NANDA SUBHASH RANE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Appellant was charged under section 8(c) r/w Section 21 of the N.D.P.S. Act, 1985. By his Judgment and Order of conviction and sentence dated 8.2.1993, the Special Judge for Greater Bombay found the Appellant guilty and convicted her for the offence under section 8(C) punishable under Section 21 of the N.D.P.S. Act, 1985 and sentenced her to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default, she was to undergo further R.I. for one year. THE Appellant has challenged the said order of conviction and sentence by way of this Appeal.

(2.) IT was the case of the prosecution that on 14.2.1986 in the evening P.H.C. 1174, Police Naik 16790 and P.C.6242 and P.N.358, all attached to Antop Hill Police Station, Bombay, were patrolling the area around Sardar Nagar Zopadpatti at Sion-Koliwada when at around 7.15 p.m. They noticed the Appellant-accused standing near Zopada No.93 near Ganesh Hair Saloon, Sardar Nagar No.2. She was holding a green coloured plastic bag in her hand in a suspicious manner. Police party questioned her but she did not give any satisfactory replies. P.C. 6242 was then sent for arranging panchas with instructions that one of them should be a woman. The Constable came back with two male panchas and said that the women around had refused to act as panchas. The plastic bag in the hand of the accused was then searched when 12 plastic vials containing heroin were recovered. One of the vials was packed, labelled and sealed as a sample and remaining 11 vials were packed, labelled and sealed as muddemal. A panchanama to that effect was made. The accused alongwith the muddemal packets were then taken to the Antop Hill Police Station. Senior P.I. of Antop Hill Police Station directed P.S.I. Gaikwad to register a crime against the accused. P.S.I. Gaikwad recorded statement of P.C. Udaykant Vishnu Manjrekar and treated it as F.I.R. He then recorded P.C.H. No.24/86 charging the appellant-accused under the NDPS Act, 1985. The investigation proceeded and the sample packet was sent to the Chemical Analyser, who opined that it contained crude heroin. The Appellant-accused then came to be charge-sheeted as aforesaid.

(3.) IN the case of State of Punjab v/s. Balbir Singh, AIR 1994 SCW 1802, the Supreme Court has, after considering the provisions of the NDPS Act, held that Sections 41, 42 and 50 are mandatory. Firstly, it is an admitted position that the Appellant-accused was not searched by a female as contemplated by Section 50(4) of the NDPS Act. IN this connection, PW-1 Udaykant Vishnu Manjrekar has in his evidence, categorically stated that P.C. No.6242 was sent in search of the panchas. He was told that one of the panchas should be a lady. He came back with two male panchas saying that, no lady was ready to act as pancha. This fact is also clearly evident from the panchanama Exh.10. To this extent therefore, there is violation of Section 50 of the NDPS Act.