AHMAD MOHMAD HAKIM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Ahmed Mohmad Hakim, by this appeal has brought under challenge, the impugned judgment and order dated 17-11-1990, rendered in Sessions Case No. 1 of 1988 passed by the learned Addl. Sessions Judge, Jamnagar, wherein, on his coming to be tried for the alleged offences punishable under Secs. 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act") was, at the end of the trial, convicted for the same and sentenced to 10 years R. I. and pay fine of Rs. one lac, in default of fine to undergo further R. I. for 2 years.

(2.) The prosecution case in brief, as it emerges from the evidence of P. W. 9 - Mr. George Jacob, Customs Inspector, Jamnagar, is to the effect that, on 3- 2-1988, he received an information that on 4-2-1988, one person from South India was going to Bombay with some narcotic drugs by an afternoon train from Hapa. On the basis of this tip-off, after recording the information immediately he rushed to Hapa railway station in a jeep alongwith two panchas, viz. (1) P. W. 5, Baban Sriram Patil, and (2) P. W. 6, Dhanji Karsan (both declared hostile) and there lied in wait for sometime on the platform watchfully expecting arrival of the suspected person. Accordingly, after sometime on seeing one person of the description given coming, he alongwith two accompanying panchas shadowed that man on the railway platform who thereafter took his seat on a bench. Thereafter, according to Mr. George Jacob, on making inquiry with the suspect in question, he gave out his name as Ahmed Mohmad Hakim, and stated that he was going to Bombay. On making further inquiry as to what was there in the Bistra (bedding), the person concerned could not satisfactorily reply. Not only that, but he appeared frightened and nervous, as a result Mr. George Jacob directed him to open the bedding, and on opening the same 20 white bags containing some substance were noticed. On opening those bags, some powder having greenish brownish colour was found out, which appeared to be narcotic drug. Thereafter, the bag which was opened was once again placedback in the bedding alongwith other bags and the same was tied. Thereafter, Ahmed Mohmad Hakim alongwith his bedding was taken to the Customs Office at Jamnagar and was produced before P.W. 4 Ishwarbhai Dave, who at the relevant time was the Superintendent of Customs. Thereafter, after the muddamal article 'HEROIN' weighing 19.500 Kgs. was seized under the panchnama Exh. 60 in the presence of the aforesaid two panchas, the appellant Ahmed Mohmad Hakim was allowed to go and was directed by P. W. 4 by serving a summons, to appear before him on the next day, apparently for the purpose of recording his statement. Accordingly, the statement of the appellant-accused came to be recorded on 5-2-1988. On the basis of these allegations, a complaint was filed by P. W. 4 against the accused Ahmed Mohmad Hakim before the learned Chief Judicial Magistrate, Jamnagar for the alleged offence under Secs. 21 and 29 of the N.D.P.S. Act, for which he ultimately came to be tried by the learned Sessions Judge, Jamnagar and came to be convicted and sentenced for the same, as stated above in para 1 of this judgment, giving rise to the present appeal.

(3.) Mr. K. J. Shethna, learned Counsel appearing for the appellant-accused, though has raised very many points in his memo of appeal, at the time of hearing has pressed in the forefront, the only one point for our consideration which according to him goes to the root of the matter, being covered by two Supreme Court decisions entitling acquittal of the accused. According to Mr. Shethna, the impugned order of conviction and sentence cannot be sustained even for a minute more, as the searching officer has not complied with the mandatory provision as contained in Sec. 50 of the N.D.S.P. Act. Submits Mr. Shethna that Sec. 50 clearly mandates that before taking a search of the accused in the public place, the searching officer is duty bound to inform the suspected person to be searched as to whether he would like to be searched before the nearest Gazetted Officer or the Magistrate. This according to Mr. Shethna is the vital statutory right of accused, and accordingly, if without complying with this mandatory requirement of Sec. 50, the accused is searched, this vitiates his conviction and accordingly the accused is required to be acquitted forthwith. Making good his submission, Mr. Shethna has invited our attention to two recent decisions of the Supreme Court rendered in the cases of (1) Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, reported in 1995 SCC (Cri.) 564 : [1995 (2) GLR 1315 (SC)]; and (2) Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, reported in 1995 SCC (Cri.) 32 : AIR 1995 SC 244. Placing reliance upon these two Supreme Court judgments, Mr. Shethna finally urged that since the facts of the present case are squarely covered by the same, the appellant deserves to be acquitted forthwith.