RAMDAS GOPINATH DAVKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction passed by the learned Assistant Sessions Judge, Dhule in Criminal Case No. 84 of 1991 dated 24th March, 1992, convicting the appellant-accused under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to under go R. I. for 10 years and to pay a fine of Rs. One Lakh, in default to undergo R. I. for two years.

(2.) THE prosecution case in short is that, the complainant P. W. 1 on receiving information, carried out raid at open space near Manohar Talkies, Dhule city and near Pahelwan Theatre, the appellant-accused was found possessing manufactured drug containing heroin. It is alleged that the complainant sent one panch with 10 rupees note which was signed by him, to the appellant-accused for purchasing brown sugar from the appellant-accused. Thereafter, a raid was carried out and the appellant-accused was found with 10 packets of brown sugar with him. A panchanama was drawn in the presence of panchas and recorded the statement of the accused and he was prosecuted after obtaining the report from the Chemical Analyser. The appellant-accused was prosecuted for an offence punishable under section 8 (c) r/w. section 21 of Narcotic Drugs and Psychotropic Substances Act. After recording the evidence, the appellant-accused came to be convicted for an offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to undergo R. I. for 10 years and to pay a fine of Rs. One Lakh, in default to undergo R. I. for two years. Hence this appeal.

(3.) THE learned Counsel Mr. Mundargi for the Appellant emphatically submitted that the prosecution has failed to comply with the mandatory procedure required under section 50 of the Act and therefore, the prosecution is vitiated and the order of conviction and sentence is liable to be set aside and the appellant-accused is entitled for acquittal. The learned Counsel relied on the complaint Exhibit 7 and the evidence of P. W. 1. It has been submitted that admittedly, raid was carried out on prior information noted in the police station diary Exhibit 28. However, the complainant who carried the raid did not followed the procedure under section 50 of the Act. The learned Counsel did not question the authorisation of the complainant in investigating the case but the learned Counsel emphatically submitted that in view of the Supreme Court Judgment reported in 1994 Judgment Today, Volume -2, page 108, the procedure laid down under section 50 of the Act is held to be mandatory provision. Failure thereof will vitiate the trial. Section 50 of the Act reads as under :-50. Conditions under which search of persons shall be conducted.---