MOHD HAFIZHABIBULLA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for possession of 8 gms. 300 mg. of brown sugar under Section 21 of the N. D. P. S. Act. The prosecution had examined seven witnesses in support of the charge. The Special Judge, N. D. P. S. Court vide judgment dated 1-7-1999 held the appellant guilty for the said charge under Section 21 of the said Act. The appellant was sentenced to R. I. for ten years and fine of Rs. 1,00,000/-, in default, R. I for one and half years. The period of detention during the trial was set off. The appellant challenges the said order in appeal.

(2.) THE prosecution case, in brief, is that on prior information, which was reduced in writing and sent to the higher authorities, the appellant was accosted in front of Mayur Beer Bar. The appellant was searched and from his personal search, the contraband in question was found. Samples of contraband were sent to the Chemical Analyser, who found that the sample contained heroine (diacetyl-morphine) and falls under Section 2 (xvi) (e) of the N. D. P. S. Act, 1985.

(3.) LEARNED Advocate for the appellant mainly advanced arguments on the question of non compliance of the mandatory provisions of Section 50 of the Act besides inter se discrepancies in recovery between the evidence of the incharge of the raiding party (PW-6) P. S. I. Chate and that of Pancha (PW-7) Vasant Parate. Learned Advocate for the appellant pointed out that the notice given to the appellant does not satisfy the requirement of Section 50 inasmuch as the appellant was not informed of his right of being search before the Gazetted Officer or the Magistrate but that the said notice only speaks of a provision to the effect and that in case the appellant so desire, arrangement could be made in accordance with the said provisions. After relying upon the judgment of this Court in Criminal Appeal No. 13 of 1997 (Mohammad Ismail s/o Karim Patel Ansari v. The State of Maharashtra) to which I was party, it was urged that there has been failure on the part of the Investigating agency of intimating the appellant of his right to be searched before the Gazetted Officer or the Magistrate. He also pointed out that Panch (PW-7) does not even state that the appellant had declined to accept the offer made by the police vide the said notice (Exh. 32 ). Therefore, according to the learned Advocate for the appellant on account of non compliance of mandatory provisions of Section 50, the appellant is entitled to be acquitted.