Gujarat High Court
CR.A/1035/1988 of MANGILAL SHANKERLAL TAILI Vs STATE OF GUJARAT on 15 November 1995
Decision: 15th November 1995 CRIMINAL APPEAL NO. 1035 OF 1988 with CRIMINAL APPEAL NO. 1036 OF 1988 FOR APPROVAL AND SIGNATURE THE HONOURABLE MR. JUSTICE A.N. DIVECHA AND HONOURABLE MR. JUSTICE H.R. SHELAT 1. Whether Reporters of Local Papers may be allowed to see the judgment? No 2. To be
���Date of Decision: 15th November 1995
CRIMINAL APPEAL NO. 1035 OF 1988withCRIMINAL APPEAL NO. 1036 OF 1988
FOR APPROVAL AND SIGNATURE
THE HONOURABLE MR. JUSTICE A.N. DIVECHAANDHONOURABLE MR. JUSTICE H.R. SHELAT
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1. Whether Reporters of Local Papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether their Lordships wish to see the fair copy of judgment? No
4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No
5. Whether it is to be circulated to the Civil Judge? No
---------------------------------------------------------------- Shri H.N. Chinoy, Advocate, for the Appellant (in both appeals)
Shri S.R. Divetia, Addl. Public Prosecutor, for the Respondent(in both appeals)---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.(Date: 15th November 1995)
ORAL JUDGMENT (per Divecha, J.)
The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge of Kheda at Nadia on24thNovember 1988 convicting both the appellants hereinundersec. 18 of the Narcotic Drugs and Psychotropic Substances Act,1985 (the Act for brief) and sentencing them to rigorousimprisonment for 10 years each and fine of Rs. 1 lakh each indefault rigorous imprisonment for one year each is under challenge in these two appeals at the instance of the twooriginal accused.
2. It is not necessary to set out in detail the factsgiving rise to both these appeals. It may be sufficient to notethat on prior information the 2nd Police Sub-Inspector of thePolice Station at Umredh searched the persons of both theappellants on 8thNovember 1987 and from each of them was foundopium of about 350 gms. from appellant Mangilal and 50 gms.from appellant Bhammarlal. Thereupon the concerned policeofficer lodged his complaint. The proceeding arising therefromculminated into the conviction of both the appellants hereinwith the aforesaid sentence awarded to them.
3. It clearly transpires from the material on record thatno option was given to the appellants herein or either of thembefore subjecting them to search of their person whether or notthey would like to be searched in presence of a gazetted officeror a magisrate as provided in sec. 50 of the Act. Theaforesaid statutory provision has been held to be mandatory bythe Supreme Court in its ruling in the case of Saiyad Mohd.Saiyad Umar Saiyad and others v. State of Gujarat reported in1995(2) 36(2) GLR 1315. Since the requirements of the aforesaidstatutory provision are not complied with, the conviction andsentence of the appellant in each case cannot be sustained inlaw in view of the aforesaid binding ruling of the SupremeCourt.
4. In the result, both these appeals are accepted. Thejudgment and order of conviction and sentence passed by thelearned Additional Sessions Judge of Kheda at Nadiad on 24thNovember 1988 in Sessions Case No. 45 of 1988 is quashed andset aside. The appellants are ordered to be set at libertyforthwith if no longer required in any other case.