LONGURAM TARIRAM THAKUR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal has been preferred by both the appellants i. e. the original accused against their conviction in N. D. P. S. Special Case No. 126 of 1993 by the Special Judge, T. N. Nalawade, Pune, for offences under section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N. D. P. S. Act") by which they were sentenced to suffer R. I. for ten years and to pay a fine of Rs. 1,00,000/- in default R. I. for two years.

(2.) SINCE Mr. Gupte Counsel for the accused raised mainly two legal questions, we are narrating the facts of the case in brief. P. W. 4 P. S. I. Parameshwar Baburao Bhagat was attached to police chowky under Bundgarden Police Station on 12-10-1992. At about 19. 00 hours he received an information that two persons were carrying a suitcase containing large quantity of narcotic drugs at Pune S. T. stand and would shortly leave Pune by S. T. bus for Goa. P. W. 4 therefore called two panchas, sent intimation to the P. I. of the Police Station, obtained permission to carry out the raid and proceeded to the spot where they found the information was correct and two persons with the same description and two suit cases were there at platform No. 1 of the bus stand. He, therefore surrounded them with the police party and the panchas told them that they were required to be searched, apprised them of their right under section 50 of the N. D. P. S. Act and examined the two suit cases which found to contain about 8 kgs. and 9 kgs. of charas in small vials and tubes. The property was seized packed, sealed and labelled and thereafter offence was registered against the accused. The entire property was thereafter sent to the C. A. and on receipt of C. A. report, the charge sheet was filed.

(3.) THE defence of the accused, when the trial commenced was of denial. The prosecution thereafter examined five witnesses including the C. A. The Special Judge however accepted the prosecution case and convicted the accused, as stated above. It is this conviction that is challenged by the applicants - accused. 4 It was mainly contended by Mr. Gupte that firstly there is non compliance of section 50 of the N. D. P. S. Act and also non compliance of sections 41 and 42 of the N. D. P. S. Act. So far as section 42 is concerned Mr. Gupte contended that it was admitted by P. W. 4 Mr. Bhagat that he had received prior information from somebody on phone in Marathi, by which along with the description of the accused he was informed that the accused were carrying charas in huge quantity along with them. According to Mr. Gupte P. W. 4 Bhagat did not reduce this information into writing and committed breach of the mandatory provision of section 42 of the N. D. P. S. Act. Further, according to him P. W. 4 admitted in his cross examination that he had reduced the information in writing on a chit of paper which he did not maintain or preserve but which he tore away, and so far as section 50 of the N. D. P. S. Act was concerned, it was contended by him that even though the officer P. W. 4 informed the accused that they could be searched by or before a Gazetted Officer or a Magistrate the accused were not made aware of their right as contemplated by the Full Bench decision of the Supreme Court in the case of (The State of Punjab v. Baldev Singh etc.), Criminal Appeal No. 396 of 1990 etc. , reported in 1998 (5) Bom. C. R. 448 (S. C) and therefore for non compliance of these two provisions the accused were entitled for acquittal.