USHABEN RAMESHWAR PANDIT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant came to be convicted by learned Additional City Sessions Judge, Court No.10, Ahmedabad, for offences punishable under Section 8(c) read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for short), by virtue of a judgment and order pronounced on the 28th January, 1999, in Sessions Case No.120 of 1998. The appellant was alleged to be found in possession of a rexin bag containing 3.350 Kgs. of charas, at about 3.00 P.M. on 19th January, 1998 and the Trial Court, having accepted the prosecution case, recorded conviction and sentenced the appellant to undergo rigorous imprisonment for 10 years and imposed a fine of Rs.1 lakh and directed that, in the event of default in payment of fine, the appellant shall undergo further rigorous imprisonment for a period of one year. Aggrieved by the said judgment and order, the appellant has approached this Court with this appeal.

(2.) The facts of the case, in brief, can be stated thus:

(3.) Learned Advocate, Mr. P.M. Vyas, appearing for the appellant submitted that the prosecution case suffers from a large number of defects. He submitted that the procedure followed in search and seizure is not legal, proper or just. He submitted that the sampling was not correctly done. He also submitted that the sealing procedure was also not properly carried out. Mr. Vyas submitted that the appellant hails from Uttar Pradesh and, lastly, she came from Bhopal. She is an illiterate lady and never knew Gujarati language. Despite this aspect, the entire procedure of search and seizure is carried out in Gujarati language and the appellant had no opportunity to understand and assess or to react to the procedure undertaken by the Investigating Agency. Mr. Vyas submitted that the appellant was trapped by one Vinod Dantani, otherwise, she does not know anything about narcotics, she is not involved in it and she has no antecedents. Mr. Vyas has drawn our attention to the material on record to indicate that the Investigating Agency was aware that the appellant is illiterate and that she does not know Gujarati language. Still the entire proceedings were conducted in Gujarati language without explaining anything to the appellant. He submitted that this would be pure and simple non-compliance of requirement of Section 50 because, even if what the prosecution alleges is taken at face value that the appellant was informed of her right of exercising option on being searched before a Magistrate or a Gazetted Officer, she would not understand the same and she would not be in a position to exercise that option. Mr. Vyas, therefore, submitted that Section 50 cannot be said to have been complied in letter and spirit. Compliance of Section 50 has been held to be mandatory and, therefore, the entire search, seizure and resultant conviction would be vitiated.