1 APEAL 356 OF 1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.356 OF 1991 The State of Maharashtra .....Appellant versus Ramesh Ramchandra Naik, Age 28 years, R/o Matheran, Alek Zandar Hotel Compound, Tal.Karjat, Dist. Raigad. ..... Respondent Mrs.M.M.Deshmukh, APP, for the appellant-State Mr.Ganpat Monde with Ms.Reshma Kurle i/by Mr.B.K.Pandit, for the respondent. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : 16th SEPTEMBER, 2011 ORAL JUDGMENT ( PER R.M.SAVANT, J.) : - 1. Aggrieved by the acquittal granted by the IIIrd Additional Sessions Judge, Raigad-Alibag, in Sessions Case No.177 of 1999, the prosecution i.e. the State of Maharashtra has filed the instant appeal challenging the said judgment and order dated 04-04-1991 of the IIIrd Additional Sessions Judge, Raigad-Alibag. 2. The respondent herein, who is the accused, was charged for the offence under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said ‘Act’), for which 2 APEAL 356 OF 1991 offence he has been acquitted by the aforesaid judgment of the Trial Court. 3. The prosecution story in brief, can be stated thus : On 03-10-1987, the Matheran Police Station received an information that the respondent-accused was selling charas on the way at Bazar Peth in front of Satya Vijay Hotel. On receiving such information, two panchas were called by the police and have proceeded to the aforesaid place. It is further the prosecution story that when they reached the above said place, they saw the accused sitting on a platform near Ram Mandir Temple in front of Hotel Satya Vijay. The accused was caught by them at the said place. His personal search was taken by the police in the presence of panchas, upon which they found a plastic back in the right pocket of his shirt (>Cck). The said plastic bag contained 25 tablets of charas. They also found cash amount of `7/- in the left pocket of the shirt of the accused. The police accordingly recorded the panchanama which was drawn by the Police Head Constable Surve on the spot itself. The muddemal in the form of charas and the cash amount of `7/- along with the accused, was brought to the police station. The Police Head Constable Kuthe thereafter registered a complaint and an offence under Section 20(b)(ii) was resultantly registered under the said Act against the accused. The statements of the witnesses were recorded by the Investigating Officer and after the completion of investigation, chargesheet was submitted to the 3 APEAL 356 OF 1991 Court of Judicial Magistrate, First Class. However, considering the nature of the offence, the case was then committed to the Court of Sessions, Raigad-Alibag for trial. 4. A charge was framed against the respondent-accused for the aforesaid offence on 01-01-1991 vide Exh.2, to which accused pleaded not guilty and claimed to be tried. It was the defence of the accused that Police Constable Bandhankar was taking his meal in his house when his wife had gone for delivery. It is the case of the accused that the said Bandhankar was not paying the charges for the meals that he was taking in the house of the accused and when the accused demanded it, the said false case was filed against him. It is further his case that the panchanama of the unclaimed charas was drawn in the police station itself and the signatures of the habitual panchas were taken on it. It is the specific case of the accused that since he demanded the charges for the meals from the said Bandhankar, that he was implicated in the said false case. 5. The prosecution in support of its case examined as many as four witness, amongst which Shri Vilas Barku Kadam was the panch witness. On behalf of the accused, a specific contention was raised before the Trial Court that the provisions of Section 41 to 50 of the said Act, though mandatory, were not followed. On the said basis, two contentions were raised namely that the matter was not reported to the higher officer 4 APEAL 356 OF 1991 by the ASI Surve and that the search of the person of the accused was not carried out in the presence of the Executive Magistrate as mandated by Section 50 of the said Act. In support of the said contentions, reliance was placed by the learned counsel appearing for the respondent-accused in the Trial Court on a judgment of the Division Bench of this Court in the case of Usman Haidarkhan Shaikh V. State of Maharashtra1 wherein this Court has held that the search should be taken in the presence of the Gazetted Officer or the Magistrate. The accused should be taken to such officer or Magistrate and then only the search should be conducted. The Division Bench also held in the said case that there was nothing to show that the mandatory requirements are complied with. It was further held that there was no compliance of Section 57 in the said case, which requires that within 48 hours after such arrest or seizure, a full report is to be submitted to the immediate superior officer. The PSI did not report to his superior but reported the matter to the Magistrate who was not his superior. 6. In so far as the present case is concerned, the Trial Court though, arrived at a finding that the statement of the police officials i.e. prosecution witness Nos.1, 2 and 4 were corroborated by the testimony of the panch witness Vilas Barku Kadam (P.W.3) regarding the recovery of 25 1 1990 Mh.L.J. 984 5 APEAL 356 OF 1991 tablets of charas from the possession of the accused after his personal search, the learned Trial Judge however, recorded a finding that there was no compliance of Section 41 to 50 of the said Act. Relying on the said Division Bench Judgment of this Court in the case of Usman Haidarkhan Shaikh (supra), the learned Trial Judge acquitted the accused of the offence under Section 20(b)(ii) of the said Act. 7. We have heard the learned counsel for the parties. Learned APP appearing for the appellant-State submitted that though concerned police official did not report the matter to his superior officer, he had reported the same to the Magistrate. In so far as the other aspect is concerned, learned APP fairly submitted that the search was not taken in the presence of the Magistrate. 8. Per contra, on behalf of the accused, reliance is placed by the learned counsel on a Constitution Bench Judgment of the Supreme Court of India in the case of State of Punjab V. Baldev Singh etc.1 In the said judgment, it has been enunciated that the provisions of Section 50 are mandatory in as much as the empowered officer has to conduct search of the person of the accused before Gazetted officer or a Magistrate. The Apex Court held that the said fact by itself would not vitiate the trial but would render the conviction of the accused unsustainable because of 1 1999 Cri.L.J. 3672 6 APEAL 356 OF 1991 inherent prejudice caused. Para 55 of the said judgment is material and is reproduced hereunder : - 55. On the basis of the reasoning and discussion above, the following conclusions arise (1) That when an empowered officer or a duly authorized 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 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. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result important but the means to achieve it must remain above board. The remedy 7 APEAL 356 OF 1991 cannot be worse than the disease itself. The legitimacy of the judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. 9. The next judgment relied upon by the learned counsel for the respondent-accused is also a Constitution Bench judgment in the case of Karnal Singh V. State of Haryana1, wherein it was held that in respect of search and seizure, requirement of writing down information and sending it to the superior officer, total non-compliance is not permissible and substantial compliance thereof within reasonable time in emergency cases would not vitiate the trial. Paragraph 17 of the said judgment is material and is reproduced hereunder : - 17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows : (a) The Officer on receiving the information (of the nature referred to in sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official 1 2009 Cri.L.J. 4299 8 APEAL 356 OF 1991 superior before proceeding to take action in terms of clauses(a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practicable, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-Sections(1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violative of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action and if the police officer fails to record in writing the information received or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all and does not the official 9 APEAL 356 OF 1991 superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001. 10. In the instant case, admittedly the search was not carried out in the presence of the Magistrate or the Gazetted Officer and that there is absolutely no compliance of Section 42 of the said Act, in as much as there is no information sent to the superior officer. In the light of the authoritative pronouncements of the two Constitution Benches of the Supreme Court, in respect of Section 50 and 42 of the said Act, in my view, the judgment and order of the trial Court acquitting the accused of the offence under Section 20(b)(ii) of the said Act, cannot be faulted with. No case for interference therefore, is made out. The appeal is accordingly dismissed. ( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )