.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.179 OF 1992 SHRI ABDUL HAFIZ ABDUL SATTAR QURESHI, Aged - 47 years, residing at - 580, Bhavani Peth, Pune. ..APPELLANT. -Versus- State of Maharashtra. ..RESPONDENT. .... Mrs.Sharmila Kaushik, Advocate a/w. Mr.Shirish Gupte, Adv. for the appellant. Mr.V.B.Konde-Deshmukh, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 28TH JANUARY, 2009. DATED : 28TH JANUARY, 2009. DATED : 28TH JANUARY, 2009. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellant-orig.accused has challenged the judgment and order dated 31.1.1992 passed by the learned Additional Sessions Judge, Pune in Sessions Case No.331 of 1991. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 17 & 21 of the N.D.P.S. Act and the appellant came to be sentenced to RI for 10 years and to pay fine of Rs.1,00,000/-, in default, SI for six months. .(2). 2. The prosecution case briefly stated is as under : . On 9.6.1991 at about 2:00 p.m. information was received by the vigilance branch that the accused was selling brown sugar in Taj Bakery lane. The said information was noted down and conveyed to the superiors. Thereafter the raiding party left for the spot. On reaching the spot, they found the accused on the spot. On enquiry, the accused informed his name to them. Then the raiding party asked the accused whether his search should be taken in presence of an Gazetted Officer or a Magistrate. The accused refused. On being searched, seven paper-packets were found with the accused. They contained brown-sugar. The said paper-packets were weighed along with the brown-sugar and it was found to weigh 2 gms. 400 mlgms.. Muddemal property came to be seized and panchnama came to be drawn. The accused came to be arrested. 3. Charge came to be framed against the appellant - accused under Sections 17 & 21 of N.D.P.S. Act, 1985. The accused pleaded not .(3). guilty and claimed to be tried. His defence is that of denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant, as stated in para-1 above. Hence, this Appeal. 4. I have heard Mrs.Kaushik the learned Advocate for the appellant and Mr.Konde-Deshmukh the learned APP for the State. I have perused the judgment and order passed by the learned Sessions Judge as well as the record pertaining to this case. After anxiously considering the matter, I am of the opinion that the conviction of the appellant is bad and deserves to be set-aside. 5. In order to prove its case, the prosecution has examined five witnesses i.e. PW-1 Mr.Phuge, who is a panch witness, PW-2 Muddemal Clerk who took charge of the property i.e. contraband, PW-3 PSI Shinde who is the complainant who was part of the raiding party, PW-4 constable who carried the contraband to Chemical Analyser and PW-5 who is the Investigating Officer. .(4). 6. The main legal point canvassed before me is that the mandatory requirement in Section 50 of the Act has not been complied with. In the instant case, in my view, the prosecution has failed to prove beyond reasonable doubt that the appellant was informed of his "right" under Section 50(1) of NDPS Act of being searched before a Gazetted Officer or a Magistrate. In this connection, it would be necessary to refer to the recovery panchnama Exhibit-5. Its perusal shows that the appellant was only asked whether he wanted to be searched by any Gazetted Officer or a Magistrate. 7. In the recovery panchnama which is a contemporaneous document as well as the complaint, it has not been mentioned that the appellant was apprised of his "right" to be searched before a Gazetted Officer or a Magistrate. Moreover the recovery panch PW-1 Mr.Phuge as well as the complainant PW-3 PSI Shinde are also silent regarding the appellant being informed of his right to be searched before a Gazetted Officer or a Magistrate. .(5). 8. The Constitution Bench of the Supreme Court in the case of State of Punjab v. Baldev Singh State of Punjab v. Baldev Singh State of Punjab v. Baldev Singh reported in 1999 SCC(Cri) 1080 1999 SCC(Cri) 1080 1999 SCC(Cri) 1080 has considered various aspects of the compliance with Section 50 of the Act. The Bench has laid down the propositions of law of which the first and second are extracted below : (SCC pp.209-09, para 57) "57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for 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. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused." .(6). 9. According to me if the accused, who was subjected to search was merely asked whether he wanted to be searched in the presence of a gazetted officer or a Magistrate, it cannot be treated as communicating to him that he had a "right" under law to be searched in presence of a gazetted officer of a Magistrate. If the accused is told that he has a "right" under the law to have his search taken in presence of a gazetted officer or a Magistrate, at the appellate stage it cannot be guessed what would have been the answer given by the accused person. 10. In a recent decision of the Supreme Court dated 23rd September, 2008 in the case of Man Man Man Bahadur vs. State of H.P. Bahadur vs. State of H.P. Bahadur vs. State of H.P. in Criminal Appeal No.1513 of 2008 (arising out of S.L.P. (Cri.) No.4628/2007), the Supreme Court has observed that the panchnama or any other document does not show that the appellant was made aware of his right to be searched before a gazetted officer or a Magistrate. It was further observed that no evidence had been adduced to show that the appellant was communicated of his right either to be searched in presence of a Magistrate or a .(7). gazetted officer. In view of this fact, it was observed that there was no substantial compliance of Section 50 of the NDPS Act and hence the conviction and sentence was set-aside. 11. In the present case also on perusal of the evidence of the panch witness as well as the raiding officer, the recovery panchnama, the complaint and the other evidence on record, it shows that the appellant was not made aware of his right to be searched before a gazetted officer or a Magistrate. Merely asking an accused whether he wanted to be searched in presence of a gazetted officer of a Magistrate cannot be treated as communicating to him that he had a "right" under the law to be searched in presence of a gazetted officer or a Magistrate. In this view of the matter the conviction and sentence imposed on the appellant cannot be upheld. 12. In the result, appeal is allowed. The judgment and order dated 31.1.1992 passed by the learned Additional Sessions Judge, Pune in Sessions Case No.331 of 1991 is set-aside. The appellant is on bail. His bail bond shall stand .(8). cancelled. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)