Cri. Appeal No. 501 of 1995

7th March, 2000

Petitioner Counsel: Mr. SHIRISH GUPTE with Mr. PRAKASH NAIK and Mr. A. R. KHAN
Respondent Counsel: Ms. USHA KEJRIWAL

Cases Cited:
State of Punjab Vs. Baldev Singh etc., 1999(6) SCC 172 : AIR 1999 SC 2378 : 1999 Cr. L.J. 3672 : 1999(3) Guj. L.R. 2483 [Para 6]

JUDGMENT

VISHNU SAHAI, J.:- The Appellant aggrieved by the judgment and order dated 11.8.1995 passed by the Special Judge, Greater Bombay, in N. D. P. S. Special Case No. 92 of 1993, convicting and sentencing her to undergo 10 years R. 1. and to pay a fine of Rs. 1 lakh in default to suffer 1 year R. I. for the offence under Section 8(c) of the N. D. P. S. Act, has come up in appeal before us.

2. In short prosecution case runs as under :

On 19.4.1993 the informant Nana Uttamrao Ahire P. W. 1 was attached as police constable to Azad Maidan, Narcotic Cell Unit, Bombay. While on duty, at about 2.30 p.m., he received information from an informant that a Nigerian lady named Eliza residing at Viler Villa, Ramchandani Marg, Colaba, was dealing in narcotic drugs; was in possession of such drugs; and was likely to leave the city. immediately. He gave the said information to P. I. Ashok Hari Khedkar P. W. 8 who recorded it in the information book and passed it on to the D. C. P. Narayan Nirgude and A. C. P. Mr. More. Arrangements were made for the pre-trap panchanama. Public panch Sayyed Hawlkar P. W. 4 and woman police constable Mrs. Sangita Pednekar P. W. 3 were called. The public panch, P. I. Ashok Hari Khedkar P. W. 8 and others made mutual searches. The Gypsy and the Ambassador car in which they were to proceed, were also searched. Thereafter, at about 4.30 p. m. the informant, P. I. Ashok Hari Khedkar P. W. 8, Mrs. Sangita Pednekar P. W. 3, Public Panch Sayyed Hawlkar P. W. 4, A. C. P. More and some others, after collecting the sealing materials, drug identification kit etc. left in the said vehicles. They parked them in front of Taj Mahal Hotel, Colaba. They found out the building Viler Villa. With the assistance of watchman Mehta they collected information where the lady, from whom the drugs were to be recovered, resided. He showed them room No. 101. They found the said room closed. P. I. Ashok Hari Khedkar P.W. 8 pressed the bell. The Appellant opened the door of the room. P. I. Ashok Hari Khedkar P.W. 8 disclosed to her, his identity and the information received by them about the likelihood of narcotic drugs stored in the said room and expressed his intention to conduct her personal search and search of the room. She was also informed that P. I. Ashok Hari Khedkar P. W. 8 was a Gazetted Officer and she was entitled to be searched in his presence and if she required in the presence of a Magistrate. She declined the offer. Thereafter she was searched. In her hand bag two polythene bags containing pink coloured tablets with Swastik mark on one side and 'M' mark on the other were found. One of the bags was opened and some tablets were taken out. The powder was tested with the assistance of drug identification kit and showed presence of mandrex tablets. In all 1.175 kgs. of mandrex tablets were recovered from one of the bags and 36 capsules were recovered from the other bag. Some powder from the first capsule was taken out and was tested with the drug identification kit and was found to be positive for brown sugar. Thereafter the drugs recovered were sealed; signatures of the panchas were obtained on the packets in which they were sealed: and they along with the appellant and recovered articles proceeded to Azad Maidan unit of the Narcotic cell.

3. The F.I.R. of the incident was lodged at about 7 p. m. the same day by Nana Uttamrao Ahire P. W. 1 at the said unit. On its basis a case under Section 8(c) read with section 21 of the N. D. P. S. Act was registered against the Appellant.

4. The investigation was conducted in the usual manner by P. I. Ashok Hari Khedkar P. W. 8. During the course of it he sent the mandrex tablets and the brown sugar recovered from the Appellant to the Chemical Analyser. He did not find the former to be mandrax but found the latter to be heroin.

After completing investigation P. I. Ashok Hari Khedkar P. W. 8 filed the complaint against the Appellant.

The Appellant was put up for trial in due course. She was charged for an offence under Section 21 read with section 8(c) of the N. D. P. S. Act, to which charges she pleaded not guilty and claimed to be tried.

During trial in all the prosecution examined 8 witnesses. Four of them viz. the informant Nana Uttamrao Ahire P. W. 1, woman police constable Mrs. Sangita Pednekar P. W. 3, Public Panch Sayyed Hawlkar P. W. 4 and P. I. Ashok Hari Khedkar P. W. 8 gave ocular account.

The learned trial Judge believed their evidence and convicted and sentenced the Appellant in the manner stated in para 1.

Hence this appeal.

5. We have heard learned counsel for the parties and perused the entire material on record. Mr. Gupte learned counsel for the appellant strenuously urged that since the recovery was made on prior information it was the mandatory duty of the prosecution to comply with the provisions contained in section 50(1) of the N. D. P. S. Act and since compliance of the said provision has not been made the conviction and sentence of the Appellant for the offence under Section 8(c) of the N. D. P. S. Act has to be set aside and she would have to be acquitted thereunder.

We have reflected over the said submission of Mr. Gupte and find merit in it.

6. Section 50(1) of the N. D. P. S. Act reads thus :

"50. Conditions under which search of persons shall be conducted.-

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate ......"

The Supreme Court in a catena of decisions, the leading being the Judgment of the Constitution Bench in State of Punjab v. Baldev Singh etc. 1999(6) SCC 172 : AIR 1999 SC 2378 : 1999 Cr. L.J. 3672 : 1999 (3) Guj. L.R. 2483 has held thus :

"(1) That when the empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing :

(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(3) That such a search made, by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act."

7. A perusal of the judgment of the Constitution Bench would show that where an authorised officer is about to search a person on prior information then under Section 50(1) of the N. D. P. S. Act he has to inform the concerned person of his right to be searched before the nearest Gazetted Officer or the nearest Magistrate and the failure to do so would render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused.

8. When bearing in mind the ratio laid down in 1999 (6) SCC 162 (supra) we examine the evidence adduced by the prosecution we find that although the recovery from the Appellant was made on prior information but the mandatory provisions contained in Section 50(1) of the N. D. P. S. Act have not been complied with.

9. We begin with the document first in point of time; namely, the recovery panchanama. It was prepared by P. I. Ashok Hari Khedkar P. W. 8. In his cross-examination P. 1. Ashok Hari Khedkar P. W. 8 stated that in the recovery panchanama it was mentioned that the accused was made aware about her right of being searched. We are constrained to observe that we are not convinced with this claim of his. A perusal of the recovery panchanama with which he was confronted shows that therein it is mentioned as under:

"....... A. C. P. Shri More and P. I. Khedkar also explained that for such search a Magistrate or a Gazetted Officer is required to be present at the time of search and they themselves are the Gazetted Officers and if it is required a Magistrate will be summoned on the spot and the Magistrate will be of her choice but she i. e. Mrs. Elliza @ Paschal declined for the presence of such Magistrate and offered to take search of her residential room as well as personal search also."

A perusal of the said passage would show that the Appellant was not informed that she had a right to be searched, if she so wanted, before a Magistrate or a Gazetted Officer. Since the earliest document viz. the recovery panchanama shows that appraisal of the said right has not been made by P. I. Ashok Hari Khedkar P. W. 8 to the Appellant we think it unsafe to accept his substantive evidence in the Court which shows that the said appraisal was made in clear terms to the Appellant.

10. The next document is the First Information Report. It was lodged by police constable Nana Uttamrao Ahire P. W. 1 on the date of the incident itself at 7.00 p. m. We find that in his cross-examination, in paragraph 27, he has admitted that in the F. I. R. it has not been mentioned that the Appellant was informed that she was entitled to be searched in the presence of a Gazetted Officer or a Magistrate. In this view of the matter we also think that it would not be safe to accept his substantive evidence which shows that such a right has been conveyed to the appellant.

11. We are now left with the evidence of two other witnesses i.e. Women police constable Mrs. Sangita Pednekar P. W. 3 and Public Panch Sayyed Hawlkar P. W. 4.

It is pertinent to mention that although Mrs. Sangita Pednekar P. W. 3 gave ocular account of the incident and stated that the Appellant opened the room in her presence: P. I. Ashok Hari Khedkar P. W. 8 disclosed to her the information about the storage of drugs in the room; expressed the desire to search her room; and narcotic drugs were recovered from her room, but she has nowhere stated that it was conveyed to the Appellant that if she so wanted she could have the search taken before the nearest Magistrate or the nearest Gazetted Officer.

12. We now come to the evidence of the Public Panch Sayyed Hawlkar P. W. 4. His evidence shows that the Appellant was informed that if she desires they could arrange her search in the presence of a Gazetted Officer or "Bada Sahab" but the Appellant declined the offer. A perusal of his evidence would show that the Appellant was not apprised of the right to be searched before the nearest Magistrate.

13. In the state of evidence, referred to above, we have no option but to hold that although narcotic drugs were recovered from the Appellant on prior information but before affecting their search the prosecution has not proved beyond reasonable doubt that she was apprised of her right to be searched before the nearest Gazetted Officer or the nearest Magistrate, as mandated by section 50(1) of the N. D. P. S. Act. That being so, in view of the decision of the Constitution Bench of the Supreme Court reported in 1999(6) SCC 127 (supra), the recovery- of the drugs from the Appellant would be rendered suspect and her conviction and sentence under section 8(c) of the N. D. P. S. Act would stand vitiated.

14. Before proceeding to the operative part of our judgment we would like to emphasize :-

(a) It is implicit in section 50(1) of the N. D. P. S. Act that the person sought to be searched must be asked in a clear and unambiguous language whether he wants his search to be taken before the nearest Gazetted Officer or the nearest Magistrate. Failure to do so may result:

(i) in his not comprehending that he has such a right:

(ii) his being oblivious about it; and

(iii) would virtually mean non-communication of the right to him:

(emphasis supplied)

(b) ordinarily in the recovery panchanama and the F.I.R. it should be mentioned that the person sought to be searched was apprised of his right under section 50(1) of the N. D. P. S. Act and in case it has not been mentioned therein there should be a cogent explanation in the evidence of the person who has prepared the recovery panchanama and lodged the F.I.R. This is necessary to curb the mischief of explanation of compliance of provisions of section 50(1) of the N. D. P. S. Act creeping in by way of an after thought; and

(c) both the provisions of section 50(1) of the N. D. P. S. Act and the judgment of the Constitution Bench of the Supreme Court (supra) made it explicit that the person sought to be searched has to be informed that he has a option to be searched in the presence of the nearest Gazetted Officer or the nearest Magistrate. Where only one option is given to him there would be infraction of Section 50(1) of the N. D. P. S. Act, in view of the judgment of the Constitution Bench of the Supreme Court (supra).

15. For the reasons mentioned earlier this appeal is allowed and the conviction and sentence of the Appellant for the offence under section 8(c) of the N. D. P. S. Act is set aside and she is acquitted thereunder. She is in jail and shall be released forthwith unless wanted in some other case. In case she has paid the fine it shall stand refunded to her.

Appeal is allowed.