CR.A/16/1989 of SHIVABHAI GAJMALBHAI Vs STATE OF GUJARAT on 6 November 1995

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

2. To be referred to the Reporter or not? Yes

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 P.J. Yagnik, Advocate, for the Appellant Shri S.T. Dave, Addl. Public Prosecutor, for the Respondent---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.

(Date: 14th December 1995)

ORAL JUDGMENT (per Divecha, J.)

The judgment and order of conviction passed by thelearned Additional Sessions of Surat in Sessions Case No. 141of 1988 convicting the appellant herein of the offencepunishable under sec. 20(b)(ii) of the Narcotic Drugs andPsychotropic Substances Act, 1985 (the NDPS Act for brief) andalso under sec. 66(1)(b) and sec. 65E of the BombayProhibition Act, 1949 (the Prohibition Act for brief) andsentencing him to rigorous imprisonment for 10 years and fine ofRs. 1 lakh in default rigorous imprisonment for 2 years more is under challenge in this appeal at the instance of the originalaccused.

2. It is not necessary to set out in detail the factsgiving rise to this appeal. It may be sufficient to note that,while on patrolling duty on 10th February 1988 in the company ofthe Police Inspector and the Police Sub-Inspector of theSalabatpura Police Station at Surat, Police Head Constable,named, Kaljibhai Bhavjibhai (the complainant for convenience),attached to the very same police station found the appellantsuspiciously running away from the scene on seeing the policeparty. Thereupon the appellant was apprehended. His person wassearched and from a matchbox in his possession were found eightpills of what is popularly known as charas. Thereupon thecomplainant lodged his complaint charging the appellant hereinwith the offence punishable under sec. 20 of the NDPS Act andalso that under sec. 65E of the Prohibition Act. Theproceeding arising therefrom ultimately came to be registered asSessions Case No. 141 of 1988 in the Sessions Court at Surat.The case appears to have been assigned to the learned AdditionalSessions Judge for trial and disposal. The case ultimatelyculminated into the conviction and sentencing of the appellantas aforesaid. The aggrieved appellant has thereupon invoked theappellate jurisdiction of this court by means of this appeal forquestioning the correctness of the judgment and order of hisconviction and sentence passed by the learned trial Judge.

3. This appeal can be disposed of on the ground based onnon-compliance with sec. 102(3) of the Criminal Procedure Code,1973 (the Cr.P.C. for brief) read with the relevant provisionscontained in sec. 52 and sec. 51 of the NDPS Act. In thatview of the matter, we have not thought it fit to deal with theother rival submissions urged before us at the time of hearing.

4. Under sec. 52(3) of the NDPS Act, the person arrestedand the article seized are required to be forwarded to theofficer in-charge of the nearest police station or the officerempowered under sec. 53 thereat without unnecessary delay.Sub-section (4) thereof enjoins a duty upon the authority or theofficer to whom any person or article is forwarded inter aliaunder sub-section (3) to take such measures as may be necessaryfor the disposal according to law of such person or article.Section 51 thereof provides for applicability of the provisionsof the Cr.P.C. inter alia to arrests and seizures under theNDPS Act to the extent they are not inconsistent with thosecontained in the latter enactment. Section 102(3) of theCr.P.C. inter alia requires a report of the seizure to be madeforthwith by the concerned police officer to the magistratehaving jurisdiction. Looking to the aforesaid provisions oflaw, there is no escape from the conclusion that a policeofficer acting under sec. 42 of the NDPS Act by effecting arrest of a person and seizure of an article from such personfor the purposes of the Act has to report forthwith to themagistrate having jurisdiction. We are not shown any provisionunder the NDPS Act inconsistent with sec. 102(3) of the Cr.P.C.

5. In the present case, on search of the person of theappellant some eight pills of charas were found from a matchboxin his possession. The obnoxious article was seized by thepolice. It appears that the person arrested and the articleseized were forwarded to the Salabatpura Police Station inSurat. The officer in-charge of the said police station wasrequired to report the matter to the magistrate as provided insec. 102(3) of the Cr.P.C.. The record shows that no suchreport was made by or on behalf of the officer in-charge of theSalabatpura Police Station to the magistrate having jurisdictionin that regard.

6. Rival submissions have been urged before us on the pointwhether the relevant provisions contained in sec. 102(3) of theCr.P.C. are directory or mandatory. It is not necessary for usto address ourselves on this point. Assuming in favour of theprosecution that the said provisions are directory, asubstantial compliance thereto would certainly be necessary.Non-compliance thereto cannot be equated with any substantialcompliance thereof. In that view of the matter, non-complianceof the aforesaid statutory provision contained in sec. 102(3)of the Cr.P.C. would vitiate the trial. We are therefore ofthe opinion that the impugned judgment and order of convictionand sentence cannot be sustained in law. It has to be quashedand set aside.

7. In the result, this appeal is accepted. The judgmentand order of conviction and sentence passed by the learnedAdditional Sessions Judge of Surat on 3rd December 1988 inSessions Case No. 141 of 1988 convicting the appellant of theoffence punishable under sec. 20(b)(ii) of the NDPS Act andalso under sec. 66(1)(b) and sec. 65E of the Prohibition Actand sentencing him to rigorous imprisonment for 10 years andfine of Rs. 1 lakh in default rigorous imprisonment for 2 yearsmore for the offence punishable under the NDPS Act withoutpassing any separate order of sentence for the offencepunishable under the Prohibition Act is quashed and set aside.We are told that the appellant has been in jail since the dateof his arrest. He is ordered to be set at liberty if no longerrequired in any other case. The muddamal may be disposed ofaccording to law.

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