HIMMAT PELHABHAI VANKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant came to be convicted of the offence under Sec. 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act"), and sentenced to R. I. for 10 years and a fine Rs. 1,00,000.00, in default further R. I. for one year more and also came to be convicted of the offence under Sec. 66(1)(b) of the Bombay Prohibition Act but no separate sentence thereof was inflicted by the then learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. 129 of 1989, consequent upon which, present appeal has been preferred by the original accused.

(2.) The facts in brief may be stated. P.S.I. Shri Dodia along with his other staff members was patrolling in Bhulabhai Park area, Ahmedabad on 22-1-1989 at 14-00 hours. When he reached near Karnavati Chowk, the informant informed him that one person was to pass riding over a scooter with narcotic drug, viz., charas or ganja. Hence he called panchas and deployed the panchas as well as the members of the staff at different places. When that person came there driving the scooter he was intercepted. He was none else but the present appellant. On taking his search, from his pant's pocket, a plastic bag was found. Opening the same it could be seen that the powder of charas and also lump of charas were there. On being weighed it was found that the total weight was 75 gms., the value of which was Rs. 300/-. The appellant was not having licence to possess the same. It was found that the appellant had committed the offences as stated hereinabove. After undergoing necessary formalities and investigation, P.S.I. Shri N. G. Dodia lodged the complaint before Bhulabhai Park Police Chowki under the Kagdapith Police Station. The offence was registered. At the conclusion of the investigation a charge-sheet against the appellant was filed before the Court of the learned Metropolitan Magistrate, Ahmedabad who having no jurisdiction committed the case to the City Sessions Court, Ahmedabad. The case was then came to be registered as Sessions Case No. 129 of 1989. The learned Principal Sessions Judge, then transferred the case to the then learned Addl. Sessions Judge who heard the case and appreciating the evidence on record found the appellant guilty with which he was charged and convicted and sentenced him as aforesaid. It is against that judgment and order, present appeal has been preferred before us.

(3.) Mr. Yagnik representing the appellant submitted that on few grounds the appellant was entitled to acquittal. However, the learned Addl. Sessions Judge overlooking those grounds and sound principles of law, erroneously convicted the appellant. According to him as per the decision of the Supreme Court in the case of Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat in 1995(2) [XXXVI (2)] GLR 1315 (SC), it was obligatory on the part of the Investigating Officer to inform the appellant that he was having a right to have him searched in the presence of a Gazetted Officer or Magistrate. Omission to do so on the part of the Investigating Officer, was fatal to the prosecution. Even no presumption could be drawn to the effect that the Police Officer had discharged his statutory duty. Such contention does not find a ground to stand upon. We may, however, firstly make it clear that about the principle of law made clear by the Apex Court, there can have no dispute but in the present case the requirements of Sec. 50 of the N.D.P.S. Act are complied with. Indravadan P. Soni (Exh. 12) one of the panchas, when asked, in the chief examination has stated that the Police Officer who was to make the search of the appellant, at the initial stage made it clear informing the appellant that he was free to have his search being carried out in the presence of a Gazetted Officer or a Magistrate, as it was his right but the appellant did not avail of the opportunity, and refused to opt for being searched as pointed out. When the opportunity was given to the appellant, and he did not avail of the same; it cannot be said that the madate under Sec. 50 of the N.D.P.S. Act is not complied with. The Panch has made it crystal-clear that the appellant was informed and opportunity was given to him. It is now not open to the appellant to contend otherwise and find fault with the prosecution.