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[2008] 2 S.C.R. 95 -

GHASITA SAHU A ;._

STATE OF MADHYA PRADESH (Criminal Appeal No. 184 of 2008)

JANUARY 28, 2008 B

[S.B. SINHA AND V.S. SIRPURKAR, JJ.]

• Narcotics Drugs and Psychotropic Substances Act, 1985:

ss.42, 50 and 51 - Search of house - Conditions under s.42 complied by the Investigating Officer- 17. 750 kg. of ganja c

recovered from one room - Right of accused to have search made in presence of Magistrate or Gazetted officer-Allegation of breach of such right- Held : Right is available where search is of 'person' of the accused - Since search was of his house, there was no breach of any right - Conviction upheld - Courts D below awarded sentence of 5 years- Considering that accused was middle-aged and coming from poor background, sentence of 5 years reduced to sentence already undergone - Sentence/

Sentencing - Code of Criminal Procedure, 1973 - s.100.

The prosecution case was that on receipt of E information, the Investigating Officer PW6 searched the house of appellant and found 17.750 kgs of Ganja kept in a gunny bag from one room. Before the search was taken, he gave an option to the appellant to have search in the presence of Gazetted Officer. However, appellant did not F " opt for such an option and consented to the search by search party led by PW-6. Relying on the statement of PW- 6 and PW-1, as also Panchanama, the appellant was found guilty and convicted under s.8 r.w. s.20(b)(ii) of Narcotics Drugs and Psychotropic Substances Act, 1985. He was G directed to undergo Rigorous Imprisonment for a period

)>- of 5 years and also pay fine of Rs.20,000/-. High Court

"""\ confirmed the conviction.

ln appeal to this Court, appellant contended that the

95 H

A search itself was illegal as the panchas for the search had " not supported the same and that they were not the local panchas; that he was falsely implicated at the instance of police and that the appellant was not informed about his right to have search in presence of a Gazetted Officer in B terms of s.42 of the Act.

Dismissing the appeal but modifying the sentence, the Court

HELD: 1. Both the panchas PW-4 and PW5 have not ,.

c even been distantly suggested that they were the usual

panchas and stock witnesses of local police and were not residents of the area wherefrom the Ganja was recovered. Nothing has been suggested to PW-6 in respect of panchas not being local panchas. The

D investigating officer seems to have taken all precautions as per s.100 of Criminal Procedure Code. [Para 4] [98-G,

H; 99-A, BJ

2. Very curiously, plea of false implication was not suggested to the witness at all. In the absence of any

E suggestion or material in cross-examination such lame

plea cannot be accepted. [Para 5] [99-C]

3. In the examination-in-Chief and the crossexamination, the witness had very specifically stated that appellant was informed about the information received F from the informant and was asked if he wanted any Magistrate to conduct the search or the police themselves could do that. Considering the language, the search of the house cannot be said to be illegal in any manner.

[Para 6] [99-E, F, G] G

4. S.51 of the Narcotics Drugs and Psychotropic Substances Act, 1985 specifically provides that the provisions of Criminal Procedure Code shall apply in so far as they are inconsistent with the provisions of the Act to all warrants, arrest, searches and seizures made under H this Act. The right of the search being taken only in

-t"- GHASITA SAHU v. STATE OF MADHYA PRADESH 97

[VS. SIRPURKAR, J.]

... presence of a Magistrate or a Gazetted Officer is restricted A ...- where the search is to be taken of a 'person' of the ' accused. In this case the search was of a house and, therefore, all that the investigating officer had to follow was the conditions under s.42 of the Act read with s.100 Cr.P.C. Therefore, the argument that the accused had any B right in respect of the aforementioned search and that right has been breached is wholly incorrect. [Para 7] [99-H;

100-A, B]

State of H.P v. Pawan Kumar (2005) 4 SCC 350 - relied on. c

5. Considering that the accused is a middle-aged man and comes from the poor background as claimed by the counsel, his punishment of five years is modifect to the sentence already undergone. The amount of fine is also D reduced from Rs.20,000/- to Rs.10,000/- and in default of payment of fine, the accused would undergo further period of Rigorous Imprisonment for six months. [Para 8]

[100-E]

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal E No. 184 of 2008.

From the final Judgment and Order dated 22.7.2005 of the High Court of Madhya Pradesh at Jabalpur in Crl. A. No.

1344/2004

Sangeeta Kumar and Shivangi Thagala for the Appellant.

Govind Goel, C.D. Singh, Maru Sagar Samanta Ray, Vairagya Vardhan, Sunny Choudhary and Ram Naresh Yadav for the Respondent.

The Judgment of the Court was delivered by G

V.5. SIRPURKAR, J. 1. Leave granted. ,. i4

2. The appellant herein challenges his conviction for the ., offence under Section 8 read with Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter H

A referred to as "NDPS Act") recorded by the Trial Court and confirmed by the High Court.

3. On the prior information Arun Pandey (PW6) searched the house of the appellant and found 17. 750 Kgs. Of Ganja kept in a gunny bag from one room. Before the search was taken, 8 the Investigation Officer had completed all the formalities as per Section 42 of NDPSAct. At the time of search, the appellant was apprised of the information as also the proposed search and was also given an option to have a search in presence of a Gazetted officer. However, the appellant had not opted such an C option and consented to the search by the search party led by Investigating Officer Arun Pandey (PW6). The Ganja (17.750 Kg.) was seized from one of the rooms and after samples were drawn, rest of it was sent to Malkhana for the safe custody. The sample packages were sent to Forensic Science Laboratory D wherein it was confirmed that it was Ganja. The investigation having been completed, the appellant was charge-sheeted. The appellant pleaded not guilty. However, relying on the statement of Arun Pandey (PW6) and Shiv Kumar (PW1) as also the documents including the Panchanama, the appellant was found E guilty and was convicted of the offences charged. He was directed to undergo Rigorous Imprisonment for a period of five years. He was also directed to pay a fine of Rs.20,000/- in default

rigorous imprisonment of one year. This conviction was challenged before the High Court. However, the High Court, after F going through the evidence confirmed the conviction and the sentence, necessitating the present appeal.

4. It was firstly contended by the counsel for the appellant that the search itself was illegal as the Panchas for the search firstly had not supported the same and secondly they were not G the local panchas. We were, therefore, taken through the evidence of the two Panchas Raju (PW4) and Sanju Tiwari (PW5). We have carefully gone through their evidence. Both of them have not supported the prosecution inasmuch as they have even refused to identify the accused. There is nothing in their H evidence to suggest that they were not local panchas. They have

~ GHASITA SAHU v. STATE OF MADHYA PRADESH 99 ~

[VS. SIRPURKAR, J.]

>- not even been distantly suggested that they were the usual A panchas and stock witnesses of local police and were not residents of the area wherefrom the Ganja was recovered.

Learned counsel tried to rely on the evidence of Arun Pandey (PW6). However nothing has been suggested to him in respect of panchas not being local panchas. The investigating officer B seems to have taken all precautions as per Section 100 of Criminal Procedure Code. Hence the contention is rejected.

5. Learned counsel secondly suggested that in fact this accused had met with an accident with the police jeep driven by Arun Kumar (PW6) and, therefore, he was falsely implicated c at the instance of the police. Very curiously this is not suggested to the witness at all. In the absence of any suggestion or material in cross-examination such lame plea cannot be accepted. _;

6. Lastly, the learned counsel tried to suggest that the D appellant was not given any idea about his right to have the search taken in presence of a Gazetted Officer in terms of Section 42 of the Act. We have carefully seen the evidence. To

~ a specific question: "what did you say to the accused at the place of occurrence?", the answer by the witness is: "I told him that we have an information from Mukhbir that there is some E Ganja hidden in your house and I have to take your search. If you want the search to be conducted in the presence of some gazetted officer or in the presence of a Magistrate or you had no objection if I conduct the search myself'. Before that even in the examination-in-chief the witness had very specifically stated F "Ghasita Sahu was informed about the information received from r the informant and it was asked from him if he wanted any Magistrate to conduct the search or the police themselves could have done that". Learned counsel wanted to suggest that this was not the way to inform the accused of his right. Unfortunately, G no such specific question was put to the witness and in our

)r opinion considering the language, the search of the house

~ cannot be said to be illegal in any manner. .,

7. In the first place, there is no question in this case, of any such right of the accused. Section 51 of the Act specifically H ...

A provides that the provisions of Criminal Procedure Code shall

A I apply in so far as they are inconsistent to the provisions of the Act to all warrants, arrest, searches and seizures made under this Act. The right of the search being taken only in presence of a Magistrate or a gazetted officer is restricted where the search B is to be taken of a "person" of the accused. In this case the search was of a house and, therefore, all that the investigating officer had to follow was the conditions under Section 42 of the Act read with Section 100 Cr.P.C .. Therefore, the argument that 'f the accused had any right in respect of the aforementioned c search and that right has been breached is wholly incorrect.

The law is now settled that this condition under Section 50 applies only where the search is of a "person" of accused [See State of H.P. v. Pawan Kumar [(2005) 4 sec 350]. In this case the search was not of the person but of his house.

8. However, it is pointed out by the learned counsel that the quantity of Ganja was less than the commercial quantity though more than the small quantity and that the accused has all through been behind the bars after his arrest and he has almost completed four years in jail. Considering that the accused ,..

E is a middle-aged man and comes from the poor background as claimed. by the counsel, we would chose to modify his punishment of five years to the sentence already undergone.

We also reduce the amount of fine from Rs.20,000/- to Rs. 10 ,0001and in default of payment of fine the accused would

F undergo further period of Rigorous Imprisonment for six months.

Barring this modification, the appeal is dismissed.

--f

D.G.

Appeal dismissed.