( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 284 OF 1997 Shaikh Bashu Miyan s/o Shaikh Kasim Saheb, R/o Dichapalli, Tq. Armod, Dist. Nizamabad APPELLANT VERSUS The State of Maharashtra ..... Mrs. A.N. Ansari, advocate for the appellant. Mrs. A.V. Gondhalekar, APP for the respondent/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 1st September, 2009] [DATE OF JUDGEMENT PRONOUNCED : 9th September, 2009] JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned Additional Sessions Judge, Parbhani in Special (NDPS) Case No. 9/1997 whereby the appellant ( 2 ) has been convicted for offence punishable under section 8 (c) read with section 20 (b) (i) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) and sentenced to suffer rigorous imprisonment for four (4) years and to pay fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for nine (9) months. 2. Shorn of unessentials, the prosecution case is that on basis of a secret information received by him, P.S.I. Sangle proceeded to the S.T. Bus stand at Manwat alongwith panch witnesses and some staff members in the noon of 14th April, 1997. He had telephonically conveyed the information to the Tahsildar-cum-Executive Magistrate. The information was to the effect that one Mohammedan man was to transport ganja from Manwat by a public transport (S.T.) Bus. When PSI Sangle and others reached the premises of the S.T. Bus stand, they noticed that a S.T. Bus bound for Majalgaon was standing and some passengers were about to board the same. They saw that the appellant was proceeding to board in the said S.T. Bus. He was having a plastic basket in his hand. ( 3 ) His profile tallied with the description of the Mohammedan man about whom the secret information was received by PSI Sangle. So, the appellant was apprehended near the entrance of the S.T. Bus and was taken to the cabin of the S.T. Bus stand’s controller. In a short-while, the Executive Magistrate also arrived there. The basket was searched in presence of panch witnesses and the Executive Magistrate. There was a bag ordinarily used for storage of fertilizers, inside that basket wherein a polythene bag containing ganja was found. The ganja was weighed by means of a weighing scale. It was noticed that the stock of ganja was of 5 kgs. and 750 grams. For sampling purpose, 50 grams of ganja was separated. It was put in a khaki packet which was labelled and sealed. The remaining stock of the ganja was re-filled in the polythene bag which was sealed and seized. The basket and the cloth bag were also seized. PSI Sangle thereafter gave intimation to the higher police officer. He deposited the sample packet of ganja with the muddemal incharge of the property room at the Police Station. The sealed sample packet of ganja was sent to the office of the Assistant ( 4 ) Chemical Analyser, Aurangabad for purpose of analysis. The report given by the Assistant Chemical Analyser indicated that the sample was of ganja within the meaning of section 2 (iii) of the NDPS Act. The appellant was accordingly prosecuted for commission of the offence punishable under section 8 (c) read with section 20 (b) (i) of the NDPS Act. 3. The appellant pleaded not guilty to the charge. The defence was of simple denial. It was suggested that the prosecution is vitiated due to non-compliance of section 50 of the NDPS Act. No positive defence as such was adopted by the appellant. 4. At the trial, the prosecution examined four (4) witnesses in support of its case. The prosecution also adduced certain documentary evidence. The learned Sessions Judge held that search and seizure at the S.T. stand, Manwat has been duly proved. It is held that the appellant was found in conscious possession of the polythene bag containing ganja and was, therefore, liable to be convicted for the alleged offence. He was ( 5 ) thus convicted and sentenced as described hereinabove. 5. Heard learned counsel and learned A.P.P. 6. According to Mrs. Ansari, the appellant deserves acquittal because he was not given option for the search in presence of the Magistrate or a Gazetted Officer as required under section 50 of the NDPS Act. It is argued that there is no proper compliance of section 42 of the NDPS Act and hence, version of PW PSI Sangle may not be believed. It is pointed out that PW PSI Sangle did not verify whether the appellant could understand contents of the notice which is written in Marathi language. The learned advocate further submitted that the custody of the sample packet with the incharge of the muddemal room at the Police Station for three (3) days is also a suspicious circumstance of which reasonable benefit should go to the appellant. Hence, the learned advocate urged to allow the appeal. 7. Before I proceed to scan the prosecution evidence, it may be noticed that the present case is in ( 6 ) respect of the search of baggage carried by the appellant in the relevant noon. This is not a case of his personal search. The prosecution has come out with a case that the secret information was received just at nick of time when the suspected person was likely to transport the contraband ganja in the public transport Bus from the S.T. stand of Manwat. Obviously, there was hardly any time to follow the procedure of giving written information to the superior police officer before proceeding to conduct the search and seizure. The law in respect of “search” is succinctly set out in “State of Rajasthan v. Ramchandra” (AIR 2005 SC 2221) and “State v. Dilbag” (2004) 13 SCC 99 as well as “State of H.P. v. Pawan Kumar” (2005) 4 SCC 350. The Apex Court consistently held that section 50 of the NDPS Act would be attracted only in case of personal search of a person and it does not extend to a search of a vehicle, or a container or a bag or premises. Needless to say, there was no need to give an option to the appellant when allegedly, he was not personally frisked but his handbag i.e. basket was searched. The non-compliance of ( 7 ) section 50 in the present case is of no much significance and the appellant cannot claim any benefit out of such deficiency, if at all it is so found. 8. The versions of PW2 Narayan and PW4 PSI Sangle, considered together, would make it amply clear that on 14th April, 1997, they went to the S.T. Bus stand at Manwat around 1 p.m. One more independent panch by name Ghanashyam Tripathi was also present at the relevant time. The versions of both these witnesses would make it explicit that the appellant was nabbed before he boarded in the S.T. Bus bound for Majalgaon. He was found in possession of the plastic basket. He was thereafter escorted to Controller’s cabin. After a short-while, the Executive Magistrate (Tahsildar) reached the cabin of the S.T. Bus stand controller. Upon search of the contents of the plastic basket, stock of ganja was found in the polythene bag. It was weighed. A sample of 50 grams was separated and put n a sample packet. The packet was affixed with label signed by the panchas in a paper slip. The sample packet was sealed. The versions of both these witnesses lend ( 8 ) corroboration to the recitals of the seizure panchanama (Exh-11). 9. PW Narayan is an independent panch witness. He has no business to speak lie. His version purports to show that due procedure was followed during the course of search and seizure. He admitted that inquiry was not made with the appellant as to which of the language he knew and whether he could understand the Marathi language. Except this admission, the core of his version has remained unimpeached. There appears no effective cross-examination directed against him. 10. The testimony of PW PSI Sangle would show that he took entry in the Police Station diary vide Exh-15 before proceeding to the S.T. Bus stand on basis of the police informant by name Dnyaneshwar Dahe. The relevant entry at serial No. 22 would show that immediately, the two (2) panch witnesses were called at the Police Station and were informed about nature of the information received and the proposed raid. It is also conspicuous that necessary arrangements were made to ( 9 ) give information to the Tahsildar and to call for weighing scale, lakh ingot, seal, etc. From the testimony of PW PSI Sangle, it is duly proved that he carried out the search and seizure by following due procedure. His version purports to show that on 17th April, 1997, the sealed sample packet was sent alongwith covering letter (Exh-13) to the office of the Assistant Chemical Analyser through a carrier (PW H.C. B. No. 744 Kamble). This fact is corroborated by PW3 H.C. B. No. 744 Kamble. His version purports to show that he had received the sealed sample packet alongwith forwarding letter (Exh-13). He reached the sample packet alongwith original forwarding letter to the concerned office. The recitals of the report of the Assistant Chemical Analyser (Exh-21) would show that the sample packet was received at the said office in sealed condition. There is no shred of evidence to infer that the seal of the sample packet was tampered with during the period between the seizure and transportation to the office of the Assistant Chemical Analyser. The report (Exh-21) goes to show that the sample contained greenish flowering tops and seeds mixed with pieces of greenish ( 10 ) leaves of ganja which falls under section 2 (iii) (b) of the NDPS Act. 11. The factum of search and seizure is further corroborated by PW1 Kisan Jawle, the then Tahsildar attached to the Tahsil office at Pathri. His version purports to show that at about 1 p.m., he received the telephonic communication from PW PSI Sangle regarding the information in respect of transportation of the ganja by a person from S.T. stand of Manwat. He immediately proceeded to the S.T. stand at Manwat by the Government jeep vehicle. He went to the Controller’s cabin where the appellant was sitting alongwith the police officer and the panchas. His version reveals that PW PSI Sangle introduced him tot he appellant as the Executive Magistrate. He confirmed the fact that the plastic basket found with the appellant contained material having brownish green leaves, seeds and tops. He is a respectable gazetted officer. His version remained unshattered inspite of searching cross- examination. ( 11 ) 12. There is no much substance in the contention that due to non-compliance of sections 41 and 42 of the NDPS Act, the appellant would be entitled to benefit of reasonable doubt. The provisions would be attracted when search of any building or conveyance or an enclosed place is contemplated. It is not expected that the police officer would obtain search warrant when the culprit is likely to flee from justice. So also, compliance of section 57 of the NDPS Act is only directory. The learned Sessions Judge has duly considered the relevant aspects of the matter. There appears no serious infirmity in the findings recorded by the learned Sessions Judge. I find myself in general agreement with the reasons ascribed by the learned Sessions Judge in support of the judgement of the conviction and sentence. Under the circumstances, I do not find any substance in the present appeal. 13. In the result, the appeal is dismissed. The impugned judgement of conviction and sentence is confirmed. The appellant shall surrender to the bail immediately and if he would not surrender, the learned ( 12 ) Sessions Judge shall issue arrest warrant so as to ensure that the appellant would undergo the remaining substantive sentence. Due compliance report to be made to this Court in four (4) weeks. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL284-97