CR.A/787/1990 of RAJNIKANT RUGHNATH BAROT Vs STATE OFGUJARAT 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 S.R. Divetia, Additional Public Prosecutor for therespondent.

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

ORAL JUDGMENT: (Per: A.N. Divecha, J.)

1. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge at Mehsana on 19th July1990 in Sessions Case No. 117 of 1989 convicting the appellantof the offence punishable under Section 8 read with Section 20 ofThe Narcotic Drugs and Psychotropic Substances Act, 1985 (the Actfor brief) and sentencing him to rigorous imprisonment for 10years and fine of Rs.1,00,000/- in default rigorous imprisonmentfor 2 years more is under challenge in this appeal at theinstance of the original accused.

2. It is not necessary to set out in detail the facts givingrise in this appeal. It will be sufficient to note that uponinformation received one unarmed Head Constable having buckle No.1239 attached to the city police station at Kalol searched theperson of the appellant on 23rd April 1986 and found from hisperson 5 small pills of what is popularly known as charas worthabout Rs.5.00. Thereupon the police official lodged hiscomplaint. The proceeding arising therefrom was registered asSessions Case No. 117 of 1989. It appears to have been assignedto the learned Additional Sessions Judge at Mehsana for trial anddisposal. Ultimately it culminated into the judgment and orderof conviction and sentence passed by the learned Trial Judge asaforesaid. The aggrieved accused has thereupon invoked theappellate jurisdiction of this Court by means of this appeal.

3. It transpires from the evidence on record that theappellant accused was given no option whether or not he wouldlike to be searched in the presence of a Gazetted Officer or aMagistrate as required by Section 50 of the Act. In its rulingin the case of Saiyad Mohd. Saiyad Umar Saiyad & Ors. vs.State of Gujarat, reported in 1995 (2) XXXVI (2) G.L.R. at Page1315, the Apex Court has held the relevant provisions containedin Section 50 of the Act to be mandatory. Non-compliance withthe mandatory requirements of law is held to be fatal to theprosecution case. The aforesaid binding ruling of the SupremeCourt is in all fours applicable in the present case. Even atthe cost of repetition we reiterate that at the time of search ofthe person of the appellant no option was given to him whether ornot he would like to be searched in the presence of a GazettedOfficer or a Magistrate. In that view of the matter, theimpugned judgment and order of conviction and sentence cannot besustained in law. Since we are disposing of this appeal on thisvery short point, we have not chosen to deal with othersubmissions urged before us by both the sides.

Conclusion

4. In the result, this appeal is accepted. The judgment andorder of conviction and sentence passed by the learned AdditionalSessions Judge at Mehsana on 19th July 1980 in Sessions Case No.117 of 1989 convicting the appellant of the offence punishableunder Section 8 read with Section 20 of the Act and sentencinghim to rigorous imprisonment for 10 years and fine ofRs.1,00,000/-, in default rigorous imprisonment for 2 years moreis quashed and set aside. The appellant accused is ordered to beset at liberty if no longer required in any other case........