RAJU BABURAO WAIRAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) WE have perused the evidence on record. The same includes the evidence of P.W.1 Bhagwan Ramchandra Kahar, who has signed the Panchnama, Exhibit 8, the evidence of P.W.3, Suryabhan Karu Kadbhane, a Police Constable, who was in the raiding party, as also the evidence of P.W.4, Ramchandra Balwant Korde, the Police Inspector, who is the Investigating Officer. We find that there has been a clear non compliance of the provisions contained in Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and hence the appellant- original accused, Raju Baburai Wairal, is entitled to an order of acquittal. Both P.W.1, Bhagwan Ramchandra Kahar and P.W.3, Suryabhan karu Kadbhane, have deposed to the manner in which the raiding party has apprehended the accused and conducted the search his person. Neither of them has deposed about the accused being informed of his right of being searched before a Gazetted Officer or a Magistrate. On being apprehended, the accused has straight-way been searched without observing the legal formality countenanced by section 50 of the Act, which formally has now been held to be mandatory. The aforesaid noncompliance is also evident from the recitals found in the panchnama, Exhibit 8. In the circumstances, the order passed by the learned Assistant Sessions Judge, Nashik, dated 2nd January 1990, in Sessions Case No. 99 of 1989 convicting the appellant-accused under section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- (one lakh), in default to suffer rigorous imprisonment for two years, is liable to be quashed.

(2.) WE order accordingly and allow the appeal. The appellant, original accused, is accordingly acquitted and is directed to be set at liberty forthwith unless required in some other case or cases. Fine, if paid, will be refunded to him.