CR.A/731/1989 of HASAM ABDUL HUSAIN PATHAN Vs STATE OF GUJRAT on 6 November 1995

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 .T.......T......JT.....J..T.........T.......T......JT.....J..T.........T.--------------------------------------------------------------- Shri A.A. Chandiwala, Advocate, for the Appellant Shri S.T. Mehta, Addl. Public Prosecutor, for the Respondent

---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.

(Date: 8th November 1995)

ORAL JUDGMENT (per Divecha, J.)

The judgment and order of conviction of the appellant under sec. 20(b)(ii) of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (the NDPS Act for brief) as also under sec.

66(1)(b) of the Bombay Prohibition Act, 1949 (the ProhibitionAct for brief) and sentence of rigorous imprisonment for 10years and fine of Rs. 1 lakh in default of which simpleimprisonment for one year under sec. 20(b)(ii) of the NDPS Actawarded by the learned Additional Sessions Judge at Surat by hisjudgment and order pronounced on 20th October 1989 in SessionsCase No. 51 of 1989 is under challenge in this appeal.

2. It is not necessary to set out in detail the facts giving rise to this appeal. It may be sufficient to note thatduring his patrolling errand in the company of his staff thepolice Sub-Inspector of the police station of Mahidarpura atSurat on the basis of prior information found the appellantstanding opposite Satlaj Hotel near the Ayurvedic Hospital andon the search of his person he was found to be possessing a bagcontaining 250 gms. of what is popularly known as charas(cannabis sativa). The appellant was not found possessing anypass or permit in that regard. Thereupon the bag with itscontents was seized from him. The contents were put in a parceland it was sealed. Later on it was sent to the forensic sciencelaboratory for analysis and report. At the end ofinvestigation, the charge-sheet was submitted before theSessions Court at Surat. The case was registered as SessionsCase No. 51 of 1989. It was assigned to the learned AdditionalSessions Judge for trial and disposal. The charge was framedagainst the appellant on 5th June 1989 at Exh.2 on the record ofthe case. The appellant did not plead guilty to the charge. Hewas thereupon tried. After recording evidence and recording thestatement of the accused under sec.313 of the Code of CriminalProcedure, 1973 (the Code for brief), by his judgment and orderpronounced on 20th October 1989 in Sessions Case No. 51 of1989, the learned trial Judge convicted the appellant under sec.20(b)(ii) of the NDPS Act and also under sec. 66(1)(b) of theProhibition Act and sentenced him to rigorous imprisonment for10 years and fine of Rs. 1 lakh in default of which simpleimprisonment for one year under the aforesaid statutoryprovision of the NDPS Act without awarding any separate sentencefor the offence punishable under the Prohibition Act. Thataggrieved the appellant and he has therefore invoked theappellate jurisdiction of this court by means of this appeal.

3. The conviction of the appellant under sec. 20(b)(ii) ofthe NDPS Act cannot be sustained in law in view of the bindingruling of the Supreme Court in the case of Saiyad Mohd. SaiyadUmar Saiyad and Others v. State of Gujarat reported in 1995Supreme Court Cases (Cri) at page 564. It has been held thereinthat it is incumbent upon the officer acting under sec. 42 ofthe NDPS Act to ascertain from the person concerned whether ornot he would like to be searched in the presence of a gazettedofficer or a magistrate under sec. 50(1) thereof. Ittranspires from the material on record that this requirement of law has not been satisfied in this case. In that view of thematter, the conviction of the appellant under the NDPS Actcannot be sustained.

4. So far as the conviction under the Prohibition Act isconcerned, it cannot be sustained for one very good reason tothe effect that the seal applied on the packet containing thecharas recovered from the appellant at the relevant time wasfound to be illegible as transpiring from the report of theforensic science laboratory at Exh. 14 on the record of thecase. It further transpires therefrom that a specimen of theseal applied did not accompany the sealed packet. In absence ofa specimen of the seal used for sealing the packet of theobnoxious substance, the office in-charge of the forensicscience laboratory had no opportunity to compare the seal on thepacket with the specimen seal. That would raise a serious doubtwhether or not the contents of the packet were the same asrecovered from the appellant at the relevant time. That wouldrender the report of the forensic science laboratory at Exh. 14on the record of the case unreliable. If that report is notrelied on, there is no cogent or convincing evidence on recordto show or to suggest that what was recovered from the appellantat the relevant time was what is popularly known as charas. Inthat case, the prosecution cannot be said to have brought theguilt home to the accused with respect to the office punishableunder sec. 66(1)(b) of the Prohibition Act beyond anyreasonable doubt. In the result, the conviction of theappellant thereunder also cannot be sustained in law.

5. It must be fairly stated at this stage that ShriChandiwala for the appellant has urged several points in supportof this appeal with respect to the conviction of the appellantboth under the NDPS Act and the Prohibition Act. Since we areof the opinion that the appellant's conviction under both theenactments cannot be sustained on the aforesaid grounds, we havenot chosen to deal with all his submissions in extenso.

6. In view of our aforesaid discussion, we are of theopinion that the appellant's conviction under the NDPS Act andunder the Prohibition Act cannot be sustained in law. Theimpugned judgment and order of conviction and sentence passedagainst the appellant cannot therefore be sustained in law.

7. In the result, this appeal is accepted. The judgmentand order of conviction and sentence passed by the learnedAdditional Sessions Judge of Surat on 20th October 1989 inSessions Case No. 51 of 1989 is quashed and set aside. Theappellant is ordered to be released forthwith if no longerrequired in any other case.