CR.A/675/1989 of LALLURAM RAMBAX CHAUDHARY Vs STATE OF GUJARAT on 13 December 1995

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

2. To be referred to the Reporter or not? No

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

---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.

(Date: 13th December 1995)

ORAL JUDGMENT (per Divecha, J.)

The judgment and order of conviction and sentence passedby the learned Sessions Judge of Sabarkantha at Himatnagar on30th August 1989 in Sessions Case No. 60 of 1987 convicting thepresent appellant of the offence punishable under sec. 18 ofthe Narcotic Drugs and Psychotropic Substances ACt, 1985 (the NDPS Act for brief) and sec. 67A of the Bombay Prohibition Act,1949 (the Prohibition Act for brief) and sentencing him torigorous imprisonment for 10 years and fine of Rs. 1 lakh indefault rigorous imprisonment for one year more for the offenceunder the NDPS Act without awarding any separate sentence forthe offence punishable under the Prohibition Act is underchallenge in this appeal at the instance of the originalaccused.

2. The facts giving rise to this appeal move in a narrowcompass. One Additional Police Sub-Inspector of the Town PoliceStation at Himatnagar, named, Shri G.P. Prajapati (thecomplainant for convenience), was taking round at about 11 p.m.on 23rd July 1987. After midnight at about 1.30 a.m. he wentto the S.T. Depot at Himatnagar. He was accompanied by certainpolice officials also. At that place the appellant was found.He had one bag in his hand. He was trying to hide it on seeingthe complainant and other police officials. Thereupon thepolice party became suspicious of his behaviour. Two panchwitnesses were summoned. The appellant's name and whereaboutswere ascertained. Thereafter the bag in his hand was recovered.It was opened. A cloth bag was found therefrom. It wasstitched on all the sides. The police party became furthersuspicious. The stitches on one side were removed. There wasfound some blackish substance. It appeared to be opium. Itsweight was found to be 2 Kgs. Its worth was assessed to be Rs.3600. Some 50 gms. of sample was taken out therefrom. It wasplaced in a rectangular tin. It was thereafter sealed inpresence of the panch witnesses. The remaining quantity ofopium was kept in the very cloth bag and that cloth bag was alsosealed. Thereafter the complainant lodged his complaint of theincident charging the appellant with the offences punishableunder sec. 67A of the Prohibition Act and under sec. 18 of theNDPS Act. The proceeding arising therefrom came to beregistered as Sessions Case No. 60 of 1987 in the SessionsCourt of Sabarkantha at Himatnagar. At the end of the trial,the appellant came to be convicted of the offence punishableunder sec. 18 of the NDPS Act and under sec. 67A of theProhibition Act and sentenced to rigorous imprisonment for 10years and fine of Rs. 1 lakh in default rigorous imprisonmentfor one year more for the offence punishable under the NDPS Actwithout imposition of any further sentence for the offencepunishable under the Prohibition Act. The aggrieved appellanthas thereupon invoked the appellate jurisdiction of this courtby means of this appeal for questioning the correctness of hisconviction and sentence.

3. This appeal can be disposed of on a short ground basedon sec. 102(3) of the Code of Criminal Procedure, 1973 (theCr.P.C. for brief). It may be mentioned that sec. 51 of theNDPS Act makes the relevant provisions contained in the NDPS Act

applicable to the extent they are not inconsistent with theprovisions of the NDPS Act. Section 52(3) of the NDPS Actrequires forwarding of the arrested person and the seizedarticle inter alia to the officer in charge of the nearestpolice station. Sub-section (4) thereof requires the authorityor officer to whom any person or article is forwarded inter aliaunder sec. sub-section (3) to take such measures as may benecessary for the disposal according to law of such person orarticle. There is no provision in the NDPS Act inconsistentwith sec. 102(3) of the Cr.P.C. It is needless to repeat or toreiterate that, by virtue of sec. 51 of the NDPS Act, theprovisions of the Cr.P.C. to the extent they are notinconsistent with the provisions contained in the NDPS Act wouldbe applicable including to all arrests and seizures madethereunder. Section 102(3) of the Cr.P.C. inter alia requiresa police officer seizing any property forthwith to report theseizure to the magistrate having jurisdiction.

4. It appears that the complainant inter alia carried the seized article to the Town Police Station at Himatnagar. Inview of the aforesaid provision contained in sec. 102(3) of theCr.P.C. read with sec. 52(4) and sec. 51 of the NDPS Act, thepolice officer in charge of the town police station was supposedto report the matter to the learned Chief Judicial Magistrate atHimatnagar. It appears that the aforesaid statutory provisioncontained in sec.. 102(3) of the Cr.P.C. has not at all beencomplied with in the present case.

5. Rival submissions were urged before us whether theaforesaid statutory provision contained in sec. 102(3) of theCr.P.C. was directory or mandatory. We do not propose toaddress ourselves on this question. Even if it is assumed to bedirectory, according to well-settled principles of law, itssubstantial compliance would be necessary. Non-compliancetherewith would certainly be fatal to the prosecution and suchnon-compliance would vitiate the trial itself.

6. In this view of the matter, we have thought it fit notto deal with other rival submissions urged before us at the timeof hearing. Since the relevant provisions contained in sec.102(3) of the Cr.P.C. have not been complied with in thepresent case, the impugned judgment and order of conviction andsentence cannot be sustained in law. It has to be quashed andset aside.

7. In the result, this appeal is accepted. The judgmentand order of conviction passed by the learned Sessions Judge ofSabarkantha at Himatnagar on 30th August 1989 in Sessions CaseNo. 60 of 1987 convicting the appellant of the offencepunishable under sec. 18 of the NDPS Act and under sec. 67A of the Prohibition Act and sentencing him to rigorous imprisonmentfor 10 years and fine of Rs. 1 lakh in default rigorousimprisonment for one year more for the offence punishable underthe NDPS Act without imposing any separate sentence for theoffence punishable under the Prohibition Act is quashed and setaside. We are told that the appellant is in jail serving hissentence pursuant to the impugned judgment and order. He isordered to be set at liberty if no longer required in any othercase. The muddamal may be disposed of according to law.