CR.A/626/1990 of KARSANBHAI HIMATBHAI PARMAR Vs STATE OF GUJARAT 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?

Shri H.M. Chinoy, Advocate for the appellant.Shri Champaneri, Addl. Public Prosecutor for the respondentState.

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

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

The appellant, having been convicted of the offence underSection 20-B of The Narcotic Drugs and Psychotropic SubstancesAct, 1985 (in short 'NDPS Act') and sentenced to rigorousimprisonment of 10 years, and fine of Rs.1,00,000/-, in defaultto rigorous imprisonment of 9 months more by the then learnedAdditional Sessions Judge, Baroda on 7-7-1990 in Sessions CaseNo.10 of 1990, has preferred the present appeal.

2. In short, it is the case of the prosecution that Jasvindersinh Dharamsinh Ramgadia the then PSI, control room atBaroda came to know that certain persons were bringing narcoticdrugs, charas etc., from outside into the city and were sellingto the retailers or directly to the people or the students. Thepolice officer then decided to have the raid. The then D.S.P.,Mr. Gehlot was informed and summoning panchas JasvindersingDharamsinh Ramgadia decided to raid laying the trap. The panchaswere made to understand what role they had to play. The raidingparty then went near the English Medium School situated inGujarat Refinery Township of the city of Baroda where the panchasand police personnel were deployed at different places. A boguscustomer was sent. He contacted the appellant and was talkingabout narcotic drug or charas. As the accused appellant showedthe charas bringing out the same from his pocket, signal wasgiven and then panchas and police personnel rushed to the place.The appellant was then searched and from his person charas wasfound. He was having no pass or permit to possess the same ordeal with the same. The police officer then found that appellanthad committed the offence punishable under Section 20 of the NDPSAct by possessing, without any pass or permit, the charas. On14th August 1989 at 3.45 hours a complaint was lodged andinvestigation was taken on hand. During the course ofinvestigation police also found that Gopalsingh Pratapsinh Gurkhahad sold the charas to the present appellant, and therefore hewas also involved in the matter and against both, thecharge-sheet was presented before the then learned Chief JudicialMagistrate at Baroda who committed the case to the Court ofSessions, as he was not in law empowered to hear and decide thematter. The case then came to be registered as Sessions Case No.10 of 1990 on the record of the Sessions Court at Baroda. Thethen learned Sessions Judge assigned the case to the thenAdditional Sessions Judge, Baroda for hearing and disposal inaccordance with law. The learned Additional Sessions Judge thenframed the charge against both the accused to which both pleadednot guilty and therefore the prosecution led necessary evidence.Considering the evidennce on record, the then learned Judge belowacquitted Gopalsinh Pratapsinh Gurkha, but convicted the presentappellant and sentenced him as aforesaid and therefore appellantwho is convicted, has preferred this appeal.

3. Mr. Chinoy representing the appellant assailed thejudgement only on one point going to the root of the matter andit was about the provision of Section 50 of NDPS Act having beenoverlooked by the investigating authority while making thesearch. As per that provision, it is incumbent upon theprosecution to inform the citizen that he has a right to havehimself searched in the presence of a Gazetted Officer or aMagistrate. Failure to so inform the citizen is fatal. Nopresumption about the official act can be drawn. The onus caston an accused under Sec.54 would not even cure the lacuna. Forour such view, a reference to the case of Saiyad Mohd. Saiyad Umar Saiyad & Ors vs. State of Gujarat - [1995 (2)] 36(2) GLR1315 may be made. When the law about mandatory provision ofSection 50 has been accordingly made clear recently by theSupreme Court, the prosecution has to follow the same in letterand spirit, and if there is omission on the part of theinvestigating authority, the accused will have to be acquittedregardless of other evidence being on record.

4. We, therefore, called upon the learned Additional PublicProsecutor, Mr. Champaneri to point out from the record whetherrequirements of Section 50 of NDPS Act were satisfied. He tookus to the entire evidence on record, but no where he was able topoint out that mandatory provision of Section 50 was followed andappellant-accused was informed about his right of being searchedin the presence of a Gazetted Officer or a Magistrate. Whenthere is nothing on record, we hold that accused-appellant hasbeen deprived of his valuable right available to him in law.When that is so, the conviction and sentence passed by the lowerCourt cannot be maintained and requires to be quashed. Theappeal therefore requires to be allowed. In the result, we allowthe appeal, set aside the judgment and order convicting theappellant-accused of the offence under Section 20 of the NDPS Actand acquit him thereof. The appellant-accused be set at libertyforthwith if not required in any other matter.