Yusuf Khan Haroon Khan vs State of Maharashtra

S.A. Bobde, J.—This is an appeal from the judgment and order dated 26.12.1995 of the Special Court in N.D.P.S. Case No. 249 of 1992 by which the appellant-accused was convicted for the offence u/s 20(b)(ii) r/w Section 8(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act") and sentenced to suffer Rl for ten years and to pay a fine of Rs. 1.00.000/-, in default to suffer further RI for one year.

The prosecution case in brief is : that on 11.7.1992 at 2.40 p.m. 10 kgs. of charas in the form of balls was seized from the suitcase held in his right hand by the appellant Yusuf Khan Haroon Khan.

The officers seized this contraband in pursuance of an information received by PW-1 Firojuddin Khurshinuddin Farooqui on the same day at about 11.30 a.m. This was reduced to writing by PW-5 PSI Sudhakar Pujari, the investigating officer and communicated by PW-5 Pujari and also PW-2 PI Ashok Hari Khedkar to their immediate superiors i.e., the Deputy Commissioner of Police Shri Sur and the Asst, Commissioner of Police Shri More on different dates. The trap Was arranged as per the instructions of these superior officers. Two persons were -asked to act as panchas and the pre-trap panchnama was drawn in the presence of the panchas in the office of the Narcotic Cell, Azad Maidan Unit.

The members of the raiding party along with the panchas proceeded to the spot and reached Botawala building, situated near the Royal Petrol Pump, Ibrahim Rahimtulla Road, Mumbai 400 003. P I Khedkar instructed two policemen from the raiding party to make enquiries from the chawl about the description of the person Yusuf Khan. His men returned in about 10-15 minutes with the description. The members of the raiding party then took position on the foot-path near the Botawala building, adjacent to the Royal Petrol Pump, The accused came and stood on the foot-path of the Royal Petrol Pump. After about ten minutes PI Khedkar and PSI Pujari gave the signal to the other members of the raiding party and the panchas. The members of the raiding party and the panchas immediately surrounded the accused. He gave his name as Yusuf Khan Haroon Khan and his address as Room No. 50, Chawl No. 1, B.I.T. Chawl. The members of the police raiding party disclosed their identity to the accused in the presence of the panchas and the accused was then informed that he had a right to be searched in the presence of a Magistrate or a Gazetted Officer and was also informed that P I Khedkar himself was a Gazetted Officer. The accused declined to be searched in the presence of the Magistrate or a Gazetted Officer.

The search of the person of the accused yielded a key chain with two keys in it. When P I Khedkar asked the accused about the contents of the suitcase, he did not reply. Hence, the suitcase was opened with the keys which were recovered during the personal search of the accused. On opening the suitcase, it was found containing a polythene bag in which were dark brown coloured balls of different sizes. In the presence of the panchas the opened suitcase was examined. The polythene bag containing the dark brown coloured balls was taken out. A small quantity was tested on the drug identification kit. It tested positive for hashish.

The total weight of the balls, 201 in number, was found to be 10 kgs. Two samples of 24 grams each were taken in two small polythene bags which were closed and kept in two separate brown paper envelopes, which were then packed, sealed and affixed with labels. The panchas and PSI Pujari signed on the envelopes. The remaining bulk hashish in the form of balls was again kept in the polythene bag which was closed and wrapped with a brown (khaki) paper. Cash of Rs. 20/- and the key chain with two keys recovered during the personal search of the accused were kept in two separate brown paper envelopes. These were sealed and affixed with labels bearing the signatures of the panchas and PSI Pujari.

The bulk contraband charas in the polythene bag was wrapped in a brown paper and kept in the suitcase from which it was recovered. The suitcase was closed, then tied with a loose string and was sealed and affixed with labels bearing the signatures of the panchas and PSI Pujari.

A panchanama was drawn on the spot and a copy of the said panchnama was furnished to the accused. The pre-trap and the post-trap panchnamas are at Exhibits 10 and 10-A.

The accused along with the seized contraband were taken to the office of the Narcotic Cell, Azad Maidan Unit. There the complaint of PW-1 Farooqui was recorded and the offence was registered.

On 13.7.1992 the sample packets were sent to the C.A. with a forwarding letter bearing outward No. 1096/92 through W.P.C. Buckle No. 413. The report of the C.A. discloses that charas was detected in the sample. After the investigation was completed, a charge-sheet was filed against the accused in the Special Court constituted under the N.D.P.S. Act.

Charge (Exhibit 2) u/s 20(b)(ii) r/w Section 8(c) of the N.D.P.S. Act was framed against the accused. He denied the charge and claimed to be tried,''

In brief, the defence of the accused is that he had gone to the Anjuman Islam High School near V. T, Station to pay the fees for his child. He was called by three persons and they asked him to accompany them. One of the three persons said that he was a police constable and showed his identity card. He was then taken to the Azad Maidan Police Station and his signatures were obtained on some papers by assaulting him. After he was taken to his residence by the police, he was brought back to the Azad Maidan Police Station and put under arrest.

The trial Court has upon consideration of the evidence and hearing the arguments found the accused guilty of the offence, as charged.

Shri Patil, learned Counsel for the appellant has first contended that there is non-compliance of Section 50. The contention of the learned Counsel is that Section 50 has not been complied with, in that (a) P I Khedkar, who is said to have informed the accused of his right to be searched before a Gazetted Officer or a Magistrate, in the same breath posited himself as a Gazetted Officer. This was not permissible in view of Section 50 which contemplates that a Gazetted Officer must mean a Gazetted Officer other than the one who is conducting the raid and inform the suspected person of his right to be searched.

As to what happened after the accused was accosted by the members of the raiding party, can be gathered from the evidence of PW 1 Farooqui, PW 2 Khedkar, PW 5 the Investigating Officer Pujari and the panch PW 3 Pandurang Dange.

PW 1 Farooqui has stated in his evidence that PI Khedkar informed the accused whether he would require his search to be taken in the presence of the Magistrate or a Gazetted Officer. The accused declined the said offer. Thereafter PI Khedkar further told him that he himself (PI Khedkar) was a Gazetted Officer. The said person told us that he did not require the presence of a Magistrate or a Gazetted Officer for his search and his search was taken by the members of the raiding party.

PW 2 PI Khedkar, who claims to have informed the accused of his right u/s 50, clearly states in his deposition that "I also explained to him about his right that such search has to be taken in presence of a Magistrate or Gazetted Officer and further that I myself was a Gazetted Officer at the spot. Further I explained to him that in spite of my presence, if at all presence of the Magistrate was required on the spot, then arrangement would be made to summon a Magistrate on the spot. For this offer, he declined and showed his willingness to get searched by the police".

PW 5 the Investigating Officer Pujari, who was examined about a month after PI Khedkar, stated that "the accused was also informed that he had a right to get himself searched before a Magistrate or a Gazetted Officer. He was also informed that PI Khedkar himself was a Gazetted Officer, and if required by the accused, a Magistrate or a Gazetted Officer other than PI Khedkar would be called at the spot. The accused declined the said offer and showed his willingness for search by the police."

The next piece of evidence comes from the pancha PW 3 Dange who has told the Court that "The police officer asked that person whether he would require his search to be taken by an Executive Magistrate, and he had a right about it. However, the said offer was declined by that person. That person expressed his willingness to get himself searched by the police."

From the appreciation of the evidence in this case, I am of the view that the person about to be searched was misled by the statement of PI Khedkar that he himself (Khedkar) is the Gazetted Officer who is present on the spot. The evidence shows that the attempt on the part of the officer to overawe the accused did not stop there. PI Khedkar who informed the accused that he was a Gazetted Officer present on the spot, further told him that if he insists that the Magistrate will be brought on the spot. It appears that this was done only with a view to achieve the objective that the accused does not require the officers to take him before an independent Gazetted Officer or a Magistrate, as is contemplated by Section 50, The same story is repeated by PW 5 Pujari, who has in paragraph 5 of his deposition stated that the accused was also informed that "PI Khedkar himself was a Gazetted Officer and if required by the accused, a Magistrate or a Gazetted Officer other than PI Khedkar would be called on the spot. The accused declined the said offer and showed his willingness for search by the police". I am, in the circumstances, convicted that this was an attempt on the part of the officers to brow-beat the accused into submitting to a search in the absence of a Gazetted Officer or a Magistrate. It appears that this was denial of a real opportunity to the accused to be informed of his right to be taken before an independent Gazetted Officer or a Magistrate, if he so requires.

I am of the view that the information given by PI Khedkar to the accused regarding his right to be searched before a Gazetted Officer or a Magistrate is not in accordance with Section 50, as is interpreted by two decisions of the Division Bench of this Court in the case of (a) Mohammed Phiroz Hanif Ansari and Another Vs. State of Maharashtra and Another, and (b) Mohanlal K. Jangid v. State of Maharashtra 1998 (2) L.J. 405. In the aforesaid two cases, this Court has held that where the officer informs the person who is about to be searched that he has a right to be searched in the presence of a Gazetted Officer and further discloses that he himself is a Gazetted Officer, is not a compliance with Section 50.

In the (a) case of Muhamed Phiroz (supra) the Division Bench has observed that the Gazetted Officer contemplated by Section 50 is not a part of the raiding party. This Court has observed as follows:

...There is no doubt that what is contemplated by the said provision as interpreted by the Supreme Court is taking of the search in the presence of a ''senior officer'' described in Section 50, obviously other than the officer who is in-charge of the raid. In Court''s opinion if the legislature had intended to consider a search taken by the Investigating Officer who happens to be a Gazetted Officer as a good and valid search, the legislature would have so provided.

In the (b) case of MohanlalK. Jangid (supra) this Court has observed as follows:

The object of Section 50 is clear. It intends to ensure that search, if so required by the accused should be taken in front of an independent and a responsible officer. This independent and responsible officer in Section 50 has been mentioned as either a Gazetted Officer or a Magistrate. Even though the raiding party could be accompanied by a Gazetted Officer, surely such a Gazetted Officer would not be an independent or responsible officer contemplated by Section 50, as he cannot be considered to be an independent officer. Hence, when the accused is informed that he will be searched in the presence of a Gazetted Officer who is a member of the raiding party, same will not amount to compliance with the provisions of Section 50.

In another case of Sham Ramchandra Sonawane Vs. State of Maharashtra, this Court has observed in relation to the accused in that case as follows:

...It is not possible to agree with the submission for even if Sham somehow understood that he was being offered the right mentioned in Section 50, PI Pawar foreclosed that option by informing him in the next breath about himself being a Gazetted Officer. This, in other words, was telling Sham that he dare not exercise the right to be searched before a Gazetted Officer for the person searching him was himself a Gazetted Officer. The conclusion we reach is that Sham was not told that his person was to be searched in connection with drugs and next that he was misinformed about his right to be searched in the presence of a Gazetted Officer or a Magistrate.

Having regard to the aforesaid decisions of this Court, I find that there is non-compliance with Section 50 before effecting the search of the accused.

Shri Galeria, learned A.P.P., however, submitted that there was no need at all to comply with Section 50 in view of the fact that the search was made of a suitcase. According to Shri Galeria even though the suitcase was held by the accused in his right hand, it does not amount to search of the person of the accused. In support of this argument Shri Galeria has relied on two decisions of the Supreme Court (i) Kalema Tumba Vs. State of Maharashtra and Another, and (ii) Sarjudas and Another Vs. State of Gujarat, . In the first decision (i) Kalema Tumba''s case (supra) the facts were that the checked-in baggage of the accused was searched at the airport. In view of this fact the Supreme Court held that Section 50 need not have been complied with since the requirement of informing the accused about his/her right u/s 50 comes into existence only when the person of the accused is to be searched. In the second decision (ii) Sarjudas''s case (supra) the facts were that the contraband was not found on the person of the accused but was found kept in a bag which was hanging on the scooter on which they were riding. In those circumstances ,the Supreme Court came to the conclusion that it was not a case where the person of the accused was searched and from his person the narcotic drug or psychotropic substance was found.

The facts of the present case are entirely different. The suitcase or bag which was found to contain contraband was held by the accused in his right hand and keys of that suitcase were in his pocket. It, therefore, appears to me that the searching of the keys from the pocket of the accused and the suitcase which he was holding in his right hand was the search of the person of the accused. This also appears to be view of the Supreme Court in the case of Namdi Francis Nwazor Vs. Union of India (UOI) and Another, where Their Lordships have observed as follows:

On a plain reading of Sub-section (1) of Section 50, it is obvious that it applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to Sub-section (4) of Section 50 which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched, the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying a handbag or the like and the incrimination article is found there from, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case, it is difficult to hold that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case.

(emphasis supplied)

This is also the view of a Full Bench of this Court in the case of Ebanezer Adebaya Alias Monday Obtor Vs. B.S. Rawat, Collector of Customs, R and I, New Delhi and another, . In that case the Full Bench has held that the phrase "to search any person" used in Section 50(1) of the N.D.P.S. Act would include search of articles in immediate possession such as bag and other luggage carried by him or in physical possession of the person to be searched.

Shri Galeria further contended that the aforesaid judgment of the Supreme Court in Namdi Francis Nwazor''s case (supra), rendered by a Three Judge Bench of that Court and the judgment of the Full Bench of this Court is no longer a good law in view of the decision of the Supreme Court in the case of State of Punjab Vs. Baldev Singh, . He has primarily relied on the observations of the Supreme Court in para 12 of the report where Their Lordships have observed:

On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc.

The question in this case is slightly different. I am called upon to consider what amo''unts to search of a person, not as distinguished from the search of any premises etc., but what would amount to search of a person with reference to things in his possession and, or, control. Shri Galeria has, however, not been able to point out any discussion in that case as to the scope of the phrase "to search any person" occurring in Section 50(1) of the N.D.P.S. Act. I am, therefore, not inclined to accept the submission of Shri Galeria that Section 50 has no application to the fact of the instant case and it was not necessary to inform the person about to be searched of his right to be taken to and to be searched before a Gazetted Officer or a Magistrate.

The above aspect i.e., whether a real opportunity was given to the accused who was about to be searched by informing him that he has a right to require the raiding party to take him to an independent Gazetted Officer or a Magistrate and whether if not given, amounts to a violation of Section 50 of the N.D.P.S. Act, was not brought to the notice of the trial Court and the trial Court has not applied its mind to this aspect. The trial Court has merely observed that the narcotic has not been recovered during the body search of the accused but it has been recovered during the search of the suitcase carried by him. The trial Court did not advert to where the suitcase was and the fact that the keys were searched from the person of the accused.

Now having regard to the fact that the conviction is based purely on the fact of having found the accused in possession, in accordance with the decision of the Supreme Court in Baldev Singh''s case (supra), I find that it is non-compliance of Section 50 rendering the recovery of the illicit article suspect and has vitiated the conviction and sentence of the accused.

In the result, I allow the present appeal and set aside the judgment and order of conviction and sentence dated 26.12.1995, passed by the learned Special Judge for Created Bombay in N.D.P.S. Case No. 249 of 1992. The appellant is directed to be set at liberty forthwith, if not required in any other case.