:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1012 OF 1988 CRIMINAL APPEAL NO. 1012 OF 1988 CRIMINAL APPEAL NO. 1012 OF 1988 The State of Maharashtra ..Appellant versus 1. Shaikh Ahmed Shaikh Usman ] residing at 829, Raviwar ] Peth, Pune -2 ] 2. Ramchandra Hiraman Kachhi ] ..Respondents residing at Near Bridge, ] (Ori.Accused) Sangavi Gao, Dapodi, Pune ] Mr. P. S. Hingorani, APP for the Appellant- State. Mr. S. S. Kulkarni for the Respondent No.2. CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & S. R. SATHE, JJ. S. R. SATHE, JJ. S. R. SATHE, JJ. DATE : 31ST JANUARY, 2007. DATE : 31ST JANUARY, 2007. DATE : 31ST JANUARY, 2007. ORAL JUDGMENT : (Per: D.G. DESHPANDE,J.) : ORAL JUDGMENT : (Per: D.G. DESHPANDE,J.) : ORAL JUDGMENT : (Per: D.G. DESHPANDE,J.) : 1. State has filed this Appeal challenging the acquittal of the accused under the provisions of Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act). One of the accused i.e. accused No.1 died. There is already an order of abatement dated 15.12.2006 against accused No.1. :2: 2. Both the accused were charged for the offences punishable under Section 29 and 20 of NDPS Act and accused No.2 is charged separately under Section 20 of the NDPS Act. According to the prosecution Mohammed Hanif, Inspector in Central Excise and Customs Department was authorised by Superintendent Kulkarni with a search warrant bearing No. 40 of 1987 for the house of accused No.1. Thereafter Inspector Mohammed Hanif accompanied by other office bearers went to that house along with two panchas. In the byelane near the house of accused No.1, they found accused No.2 with certain bags of ganjas. They were seized. Then house of accused No.1 was searched and 60 small packets containing ganja are recovered. Samples were taken, sent to C.A. and after report, charge sheet was filed. Trial court acquitted the accused on the ground of non compliance to the mandatory provisions of the NDPS Act and non compliance of sections 42 and 50 because the prior information received by the office was not reduced into writing and when accused no.2 was searched he was not informed that he had a right of being searched in the presence of a Magistrate. Nothing is done in this regard. No panchnama is done. No evidence is :3: also there regarding legal compliance and therefore apart from other reasons the trial court was inclined to acquit the accused. 3. It is pertinent to note that when search warrant was obtained, panchas are collected, then admittedly there was prior information that accused No.1 was connected with charas or ganja in his house. But still P.W. 1 Mohamed Hanif Inspector in Central Excise and Customs Department says that he had not received any information against the accused. This is obviously wrong and not truth. 4. P.W. 2 Uddhavrao Kulkarni is the Retired Superintendent, Central Customs and Central Excise Department, he has stated about issuing warrant in the name of accused No.1. Warrant is at Exhibit 12. It was on the basis of the order received from higher authorities. This clearly shows that there was prior information but still there is no compliance to the provisions of Sections 42 and 50 of the NDPS Act. Explanation given by this witness that he did not receive any information from the informant. That may be so, but the fact that the Authorities had received information about the :4: so-called business or activities of the accused in charas or ganja before the search warrant was issued but no information was recorded by them nor anything is produced. Who were the higher authorities of P.W. 2 is also not explained. Exhibit 12 is an authorisation for search. It is specifically mentioned therein: " Whereas information has been " Whereas information has been " Whereas information has been laid before me and whereas I have reason to believe laid before me and whereas I have reason to believe laid before me and whereas I have reason to believe that certain Narcotic Drugs............ have been that certain Narcotic Drugs............ have been that certain Narcotic Drugs............ have been kept or concealed in the premises of Shri Shaikh kept or concealed in the premises of Shri Shaikh kept or concealed in the premises of Shri Shaikh Ahmed Shaikh Usman, 829, Raviwar Peth, Pune-2." Ahmed Shaikh Usman, 829, Raviwar Peth, Pune-2." Ahmed Shaikh Usman, 829, Raviwar Peth, Pune-2." This warrant is issued by Superintendent [Preventive (Hdr.)] Customs and Central Excise, Pune and it appears to have been issued on 2.8.1987. Therefore there is justification in the suggestion to the witness P.W. 2 Kulkarni that authorisation for raid was on 2.8.1987 but later on it was changed to 2.9.1987. Lapse of one month in executing the warrant has not been explained at all. Independent panch P.W. 3 Burade did not support the prosecution. So also no other witness is examined, and, therefore, in the circumstances, the acquittal order cannot be interfered with. 5. When questioned, learned APP could not :5: satisfy us, because there is nothing on record as to how and in what manner all the legal requirements under section 42 and 50 were complied with. Provisions of NDPC Act are very stringent, punishment is very heavy minimum ten years and therefore it was obligatory upon the part of the investigating agency to comply with the legal requirements. Since nothing has been done, no interference is called for in the order of acquittal against accused No.2. Therefore, order: ORDER ORDER ORDER . As per the order dated 15.12.2006, Appeal against Appellant - Accused No.1 stands abated. . Appeal against Appellant - Accused No.2 is dismissed. His bail bond stands cancelled. (D.G. DESHPANDE, J.) (D.G. DESHPANDE, J.) (D.G. DESHPANDE, J.) (S. R. SATHE, J.) (S. R. SATHE, J.) (S. R. SATHE, J.)