APEAL-1491-04 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1491 OF 2004 Suleman Oguk @ Soni, Age 32 yrs., 16/21, Tantopura Street, Dongri, 1, Agbabika Street, Lagos, Nigeria ... Appellant (Orig. Accused No.1) Versus State of Maharashtra, Vide C.R. No.13/04 of Anti Narcotic Cell, C.B., C.I.D., Mumbai ... Respondent Mr. S.S. Bhandari for the Appellant. Smt. V.R. Bhosale, APP, for the Respondent-State. CORAM: A.M. THIPSAY, J. DATED : 2 ND SEPTEMBER, 2011. ORAL JUDGMENT : 1. The Appellant was the Accused No.1 in N.D.P.S. Special Case No.36 of 2004. The Special Court constituted under the provisions of Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as “the NDPS Act”), convicted him and the other accused – the Accused No.2 Sadruddin APEAL-1491-04 2 Dixit Hussain Mohammad Jamadar Shah – of an offence punishable under Section 21 of the NDPS Act. The Appellant was sentenced to suffer R.I. for 10 months and to pay a fine of Rs.5,000/-, in default to suffer R.I. for 3 months. The Accused No.2 Sadruddin was sentenced to suffer R.I. for 6 months and to pay a fine of Rs.1,000/-, in default to suffer R.I. for 1 month. The Appellant, being aggrieved by the said Judgment and Order of conviction and sentence, has filed the present Appeal. 2. I have heard Mr. S.S. Bhandari, the learned Advocate for the Appellant and Smt. V.R. Bhosale, the learned APP for the Respondent-State. I have gone through the evidence adduced before the trial Court and other relevant record. I have taken into consideration the authoritative pronouncements of various High Courts and of the Supreme Court of India, which have been relied upon by the learned Counsel. 3. The prosecution case before the trial Court was as follows : . That, on 29 th January, 2004, PSI Gajanan Gulhane attached to Anti Narcotics Cell, received secret information that two persons: namely, Sony APEAL-1491-04 3 Dixit alias Suleman African (the Appellant) and Sadruddin H. alias Chachu African (the original Accused No.2) would be coming near Regal Cinema, Shyamaprasad Mukherjee Chowk, Mumbai between 3:30 p.m. to 5:00 p.m. to sell Cocaine. PSI Gulhane recorded this information in the Station House Diary and submitted the copies thereof to the Deputy Commissioner of Police, Assistant Commissioner of Police and Senior Inspector of Police, of Anti Narcotics Cell. The Deputy Commissioner of Police formed a team under the leadership of Police Inspector Shinde which included PSI Gajanan Gulhane (PW-5) himself, PSI Sanjay Patil (PW-3), a lady Police Constable Smt. Kharat and Police Constables Dalvi and Ghatge, etc. Two Panchas – one Atul Akhil Sarkar (PW-4) and Smt. Sabina Sangle (PW-2) – were called and selected to work as such. After drawing a pre-trap Panchanama in the office of the Anti Narcotics Cell, the Police Party and Panchas left for the spot, taking with them the necessary material for sealing and labelling, drug testing kit, weighing scales, etc. The search of the Panchas was taken by the Police personnel and the search of the Police personnel was offerred to and taken by the Panchas to ensure that nothing objectionable or incriminating was possessed by any of them. APEAL-1491-04 4 Dixit . The Police party and the Panchas parked their vehicle near Magestic, M.L.A. Hostel and took positions near Regal Cinema, by forming two groups. . At about 3:00 p.m., two persons – the Appellant and the original Accused No.2 – came and stood near American Express Foreign Exchange Building. PSI Gulhane thought that they were the same persons, to whom the information received by him related. A signal was, therefore, given by him to both the groups of the Police party and the Panchas. The Appellant and the other accused were then surrounded by the Police party and Panchas. P.I. Shinde informed them about the information received and explained that he wanted to take their personal search. That, the Appellant as well as the other Accused were told, inter alia, that their search could be taken in the presence of a Magistrate or a Gazetted Officer and arrangements necessary for that purpose could be made, if so desired by them. However, the Appellant as well as the other Accused declined the offer given to them and permitted the Police to take their search in the presence of Panchas. Thereafter, the personal search of the Appellant and the other Accused was taken by PSI Gajanan Gulhane (PW-5). In the pant APEAL-1491-04 5 Dixit pocket of the Appellant, three small plastic boxes were found. These boxes were found containing Cocaine weighing 3 gms. The other Accused was also found possessing two plastic boxes in which Cocaine weighing 2 gms. was found. . After completing the procedural requirements regarding seizure, sealing etc. under a Panchanama, the Appellant and the other Accused were arrested. PSI Sanjay Patil (PW-3) lodged the F.I.R. on the basis of which the C.R. No.13 of 2004 came to be registered. . The seized articles were kept in the Azad Maidan Stores and on the next day, on the instructions of P.I. Shinde, Police Constable Rajendra Sonawane (PW-1) took the same to the Forensic Science Laboratory at Kalina. The articles were deposited for chemical analysis and opinion, report in respect of which was received in due course. 4. Since the Appellant and the other Accused pleaded not guilty to the charge that was framed against them, the prosecution was required to adduce evidence and as such examined five witnesses before the Special APEAL-1491-04 6 Dixit Court. All these witnesses have been referred to above. After considering the evidence adduced before it, the trial Court convicted and sentenced the Appellant as aforesaid. 5. It is submitted by the learned Counsel for the Appellant that the conviction of the Appellant, as recorded by the trial Court, is not proper and legal. According to him, apart from the other aspects which create a doubt about the truth of the prosecution version, the conviction is vitiated on account of non compliance with the provisions of Section 50 of the NDPS Act. He has led emphasis basically on this aspect of the matter. 6. The Supreme Court of India and the various High Courts, have, time and again, discussed the provisions of Section 50 of the NDPS Act. 7. Section 50 has been incorporated with the obvious intent to avoid any harm to innocent persons. It requires that, if a person to be searched so requires, the officer who is about to search him under the provisions of Sections 41, 42 or 43 of the NDPS Act, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the Departments APEAL-1491-04 7 Dixit mentioned in Section 42 or to the nearest Magistrate. There was divergence of view on the question whether the person to be searched was required to indicate his choice, or the Concerned Authority was required to inform him of the available options. 8. In the case of State of Punjab vs. Balbir Singh, reported in JT 1994 (2) S.C. 108, the Supreme Court of India interpreted the expression “if the person to be searched so requires” occurring in Section 50(1), as making it an imperative requirement on the part of the officer intending to search, to inform the person to be searched of his right that, if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. The decisions delivered thereafter by the Supreme Court of India also make it clear that it is to be taken as an imperative requirement on the part of the officer intending to search, to inform the person to be searched of his right that, if he so chooses, he shall be searched in the presence of a Gazetted Officer or a Magistrate. 9. The question whether is imperative for the Investigating Officer to inform the suspect, orally or in writing, about his right to be searched before APEAL-1491-04 8 Dixit a Gazetted Officer or a Magistrate again came up for consideration before a Constitution Bench of the Supreme Court of India in the case of State of Punjab Vs. Baldev Singh, reported in (1999) 6 SCC 172. Their Lordships held, inter alia, that a duty is cast on the Investigating Officer of intimating to the person concerned about the existence of his right that if he shall so require, he shall be searched before a Gazetted Officer or a Magistrate. 10. The learned Counsel for the Appellant has placed reliance on a decision of the Supreme Court of India in the case of K. Mohanan Vs. State of Kerala, reported in 2000 SCC (Cri.) 1228. In that case the claim of the prosecution was that the Appellant before the Supreme Court was asked before the search was conducted, ‘whether he (Appellant) required to be produced before a Gazetted Officer or a Magistrate for the purpose of search’, and that, ‘the Appellant answered in negative’. It was contended on behalf of the Appellant, that this was no compliance with Section 50 of the NDPS Act. Their Lordships noted down the following propositions of law, as had been laid down by the Constitution Bench of the Supreme Court of India in State of Punjab vs. Baldev Singh (supra) : APEAL-1491-04 9 Dixit “57.(1) That when an 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 person concerned 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 person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.” 11. Thereafter, Their Lordships observed as follows : “If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate, it cannot be treated as communicating to him that he had a right under law to be searched so.” [Para 6 of reported Judgement] 12. Thus, in order to make the safeguards provided in Section 50 meaningful, the requirement on the part of the officer taking search to inform the person to be searched of his right to have himself searched in the presence of a Gazetted Officer or a Magistrate was read into Section 50. The observations made in the case of K. Mohanan (supra) further lay down the manner and form in which this information should be conveyed to the APEAL-1491-04 10 Dixit suspect. Thus, the scope of the protection made available to the suspect by Section 50, was further expanded in K. Mohanan’s case by laying down that merely asking the suspect whether he required to be searched in the presence of a Gazetted Officer or a Magistrate cannot be treated as a proper communication. The observations made by Their Lordships (reproduced above) leave no manner of doubt that the communication should be specific and what should be communicated to an accused/suspect is that he had a right under the law to be searched so. 13. It would not be correct to think that the requirements, which have been read into Section 50, are too technical, and that the form of communication used by the officers taking search ought not to be held so crucial while determining the guilt or innocence of an accused. These requirements are not a matter of mere technicalities, but are based on the principles of fairness and substantial justice. The offences under the NDPS Act are of a serious nature and the accused persons, if held guilty, would be subjected to severe punishment. The accused would ordinarily be not released on bail during the trial. A strict compliance with the provisions of Section 50, as expanded by the authoritative judicial pronouncements, APEAL-1491-04 11 Dixit would serve a dual purpose :- it would reduce the possibility of false implication and, at the same time, would lend weight to the evidence of search and seizure. If the provisions are shown to have been strictly complied with, that would lend great assurance and credibility to the evidence of the search of an accused and recovery of the contraband from him. On the other hand, non-compliance with the requirements of Section 50 would, at once, make the evidence of the search and recovery suspect. The Supreme Court of India, has, in the aforesaid case of State of Punjab Vs. Baldev Singh (supra), observed that ‘the question whether or not the safeguards provided in Section 50 have been duly complied with would have to be determined by the Court on the basis of the evidence led at the trial and a finding on that issue one way or the other would be relevant for recording an order of conviction or acquittal’. 14. In this background, it would be proper now to examine whether the provisions of Section 50 had been complied with in the instant case, by examining the evidence of the prosecution witnesses on this point. The evidence of Rajendra Sonawane (PW-1) is not relevant in this context. APEAL-1491-04 12 Dixit 15. Sabina Sangale (PW-2) was declared hostile and questions in the nature of cross-examination were put to her by the APP with the permission of the Court. Her evidence does state about the accused being apprehended, but it does not assist the prosecution on the aspect of compliance of Section 50 of the NDPS Act. In fact, this witness has categorically denied the suggestion put to her by the APP that the Police had told the accused persons that they had a right to get themselves searched in the presence of Magistrate or Gazetted Officer. 16. In the evidence of Sanjay Patil (PW-3), this aspect is unfolded as follows : “They (Accused) were told provisions of NDPS Act. They were told that they had legal right to get them searched in presence of Executive Magistrate or Gazetted Officer, and if they are so demanding they would make arrangement about it. They declined the said offer.” 17. Atul Akhil Sarkar (PW-4) states in this regard as follows : “They (Accused) were also told that their search could be taken in presence of Magistrate or Gazetted Officer. They told it was not necessary.” APEAL-1491-04 13 Dixit 18. PSI Gajanan Gulhane (PW-5) states that PI Shinde informed both the accused that they had a legal right to get themselves searched in the presence of Magistrate or Gazetted Officer at their option, and that the accused declined that offer. 19. Thus, one of the Panchas – Sabina Sangale (PW-2) – does not state about such communication by the officer taking search to the accused persons and, as a matter of fact, negatives the theory that the Police had told the accused persons that they had a right to get themselves searched in the presence of Magistrate or a Gazetted Officer. The Police witnesses Sanjay Patil (PW-3) and PSI Gajanan Gulhane (PW-5) do state that the accused were informed about the said legal right. The Panch Atul Sarkar (PW-4), however, though speaks of the accused having been told that their search could be taken in the presence of Magistrate or a Gazetted Officer, does not further state, that they were told that they had a right in that regard, as has been held necessary, in the aforesaid case of K. Mohanan (supra). APEAL-1491-04 14 Dixit 20. The first contention advanced by the learned Counsel for the Appellant is that the Panch witness Atul Sarkar (PW-4) has not supported the claim of the Investigating Officer having informed the accused persons of their right to have them searched before a Gazetted Officer or a Magistrate. According to him, therefore, it would not be safe merely to rely on the evidence of the Police Officers to the effect that the accused persons were so informed. He also contended that it was particularly so, because the evidence in that regard was discrepant and, further, because PI Shinde, who was the head of the raiding party, was not examined as a witness. 21. I have considered the matter. In the Panchanama (Exhibit-10B), the information said to have been given to the accused persons has been reproduced, which reads as under :- “As per the NDPS Act, 1985, you have right to give your personal search either in the presence of Executive Magistrate or in the presence of Gazetted Officer. If you are demanding so, we will make an arrangement to that effect.” 22. Now, if this had, indeed, happened, then there was proper compliance with the provisions of Section 50. The question, however, is whether in the APEAL-1491-04 15 Dixit absence of the Panch witness deposing about this type of communication in his testimony before the Court, the fact of that communication can be held to be satisfactorily proved merely on the basis of the record of the happenings in the form of Panchanama. It is well known that the substantive evidence before the Court would be the oral evidence given by a Panch witness before the Court, and the Panchanama, which, undoubtedly, would be a contemporaneous record of the happenings, can serve only as a corroboration to that evidence. Indeed, if the Panch witness has not stated about the Police having told the accused persons about their right in his oral evidence, whether on the basis of record of Panchanama, that aspect can be said to be proved, is extremely doubtful - to say the least. Undoubtedly, the Police witnesses have said about the accused having been informed of their right, but the fact remains, that it is not possible to hold that their statements are supported by the evidence of the Panch witness. The learned Counsel for the Appellant argued, by referring to the observations made by this Court in the case of Shri Shiv Kumar Ashok Mishra Vs. Special Judge of N.D.P.S. Court, reported in 1996 Cri. L.J. 1454, that in a case under the NDPS Act, where the search and seizure are the crucial aspects of investigation, the statement of Police witnesses cannot be relied upon unless APEAL-1491-04 16 Dixit they are corroborated by at least one independent witness. Indeed, in such cases it would be hazardous to place reliance on the testimony only of the Police witnesses, without requiring any corroboration from Panch witnesses, or other independent witnesses. In the present case, though it is not that the Panch witness is totally silent about the aspect of the necessary communication to the accused persons, the form of communication stated by him in his evidence is not in consonance with the legal requirements. In my opinion, therefore, a doubt is cast on what was actually communicated to the Appellant and the other accused, and whether such communication was in consonance with the requirements of Section 50 of the NDPS Act, as laid down from time to time by the Apex Court. 23. There is another aspect of the matter which is more important, in my opinion. The second contention on the relevant aspect, as advanced by the learned Counsel for the Appellant, is that the appraisal of their right to the accused in this case was not in consonance witht he legal requirements, by reason of it being a ‘joint appraisal’. It is contended by him that the evidence does not show that the Appellant and the other accused were, both, separately appraised of the right to be searched before a Magistrate or a APEAL-1491-04 17 Dixit Gazetted Officer. According to him, a joint communication to both the accused in this regard, would not be in compliance with the provisions of Section 50. In support of this contention, he has placed reliance on the decision of a Division Bench of this Court in the case of Dharmaveer Lekhram Sharma & Anr. Vs. The State of Maharashtra & Ors., reported in 2001 (5) Bom.C.R. 9. In that case, four accused persons were jointly appraised of their right, as contemplated under Section 50(1) of the NDPS Act. It was contended that there was no valid compliance with the said provision of law. This Court observed, by placing reliance on a decision of the Punjab & Haryana High Court in the case of Paramjit Singh & Anr. Vs. State of Punjab, reported in 1997 (1) Crimes 242, that it was necessary for the officers of the raiding party to appraise the accused persons individually, regarding their right contemplated under Section 50(1) of the NDPS Act so as to facilitate contemplation about such right. It was observed :- “......................................, it was necessary for the officers of the raiding party to apprise the accused persons individually regarding their right contemplated under section 50(1) of the N.D.P.S. Act so as to facilitate contemplation about such right. In our view, it should be manifest from the record, and testified to in the substantive evidence by the witnesses, that every individual accused was appraised of such right regarding the search under APEAL-1491-04 18 Dixit Section 50 of the said Act. In absence of such evidence, we are of the view that there is no proper compliance of the mandatory provision of section 50 of the N.D.P.S. Act in this case.” [Para 11 of reported Judgment] [Emphasis supplied] 24. In the present case, the evidence of Sanjay Patil (PW-3) in this regard is as follows :- “PI Shinde told the information they had received against both of them (i.e. accused) and he told them that he wanted to take their searches in that case. They were told provisions of NDPS Act. They were told that they had legal right to get them searched in presence of Executive Magistrate of gazetted Officer, and if they are so demanding, they would make arrangement about it. They declined the said offer.” 25. What the Panch Atul Sarkar (PW-4) states on this aspect has been mentioned earlier in a different context, but it would be convenient to reproduce the same here, in the present context also. “PSI Gulhane showed them (i.e. the accused) his identity card. He introduced officers and constables to both of them. I was also introduced to both the accused. The information received by police was told to both of them. Then both of them were told that police wanted to take their personal search. They APEAL-1491-04 19 Dixit were also told that their search could be taken in presence of Magistrate or Gazetted Officer. They told it was not necessary.” 26. The evidence of PSI Gajanan Gulhane (PW-5) on this aspect is as follows :- “PI Shinde then told both the accused individually the information received by me. This was told in English. He told both of them that he wanted to search both of them. Individually both the accused persons were told by PI Shinde that they had legal right to get themselves searched in the presence of Magistrate or Gazetted Officer at their option and arrangement could be made for their search in presence of either of them. They declined the offer and told us that in presence of panchas both of them could be searched.” 27. Indeed, this witness has claimed that both the accused persons were ‘individually’ told by PI Shinde about their legal right, held to be implicit in Section 50. Thus, this witness, on the basis of information received by whom the whole operation was conducted, is the only witness, who comes up with a theory of the Appellant and other accused, both, having been individually appraised of their said right. Since the other Police witness and the Panch witnesses have not stated about both the accused being APEAL-1491-04 20 Dixit individually appraised of their right and since PSI Gajanan Gulhane (PW-5) was obviously a highly interested witness, his evidence to this effect needs to be subjected to careful scrutiny. In that context, if the