CR.A/17/1989 of HARIJAN NARSINHBHAI GAJABHAI Vs PP on 15 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?

Criminal Appeal No. 17 of 1989:

Shri H.M. Chinoy, Advocate for the Appellant.Shri S.R. Divetia, Additional Public Prosecutor for the respondentState.

Criminal Appeal No. 1003 of 1988:

Shri S.R. Divetia, Additional Public Prosecutor for theAppellant State.Shri H.M. Chinoy, Advocate for the respondent.

Coram: A.N. Divecha,J. & H.R. Shelat,J.(15-11-1995)

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

These two appeals have been preferred against thejudgment and order dated 29th October 1988, passed by the thenlearned Sessions Judge, Banaskantha at Palanpur, in Sessions CaseNo. 53 of 1988, whereby the appellant Narsinhbhai Gajabhai cameto be convicted of the offence under Section 17 of The NarcoticDrugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act')and sentenced to rigorous imprisonment for 10 years and fine ofRs.1,00,000/- in default simple imprisonment for 2 years more.

2. In short, it is the case of the prosecution that thepolice officer at Tharad police station was informed that by thevehicles coming from Sachor towards Tharad certain persons wereimporting opium and liquor for the purpose of sale or passing onto the retailers. He therefore preferred to a have a checking onthe highway. On 15th November 1987 from 15.00 hours the policepersonnel were deployed on the road for the purpose of checkingpassing the vehicles. At 15.50 hours one person came nearBudhanpur Patia post. He was having a suit case. Seeing thepolicemen he started to run and therefore the police suspectedhim. He was chased and caught hold of. He was interrogated andthereafter he was searched. From his suit case a polythene bagwas found wherein opium about 50 grams was kept. It was alsofound that he was having no licence or permit to possess thesame, and therefore the offence under Section 17 of NDPS Act wasfound to have been committed. He was arrested and complaint waslodged and at the conclusion of the investigation the policefiled the charge-sheet before the Court of Judicial Magistrate,First Class at Tharad. As he was having no jurisdiction to hearand decide the case, he committed the case to the Court ofSessions at Palanpur for hearing and disposal in accordance withlaw. The then learned Sessions Judge framed the charge at Exh.3to which the appellant Narsinhbhai Gajabhai pleaded not guilty.The prosecution then led necessary evidende. Appreciating theevidence on record the learned Judge below convicted NarsinhbhaiGajabhai of the offence under Section 17 of NDPS Act as statedhereinabove. Being aggrieved by the judgment and order ofconviction and sentence, he preferred Criminal Appeal No. 17 of1989. The State was not satisfied with the sentence awarded andwas of the opinion that enhancement was necessary. The Statehas, therefore, preferred Criminal Appeal No. 1003 of 1988.

3. As both the appeals arise out of the same judgment andorder and in both the appeals the issues to be decided beingcommon, we dispose of both the appeals together by this commonjudgment.

4. Mr. Chinoy, learned Advocate representing appellant inCriminal Appeal No. 17 of 1989 submitted that though there weremany points on which the judgment and order of the lower courtcould be assailed, but he would confine to one point going to the

root of the matter; and it was non-compliance of the mandatoryprovisions of Section 50 of the NDPS Act. As per that provision,it is incumbent upon the police officer making search to informthe accused even if accused may not pray for it or choose in thisregard about his right of being searched in the presence of aGazetted Officer or a Magistrate. If that is not done theconviction cannot be sustained because in that case the accusedwill be deprived of his valuable right. A similar question arosebefore the Supreme Court in the case of Saiyed Mohd. Saiyad UmarSaiyad & Ors. v. State of Gujarat - [(1995)(2)] 36 2) GLR 1315and it is held that "Section 50 is a mandatory provision andtherefore it is obligatory on the part of the police officer toinform the citizen that he has a right to have him searched inthe presence of a Gazetted Oficer or a Magistrate. Failure toinform is fatal." It is also held that "no presumption of theofficial act can be drawn in favour of the prosecution." In viewof such law made clear by the Supreme Court, we perused therecord and found nowhere that opportunity of being searched inthe presence of a Gazetted Officer or a Magistrate was given.Mr. Divetia, the learned Additional Public Prosecutorrepresenting the State also could not, after perusing the record,point out to us that the police officer making the search of theappellant-accused had informed about the right of being searched.When that mandatory provision is found to have been overlookedand not followed, the conviction and sentence cannot bemaintained. In the result, Criminal Appeal No.17 of 1989requires to be allowed and judgment and order convicting theappellant requires to be quashed. Consequently, Criminal AppealNo. 1003 of 1988 will have to be dismissed as question ofenhancement would not survive for consideration. We accordinglydismiss Criminal Appeal No. 1003 of 1988 and allow CriminalAppeal No. 17 of 1989. The judgment and order convicting theaccused under Section 17 of the NDPS Act are hereby quashed andaccused Narsinhbhai Gajabhai is acquitted of the same. He be setat liberty if no longer required in any other matter and still injail.

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