Raja vs State of M.P.

J.G. Chitre, J.

Heard Shri M.A. Bohra. counsel appointed by Legal Aid Committee for appellant: Shri G. Desai, G.A. for the State. The appellant has preferred this appeal from jail for assailing the order of conviction and sentence passed against him by Addl Session Judge, Caroth in the matter of S. T. 342/91 wherein the Learned A.S.J. convicted the appellant for offence punishable u/s 8/21 of N.D.P.S. Act 1985 (hereinafter referred to as NDPS Act). The appellant has been sentenced to undergo RI for 10 years and to pay fine of Rs. 1.00 lakh for default to undergo RI for two years.

The facts of the case need to be stated in brief for unfolding the prosecution case. On 8.9.91, the raiding party raided a bogie of train No. 2904-up frontier Mail. When the said train reached Bhawani Mandi Railway Station, PW-Harnamsingh had already received the information that two persons were carrying smack through the said train. Hence, he searched for those two persons in the said train, and when the members of raiding party approached the present appellant who was near the latrine in the compartment, the appellant was frightened. Because of suspicion the members of raiding party interrogated the present appellant and thereafter took his search. 25 gms. of smack powder was found on the person of the appellant. A panchnama was drawn. The said smack was seized in presence of panch witnesses and sent to Sagar laboratory for chemical examination which reported that the said powder was containing heroine. Thus, the appellant was indicated for offence punishable under provisions of S. 8/21 of NDPS Act."

Learned Addl. Sessions Judge after recording the evidence of prosecution witnesses concluded that prosecution had proved that smack was found in possession of the appellant in contravention of provisions of N.D.P.S. Act. He, therefore, recorded the conviction against him for offence punishable u/s 8/21 NDPS Act, and sentenced him as mentioned above and that is being assailed in this appeal.

Shri Bohra. appointed by Legal Aid Committee to defend the appellant submitted that appellant is a Madrasi person and docs not know Hindi at all. It being so. it was necessary for the investigating agency, the raiding party, to inform the appellant in the language which he understands that the appellant was entitled to get himself searched before a Magistrate or a gazetted officer when appellant was apprehended. He argued further that as there is no compliance of mandatory provisions of S. 50 of NDPS Act, the conviction and resultant sentence will have to be set aside as illegal. After hearing this argument, this Court interrogated the appellant sufficiently for the purpose of understanding whether he understands Hindi. So shrewd questions were also asked to get appellant surprised for the purpose of knowing whether he is making a show that he docs not understand Hindi. The elaborate interrogation revealed that appellant does not understand Hindi at all; but understands only Tamil and Kannad. Shri Desai, G. A. appearing for the prosecution also interrogated the appellant with the permission of the Court for the purpose of satisfying himself. He also found that appellant does not know Hindi at all. Shri Desai, Govt. Advocate justified impugned order.

It has been held by Supreme Court in the matter of State of Punjab v. Balbirsingh, a judgment reported in 1994 SCC (Ori.) 634 that provisions of S. 50 of NDPS Act arc mandatory and non-compliance of that is fatal to the success of prosecution case. Not only that, but it is the duty of the raiding party to inform the appellant that he is having a right to get himself being searched before a Magistrate or gazetted officer. It has been held by the Supreme Court that said right of the accused in a case under NDPS Act is a constitutional right and that can not be disregarded by the members of raiding partly.

In view of the observations made by the Supreme Court in the matter of State of Punjab v. Balbirsingh (supra) record of the present matter has been carefully examined. No document shows that it was made to appellant to understand that he was having right to get himself searched before a Magistrate or Gazetted Officer in Tamil or Kannad which he understands. Had it been done, there would have been an endorsement on the relevant document and proved on record that appellant was so informed in the language which he understands that appellant was having a right to get himself searched before a gazetted officer or Magistrate.

It is to be noted that the compliance of mandatory provisions has to be done in its real spirit. When the compliance of S. 50 of NDPS Act has to be done the raiding partly should inform the accused being searched dial he is having a right to get himself searched before a Magistrate or Gazetted Officer and the record should show that the accused was so informed. It is the duty of the Court to see that the compliance of provisions of S. 50 of NDPS Act has been done in its real spirit. In the present case provisions of S. 50 of NDPS Act have not been complied with in its real spirit. Thus, the order of conviction and sentence recorded against (he appellant can not be upheld as correct, proper and legal.

In the result, the order of conviction and sentence recorded against the appellant is hereby set aside and he is acquitted. He be set at liberty forthwith, if not required in any enquiry, proceedings or trial.