SAIKOU JABBI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant, a Gambian national, was apprehended around mid-night of 17.9.1993 at the Sahara Airport Bombay for carrying heroin in his baggage in ET Flight no. 661. Ashok Thaker, (PW-1) an intelligence officer attached the Narcotic Bureau screened the baggage and seizure was made of the heroine weighing about 1 kg. which was concealed in a suitcase. After recording the statement accused was taken for alleged contravention of various provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the "Act") and also under the Cusms Act, 1962 (in short the "Cusms Act"). He was charged for offence punishable under Sections 21, 23, 28 and 29 of the Act and also Sections 135(1)(a)(ii) of the Cusms Act. Accused pleaded innocence. He was tried in the Court of Special Judge for Greater Bombay who found that there was non-compliance with the requirement of 50 of the Act as he was not trade aware of his right be searched before a gazetted officer or a Magistrate before the search was conducted. It was also held that the requirement of 42(2) submit the gist of information higher officer immediately was also not established. The accused was acquitted of all the charges. The prosecuting agency filed an appeal before the Bombay High Court which by the impugned judgment held the accused guilty for offences punishable under 8(c) read with 21 of the Act for which cusdial sentence of 10 years imprisonment and fine of Rs. 1 lakh for default stipulation was awarded. Further for offence relatable Sections 28 read with 23 of the Act a similar sentence was awarded. Though he was convicted under135(1)(a)(ii) of the Cusms Act, but no separate sentence was awarded. The High Court held that50 was not attracted the facts of the case. Similarly, it was held that there was compliance of requirements of 42(2) of the Act.

(2.) Said judgment of the High Court is under challenge in this appeal.

(3.) In support of the appeal, learned counsel appearing for the appellant submitted that the trial Court was justified in holding that the accusations were not established against the appellant. Unfortunately, the High Court had on an erroneous reading of Sections 42 and 50 came hold that there was compliance with the requirements of the said provisions. The seized articles were sent for chemical examination on 23.9.1993. This was in violation of 55 of the Act.