3. The prosecution at the trial examined three witnesses. The prosecution witness No. 1 was one Dattatraya who was the panch accompanying the investigating officer at the relevant time. He said on 11th March, 1998 he accompanied the police as a panch. He said there was one more panch by name Manchak. He said he went to the house of the appellant along with police. He said the appellant was present at her house. He said the investigating officer informed her that he wanted to take search of her house for the purpose of verifying whether she had stored the ganja. He said to this the appellant consented for taking the search of her house in absence of Gazetted Officer. He said during the search stock of ganja was found. He further said that two samples of 100 g of ganja were taken and he signed the labels on the packets.

4. The prosecution witness No. 2 is a police constable who stated that he received the sealed packets of ganja samples on 12th March, 1998. He said he took those samples to the Chemical Analyzer at Aurangabad and delivered the same in sealed condition.

5. The third witness is the investigating officer, who stated that on 11th March, 1998 on secrete information he proceeded to go to the house of appellant. He said that he called two panchas. He said thereafter he, his colleagues and the panchas went to the house of the appellant. He said, he found the appellant present at her house. He said he explained the purpose of search to her. He said he asked her whether she wanted that search of her house to be taken in presence of a gazetted officer or a Magistrate. He said a notice in writing to that effect was given to the appellant. He said thereafter, he proceeded to take search and seized the ganja.

06. The learned advocate appearing for the appellant asserted that the prosecution witness No. 3, the Investigating officer and the person who was authorized to take search of the house of the appellant did not comply with the conditions laid down in 50 of the Act under which search of person should be conducted. Section 50 reads as under :

50. Conditions under which search of persons shall be conducted :

(1) When any officer duly authorized 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 the nearest Magistrate.

(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.

[(5)When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973.

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a seventy-two hours send a copy thereof to his immediate official superior.]

07. One must read these provisions along with the observations of the Supreme Court in the case of State of Panjab Vs. Baldevsing (1999) 6 S.C.C. 172, in which the Supreme Court clearly stated that a person who has to be searched has a right to be made aware of the purpose of the search. Thereby, the Supreme Court held, "though such communication itself may not necessarily be made in writing, but as far as possible such communication should be made in presence of some independent and responsible persons witnessing either the arrest or the search".

08. In this case the prosecution witness No. 3 indeed complied with the first condition that the appellant was required to be informed that her house was to be searched. He not only stated so in the deposition, but even the independent panch, prosecution witness No. 1 also stated so in his deposition. However, the prosecution witness No. 3 did not state that on being informed to the appellant that her house was required to be searched and that she was entitled to have the search in presence of a Gazetted Officer of a Magistrate, as to what the response of the appellant was to such information. He did not say that the appellant expressed her no objection for the search to be taken in absence of a Gazetted Officer or a Magistrate.

09. Learned advocate appearing for the appellant asserted that, this lapse on the part of prosecution case would prove fatal. I am afraid this is not acceptable, because in substantive evidence, the prosecution witness No. 1, the independent panch specifically stated that the appellant gave her consent for search to be taken without requiring presence of a Gazetted Officer, etc. The prosecution thus has amply proved the case.

10. Learned advocate appearing for the appellant sought leniency in the matter of substantive sentence. He says that the sentence awarded to the appellant is rather harsh. He points out further that incident in question took place in 1998., almost 12 years back. He points out that since prior to the incident the appellant has been suffering from incurable leprosy and has lost her fingers and toes. The appellant at present is almost of 75 years old. He says after this incident no other criminal case of this nature was lodged against her. She does not have any previous conviction also.

11. Having regard to these submissions, I am inclined to reduced the substantive sentence from three years to six months of rigorous imprisonment. The appeal is partly allowed. The appellant is sentenced to suffer six months of rigorous imprisonment for the offence punishable U/Sec. 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

12. The appellant be taken in custody and sent to jail.

[A. V. NIRGUDE, J.]

bsb/Dec. 10

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