NURMOHMED MUSABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal raises important questions of law which pertain to applicability, interpretation and exposition of provisions of Sections 41, 42, 43, 50 and 51 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('N.D.P.S. Act').

(2.) THE main question which requires our examination and adjudication in light of provisions of N.D.P.S. Act is "whether mandatory requirement of provisions of Section 50 required to be observed by the empowered or authorised officer" under Section 50 for search of person will be attracted, even in case of gazetted officer ? In other words, benefit of mandatory provisions of Section 50, whereby, a person to be searched, is entitled to be searched, in presence of a gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate, can be claimed by him even when the empowered or authorised officer is a gazetted officer ? So, non-compliance of mandatory provisions of Section 50 for search of person under the provisions of sections 41, 42 or 43 when the officer himself is a gazetted officer, would it be obligatory on the part of such gazetted officer to inform the person so searched, what will be legal implication in case of failure to inform the person to be searched that he is to be searched in presence of a gazetted officer or a Magistrate ?

(3.) IT is in this context that it would be appropriate to have a glance at the factual scenario emerging from the appeal. In this appeal, the appellant who is the original accused has assailed the judgment and order recorded by the learned City Sessions Judge, Mr. F.R. Makwana, on 16.9.1991, whereby, the appellant came to be held guilty for the offences punishable under Section 20(b)(ii) of the N.D.P.S. Act, who is hereinafter, referred to as 'the accused'. Thus, the accused came to be convicted and sentenced to suffer R. I for ten years and fine of Rs. 1,00,000/-, in default, to suffer R.I. for one year. Original accused No. 2 was not found guilty and came to be acquitted and there is no acquittal appeal against him. The complainant PW.6 P.I. Jadeja, who was serving in Madhavpura Police Station, Asarva, Ahmedabad, at the relevant time, received information from some person that one auto-rickshaw was to come from Dariapur, Charvad, unauthorisedly, containing Charas therein. He, at that time, was on combingnight duty, near Prem Darwaja Police Chowky, along with other police officers, thus, on 23.10.1990, P.I. Mr. Jadeja, upon receipt of information, called two panch witnesses one Ashokbhai and Ghanshyambhai Champaneri who were given to understand the brief idea of the information received by him and they were ready to work as Panches.