BABULAL HIRALAL SAINY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE two criminal appeals, one by original accused No. 2 Babulal Hiralal Sainy (A2) and original accused No. 3 Mirajuddin Munnikhan Pathan (A3) and the other by original accused No. 1 Umesh (A1) are directed against the conviction and sentence awarded by the Additional Sessions Judge, Nagpur, in Sessions Case No. 545/1990, on 31-7-1991, to the accused/appellants for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Sub stance Act, 1985 (for short the N. D. P. S. Act ). The appellants have been sentenced to suffer R. I. for 10 years and to pay a fine of Rs. 1,00,000/- each and in default to suffer R. I. for 6 month.

(2.) THE principal contentions raised by Mr. Rizwy, the learned counsel for the appellants/ac cused A2 Babulal and A3 Mirajuddin in Criminal Appeal No. 336 of 1991, are (1) that the mandatory provisions contained in Sections 41 and 42 of N. D. P. S. Act have not been complied with inasmuch as the information received about commission of of fence was not reduced in writing and after reducing the said information in writing, the same was not sent to the Superior Officer, (2) that the mandatory provisions of Section 50 of N. D. P. S. Act were not complied with inasmuch as the accused/appellants were not informed of their right as to whether they wanted the search to be taken before the Executive Magistrate or the Gazetted Officer and (3) that the procedure as required under Sections 55 and 57 of the N. D. P. S. Act was not meticulously followed and as a result thereof serious prejudice was caused to the accused/appellants Mr. Rizwy, the learned counsel for the appellants/accused, in support of his submissions, strongly relied upon the decision of the Supreme Court in State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : (1994 Cri LJ 3702), Ali Mustaffa v. State of Kerala, AIR 1995 SC 244, Mohinder Kumar v. State Panaji, AIR 1995 SC 1157 : (1995 Cri LJ 2074), and division bench judgment of this Court in Daniel Odemenam v. R. Ramesh, (1995) 1 Mah LJ 857. The learned counsel appearing on behalf of the A1 Umesh adopted the submissions of Mr. Rizwy. Both the learned counsel submitted that in the absence of the compliance of mandatory provisions, particularly Sections 41, 42 and 50 of N. D. P. S. Act the conviction and sentence awarded by the Additional Sessions Judge, to the accused/appel lants deserves to be quashed and set aside.

(3.) OPPOSING the submissions advanced by the learned counsel for the accused/appellants, on the other hand, Mr. Ahmed, Additional Public Prosecu tor, appearing on behalf of the State, vehemently contended that the information received by the Po lice Officer was not about the commission of of fence under the N. D. P. S. Act and was not as contemplated under the N. D. P. S. Act and, there fore, it was not required to be reduced in writing. Mr. Ahmed further urged that in fact the search was conducted by the empowered officer under Sections 100 and 165 of the Code of Criminal Procedure, 1973, because it was not pursuant to the information required under N. D. P. S. Act and therefore, no compliance of Sections 41 and 42 of the N. D. P. S. Act was required in the facts and circumstances of the present case. Mr. Ahmed would urge that since Section 41 and 42 of N. D. P. S. Act were not applicable in the facts and circumstances of the present case, obviously, Section 50 of the N. D. P. S. Act would not operate and non-compliance of the said provisions, even if we assume, would not help the accused/appellants and would not vitiate the trial. Mr. Ahmed took us through the provisions of the N. D. P. S. Act and submitted that possession of any narcotic drugs and psychotropic substance is by itself not an offence, and therefore, the information which was received to the effect that two persons from other State had come to Nagpur city along with large quantity of brown sugar and that they were in search of customers and were selling the brown sugar, was not an information as contemplated un der Sections 41 and 42 of the N. D. P. S. Act since there was no information about the names of these two persons and also that these two persons were in possession of the brown sugar without any licence from the Competent Authority. The contention of Mr. Ahmed therefore, is that search conducted in the present case was search simpliciter under Sections 100 and 165 of Code of Criminal Procedure, 1973 and the said search was permissible by virtue of Section 51 of N. D. P. S. Act being not inconsistent with the provisions of the said Act and therefore, question of non-compliance of Sections 41, 42 and 50 of N. D. P. S. Act did not arise. Mr. Ahmed also submitted that the burden was on the defence to lay foundation in cross-examination of the Police Offi cer as to whether the accused was informed as required under Section 50 of the N. D. P. S. Act or not and since there was no such cross-examination of P. W. 14, Shri Sunil Ramrao Paraskar, it is not open to the defence to urge in appeal before this Court that Section 50 of N. D. P. S. Act has not been complied with. Mr. Ahmed, in support of his sub missions, strongly relied upon the Judgment of the Apex Court in Surajmal Kaniah Lal Soni v. State of Gujarat, (1994) 4 JT (SC) 144.