CR.A/524/1997 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 524 of 1997 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 RAHEMTULLA RAHIMULLA PATHAN ========================================= =Appearance : MR MAULIK NANAVATI, ADDL PUBLIC PROSECUTOR for the Appellant MR ALPESH G DODIA, Amicus Curiae for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 25/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Present Criminal Appeal has been filed by the State of Gujarat against the judgment and order of acquittal dated CR.A/524/1997 2/4 JUDGMENT 11.3.1997 passed by the Additional Sessions Judge, Ahmedabad City, in Sessions Case No. 229 of 1996. 2. The case of the prosecution in nutshell is that Inspector Chauhan (PW 2) received secrete information that one person named Rahemtulla, residing at Rakhial Road, is doing business of charas. A raid was arranged and during the search of accused person, he was found in possession of offences punishable under Sections 20(B)(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 66(1)(b) of the Bombay Prohibition act. The Trial Court found that the 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 respondent- accused. 3. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State, and Mr. Alpesh Dodia, Amicus Curiae for the respondent- original accused. We have perused the judgment and have also gone through the record of the case. 4. The Trial Court has held that the recovery of charas from the respondent-accused has not been proved beyond reasonable doubt by the prosecution. The Trial Court has recorded a finding that there has been a breach of mandatory provision contained in Section 50 of the Act inasmuch as search was done without adhering to the conditions laid down in the Section. It is now well settled that when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for CR.A/524/1997 3/4 JUDGMENT him to inform the person concerned of his right under sub- section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. In the absence of compliance with the requirements of Section 50 of the Act, we agree with the finding of the Trial Court that no sentence of conviction can be passed. 5. Also, the Trial Court has held that movement of muddamal has not been explained by the prosecution nor has evidence been led by the prosecution to establish that the seized contraband article was kept in safe custody till it was sent for examination to the Forensic Science Laboratory. There is no evidence on record of the case to show as to who received the muddamal in the police station, where was it stored, and who took it to the laboratory. Constable Harjitsingh Parmar, PW 3, according to the prosecution, was handed the muddamal for taking it to the laboratory, denies having dealt with the muddamal articles at any point of time after the raid. Even the malkhana register has not been produced to show that it was in fact received in the police station and kept in safe custody. Under the circumstances, the report of the laboratory is of no consequence as it has not been established satisfactorily that what was sent for examination was in fact the article seized from the accused and also that the seized article was not tampered with during the period it remained in custody of the police . Therefore, we agree with the finding of the Trial Court that the prosecution has miserably failed to establish that the muddamal was kept in safe custody during the intervening period till it was sent to the laboratory for examination. CR.A/524/1997 4/4 JUDGMENT 6. Lastly, the Trial Court has held that there has been violation of provisions of Section 42 of the Act inasmuch as the prior information received by PW 2 Inspector Chauhan was not communicated to the superior officer. Though the prosecution has tried to prove that the communication was in fact sent to the superior officer, nothing has been brought on record to show that it was in fact received in the office of the superior officer. No register showing any entry of receipt of such information in the office of the superior officer has been produced by the prosecution. Therefore, we do not find any fault with the finding recorded by the Trial Court about breach of Section 42. 7. For the foregoing reasons, we do not find any infirmity with the reasoning given by the Sessions Court for acquitting the respondent. Therefore, the appeal deserves to be dismissed and is accordingly dismissed. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar