CR.A/78419/1998 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 784 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT Versus MEHBUBBHAI UMARBHAI SAIYED & ANOTHER ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant MR NB TIWARI for the Opponents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 06/08/2008 CR.A/78419/1998 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed by the State of Gujarat against the judgment and order dated 6.07.1998 passed by the Additional Sessions Judge, Ahmedabad in Sessions Case No. 189 of 1997 acquitting the accused for the offence punishable under Sections 18, 20(b) and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Briefly stated, the case of the prosecution is that Police Inspector Shri Parmar of Kalupur Police Station received secret information that one person wearing particular clothes and cap was going to pass Sarangpur Circle on his way from Kagdapith to Kalupur railway station and that he is carrying opium. The said information was reduced into writing and a raiding party was constituted and panchas were called. After preliminary panchnama, the raiding party went to Sarangpur Circle and stood in wait. After about 10 minutes they saw a person matching their description. He was detained and on search of his person a plastic bag containing opium was found from his pant pocket. The muddamal was weighed at 202 grams and seized under a proper panchnama. Thereafter a complaint was registered by PI Parmar against the accused. After completion of investigation, the accused was put on trial for commission of offences punishable under Sections 18, 20(b) and 22 of the Act. The Trial Court found that prosecution has not been able to prove its case beyond reasonable doubt and there was breach of several mandatory provisions of the Act and, therefore, acquitted the accused. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and with his assistance have perused the judgment and gone through the record of the case. CR.A/78419/1998 3/4 JUDGMENT The Trial Judge has found that there has been an infraction of Section 42(2) of the Act in as much as though PI Parmar reduced the secret information received by him in writing, he did not inform his superior official about the same within the prescribed time period. The Trial Judge has noticed except an oral assertion that information was sent to his superior official Mr. Chauhan by PI Parmar, there is no evidence on record to support his say. No person from the office of Mr. Chauhan has been examined to show that information sent by PI Parmar was in fact received in the office of Mr. Chauhan. Also, no register has been produced by the prosecution to show any entry of communication having been sent to Mr. Chauhan through a messenger. Mr. Nanavati has submitted that it has come in the evidence of PI Parmar that he had sent a communication in writing to his superior official and there is no reason to doubt his testimony. We are afraid we cannot accept such argument. It was for the prosecution to prove beyond reasonable doubt that the requirement of Section 42(2) had been complied with and we looking to the evidence on record we are in agreement with the finding of the Trial Judge that the prosecution has failed to establish compliance of the said provision. Also, we notice that there has been a violation of the mandatory provision contained in Section 50 of the Act. The evidence of PI Parmar and Purohit does not prove beyond any province of doubt that the accused was informed about his right to be searched either before a gazetted officer or a Magistrate as contemplated under Section 50 of the Act. It appears from their evidence that the accused was merely asked whether he wanted to be searched before a gazetted officer or Mamlatdar. Inquiring about the desire of the accused is not enough; he has to be informed about his right. Therefore, we concur with the CR.A/78419/1998 4/4 JUDGMENT finding of the Trial Judge that the requirements of Section 50 have not been observed in the present case. On record, it is clearly established that Section 42 and Section 50 of the Act have been violated. As law goes, the violation of said provision cannot be taken lightly. In view thereof, the findings of the trial Court cannot be found fault with. In view of the violation of mandatory provisions of law, we do not wish to examine the other reasons given by the Trial Court for acquitting the present respondent. The appeal filed by the State Government, therefore, deserves to be rejected and is accordingly dismissed. Bail bonds, if any, stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd