NAZMA ISMAIL SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal under section 374 (2) of the Code of Criminal Procedure by appellant/accused No. 2. She was tried by Special Judge of NDPS, for Gr. Bombay in Special Case No. 200/1992. By the impugned judgment delivered on 17th July, 1996 the learned Judge found the appellant accused guilty for the offence punishable under section 8 (c) r/w. 21 of the NDPS Act. She is sentenced to suffer R. I. for 10 years and to pay fine of Rs. 1 lakh in default to suffer further R. I. for six moths.

(2.) THE prosecution story is as follows :--- On 3rd April, 1992 Police Constable Galugade, then attached to Narcotic Cell Head Office Azad Maidan, received information at 10. 15 a. m. in the morning. It was informed that one Shafiq Shaikh was likely to transact in narcotic drugs at about 1. 00 p. m. near the hotel Holidays Inn at Juhu. Police Constable Galugade passed the information to PSI Pujari and PI Khedkar. The said information was reduced to writing in information book by PSI Pujari and the copies of information were immediately forwarded to ACP and DCP of Narcotic Cell. Two Panchas including one lady panch were procured and apprised of the information and they were requested to accompany the raiding party. By collecting weighing and sealing material, drug identification kit etc. the raiding party including one lady constable departed from head quarters at about 11. 20 a. m. and reached the spot at about 12. 30 noon. A person matching with the description in the information, was seen near the hotel at about 1. 15 p. m. He was accosted by the raiding party. On enquiry he disclosed his name as Shafique Ahmed Mukhtar Shaikh. He was informed the purpose of search, as also his right to be taken before a Gazetted Officer or a Magistrate for personal search, if he so desires. He was also informed that PI Mr. Khedkar was a Gazetted Officer. The said Shafique is accused No. 1 in the case. As accused No. 1 declined to exercise his right under section 50 of NDPS Act, on search, a plastic bag containing brownish powder was recovered from his left pant pocket, so also an amount of Rs. 19/ -. The said powder tested positive for heroin on drug identification test. It was weighing about 40 grams. Two samples of 5 grams each were taken and then, the samples and remaining contraband were separately packed, sealed and labelled. On interrogation accused Shafique disclosed that he had received contraband from one Nazma (appellant) and also showed his willingness to take raiding party to her residence. Accordingly, accused Shafique led the raiding party to Room No. 29 of Shantaram Bhat Chawl in front of Nandi Theatre. When knocked, the door was opened by the appellant Nazma and accused No. 1 confirmed that she was the person from whom he had received the contraband. PI Khedekar informed Nazma intention to take search of her person as well as residential premises. She was also apprised of her right to be searched in presence of a Gazetted Officer or a Magistrate. The offer was declined by her. Search of the person of the appellant was taken by lady panch and the lady police constable, who recovered a plastic bag containing gard which tested positive for heroin. This was a packet of about 40 grams. Two samples were withdrawn from the same and thereafter, the bulk and the samples were separately packed, sealed and labelled as B, B-1 and B-2. All the labels were signed by PSI Pujari and the panchas. In the search of house a plastic box was recovered from underneath Diwan, which contained two plastic bags. One bag was containing brownish powder weighing about 860 grams which tested positive for heroin. This bulk and two samples taken from the same were separately packed, sealed and labelled and were marked as C, C-1 and C-2. Other plastic bag contained opium weighing about 2. 300 kgs. Two samples were withdrawn from the same, and then, the bulk and samples were separately packed, sealed and labelled as D, D-1 and D-2. Cash amount of Rs. 962/- and the Ration Card were also recovered, which were also seized. A detailed panchnama of all the occurrences was drawn commencing from the event of information till the conclusion of search and seizure. With the two accused and contraband, the raiding party returned to head-quarters and then FIR was lodged by Police Constable Galugade. PSI Pujari took over the investigation on the basis of FIR by Police Constable Galugade. The muddemal was deposited with the concerned clerk and the special report of search and seizure was submitted to DCP Narcotics. It appears that on 6-4-1992 a statement of appellant Nazma was recorded. It is claimed that she agreed to point out the person, who had supplied the opium. At the instance of her statement house of one Bhola Udit Narayana at Jawahar Nagar, Khar was searched, but nothing incriminating was recovered. Inspite of this said Bhola was impleaded as accused No. 3, he was subsequently discharged by the Ld. Special Judge. On 6-4-1992 at about 11. 00 p. m. Head Constable Mane was instructed to collect sample packets from muddemal and deliver those to Chemical Analyser. Accordingly, Mr. Mane delivered sealed samples to Chemical Analyser and obtained acknowledgement. After the reports of analysis were available, chargesheet was filed.

(3.) IT appears that Accused No. 1 Shafique, absconded while on bail and therefore, the Ld. Special Judge separated the trial and proceeded against the present appellant only. As stated earlier, accused No. 3 Bhola was discharged on 19th April, 1993. Although contemporary documents, such as FIR and panchnama do not refer that a copy of information was sent to immediate superior, Ld. Judge found the deposition of PI Pujari, that he personally handed over the copy of information to immediate superior, to be acceptable. This is in view of the fact that the endorsement below the information indicated that the copies were forwarded to DCP and ACP of Narcotic Cell. The fact that the copy of information was submitted to immediate superior was also found in the station diary entry that was effected on return of party from the raid. The Ld. Special Judge thus found that the requirement of section 42 of NDPS Act was complied with. As far as the compliance of section 50 of the NDPS Act is concerned, Ld. Special Judge has observed that the appellant was apprised of her legal right to be searched in the presence of a Gazetted Officer or a Magistrate, and thereafter personal search was carried out. Taking into consideration that the search of the person was carried out by lady police constable Sangita in presence of lady panch, the Ld. Judge observed that the search was strictly in compliance with section 50 (4) of NDPS Act. The contention of defence that the lady constable was not authorised officer is repelled by Ld. Judge by observing that, if search of the person of appellant Nazma was to be done by an authorised officer PI Khedekar that would have been in violation of section 50 (4) of NDPS Act and therefore in attendant circumstances, when rule of decency was observed and personal search was under supervision of an authorised officer, the requirements of section 50 of NDPS Act were complied with. The Ld. Judge has also observed that section 50 of NDPS Act does not mandate that search of a female accused must be by a lady Gazetted Officer. After having considered the variances inter se in the evidence of prosecution witnesses, the Ld. Judge found that those were not material contradictions so as to nullify the case of prosecution. Because certain contraband was recovered from the person of accused appellant, and when the contraband was recovered in the house she was the only person present, the Learned Judge felt that conscious possession of the contraband by the appellant was established. In view of line of reasons as above, the Ld. Judge recorded finding of guilty and convicted and sentenced appellant accused as described above.