MADHAB KALITA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This Criminal Appeal is so preferred U/S. 374 (2) of the Code of Criminal Procedure, 1973 read with Section 36( 1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 against the judgment and order dated 15.6.96 so passed by the learned Special Judge, Sonitpur. Tezpur in CR Case No. 7 of 1989 by virtue of which the learned Special Judge has convicted the sole accused- appellant Shri Madhab Kalita U/s. 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act) sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- in default to undergo rigorous imprisonment for one year.

(2.) Heard Mr. JM Choudhury, the learned or. Counsel for the appellant. By assailing the impugned judgment under challenge it is pointed out that before the learned court below there was no legal evidence so available as to convict the accused-appellant U/S. 17 of the Act and to sentence him thereunder on the grounds mentioned in this memo of appeal and thus the judgment of conviction and sentence so passed against the present accused-appellant is liable to be set aside. The evidence so adduced on behalf of the prosecution is unnecessarily given much weightage whereas the defence so put by the present accused-appellant being side-tracked and unnecessarily much importance is given to Ext.3, the so-called declaratory statement of the present accused-appellant which was so obtained under dures as also detailed by the accused-appellant at the time of recording of his statement U/s. 313 Cr. P.C. Mr. Choudhury, the learned Sr. Counsel for the appellant has also pointed out that there are major contradictions with regard to the seizure of the opium said to have been recovered from the plastic bag of the present accused- appellant when a trap was so arranged and such seizure is said to have been made from room No. 107 of the Blue Star Hotel as per the detailed prosecution report. In this connection it is pointed out that the hotel register is not produced in course of trial. Further the Manager and the boy attending the room of the said hotel were not examined, who as per the prosecution story, happened to be the eye-witnesses to the scene when such search was made. As regards the major contradictions taking place in the evidence of the PWs four in number so examined, Mr. Choudhury has pointed out that as far as PW 4 Shri T. Ram Bora is concerned, who happened to be the Sub-Inspector of Police, and according to the very prosecution report who was also one of the persons of the said raiding party, the seizure of the said plastic bag containing 700 grams of opium was so made from the almirah of Room No. 107 of the said Blue Star Hotel and not from the conscious possession of the accused- appellant. It is also submitted on behalf of the accused-appellant that the matter is not being taken in right perspective by the learned court below being swayed over by two of the reported cases so cited on behalf of the state by the Public Prosecutor conducting the case at trial stage, i.e., 1993 CRI.LJ. 442 (Orissa) (Banka Das & Ors. vs. State of Orissa) and 1995 CRI.LJ. 1594 (Madras) ( S. Rajan - vs- State Asstt. Collector of Customs) Intelligence) Madurai because there are good number of reported cases of the Supreme Court in connection with this matter and in this connection the learned counsel for the appellant has particularly referred to those cases. Over and above the other points so taken as good grounds for setting aside the impugned judgment of conviction and sentence particularly attention is drawn to the provisions of Section 50 of the Act, which is for ready reference quoted below: "30 Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about:to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires take such person without unnecessary delay to the nearest Gazetted Officer or any of the departments mentioned in Section 42 or to the nearest Magistrate".

(3.) It is submitted that this mandatory provisions to contained in Section 50 of the Act has not been complied with in this case and in connection with this attention is particularly drawn to the statement of PW 1 Sri Dwipen Bania so recorded in course of trial in which he is very specific that before making search of the bag of the accused- appellant which he was keeping in his lap, he had not acquainted the accused-appellant of this privilege which he would have sought for being produced before the nearest Gazetted officer or the nearest Magistrate in whose presence the search could have been made. This ground with regard to the provisions of Section 50 of the Act which is held to be a mandatory provisions not being complied with, itself is sufficient, as submitted by the learned counsel for the accused-appellant, as to set aside the judgment of conviction and sentence so passed against him over and above the other grounds taken. In support of his this contention that there is no compliance of the provisions of Section 50 of the Act, which makes the case fit for acquittal of the accused-appellant by setting aside the judgment of conviction and sentence passed against him, the learned counsel for the appellant has referred to firstly (19960 2 SCC page 201 (Raghubir Singh vs. State of Haryana) in this connection particularly its paragraph 11 is referred. It is also pointed out that the burden was in such circumstances heavily upon P W 1 or the other officers being the member of the raiding party as to explain the provisions of Section 50 of the Acct to the accused, which in the instant case was also not done. The other reported case, which is relied upon on behalf of the appellant is; (1997) 11 SCC page 93 (Abdul Rahman vs. State of Kerala) and in this connection it is pointed out that the omission of the searching officer to inform the accused of his right to be searched in the presence of the Magistrate or a gazetted officer and if there was illegality in conducting the raids that makes the accused to be entitled to be acquitted. The third reported case so cited and is relied upon is 1996 (2) GLJ 63 (Bajrangi Singh vs. State of Assam) in which, as submitted thiis court has held that if the accused is not safeguard with compliance of the provisions of Section 50 of the Act, such non-compliance of the mandatory provisions makes the trial vitiated and the accused is thus entitled to be acquitted. Lastly, it is submitted that when as per the very prosecution story as coming from the mouth of PW 1 the accused-appellant was caught in the said hotel on no account it can be imagined how the learned court below came to the conclusion that the said hotel in such circumstances cannot be taken as a place and furthermore when the said plastic bag as per the prosecution story was in the lap of the accused-appellant at the relevant time in room No. 107 of the Blue Star Hotel how it can be said as held by the learned Court below that in such circumstances search of the bag kept in the lap of the person cannot be said to be the search of a person ? On these grounds and on other grounds so mentioned in the memo of appeal hence the prayer is that the impugned judgment of conviction and sentence so passed thus required interference and it is a fit case in which the accused- appellant rather be acquitted on the sole ground that the mandatory provisions of Section 50 of the Act has not been complied with.