1 Cri-Appeal-569-91.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 569 OF 1991 The State of Maharashtra ... Appellant vs. Shivaji Sopana Shankar ) aged 45, occupation: agriculture, ) residing at Suttar Galli, At & Post: ) Uralikanchan, Tal: Haveli, District Pune. ) Respondent (Orig. accused) Mr. Y.M.Nakhwa, P.P. for the Union of India and Smt. P.P. Bhosale, APP. for the State. CORAM: J.H.BHATIA,J. DATE : 24th November, 2010. JUDGMENT: 1. The State of Maharashtra has preferred the appeal against the order of acquittal passed by the Additional Sessions Judge, Pune, in Sessions Case No. 17 of 1990 whereby he acquitted the accused/respondent of the charges under Sections 18 and 20(b)(i) of the NDPS Act and in the alternative, for the offence under Section 66(1)(b) of the Bombay Prohibition Act,1949. 2. The prosecution case, in brief, is that PW-5 G.D. Sable, who was 2 Cri-Appeal-569-91.sxw Inspector, Central Excise, received information that the accused was in possession and was dealing in opium and Ganja at his house. This information was received by him on 21.10.1988 at about 7 p.m. He gave the information in writing to his superior P.W.4 Ramchandra Tathode, who was Superintendent of Central Excise. The Superintendent, in turn, issued search warrant directing PW-1 Inspector Bhide to take search of the said premises. The formalities were completed. Inspector Bhide, accompanied by Inspector Sable and the Superintendent Tathode, proceeded to Village Ural Kanchan. Having reached there, they also called two panch witnesses, being PW-2 M.K.Kanchan and PW-3 D.S.Kanchan and informed them about the purpose of raid and search. This raiding party went to the house of the accused and from outside they gave a call to Shivaji . When the accused came, they asked whether Shivaji was living there and the accused/respondent replied that he himself was Shivaji. Personal search of the raiding party was given to him but no contraband was with them. Thereafter personal search of accused was taken and from the pocket of his Pyjama, 23 grams of opium was found. Similarly, 23 kgs. and 300 grams of Ganja was found from his house. An amount of Rs.13/- was also found. After the search, two samples of Ganja and two samples of opium were taken. The samples were duly wrapped, labelled and sealed. The remaining opium and Ganja were also wrapped, labelled and sealed. Panchnama was prepared about the whole incident. The accused was taken to the 3 Cri-Appeal-569-91.sxw office of the Central Excise where his statement was recorded. Inspector Bhide deposited the samples and the seized property in the godown of the Narcotic Cell. The samples were sent to the Chemical Analyser and it was revealed by the report of C.A. that the opium sample contained 3.2 per cent of Morphine and the samples of Ganja were Ganja. After completion of the investigation, a complaint was lodged by B.R.Rajput, the Superintendent of Central Excise, H.Q. Preventive Branch, Pune against the accused under Section 8(c) read with Sections 18 and 20(b)(i). The accused was charged accordingly. 3. On behalf of prosecution, in all six witnesses were examined. The trial Court, after hearing the parties, acquitted the accused. 4. Against the acquittal, the appeal is preferred by the State of Maharashtra and not by the Central Excise Department. 5. Heard the learned APP for the State. None for the respondent. Perused the record and proceedings of the trial Court. 6. On perusal of the evidence, I find that there are several features in the matter due to which the appeal cannot succeed. The complaint was filed by 4 Cri-Appeal-569-91.sxw the Superintendent of Central Excise and not by any officer or authority of the Maharashtra Government. Therefore, if the Central Excise was aggrieved by the order of acquittal, the appeal could be preferred either by the competent officer of the Central Excise or by the Union of India. However, for the reasons best known to them, no appeal was preferred either by the Union of India or by the Central Excise. The appeal is preferred by the State of Maharahtra, which had no concern with the said prosecution or the prosecuting agency. On this ground itself the appeal may fail. 7. Charges were framed under Sections 8(c), 18 and 20(b)(i) of the NDPS Act and, in the alternative, under Section 66(1)(b) of the Bombay Prohibition Act. The learned trial Court noted that the search and seizure in the present case had taken place on 21.10.1988, while the provisions of Section 8(c) of the NDPS Act were made applicable to the State of Maharashtra from 13.12.1985 by the Government Gazette dated 30.5.1989. In fact, by the said Notification, Sec. 8(c) was made applicable to the State of Maharashtra from 13.5.1989. Anyhow, 13.12.1989 is a typing mistake in the Judgment of the trial Court. Even then fact remains that sec. 8(c) was made applicable to the State of Maharahtra on 13.5.1989. It was not applicable on 21.10.1988 when the incident of this case had occurred. Section 8(c) provided that no person shall produce, 5 Cri-Appeal-569-91.sxw manufacture, possess, sell, purchase, transport, warehouse, use, consume, etc. any narcotic drug or psychotropic substance except for scientific or medical purposes and in the manner to the extent prescribed by the Act, Rules or orders. In the present case, psychotrophic substance was not involved. Narcotic drug includes, besides other things, manufactured drug and "manufactured drug" means opium derivatives i.e. opium which has undergone necessary process necessary to adapt it for medicinal use . Section 18 provided that whoever in contravention of any provision of this Act or any rules or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable with rigorous imprisonment which shall not be less than ten years. That was the provision before the Amendment in the NDPS Act in 2001. Therefore, possession or use of opium in contravention of any provision of this Act or rule, was punishable under Section 18. However, the prohibition under Sec. 8(c) came into force on 13.5.1989 and therefore for possession of opium in 1988, one could be convicted for the offence punishable under Sec. 18 read with sec. 8(c) of the NDPS Act. The same will be the position in respect of possession of Ganja which was punishable under Section 20 and therefore, for possession of Ganja he could not have been convicted under Section 20 read with Sec.8(c). 6 Cri-Appeal-569-91.sxw 8. The record reveals that the accused was not informed that he was entitled to be searched in presence of a Magistrate or a Gazetted Officer before the personal search was taken and opium was found from the pocket of his Pyjama. Even though Inspector Bhide and PW-5 Inspector Sable tried to depose that they had asked the accused if he wanted to be searched in presence of the Gazetted Officer, and he said no, in fact, no such statement is to be found in the panchnama. Therefore, in view of the said position of law it was the contravention of the mandatory provisions of Section 50 of the NDPS Act. The contravention of the mandatory provision is fatal to the prosecution. On this ground also, the prosecution must fail. 9. It was the contention of the prosecution that the accused could be at least convicted under the Bombay Prohibition Act,1949. Firstly, none of the panch witnesses supported the prosecution. Though the Superintendent R.K.Tathode was present, he remained mute spectator and was sitting in his vehicle. He did not go to the spot where the search was being taken. Secondly, it is important to note that the Bombay Prohibition Act is a State Act and the Commissioner of Prohibition and Excise, the Collectors and Subordinate officers are appointed by the State Government under Sections 3, 4 and 5 of the said Act. 7 Cri-Appeal-569-91.sxw Under Section 6, the State Government may invest officers of Police and other departments with powers and duties under the said Act. Powers and duties of officers and the procedure are laid down in Chapter IX of the said Act. All these officers are appointed under this Act and the powers are invested in them. They are under the overall control of the State Government. The raid in the present case was conducted and the alleged seizure was made by the officers of Central excise Department. There is no material on record to show that they were invested with powers and duties under the Prohibition Act by the State Government. Therefore, the case could not proceed under Section 66(1)(b) of the said Act. Therefore, no fault can be found for acquittal under Section 66(1)(b) of the said Act. 10. In view of the above circumstances, I find no substance in the present Appeal against acquittal. 11. In the result, the Appeal fails and stands dismissed. (J.H.BHATIA,J.) 8 Cri-Appeal-569-91.sxw