AMINA ABDUL SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) AN unusual but important aspect relating to the manner in which a search and seizure is required to be conducted in cases falling under the Narcotic Drug and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N. D. P. S. Act") has been canvassed in the present appeal. Briefly stated, the question that is posed is as to whether in an exceptional situation where the accused happens to be a female and a personal search is required to be conducted when the raid has taken place "on a crowded public road or some such place", whether it is not incumbent on the prosecuting authorities to proceed to a respectable and secluded area where the search may be conducted in confidence and in a manner that does not give rise to any doubt. It will be necessary to first set out a few relevant facts.

(2.) ON 6-10-1989, information was received by Police Sub-Inspector Khot (P. W. 3), who belongs to the Special Branch and was attached to the Khadak Police Station, Pune, about the commission of an offence under the N. D. P. S. Act. The Police Sub-Inspector in question prepared a report and under the instructions of the Police Inspector took necessary steps for conducting a raid. He secured the services of two Panchas, one of whom was a lady because the information indicated that the suspect was a woman. Police Sub-Inspector Khot, the panchas along with a lady constable and his staff and the necessary equipment that is required for a raid of this type went to Colony No. 10 and on reaching the appointed place, they found a lady who was standing in the lane. The lady constable apprehended the lady in question and the Police Sub-Inspector asked the suspect as to whether she desired to take a search of any of the members of the raiding party, which she declined. It is alleged that she was also asked as to whether she desired to be searched in the presence of a Gazetted Officer, which also she declined. As it was a public road the accused was taken by the lady constable to a public bathroom and it is alleged that the lady constable conducted a personal search and recovered a small cloth-bag which was attached to the waist of the suspect and which, in turn, contained another polythene bag. On opening this polythene bag, paper packets were found which contained Ganja and Charas. The contents of the paper packets were collected together and weighed and it was found that 75 gms. of ganja and 28 gms. of charas were recovered in all. Apart from this, a sum of Rs. 52/- in cash was recovered from the suspect. The Ganja and the Charas were thereafter packed in a paper, seals were affixed under a panchanama and thereafter the same were handed over to the Muddemal Clerk at the Police Station who is Ganpat Masalkar (P. W. 2 ). Incidentally, it needs to be mentioned that Ganpat Masalkar (P. W. 2) is the same person who carried the packet to the Chemical Analyser three days later. On analysis, the Chemical Analysers Report indicated that Ganja was detected in sample No. 1 and charas was detected in sample No. 2. We need to qualify here that even though the quantity was not too small that for some strange reason the Police did not draw representative samples and, consequently, the whole of the packet was sent to the Chemical Analyser. This is certainly not the best procedure to follow unless the quantities seized are extremely small. At the time of seizure, representative samples must invariably be drawn and separately sealed. This, however, will not be a good enough ground to vitiate the present prosecution.

(3.) THE accused, who had been placed under arrest, was charge-sheeted and put on trial before the learned Additional Sessions Judge, Pune, who convicted her of the offence punishable under section 20 of the N. D. P. S. Act and awarded her a sentence of rigorous imprisonment for ten years and a fine of Rs. 1,00,000/-, in default, rigorous imprisonment for two years. It is against this conviction and sentence that the present appeal has been preferred.