IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1171 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MUNRUDDIN WAJIRUDDIN KAZI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 1171 of 1998 MR EE SAIYED for Appellant MS KRISHNA U MISHRA for Appellant MR BD DESAI APP for Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH and MR.JUSTICE H.H.MEHTA Date of decision: 01/04/2003 And 02/04/2003 ORAL JUDGEMENT (Per : MR.JUSTICE D.P.BUCH) #. This is an appeal under Sec. 374 of the Code of Criminal Procedure, 1973 (for short the "Code") against the judgment and conviction order dated 7th December, 1998 recorded by the learned Additional Sessions Judge, Court No.25, City Civil & Sessions Court at Ahmedabad (for short "the learned Judge") in Sessions Case No. 172 of 1997 in which the learned trial Judge found the present appellant guilty for the offences punishable under Sec.8-C read with Sec.22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short "the said Act") and sentenced him to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs.1 Lac. in default of payment of fine, the appellant was required to suffer Simple Imprisonment for one year. The trial Court also directed that the muddamal article No.1 be destroyed and muddamal article No.2 be confiscated to the State. #. The facts of the case of the prosecution against the present appellant may be briefly stated as follows:- 2.1 On 26th May, 1997 at about 6-15 p.m. original informant Mr. P.M.Jadav, Police Inspector of Narcotic Cell, C.I.D. (Crime), Gujarat State, was on duty and as such, he received an information that a person was to pass by the road opposite Odhav Fire Station with Narcotic drugs for the purpose of sale. The said Officer called two panchas and other staff members. They exchanged personal search and thereafter prepared a preliminary panchnama and occupied their position at the aforesaid place. The present appellant was found passing by the said road at about 5-15 p.m. The informant gave a single. Therefore, the present appellant was stopped and inquiry was made about his identity. The Police Inspector Mr. Jadav introduced himself and also told him that the appellant was required to be searched and if the appellant wanted that he be searched in presence of a gazetted officer or a Magistrate, then necessary arrangement would be made to keep the said Officer present. A written intimation to that effect was also given to the appellant. It seems that the appellant agreed that he be searched by Mr. Jadav, and therefore, his personal search was carried out. It is the case of the prosecution that when search was carried out, a narcotic drug was found from the inner pocket of the pant put on by the appellant. The said drug was weighed in presence of panchas. It was sealed and even currency notes of Rs.20/- found from the personal search of the appellant were also seized. 2.2 At that time, it was noticed that the residential house of the appellant was also situated in the vicinity and therefore, the said house was also searched, but nothing objectionable was found from the said house, and therefore, remaining part of the panchnama was concluded. The papers were sent to the Police Station and First Information Report was filed. Accordingly, an offence was registered against the appellant. Muddamal seized was sent to the Forensic Science Laboratory (for short "F.S.L.") for chemical analysis and opinion. Since the F.I.R. was filed, further investigation was undertaken and on completion of investigation, chargesheet was filed against the present appellant for the aforesaid offences. #. The learned Judge of the trial Court supplied copies of police investigation papers to the appellant. Charge P.35 was prepared and framed against the appellant. The appellant pleaded not guilty. #. In the meantime, it was noticed that as per the report of the F.S.L. the narcotic drug found from the appellant was heroin and therefore, the charge was appropriately amended and copy of the amended charge is is at P.37 of the Paper Book. The appellant pleaded not guilty to the said charge also, and therefore, evidence was recorded. #. At the stage of recording of evidence, the prosecution examined following witnesses:- (1) P.W.1 Madhavlal Abhayraj Ex.8 (P.S.O. of Odhav Police Station). (2) P.W.2 Valjibhai Ranchhodji Gohil Ex.13 (First Panch witness). (3) P.W.3 Ratilal Karamanbhai Ex.14 (Second Panch Witness) (4) P.W.4 Prakash Mahendrabhai Jadav Ex.15 (Investigating Officer) (5) P.W.5 Dilipkumar Malabhai Chavda Ex.25 (Police Constable working in Narcotic Cell) (6) P.W.6 Ishwarlal Bhimdan Gadhvi Ex.31 (Crime Writer Head, Odhav Police Station). (7) P.W.7 Mohmed Faruk Usmankhan Rathod Ex.37 (Police Constable, Odhav Police Chowky and carrier of Muddamal to F.S.L.) (8) P.W.8 Prahladbhai Labhshankar Joshi Ex.42 (Assistant Director, F.S.L.) (9) P.W.9 Rambhai Kalubhai Kumbharwadiya Ex.46 (P.S.I. Vatva Investigation Squad who subsequently handed investigation to 2nd P.I. Mr.Paya) (10) P.W.10 Manoj Dineshchandra Antani, Ex.49 {Superintendent of Police (Economic Affairs)]. (11) P.W.11 Mohmmed Hanif Ismail Paya Ex.50 (2nd P.I. who completed further investi- -tation and submitted Chargesheet) #. After conclusion of evidence, the learned Judge recorded further statement of the appellant under Sec.313 of the said Code. Arguments were heard and thereafter the learned Judge found that the prosecution has proved the entire case against the appellant. Therefore, the appellant was found guilty of the aforesaid offences. He was, thereafter, heard on the point of quantum of sentence, and thereafter, the above said punishment was inflicted on the present appellant. #. Feeling aggrieved of the said judgment and conviction order recorded by the trial Court, the appellant has preferred this appeal before this Court. It has been mainly contended here that the prosecution has not proved before the trial Court that mandatory provisions of Secs. 42 and 50 and others of the said Act have been complied with. That the trial Court has not properly appreciated the fact that both the panchas have not supported the case of the prosecution. That the trial Court has not properly appreciated the fact that the entry regarding the time at which entry was posted was over-written. That the trial Court has overlooked the legal position that Sec.41 of the said Act was mandatory and yet it has not been complied with. That the trial Court has not properly appreciated the position that there was a delay in taking the accused to the nearest Magistrate and also in sending the muddamal to the Police Station. That the trial Court has also overlooked the fact that there was some difference in the weight of the muddamal article when weighments were taken at two places. That the trial Court has also not properly appreciated the position that the prosecution evidence is lacking on the point as to how the muddamal article was dealt with soon after it was seized but before it was despatched to the F.S.L. That on the whole, judgment and conviction order of the trial Court are illegal and erroneous, deserve to be set aside. The appellant has, therefore, prayed that the present appeal be allowed, the judgment and conviction order be set aside, the appellant be acquitted of the aforesaid offence and he may be set at liberty forthwith. #. On receiving the appeal, it was ordered to be admitted but the bail was refused. #. At the final hearing, Mr. E.E.Saiyed, learned Advocate has advanced arguments on behalf of the appellant and Mr. B.D.Desai, learned APP has argued on behalf of the respondent -State of Gujarat. Both of them have taken us through the oral evidence on record as well as through the documentary evidence which has been produced during the course of the trial. They have also taken us through the legal provisions of the said Act, when they took us through the judgment impugned in this appeal. Mr. E.E.Saiyed, learned Advocate for the appellant has argued first that though initially the charge was framed against the appellant showing that brown-suger was seized from the appellant, the trial Court amended the charge and it was mentioned therein that not brown-suger but Heroin was seized from the present appellant. That therefore, there was apparent mistake in the identity of the muddamal seized from the appellant. That therefore, even the prosecution was not clear as to whether the brown -suger was seized from the appellant, or whether the article seized from the appellant was Heroin. That therefore, the benefit of doubt may be required to be extended to the present appellant. ##. It seems that the above argument is not well -founded. The reason is that if we go through the provisions contained in Standing Order 381 (E) dated 29th May, 1998 issued by the Union of India in exercise of powers conferred by sub-sec.(1) of Sec.52-A of the said Act, it would appear that Heroin is one of the narcotic drugs declared as such by the Union of India. ##. Both the articles or drugs are the same, and therefore, it would not be necessary for this Court to enter into that arena. It is, therefore, clear that the appellant was found in possession of Heroin according to the case of the prosecution, and therefore, there is no change in the case put forward by the State against the appellant. Therefore, this defence will not be helpful to the present appellant. ##. The major attack of the defence is with respect to the non-compliance of Sec.50 of the said Act. Provisions made in Sec.50 of the said Act may be reproduced for ready reference as follows:- Sec.50: Condition under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in section 42 or to the nearest Magistrate. ##. If we go through the provisions of Sec.50 of the said Act, it would be clear that when an Officer duly authorised under Sec.42 of the said Act, is about to search any person under the provisions of Secs. 41, 42 or 43 of the said Act, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in section 42 or to the nearest Magistrate. ##. There is a consistent case law that it is a duty of the Searching Officer to inform the concerned accused as to his right of being searched in presence of the said Officers. In other words, the said right is required to be conveyed to the accused concerned. It is the argument of Mr. E.E.Saiyed, learned Advocate for the appellant that the appellant was not informed by Mr. Jadav that it was the right of the appellant to get himself searched in presence of the aforesaid Officers. That therefore, there was apparent violation of Sec.50 of the said Act. We would, therefore, be required to consider as to whether there was violation of the provisions contained in Sec.50 of the said Act. For this purpose, we may revert to the evidence of Mr. Jadav which is at Ex.15. 2-4-2003 ##. The learned Advocate for the appellant has taken us through the evidence of Mr. Jadav at Ex.15. This witness has carried out the search of the appellant in a public place. He has deposed before the trial Court in Para 2 of his evidence that he had inquired from the appellant, if the appellant desired to be searched in presence of a gazetted officer or a Magistrate. He had also offered that in case, the appellant was inclined accordingly, then he would make an arrangement for the presence of the said officers. That the appellant did not show readiness to be searched in presence of the said officers, and therefore, the search of the appellant was carried out by him. ##. In support of the said fact, the said witness has referred to a document at Ex.19 which shows that such a written offer was also made to the appellant by the said witness. ##. The learned Advocate for the appellant has argued that there is some confusion as to who had recorded the alleged reply of the appellant in the said writing at Ex.19. Even if we ignore the said writing, the fact remains that an offer was made orally and in writing and the appellant declined to be searched in presence of a gazetted officer or a Magistrate. ##. It will also be required to be considered that the appellant has produced the F.I.R. at Ex.16 which also shows that such an offer was made to the appellant and the appellant declined to be searched in presence of a gazetted officer or a Magistrate. ##. Then there is the evidence of panchnama Ex.18. there is also a positive mention that said offer was made to the appellant and that the appellant declined to be searched in presence of a gazetted officer or a Magistrate. ##. Therefore, the ocular evidence of the appellant on this aspect has been amply supported by the F.I.R. and the panchnama. It is further supported by written offer Ex.19. ##. An attempt was made to argue that the fact of written offer has not been included or narrated in the F.I.R. as well as in the panchnama. Now when an offer has been made and when it has been referred in F.I.R. as well as in panchnama, then it would not be necessary that the oral and written offers should also have been recorded separately in the panchnama as well as in the F.I.R. Even the fact of offer was not required to be written and referred in F.I.R. as well as in panchnama. However, so far as oral offer is concerned, it has already been referred in the F.I.R. as well as in the panchnama, and therefore, simply because, reference to written offer was not made in F.I.R. and panchnama, it would not mean that no such offer was made to the appellant. ##. It is also required to be considered that Sec.50 of the said Act does not require that an offer should always be put in writing. Therefore, on one hand, there is evidence of the informant Mr. Jadav that oral as well as written offers were made to the appellant and the appellant declined to be searched in presence of a gazetted officer or a Magistrate. On the other hand, the evidence is supported by F.I.R., panchnama as well as by written offer. Looking to the above evidence on record and considering the observations of the trial Court on this point, we are of the view that the trial Court had sufficient material with it in order to come to a finding that such an offer was made to the appellant by Mr. Jadav. ##. The said oral evidence of Mr. Jadav has further been supported by the evidence of Dilipbhai Malabhai Chavda at Ex.25 who was also a member of the said raiding party. He has positively deposed before the trial Court in his evidence that such an offer was made to the appellant, but he declined to be searched in presence of a gazetted officer or a Magistrate. It is required to be considered that oral as well as written both the offers have been again reiterated by Mr. Chavda during the course of his evidence at Ex.25. This would mean that this witness clearly and categorically corroborated the evidence of Mr. Jadav. ##. In view of above evidence on record, we are of the view that the appellant was offered as aforesaid by Mr. Jadav and the appellant declined to be searched in presence of a gazetted officer or a Magistrate, and therefore, provision contained in Sec.50 of the said Act has been substantially complied with, and therefore, the appellant will not be entitled to any benefit of doubt on this aspect of the case. ##. Then, the learned Advocate for the appellant has referred to the provisions made in Secs.41 and 42 of the said Act. On this line, he has argued that the provisions contained in Secs.41 and 42 of the said Act have not been complied with. ##. For this purpose, it would be necessary for us to look into the provisions made in Secs.41 and 42 of the said Act. It is required to be considered here that the personal search of the appellant was made in a public place. Muddamal heroin has also been seized from the personal search of the appellant which took place in the public place. The said muddamal has not been seized from the house of the appellant, though it was also searched. ##. Now so far as provision contained in sub-sec (1) of Sec.41 of the said Act is concerned, the said provision is not applicable to the facts of the present case since Mr. Jadav has not obtained any warrant from the Officer mentioned in sub-sec.(1) of Sec.41 of the said Act. ##. So far as provision of sub-sec.(2) of Sec.41 of the said Act is concerned, it has been mentioned therein that any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. ##. It is not much in dispute that Mr. Jadav was a Police Inspector at the relevant point of time and was undoubtedly a gazetted officer. ##. For the purpose of dealing with this argument, it would be worth-while to refer to a Notification of the State of Gujarat being Notification No.GH-L.14-NDS-1087 (I)-M, dated 15th June, 1985 hereinbelow:- In exercise of the powers conferred by Sub-sec.(2) of sec.41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of all previous orders or notifications issued under Sec.22 of the Dangerous Drugs act, 1930 (II of 1930) and in force in any part of the State, the Government of Gujarat hereby empowers for the purpose of the said Sub-sec.(2) of the following officers of the State Government namely:- 1. All officers of the Police Department of and above the rank of Inspector of Police posted in any part of the State of Gujarat. 2. All Officers of the Prohibition and Excise department in the State of Gujarat of and above the rank of Inspector, Prohibition and Excise Department. 3. All the Inspector appointed under the Drugs and Cosmetics Act, 1940 (XXIII of 1940), in the State of Gujarat. ##. On a bare reading of the said Notification, it is very clear that in exercise of powers conferred on the State Government by Sec.41(2) of the said Act, all officers of the police department of the rank of Inspector of Police, posted in any part of the State of Gujarat has been empowered to act in accordance with Sec.41(2) of the said Act. It means that Mr. Jadav being an officer in the police department of the rank of Police Inspector was covered by the said Notification, and therefore, the said Officer was empowered to act under Sec.41(2) of the said Act, and therefore, it has to be accepted that the provision contained in Sub-sec.(2) of Sec.41 of the said Act has also been complied with. ##. An attempt has been made to argue that under sub -sec.(2) of Sec.42 of the said Act, when any information has been reduced into writing under sub-sec.(1) of Sec.42 of the said Act or when grounds of belief have been recorded under the proviso thereof, then the same should be forthwith sent to the immediate superior officer. The learned Advocate for the appellant has argued that no such information has been forwarded to the superior officer as per the requirement of sub-sec.(2) of Sec.42 of the said Act, and therefore, there is a violation of mandatory provision of sub-sec.(2) of Sec.42 of the said Act. ##. In this respect, it is required to be considered that so far as Sec.42 of the said Act is concerned, it will apply to an officer authorised under Sec.42(2) of the said Act. In the present case, we find that Mr. Jadav was a Police Inspector, and therefore, he was an empowered officer under sub-sec.(2) of Sec.41 of the said Act, and therefore, on a bare reading of Secs.41 and 42 of the said Act, it was not obligatory on his part to convey the said information, reduced into writing by him or convey the grounds of his belief to a superior officer. In other words, if the said officer fails to inform his superior officer about the same, then it cannot be treated that there was a violation of a mandatory provision of either Sec.41 or Sec. 42 of the said Act. We have to draw a demarcating between the power of Sec.41 and that of Sec.42 of the said Act. Again at the cost of repeatation, it has to be observed that powers under Sec.41 are required to be exercised by an empowered officer and power under Sec.42 of the said Act may be exercised by an authorised Officer. In the present case, power has been exercised by an officer empowered under Sec. 41(2) of the said Act, and therefore, the provision contained in sub-sec.(2) of Sec.42 will not be applied to the facts of the present case on hand. ##. In order to advance the said position, it would be necessary to refer to a decision of this Court. In Aslambhai Ibrahimbhai Memon & Anr. Vs. State of Gujarat reported in 1990(1) GLR 150. A pertinent observation can be gathered from Para 3.12. The said observation may be reproduced for ready reference as follows:- 3.12 "Thus, Sec.42 speaks about search and seizure from any building, conveyance or enclosed place, while Sec.43 speaks about the search and seizure from public place or in transit. It is important to note that the wordings of Secs.41 and 42 with regard to information taken in writing have been deliberately omitted by the Legislature in Sec.43 and in our view, that has been done so advisedly inasmuch as the Police Officer empowered under Sec.42 may get information with regard to the person in any public place or in transit at the last moment and if he has to undergo the