RAVI SRINIVASAN NAIKER Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal has been filed challenging the order of conviction recorded against the appellant under Section 17 of the NDPS Act and sentenced to RI for 10 years and to pay a fine of Rs. 1 lac in default SI for six months by the judgment and order dated 12/6/1998 delivered by the Additional Sessions Judge, Nashik in Sessions Case No. 167 of 1997.

(2.) BRIEFLY stated the prosecution case arises in the following manner : On the basis of information received by PW 3 Prakash Kawade, Police Inspector, the raid was conducted near Maruti Temple at village Vilholi where, as per the information, the accused was to go along with opium. The information was entered into station diary. A letter was written by PW 3 to the higher officer and the permission was obtained for conducting the raid. Two panchas were called and things required for raid were collected. The raiding party included two police officers, panchas and a photographer. When the accused was noticed and found to conform to the description given in the information, the raiding party surrounded him and disclosed their identity and informed the accused that they wanted to take his search for contraband. The accused was informed by PW 3 that he was a Gazetted Officer and if he was willing to give his search in the presence of other Gazetted Officer then he will call any other Gazetted Officer or Magistrate, but accused declined and executed a writing Exh. 22 that no outside Gazetted Officer was required for taking the search. When the search of the accused was taken he was found carrying a Shabnam Bag which contained two packets. One packet contained opium weighing 1 kg. & 15 gms. The samples were drawn and were sealed with lac. The signature of panchas were obtained. Rest of the opium was kept in Khaki bag which was also sealed and signatures of panchas were obtained. The another packet, when opened, was found to contain 400 gms. of opium. The samples were drawn and sealed. The signatures of panchas were obtained. The Shabnam Bag was also sealed by paper seal with signatures of panchas. The sample packets were brought to the police station along with the accused. Complaint was filed and offence under Section 17of NDPS Act was registered under C. R. NO. 10 of 1997 against the accused. The report was prepared and sent to higher authority which is at Exh. 29. The sample packets were sent to the C. A. and the report was sought. After the investigation, the chargesheet was filed and accused was prosecuted.

(3.) AFTER going through the evidence of prosecution witnesses and the seizure panchanama Exh. 25 so also the writing obtained from the appellant Exh. 22 it appears that there is noncompliance with mandatory provision of Section 50 of the Act. According to PW 3, Police Inspector Kawade, he informed the appellant that he was a Gazetted Officer and if the appellant was willing to give his search in the presence of other Gazetted Officer then he was going to call any other Gazetted Officer or Magistrate. So far as the seizure panchanama is concerned, there is a mention that PI Kawade told the appellant that he was a Gazetted Officer and whether the appellant wants his search to be taken in the presence of any other Gazetted Officer, except PW 3. But the appellant said that he did not want any outside Gazetted Officer. Similarly, in writing Exh. 22 obtained from the appellant, it is stated that there is no necessity to call any outside Gazetted Officer and that the police officer would take the search of the Shabnam Bag. The said version was also corroborated by panch witness PW 2 Baban Suryavanshi.