JUDGMENT
S.W. Puranik, J.
1. The appellant stands convicted for the offence under section 17 of the Narcotic Drugs and Psycotropic Substances Act, 1985, and is sentenced to suffer R.I. for ten years and a fine of Rs. 1,00,000/-.
2. This order of conviction passed on 9-2-1987 by Sessions Judge, Thane in Sessions Case No. 553 of 1986 is impugned by the convicted accused by this appeal.
3. According to the prosecution, two constables K.D. Shinde and D.K. Gaikwad (P.W. 2) respectively were deputed on Bandobast duty at the S.T. Bus station at Kalyan. At about midnight on 8-6-1986 the said constables noticed the appellant sitting on the bench at the Bus-stand. While they were making enquiries from the nearby passengers, the appellant tried to run away the Bus-stop in a hurry arising his suspicion. The two constables therefore, chased the appellant and caught him nearby.
4. The appellant, was then brought back to the same bench at the bus-stop and two panchas Vani (P.W. 3) and Razak (P.W. 4) respectively were called from the bus-station. A search of the person of the appellant was taken which revealed that he was in possession of seven phials or capsule containing a witish substance. The said phials were taken possession and seized under the panchnama and duly sealed. The appellant was taken in custody and produced at the Police Station Kalyan.
5. Further investigation from the Chemical Analyser revealed that seven seized phials contain narcotic substance heroin. In these circumstances, the prosecution under section 17 of that Act was instituted against the appellant.
6. During the trial, the two constables narrated the story as above with certain variations in their versions. However, the two panchas Vani (P.W. 3) and Razak (P.W. 4) did not support the prosecution version at all. According to panch Vani (P.W. 3), after the entire search was over, he was called by the police merely to sign a panchnama. He further stated that other panch Razak (P.W. 4) was not even present at that time. Same is the version of Razak (P.W. 4) who says that he put his signature without knowing what it was meant for.
7. On the basis of his evidence, the order of conviction and sentence came to be passed.
8. Shri R.M. Nakhawa, learned Counsel (appointed) for the appellant raised a preliminary objection that the entire investigation is vitiated in as much as the same has been carried out by two Police Constables in contravention of section 42 of the Narcotic Drugs And Psychotropic Substances Act, 1985. We find that the said objection is a substantive objection in as much as the power of entry, search, seizure as well as arrest without warrant is defined under section 42 of the said Act and specifically authorises officer superior in rank to a peon, sepoy or constable. Even such officer is empowered in this behalf by general or special order of the State Government or Central Government as the case may be. It is therefore, apparent in the teeth of section 42 of the Act that a person of the rank of a constable is excluded from the powers of entry, search and seizure under this Act.
9. In the instant case, it would have been alright for the two constable at the Bus-station to have merely taken him into custody under suspecion and produced him before an officer superior to them and who duly authorised under the Act to carry out search. The entire investigation in this case in contravention of section 42 of the Act. They have, themselves, exercised powers which in our opinion have been in contravention of section 42 of the Act and the entire investigation is vitiated.
10. It is to be born in mind that this Act dealing with serious offence relating to act narcotic drugs also prescribe a punishment of maximum ten years R.I. and a fine of Rs. 1 lac maximum, if a person is proved to have committed an offence. It is to safeguard against frivilous prosecution and unnecessary harassment to the citizens that ordinary Police Constable, peon and Sipoy have been excluded from the powers of search and seizure under this Act and a rigorous procedure prescribes and authority only to persons duly empowered by the appropriate Government.
11. Even on merits, we find that the conviction is not sustainable in as much as the versions given out by the two constables is inter-say contradictory and is not at all supported or corroborated by any of the two panch witnesses. In fact, the learned Sessions Judge was right when he observed that from this evidence it would appear that the seizure of the phials had already been taken place, even before the two panchas were called.
12. Looking at from both these points of view, we have no hesitation to hold that the conviction and sentence imposed upon the appellant cannot be sustainable and is liable to be quashed.
13. In the result, the appeal is allowed. The appellant’s conviction, and sentence passed by the Sessions Judge, Thane is Sessions Case No. 553 of 1986 are quashed and set aside, and the accused is acquitted for the offence under section 17 of Narcotic Drugs and Psychotropic Substances Act. The appellant be released forthwith, if not otherwise required.
However, the order regarding disposal of property, if any, passed, is confirmed.