JOHN BAMIDELE Vs. STATE

JUDGEMENT

(1.) The appellant, a Nigerian citizen was apprehended on 19th February,1989 while coming towards Chanakya Hotel. As per prosecution story, a secret information was received by SI.Harbans Lal that appellant would be coming towards Chanakya Hotel. He would be having smack in his possession. On this information being received, S.I. Harbans Lal (Public Witness -7) Investigating Officer (in short 1.0.) of this Case organised a raiding party comprising ofA.C.P" S.H.O., Sub Inspector and two public witnesses namely Surender Kumar, owner of Chanakya Hotel and Kuldeep Grover, Manager of the said Hotel. At the time of appellant's apprehension he was having a bag in his hand. He was asked as to what that bag contained. After making this enquiry the ACP introduced himself to the appellant and told him that the appellant and his bag has to be searched. A.C.P. gave option to the appellant to be searched before the Magistrate or Gazetted Officer. However, the appellant declined the offer. From the search of the appellant, 150 baloon-like-capsules were recovered containing 700 gms. of smack. Out of which 10 gms. was taken out as sample for analysis. The remaining smack was converted into Pullanda. The pullanda and the sample were sealed with the seal of HL and TR. CFSL form was also filled at the spot. The case property and the sample alongwith CFSL form were deposited in the Malkhana of the Police Station. The analysis report was in the affirmative hence challan against the appellant was put up.

(2.) Prosecution examined members of the raiding party as witnesses. Trial Court vide impugned order convicted and sentenced the appellant for 10 years Rigorous Imprisonment and fine of Rs.l lac. Failing to deposit the fine further undergo Simple Imprisonment for two months.

(3.) The impugned order has been assailed on the grounds that there was a violation of the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act (in short the Act). Section 50 of the Act requires that an option has to be given to the accused to be searched before the Gazetted Officer or the Magistrate. It is only when he expresses the desire to be searched before either of these two authorities that the 1.0. will take him to the nearest Gazetted Officer or the Magistrate as the case may be. Mr.Jatinder Sarin, counsel for the appellant contended that the A.C.P. Sh.P.S.Tomar member of the raiding party appearing as PW-4 has tried to improve his statement in the Court. In fact he only disclosed his identity to the accused as A.C.P. He never told him that he was a Gazetted Officer. Only option given to the appellant was whether he would like to be searched before a Magistrate. Moreover, appellant being a Nigerian citizen did not know English hence there was no question of the appellant declining the opition of search before the Magistrate or Gazetted Officer in English language. Mr.Jitender Sarin further contended that this part of (Public Witness .4) Sh.P.S.Tomar's statement is an improvement of his statement recorded under Section 161 Cr.P.C. Therefore, this part of his testimony cannot be relied upon. Even otherwise the testimony of A.C.P. (Public Witness -4) cannot be relied because it is contrary to what happened .at the spot. Rukka Ex.PW-7/C executed at the spot does not support the version now given by the A.C.P. (Public Witness -4). The appellant being a Nigerian citizen could not understand that A.C.P. is a Gazetted Officer. The option to search before a Metropolitan Magistrate was given which being a partial offer there is violation of mandatory provisions of the Act hence prosecution must fail on this ground alone. To lay stress to this point that it was only partial offer Mr.Sarin placed reliance on the wording used in the Rukka prepared at the spot and Exhibited as Ex.PW-7/C. In the said Rukka, Ex.PW-7/C it has been admilted that accused was given only one option. The relevant lines of the Rukka Ex.PW-7/C are reproduced as under :-