1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.1293 OF 2004. 1. Raghav Manu Gupta, age 26 years, Fruit vendor, Thana Bhagoji Ghat, Zilla Davaria, Banakta Bazar, U.P. 2. Malbabu Ramptrit Gupta, age 22 years, Nil, r/o Thana Bhagoji Ghat, Zilla Davaria, Banakta Bazar, U.P. Appellants/Accused. Versus The State of Maharashtra Respondent/Complainant. Smt Ruchita Dhuru, Advocate for the Appellants. Mrs M.H. Mhatre, A.P.P., for the State. CORAM: A.R.JOSHI,J. DATED : 11th June,2009. 2 ORAL JUDGMENT. 1. Both the present appellants have preferred the present appeal before this Court being aggrieved by the judgment and order passed by the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 ( the Trial Court for short) for the offences punishable under Section 20 (c) read with Section 8 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the N.D.P.S. Act, for short). Both the accused were sentenced to suffer R.I. for ten years and fine of Rs. 1,00,000/- each and in default of payment of fine to suffer further imprisonment for six months each. 2. Perused the appeal memo. Heard rival submissions today and considering small issue raised on behalf of the appellants as to non-compliance of Section 50 of the N.D.P.S. Act, vitiates the trial and as such renders the impugned judgment and order not in accordance with the law, this Court has decided to pass the orders immediately. 3. The facts of the present matter can be summarized as under: 4. At early hours of 2nd September, 2002 near the Kandivali Police Station there was a Nakabandi and during which one auto rickshaw was intercepted by the police party 3 consisting of P.W.1 P.S.I. Shri Vasant Khandve, P.W. 5 P.I. Shri Deshmukh and other police staff. Two passengers were inside the auto rickshaw, one ash colour suitcase was found near the legs of the passengers in the auto rickshaw and one handbag was in the dickey of the said rickshaw. Those passengers were accosted and questioned. The bags were taken out. While handling the handbag which was kept in the dickey of the auto rickshaw, P.W.1 suspected that it was probably containing some narcotic contraband Ganja as contents of the package were having some peculiar odour. This fact was made known to P.W.5, P.I. Shri Deshmukh who then came forward and inquired with both the passengers i.e.,both the accused appellants. He thought it fit to apprise both the passengers with the provisions of Section 50 of the N.D.P.S. Act regarding the personal search for suspected possession of narcotic contraband. He also informed them, so also P.W.1 informed them that said P.I. Deshmukh was the Gazetted Officer present and whether both the appellants wanted their search to be taken in his presence or whether they opt for their search before a Magistrate. Allegedly, the appellants declined the option and agreed for the search by officers. In fact, after such apprisal the packages were opened and found containing narcotic contraband Ganja and respective packages were 4 weighing 12.5 and 10 kilograms. Two samples from each bag of ½ kg each were taken out. In all four samples were taken. All this happened after calling two panch witnesses including P.W.2 Amalkhan. Detail spot panchnama and search and seizure panchnama was conducted at Exh.7. Auto rickshaw driver who was present on the spot, was also questioned. His statement was also recorded. Said auto rickshaw driver P.W.3 is examined during the trial. At this juncture, it must be mentioned that he identified both the appellants as passengers on the relevant night having both the packages in their presence when they engaged auto rickshaw and kept the packages at dickey and near the legs when rickshaw was intercepted. During investigation the samples were sent for Chemical Analysis and qualitative report (Exh.19) and quantitative report (Exh.20) were obtained by the police. On completion of investigation charge sheet was filed and the matter was tried by the Special Court and the impugned judgment and order came to be passed on 8.9.2003. 5. As such, in fact it is the case of the chance recovery of narcotic contraband as to interception of the auto rickshaw and finding narcotic contraband Ganja in the baggage of the passengers and which happened during the Nakabandi. 6. During the arguments only point raised on behalf 5 of the appellants is non compliance of mandatory provisions of Section 50 of the N.D.P.S.Act, 1985. In order to further this argument the shelter is taken of the authority A.I.R. 2005 SC 221 (State of Rajasthan vs. Ramchandra. Also unreported decision of this Court is cited which is Criminal Appeal No. 179 of 1992 decided by High Court, Bombay on 28th January, 2009. By taking shelter of these decisions it is strongly submitted that there is non compliance of Section 50 of the N.D.P.S. Act and it being a mandatory section the entire search and seizure should vitiate. While arguing on this aspect, it is presumed on behalf of the appellants that here in this matter compliance of Section 50 of the N.D.P.S. Act was must. While deciding the present appeal, it has to be ascertained by this Court whether there was a need for compliance of Section 50 considering the import of the specific provisions as to personal search of the accused. In other words, it has to be ascertained whether the package which is away from a person, if searched, can be termed as the search of a person. Factual position in the present case and it is an admitted position that the bags were at the legs of the passengers and at the dickey of the auto rickshaw and that the bags were not on the shoulder or on the lap of any of the passengers, so as to construe that 6 probably the search of such a bag in the immediate proximity of a person can be termed as personal search of a person. Considering the place at which the bags were placed in the auto rickshaw and considering the narcotic contraband was not on the person of any of the appellants- accused, in the opinion of this Court, here it is the case in which it must be said that the provisions of Section 50 as to caution to be taken for personal search of the accused, were not applicable. In that view of the matter and which has also been taken by the Special Court, the argument advanced on behalf of the appellants as to non compliance of section 50 cannot be sustained and hence in the result it must be said that there is nothing to interfere with the impugned judgment and order. 7. It must be mentioned that alternatively it is argued on behalf of the appellants that if at all their conviction for the offence punishable under Section 20 (c) r.w.s 29 and 8 (c) of the N.D.P.S.,Act is held good then at least a leniency may be shown while awarding the sentence in default of payment of fine. It is submitted that both the appellants are from poor family and have no means to pay the fine amount Rs.1 lakh each and as such in default sentence of six months may be reduced to any lesser period probably two months each. On this last submission, 7 learned A.P.P.,for the State submitted that apart from mere mention as both the applicants are coming from poor family. There is nothing to ascertain as to their financial condition. Otherwise, also poor financial condition cannot be considered as a criteria to show leniency to the accused persons when their involvement in the narcotic transaction is established. Considering the rival submissions and considering the non application of Section 50 of the Act, in the opinion of this Court, as mentioned earlier, there is nothing to interfere with the impugned judgment and order and hence the present appeal is disposed of with the following order. O R D E R. Criminal Appeal No. 1293 of 2004 is dismissed. Registry is directed to communicate this order to the appellants-accused who are in jail. A.R.JOSHI,J. 8