CR.A/1006/1988 of P K BALAM ALIAS BALA NARAYAN Vs STATE OF GUJ 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 a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder?

5. Whether it is to be circulated to the Civil Judge?

---------------------------------------------------------------- Shri M.J. Dagli, Advocate, for the Appellant Shri S.R.Divetia, Addl. Public Prosecutor, for the Respondent

---------------------------------------------------------------- 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 passedby the learned Additional City Sessions Judge of Court No. 15at Ahmedabad on 3rd November 1988 in Sessions Case No. 199 of1988 convicting the appellant under sec. 20(b)(ii) of theNarcotic Drugs and Psychotropic Substances Act, 1985 (the NDPSAct for brief) and sentencing him to rigorous imprisonment for10 years and fine of Rs. 1 lakh in default rigorousimprisonment for 2 years is under challenge in this appealpreferred by the original accused.

guilty of the offence punishable under sec. 66(1)(b) of theBombay Prohibition Act, 1949 (the Prohibition Act for brief).

3. The facts giving rise to this appeal need not be statedin detail. It may be sufficient to note that PoliceSub-Inspector Shri P.G. Vaghela attached to the Sherkotdapolice station in Ahmedabad had prior information regardingpossession of some obnoxious article by the present appellantand he therefore searched person of the appellant on 23rdDecember 1987 in presence of the panchas and what was found fromthe person of the appellant at that time was what is popularlyknown as charas to the tune of 305 gms. Thereupon the concernedpolice officer lodged his complaint. The proceeding ultimatelycame to be registered as Sessions Case No. 199 of 198 and itculminated into conviction and sentencing of the appellantaccused of the offences with which he was charged. Theaggrieved accused has thereupon invoked the appellatejurisdiction of this court by means of this appeal.

4. It transpires from the evidence on record that at thetime of the search of his person, the appellant accused wasgiven no option whether or not he would like to be searched inpresence of a gazetted officer or a magistrate in view of therelevant provisions contained in Sec. 50 read with sec. 42 ofthe NDPS Act. The relevant provision contained therein is heldto be mandatory by the Apex Court in its ruling in the case ofSaiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujaratreported in 1995 (2) 36(2) GLR 1315. Since no such option wasgiven to the appellant accused at the relevant time, hisconviction and sentence cannot be sustained in law in view ofthe very same binding ruling of the Supreme Court. It may benoted that the appellant accused has also been convicted of theoffence punishable under sec. 66(1)(b) of the Prohibition Act.The material on record clearly shows and suggests theinvolvement of the appellant accused in the crime with which hewas charged so far this offence is concerned. In view of theoverwhelming evidence on record, Shri Dagli for the appellantcould not make much headway in support of his submission thatthe prosecution has not been able to bring the guilt home to theaccused qua the said offence. We are therefore of the opinionthat the conviction of the appellant accused of the offencepunishable under sec. 66(1)(b) of the Prohibition Act deservesto be sustained.

5. It may be mentioned that in view of sentencing theappellant accused to rigorous imprisonment for 10 years and fineof Rs. 1 lakh in default rigorous imprisonment for 2 years forthe offence punishable under sec. 20(b)(ii) of the NDPS Act, noseparate sentence was awarded for the offence punishable undersec. 66(1)(b) of the Prohibition Act. Since we are upsettinghis conviction under the NDPS Act and since we are maintaining his conviction under the Prohibition Act, we will have to awardsentence for his conviction thereunder. We therefore sentencethe appellant accused to rigorous imprisonment for 6 months andfine of Rs. 1000 in default rigorous imprisonment for one monthmore. We are told that the appellant accused is in jail servinghis sentence under the NDPS Act since his first arrest on 23rdDecember 1987. He need not be subjected to serve any fresh termof sentence awarded by us in this judgment.

6. In the result, this appeal is partly accepted. Thejudgment and order of conviction and sentence passed by thelearned Additional City Sessions Judge of Court No. 15 atAhmedabad on 3rd November 1988 in Sessions Case No. 199 of 1988qua the offence punishable under sec. 20(b)(ii) of the NDPS Actis quashed and set aside while the conviction of the appellantaccused under sec. 66(1)(b) of the Prohibition Act ismaintained. The appellant accused is sentenced to rigorousimprisonment for 6 months and fine of Rs. 1000 in defaultrigorous imprisonment for one month more for the offencepunishable under the Prohibition Act. Since he has undergoneimprisonment for more than what has been awarded by us, he neednot be required to serve any fresh term of imprisonment and heis ordered to be set at liberty if no longer required in anyother case. The order regarding disposal of muddamal passed bythe learned trial Judge is maintained.

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