Criminal Appeal Nos. 336 and 358 of 1991. Case: Babulal Hiralal Sainy Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal Nos. 336 and 358 of 1991 |
| Counsel | For Appellant: M. H. Rizwy (in Cri Appeal No. 336/91) and K. R. Padhye (Amicus Curiae) (in Cri Appeal No. 358/91), Advs. and For Respondents: H. Ahmed, A. G. P., Advs. |
| Judges | B. U. Wahane , J. and R. M. Lodha, J. |
| Issue | Narcotic Drugs and Psychotropic Substances Act (61 of 1985) - Sections 41, 42(1), 50, 52, 57 |
| Citation | 1995 CriLJ 4105 |
| Judgement Date | July 10, 1995 |
| Court | High Court of Bombay (India) |
Judgment:
R. M. Lodha, J.
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These two criminal appeals, one by original accused No. 2 Babulal Hiralal Sainy (A2) and original accused No. 3 Mirajuddin Munnikhan Pathan (A3) and the other by original accused No. 1 Umesh (A1) are directed against the conviction and sentence awarded by the Additional Sessions Judge, Nagpur, in Sessions Case No. 545/1990, on 31-7-1991, to the accused/appellants for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Sub stance Act, 1985 (for short the N. D. P. S. Act). The appellants have been sentenced to suffer R. I. for 10 years and to pay a fine of Rs. 1,00,000/- each and in default to suffer R. I. for 6 month.
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The principal contentions raised by Mr. Rizwy, the learned counsel for the appellants/ac cused A2 Babulal and A3 Mirajuddin in Criminal Appeal No. 336 of 1991, are (1) that the mandatory provisions contained in Sections 41 and 42 of N. D. P. S. Act have not been complied with inasmuch as the information received about commission of of fence was not reduced in writing and after reducing the said information in writing, the same was not sent to the Superior Officer, (2) that the mandatory provisions of Section 50 of N. D. P. S. Act were not complied with inasmuch as the accused/appellants were not informed of their right as to whether they wanted the search to be taken before the Executive Magistrate or the Gazetted Officer and (3) that the procedure as required under Sections 55 and 57 of the N. D. P. S. Act was not meticulously followed and as a result thereof serious prejudice was caused to the accused/appellants Mr. Rizwy, the learned counsel for the appellants/accused, in support of his submissions, strongly relied upon the decision of the Supreme Court in State of Punjab v. Balbir Singh, AIR 1994 SC 1872: (1994 Cri LJ 3702), Ali Mustaffa v. State of Kerala, AIR 1995 SC 244, Mohinder Kumar v. State Panaji, AIR 1995 SC 1157: (1995 Cri LJ 2074), and division bench judgment of this Court in Daniel Odemenam v. R. Ramesh, (1995) 1 Mah LJ 857. The learned counsel appearing on behalf of the A1 Umesh adopted the submissions of Mr. Rizwy. Both the learned counsel submitted that in the absence of the compliance of mandatory provisions, particularly Sections 41, 42 and 50 of N. D. P. S. Act the conviction and sentence awarded by the Additional Sessions Judge, to the accused/appel lants deserves to be quashed and set aside.
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Opposing the submissions advanced by the learned counsel for the accused/appellants, on the other hand, Mr. Ahmed, Additional Public Prosecu tor, appearing on behalf of the State, vehemently contended that the information received by the Po lice Officer was not about the commission of of fence under the N. D. P. S. Act and was not as contemplated under the N. D. P. S. Act and, there fore, it was not required to be reduced in writing. Mr. Ahmed further urged that in fact the search was conducted by the empowered officer under Sections 100 and 165 of the Code of Criminal Procedure, 1973, because it was not pursuant to the information required under N. D. P. S. Act and therefore, no compliance of Sections 41 and 42 of the N. D. P. S. Act was required in the facts and circumstances of the present case. Mr. Ahmed would urge that since Section 41 and 42 of N. D. P. S. Act were not applicable in the facts and circumstances of the present case, obviously, Section 50 of the N. D. P. S. Act would not operate and non-compliance of the said provisions, even if we assume, would not help the accused/appellants and would not vitiate the trial. Mr. Ahmed took us through the provisions of the N. D. P. S. Act and submitted that possession of any narcotic drugs and psychotropic substance is by itself not an offence, and therefore, the information which was received to the effect that two persons from other State had come to Nagpur city along with large quantity of brown sugar and that they were in search of customers and were selling the brown sugar, was not an information as contemplated un der Sections 41 and 42 of the N. D. P. S. Act since there was no information about the names of these two persons and also that these two persons were in possession of the brown sugar without any licence from the Competent Authority. The contention of Mr. Ahmed therefore, is that search conducted in the present case was search simpliciter under Sections 100 and 165 of Code of Criminal Procedure, 1973 and the said search was permissible by virtue of Section 51 of N. D. P. S. Act being not inconsistent with the provisions of the said Act and therefore, question of non-compliance of Sections 41, 42 and 50 of N. D. P. S. Act did not arise. Mr. Ahmed also submitted that the burden was on the defence to lay foundation in cross-examination of the Police Offi cer as to whether the accused was informed as required under Section 50 of the N. D. P. S. Act or not and since there was no such cross-examination of P.W. 14, Shri Sunil Ramrao Paraskar, it is not open to the defence to urge in appeal before this Court that Section 50 of N. D. P. S. Act has not been complied with. Mr. Ahmed, in support of his sub missions, strongly relied upon the Judgment of the Apex Court in Surajmal Kaniah Lal Soni v. State of Gujarat, (1994) 4 JT (SC) 144.
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To assess the respective submissions made by the learned counsel, the prosecution story unfolded during the trial may be noted briefly. According to the prosecution case, on 21-6-1990, Shri Sunil Paraskar (P.W. 14), Assistant Commissioner of Police, Crime Branch Nagpur received an informa tion that person from neighbouring State had arrived in Nagpur City with large quantity of brown sugar and they were in search of customers. Shri Sunil Paraskar. (P.W. 14) accordingly informed his Supe rior Officer, namely Deputy Commissioner of Po lice, Crime Branch, Nagpur and arranged for laying the raid and on 22-6-1990 at about 8.30 a.m. one Mr. Kadam, Additional Deputy Commissioner of Po lice, C. I. D. Intelligence was sent to Anukul Restau rant, Kamptee Road, Nagpur, with instruction to purchase brown sugar from accused/appellant A1 Umesh and it was decided if the brown sugar was found and the deal was struck, Mr. Kadam would proceed towards Kamptee. The raiding party led by Mr. Paraskar (P.W. 14) followed him to Anukul Restaurant, Shri Kadam arrived and parked his car infront of the Anukul Restaurant, went inside hotel, returned, from the hotel after 5-10 minutes and after boarding the car proceeded towards the Kamptee road. The car was driven by Mr. Kadam and the accused A1 Umesh sat on the rear seat of the car. Since the car proceeded towards Kamptee, it was indicative of the fact that the deal had struck and the person accompanying Mr. Kadam had contraband. The raiding party led by P.W. 14 Sunil Paraskar followed the car of Mr. Kadam, apprehended the car and asked A 1 Umesh who was sitting on the rear seat to come out. Though A1 Umesh tried to flee away, his attempt was foiled and after disclosing identity, search was taken and the plastic bag having about half K. G. of brown sugar was found from his person. Panchanama Exh. 69 was drawn. The plastic bag seized from A1 Umesh was sealed and signa tures of panchas, accused Umesh as well as P.W. 14 Sunil Ramrao Paraskar were put on the said seized plastic bag. Accused/Appellant A1 Umesh also in formed the raiding party that accused/appellants A2 Babulal and A3 Mirajuddin, who were staying at Swagat Lodge Nagpur, were also having brown sugar with them and consequent to this information, the raiding party went to Swagat Lodge and with the assistance of P.W. 1 Harish, found that A2 Babulal and A3 Mirajuddin were putting in a room No. 36 of the said Lodge. P.W. 14 Shri Sunil Paraskar along with the raiding party, went to room No. 36 and A2 Babulal and A3 Mirajuddin were found there. They were asked to search the members of the raiding party to which they declined and during search of the room, a suitcase was found and A2 Babulal was asked to open the suit-case and the polythene bag containing about 1/2 kg. brown sugar was found from the said suit-case. The said plastic bag was also sealed, and label bearing signatures of panchas, the appellants/accused A2 Babulal and A3 Mirajuddin and P.W. 14 Sunil Paraskar was put. The suit-case was also seized. Thereafter P.W. 14 Sunil Paraskar reported his superior officer Shri Mathur, D. C. P., C. I. D. about the raid and one more accused Shioraj was apprehended from his house. First information report Exh. 127 was lodged at Police Station, Panchpaoli, by P.W. 14 on 22-6-1990 at about 10. 30 a.m. The seized articles were deposited at the Police Station Panchpaoli through Police Constable Ramesh (P.W. 12). On 2-7-1990, the sealed articles were sent for chemical analysis and according to the Chemical Analyser's report dated 18-7-1990 (Exh. 129), the sealed articles contained Heroin i.e. diacetylmorphine along with other opium alkaloids which were covered under Section 2(xvi) 2 of N. D. P. S. Act. On conclusion of investigation, the ac cused/appellants namely A1 Umesh, A2 Babulal and A3 Mirajuddin along with another accused Shioraj were charged for the offence punishable under Section 21 of the N. D. P. S. Act The accused/appellants denied having committed any offence.
4A. The prosecution during the course of trial, examined P.W. 1 Harish, P.W. 2 Shri Mustaq Ahmed, P.W. 3 Sanjay, P.W. 4. Bhimrao, P.W. 5. Dilip, P.W. 6. Haribhau, P.W. 7, Dnyaneshwar, P.W. 8. Suchit, P.W. 9 Ramkripal, P.W. 10 Ramapati, P.W. 11 Hansraj, P.W. 12 Ramesh, P.W. 13 Ram Kannake, P.W. 14 Sunil Paraskar, P.W. 15 Purushottam Kondalkar and also exhibited the num ber of documents including panchanama in respect of seizure of the property dated 22-6-1990 (Exh. 69 and 70), first information report (Exh. 127), Chemical Analyser's report dated 18-7-1990 (Exh. 129) and copy of station diary sana dated 22-6-1990 (Exh. 138).
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After recording the evidence and hearing the learned...
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