Ghanshyam vs State of M.P.

A.K. Shrivastava, J.

Feeling aggrieved by the judgment of conviction and order of sentence passed by Special Court, convicting appellant under S. 8/20 (b) (2) of the Narcotic Drugs and Pshychotropic Substances Act, 1985 (for short the Act) and sentencing him to suffer R.I. of 10 years and fine of Rs. 1 lac, in default further R.I. of 3 years, the appellant has knowcked the door of this Court by filing this appeal under S. 374 (2) of the Code of Criminal Procedure, 1973.

No exhaustive statements of facts are necessary for the disposal of this appeal. Suffice it to state that on 22-1-99, the Station Officer, in charge Pandrinath, received information from informant that appellant is having charas and is standing nearby Gurudwara of Yeshwant Road. After doing the needful, the police party arrived at the spot and after giving notice under S. 50 of the Act and doing the needful search was made and 250 gms of charas was found from a packet tied at the waist of the appellant. Necessary seizure memo in that regard was prepared and after taking out the sample from the bulk, the same was sent to the Chemical Examiner. The Chemical Examiner after doing the needful confirmed the presence of charas and eventually the charge-sheet was submitted before the special Court against the appellant.

This Special Court on bare perusal of the charge sheet, framed charges punishable under S. 8/20(2) of the Act against the appellant. Needless to emphasise, the appellant abjured his guilt and pleaded false implication.

In order to prove charges, prosecution examined as many as 8 witnesses and placed Ex. P-1 to. Ex. P-28, the document, on record. Though the defence of appellant is of false implication, but, he did not choose to examine any witness in his defence.

The Special Court, after appreciating and marshalling the evidence came to hold that the appellant did commit the offences for which he was charged and eventually convicted him and passed sentence which are mentioned hereinabove. Hence this appea.

In this appeal Shri Nilesh Dave, learned counsel for appellant vehemently argued that there is non-compliance of S. 50 of the Act. According, to him if the notice under S. 50 of the Act (Ex. P-1) is considered in proper perspective, it could safely be said that there is total non-compliance of S. 50. According to learned counsel, in the notice there is no whisper that appellant was informed about his right to be searched before the Magistrate or the Gazetted Officer. To bolster his submissions, learned counsel has placed heavy reliance on two decisions of the Apex Court. The first decision on which learned counsel has placed reliance is of the Constitution Bench, State of Punjab v. Baldev Singh (1999 SCC (Cr) 1080) and the second decision is Vinod v. State of Maharashtra, 2002 (8) SCC 351 .

Combating the submission of the learned counsel for the appellant it has been contended by learned Dy. A. G. that S. 50 of the Act has been duly complied with and since the contraband article charas weighing 250 gms is found from the possession of the appellant he has been rightly convicted by the Special Judge. In support of his contention, learned counsel has placed reliance on the decision Joseph Fernandes v. State of Goa (2000) SCC (cr) 300).

After having heard learned counsel for parties, I am of the view that this appeal deserves to be allowed.

It be seen that according to prosecution''s own case, the contraband article charas was found in a packet which was tied at the waist region of the appellant and if that is the position, according to me, S. 50 is trigered off and set in motion. The Constitution Bench of the Apex Court in the case of Baldev Singh (supra) held that the officer should inform the accused that it is his right to be searched either before the gazetted Officer or before the Magistrate. On going through Ex. P-1, nowhere it is gathered that appellant was ever informed about his right. Similarly if the evidence of P.W. 6 Harish Motwani is considered in proper perspective it cannot be said that the appellant was informed about his right to be searched before the Magistrate or gazetted Officer as envisaged under S. 50 of the Act. The principles of Constitution Bench decision of the Apex Court was followed in another decision of the Apex Court in case of Vinod (supra).

Apart form these two decisions the Apex Court in K. Mohanan v. State of Kerala (2000) SCC (Cr) (1228) has also reiterated the same principle. According to me it was the duty of the Officer-in-Charge to inform the accused that it is his valuable right to get himself searched either before the Magistrate or the Gazetted Officer. If the ratio decedendi, of the three decisions of the Apex Court, is tested on the anvil of the present factual scenario, it is as clear as a noon day that the appellant was not informed about his valuable right. It that is the position, according to me, there is non-compliance of S. 50 of the Act. Since there is non-compliance of S. 50, I have no option except to allow this appeal and to set aside the conviction.

Resultantly, this appeal is allowed and the conviction of appellant is set aside. The appellant is in jail. He be set at liberty forthwith if not required in any other case.