Arjun Shamrao and Alkar vs State of Maharashtra

S.S. Parkar, J.—The appellant convicted for the offence u/s 20(b) of the N.D.P.S. Act and sentenced to suffer RI for one year and to pay a fine of Rs. 1,000/- in default RI for two months has challenged in this Appeal the order of his conviction and sentence recorded by the Ld. Sessions Judge, Solapur on 17-9-1992.

The prosecution case appearing from the evidence of Investigating Officer PSI Shinde (PW 6) is as follows :

PSI Shinde was attached to Railway Police Station, Kurduwadi on the date of the incident i.e. 14-1-1992. On that day at about 11.30 p.m. they received the information that a boy travelling by Jayanti Janata Express was possessing and carrying illicit Ganja in his bag. He made station diary entry and called two panchas, one Sanjay Sathe PW 2 and Vishwanath Devakate at the Police Station and went to the railway station on the narrow gauge railway platform along with the police staff and the panchas. He found the appellant sitting on one bench under the railway platform clock. He caught the accused in the presence of the panchas and asked him about the contents of his bag. The appellant told him that it contained ganja and, therefore, asked him as to whether a search in the presence of the Magistrate or a Gazetted Officer should be taken to which he replied in the negative. His cloth bag was then searched which was found containing three pudis of ganja each of which weighed 500 gms. He then took the sample of 50 gms. from each of those three pudis, sealed them and the sample pudis under the signature of the panchas. The panchanama about the same was drawn on the spot and he brought the accused along with the attached property to the Police Station and lodged his complaint which is Exhibit 16. Following day he recorded the statements of the witnesses and sent his report to the Superintendent of Police, Pune copy whereof is produced at Exhibit 17. On 16-1-1992 the sample was sent to CA along with Police Constable Borate. The report of the CA was received which is at Exhibit 18. After the completion of the investigation charge-sheet was filed in the Court of JMFC, Daund which is Exhibit 19 against the appellant for offence u/s 20(b) of the N.D.P.S. Act. The appellant was tried before the Sessions Court, Solapur and the charge was framed u/s 20(b) of the N.D.P.S. Act. The accused pleaded not guilty and contended that on that day he was returning from Bombay after purchasing the medicines for his father who was being treated in Tata Hospital at Bombay for cancer and he was caught by the ticket checker as he was travelling without ticket and kept in custody of the police who implicated him falsely.

On behalf of the prosecution six witnesses were examined including PSI Shinde who investigated the matter and also filed the complaint. The other witnesses are PW 1 Police Constable Ghodage who was attached to the Railway Police Station, Kurduwadi and was a member of the raiding party. PW 2 is Sanjay Sathe who was working as Coolie who had acted as a pancha to the seizure panchnama Exhibit 8. PW 3 is Police Constable Kale who was a member of the raiding party. PW 4 is Police Head Constable Nimbalkar who was working as Muddemal Clerk attached to the Railway Police Station, Kurduwadi. PW 5 is Police Constable Borate and was member of the raiding party. All these witnesses have supported the complainant''s evidence.

After appreciating the entire evidence the learned Sessions Judge, Solapur by his judgment and order dated 17th September, 1992 has held the appellant guilty for offence u/s 20(b) of the N.D.P.S. Act and sentenced him to undergo Rl for one year and to pay a fine of Rs. 1,000/- in default to undergo further Rl for two months.

Mr. Kulkarni, learned Advocate appearing on behalf of the appellant has raised number of points. Before dealing with the said points it may be mentioned that the appellant had already undergone the sentence of imprisonment. The present appeal was filed through post from jail. It was admitted by this Court on 19th July, 1993 and that time he had already undergone the sentence.

Mr. Kulkarni laid great stress on the fact that the offer to be searched in the presence of the Magistrate or a Gazetted Officer was not made in writing to the accused and obtained his signature for declining the said offer. He placed reliance on two decisions of the Supreme Court, one in the case of State of Punjab Vs. Jasbir Singh and Others, and another in the case of State of Punjab vs. Labh Singh reported in 1996 II A.D.S.C. (Cr.) 130. In both the decisions the lower Courts had acquitted the accused on the ground that the evidence of the prosecution with regard to the compliance with section 50 was not believed. It was further observed that at the time of the search the accused should be informed that he is entitled to be searched in the presence of a gazetted officer and should take in writing from the accused that he has been so informed and that he waived that right. Thus it should form part of the contemporaneous record. In this case, also it is not taken in writing from the accused that he had waived his right to be searched in the presence of a Gazetted Officer u/s 50. However, both the Investigating Officer as well as pancha and the panchanama do mention that the accused was given this offer and he declined to be searched in the presence of a Gazetted Officer. Since, that fact is mentioned in the panchanama, apart from the evidence of the Investigating Officer and is further supported by the pancha witness, that aspect of the evidence cannot be disbelieved simply because the accused denies the same and there is no writing to that effect. The aforesaid two decisions of the Supreme Court cited by Mr. Kulkarni were the cases where the prosecution evidence was not believed by the lower Courts on that aspect.

Second contention raised by Mr. Kulkarni is that PW 6 PSI who lodged the complaint was himself the Investigating Officer which is not desirable in the interest of fair prosecution. There is some substance in the said contention raised by Mr. Kulkarni which is also supported by the decision of the Rajasthan High Court in the case of Nathiya and another vs. The State reported in 1992(1) Crimes 537.

Mr. Kulkarni lastly raised the contention that in this case the raiding party had not offered themselves for search and, therefore, there is every likelihood of the contraband being planted on the accused. The case of the appellant is that he was detained because he was travelling without ticket and thereafter police party came and involved him in this case falsely. None of the prosecution witnesses state that they had offered themselves for their personal search to the accused before searching the accused nor the mention about such offer having been made appears in the seizure memorandum. Mr. Kulkarni has placed reliance on the decision of the Division Bench of this Court in the case of Mohd. Sarif vs. State of Maharashtra reported in 1994(2) Crimes 99. That was a case where the Division Bench of this Court found that the witnesses had not stated in their evidence about the willingness of the members of the raiding party to offer themselves for search nor did it find place in the seizure panchanama and, therefore, the accused in that case was acquitted. It is a different thing that in that case the Court also found that there was no mention in the seizure panchanama about the sealing of the seized articles at the time of seizure.

In my opinion, the instant case, is squarely covered by the ratio of the decision of the Division Bench of this Court in the aforesaid case and, therefore, this appellant is entitled to be acquitted.

Mr. Thakur appearing on behalf of the State contended that the Division Bench has not laid down law in terms stating that it is either mandatory for the raiding party to offer themselves for personal search before search of the accused nor is so held by the Constitution Bench of the Supreme Court in the recent decision in the case of State of Punjab vs. Baldev Singh in Criminal Appeal No. 396 of 1990 decided on 21st July, 1999.

The question about the offer of personal search by the members of the raiding party was not in issue before the Constitution Bench of the Supreme Court in the above case. It cannot be gainsaid that the Division Bench of this Court in Mohd. Sarif''s case did acquit the accused by giving benefit of doubt, inter alia, on the ground that the members of the raiding party did not offer themselves for search. In my view, the instant case is squarely covered by the decision of the Division Bench of this Court in the aforesaid case.

In the result, appeal is allowed. Conviction and sentence of the appellant recorded by the Sessions Judge, Solapur in Sessions Case No. 80 of the 1992 on 17-9-1992 is quashed and set aside and the appellant is acquitted. His bail bond shall stand cancelled.