Hamidhbai Azambhai Malik vs State Of Gujarat

4. On the basis of the said report, entry came to be recorded in Jambusar Police Station Diary at SL. No.17 of 1995 at about 2.30 P.M., the raid was 2 effected on 15. 12.1995 after calling panchas and other officers and a photographer, and after undertaking other exercise required under law.

5. The raiding party led by Mr. Pundya, PSI, went to the residence of accused, bearing Bharuch Municipal House No, 3132. The door of the house was open, and one person standing there was questioned, who replied that his name was Hamidbhai Azambhai Malik, the accused and the appellant before us. After introducing himself, he prepared a memorandum, to the effect as to whether, accused would like his house to be searched in presence of an Executive Magistrate or a Gazetted Officer, to which, accused replied in the nagative. Since, accused had no objection, before starting search, PSI Pandya, took the signature of the accused on the memorandum, produced at Exh. 29.

6. Thereafter, the house was searched in presence of- Panchas, and a ladies purse containing 17 closed plastic small bags were found out, containing small tablets. Out of 17, the 16 small plastic bags contained the same weight. Plastic bags were opened and verified and weighed in presence of panchas, photographs were taken and again they were placed in the plastic bags. It was apprehended that on account of the unpleasant odour and smell, it seemed to be contraband articles like 'Charas'. The necessary 3 procedure for seizure was undertaken and after the procedure was followed, the seal of LCB Branch, Bharuch was applied on the cover. The total weight of the contraband articles, like charas came to 4,900 mgs. The sealed mudammal contraband articles charas thereafter was forwarded to the Director of Forensic Science Laboratory, for examination and report, who upon examination reported, it to be falling within the prohibited and contraband article under the NDPS Act i.e. `Charas'. The FSL authority had, also, verified the seal and it tallied with the forwarding letter and the item sent. Upon the basis of the report, the accused came to be charged as stated above.

Upon the analysis and appraisal of the evidence of the prosecution, the learned Addl. Sessions Judge found accused guilty for having committed an offence punishable under Section 20(b) (ii) of the NDPS Act, and after hearing on the quantum of sentence, awarded minimum sentence prescribed i.e. 10 years rigorous imprisonment and a minimum fine of Rs.1,00,000/-

8. The accused preferred an appeal before the high Court which was dismissed as aforestated. Primary stand was that the officer who conducted the search was not authorized and was not an empowered officer. It was pleaded that there was non-compliance with the requirement of Section 42 (2) of the Act.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

Not only that this part of the procedure, by way of abundant precaution, exercised and followed by the PSI, is also manifestly recorded in the complaint at Exh.32.

13. Additionally, the question as to whether the officer who conducted the proceedings was empowered officer or not was not raised before the trial court and the High Court and, therefore, that plea cannot be entertained.

14. The appeal is without merit, deserves dismissal which we direct.