1 cri.appeal 127-92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 127 OF 1992 The State of Maharashtra ...Appellant vs. Sou.Shobha Ganesh Gaikwad, aged about 26 years, residing at Vandrapada, House No.580, Ambernath, Dist.Thane ...Respondent (Orig.Accused) Shri Y.M. Nakhwa, App for the Appellant-State. None for the Respondent. CORAM : J.H. BHATIA, J. DATED : DECEMBER 7, 2010 ORAL JUDGMENT :- 1 The State has preferred this appeal against acquittal of the accused-respondent for the offence punishable under Section 20(b)(i) of the NDPS Act by the learned Additional Sessions Judge, Thane, in Sessions Case No.6 of 1990. 2 cri.appeal 127-92 2 Prosecution case in brief is that on 18th August, 1989, PSI Jadhav and PW2 PSI Manvar attached to Ambernath Police Station, were present at the police station. Information was received by them that a woman wearing red and yellow colour saree would be proceeding from Ambernath railway station towards Vandra Pada with a plastic satchel containing Ganja. PSI Jadhav reported the matter to his superior officers viz. PI Sawant and PI Khanvilkar. After taking necessary instructions from them, he called two panch witnesses and informed them about the purpose of the raid. Thereafter, PSI Jadhav and PSI Manvar and two panch witnesses went to the bus stop near Fatima High School at Vandra Pada side. Within 5 to 7 minutes, a woman wearing red and yellow colour saree was seen coming with white plastic satchel in her hand. Her personal search was taken. After completing all the formalities, a plastic satchel in her hand was opened. It contained about 300 gram Ganja. The said 3 cri.appeal 127-92 packet was then wrapped in a paper and was duly sealed and seized under panchnama Exhibit-10. Muddemal property was deposited at the police station and later on, it was sent to Chemical Analyser along with covering letter Exhibit-20. Chemical Analyser at Exhibit 21 confirmed that the packet contained Ganja. After investigation, charge sheet was filed against the accused. Charge was framed and she pleaded not guilty. On behalf of the prosecution, in all 5 witnesses were examined. After hearing the evidence, the learned trial court acquitted the accused mainly on the ground that the mandatory provisions contained in Section 50 about taking personal search of the accused were not followed. 3 Heard the learned APP for the State. None appears for the accused though it appears that she has engaged some Advocate. Perused the record and proceedings of the trial court. 4 cri.appeal 127-92 4 From the record, it appears that panch witness PSI Jadhav could not be examined because he was bed-ridden for about a year when the evidence was recorded. PW 2 PSI Manvar, who was throughout with PSI Jadhav from the time when the information was received, was examined. He deposed that after getting the information at about 12.30 or 1 p.m., information was conveyed to PI Sawant and PI Khanvilkar by PSI Jadhav. He directed PSI Jadhav to proceed with the raid. Accordingly, two panch witnesses and other police staff were called. Along with them, PSI Jadhav and PSI Manvar proceeded to the bus stop near Fatima High School at Vandra Pada. Within few minutes, the accused came to that side. She was wearing red and yellow colour saree and was having a plastic packet in her hand. She was stopped and the police officers in presence of panchas told her that they wanted to take her personal search for Ganja. During the personal search, the plastic packet in her hand was opened and it contained about 300 gram Ganja. Therefore, it was wrapped, sealed 5 cri.appeal 127-92 and seized under panchnama - Exhibit 10. This fact is also supported by PW 1-Subhash Pandurang Bhole who was the panch witness. After this seizure panchnama, the accused was taken to police station where PSI Jadhav lodged a report at Exhibit 13 which is proved by PSI Manvar. Muddemal property was then deposited in the Muddemal Property Room of which PW 3 Head Constable Jaywant Jadhav was in- charge. He passed receipt Exhibit-15 about the same. Thereafter, the said sealed packet was sent to Chemical Analyser along with covering letter Exhibit-20 through PW4 Nivrutti Kashinath Dhatrak. The CA report (Exhibit-16) reveals that the packet was received with intact seals and it contained Ganja. 5 As noted above, the trial court acquitted the accused mainly on the ground that the police had failed to comply with the provisions of Section 43 read with Section 50 of the NDPS Act. Section 43 provides for search and seizure of narcotic drug or 6 cri.appeal 127-92 psychotropic substance from any person in the public place. Section 50(1) provides that wherever any search is required to be taken under Section 41, Section 42 or Section 43, the authorised officer shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer or to the nearest Magistrate for personal search. It is settled position in law that being the mandatory provision, it is the responsibility of the raiding officer to inform the person to be searched that he has right to be searched in presence of the Gazetted Officer or Magistrate, if he so desires. If such a mandatory provision is not complied with, the prosecution must fail on that ground itself. In the present case, from the contents of the panchnama as well as oral evidence of PSI Manvar and the panch witness, it is clear that they had taken personal search of the accused and then the plastic packet in her hand was opened and it contained Ganja. Neither the panchnama reveals nor the oral evidence of PSI Manvar or panch witness shows that the accused was 7 cri.appeal 127-92 informed that if she so desired, her personal search could be taken in the presence of the Gazetted Officer or the Magistrate. As she was not informed about it, naturally, she could not exercise that legal right available to her under Section 50(1). As this mandatory provision was not complied with and without compliance of that provision, personal search was taken, the search is vitiated and therefore, the prosecution cannot succeed. In view of the legal position, no fault can be found with the acquittal order passed by the trial court. 6 For the aforesaid reasons, the appeal stands dismissed. (J.H. BHATIA, J.)