Gopibandhu Sahu vs The State of Andhra Pradesh

G. Radhakrishna Rao, J.—This is an appeal preferred by the accused challenging the judgment of the Additional District & Sessions Judge, Vizianagaram dated 22-4-1993 passed in C.C.No. 2 of 1993, on his file, convicting him for the offence u/s 8(c) r/w. Section 20(b)(i) of the N.D.P.S. Act (Narcotic Drugs and Psychotropic Substances Act, 1955) and sentencing him to undergo rigorous imprisonment for 3 years.

The brief facts of the prosecution case are as follows:- On the intervening night of 17/18-12-1992atabout3-30 hours, i.e., on the early hours of 18-12-1992 the accused was found in possession of a suit case and a bag containing ''Ganja'' of 18 Kgs 20 grams. P.W.2 Ch. Panta Rao, Probationary S.I of Police and his staff surrounded the accused and caught hold of him and the accused was arrested and the ganja was seized.

It is mainly contended by the-learned Counsel for the accused that it is the duty of the police to apprise the accused after arrest that he has got a right to be searched in the presence of a Gazetted Officer or Magistrate, and that in the present case the police did not apprise the accused of his right and as such he is entitled for acquittal. In support of his contention, he has placed reliance on the decision of this Court reported in Mohd. Yousuf v. State of A.P 1993 (1) ALT 208.

In the above decision cited by the learned Counsel for the accused it was clearly observed that failure on the part of the Investigating Officer to apprise the accused of his valuable right conferred under sub-section (1) of Section 50 of the N.D.P.S. Act would result in causing great prejudice to the accused. In that case also the accused was not apprised of his valuable right by informing him after arrest that he has got a right to be searched in the presence of a Gazetted Officer or magistrate and so the accused was acquitted of the charge levelled against him.

The evidence of P.Ws. 1 to 3 is to the effect that on the night of 17/18-12-1992 they found the accused running on the railway track towards Kothavalasa. P.W.2, P.W.1 and their staff surrounded the accused and questioned him and the accused gave his name and address. On suspicion they opened the suit case and bag and they found M.Os. 1 and 3 in M.Os. 2 and 4 respectively. Thereupon, P.W.2 arrested the accused and seized M.Os. 1 to 4 and drafted Ex.P-1 occurrence report. That is the only evidence spoken to by P.Ws. 1 to 3, of course consistently. But no where in their evidence it is stated that the accused was apprised of his valuable right of being searched in the presence of a Gazetted Officer or Magistrate, as required under sub-section (1) of Section 50 of the N.D.P.S. Act. Consequently the accused is entitled to an acquittal.

I may observe here that though the cases filed by the police under N.D.P.S. Act are being acquitted on the sole ground of the Investigating Officer''s failure after the arrest of the accused to apprise him of his valuable right conferred under Sub-section (1) of Section 50 of the N.D.P.S. Act and though the judgments of the High Court are being reported in various Law Reports, it is distressing to note that the Investigating Officers are not following this mandatory duty cast on them. The authorities concerned have to bring to the notice of the Investigating Officers the above fact while investigating cases under N.D.P.S. Act, as it is only on account of their failure, the cases have to be thrown out. I direct that copies of this judgment shall be sent to the Commissioner of Police as well as Commissioner of Excise for bringing to the notice of the Investigating Officers the above fact.

In the result, the Criminal Appeal is allowed and the conviction of the appellant for the offence u/s 8(c) read with Section 20(b)(i) of the N.D.P.S. Act and the sentence of rigorous imprisonment for three years, imposed by the Additional District & Sessions Judge, Vizianagaram, are set aside. The accused is acquitted of the said offence.