JUDGMENT
1. The accused in Special Criminal Case No. 17 of 1993 on the file of Narcotic Drugs and Psychotropic Substances Court, Mapusa, is the appellant herein. He was convicted under Section 20(b)(i) of the N. D. P. S. Act and sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 20,000/- and in default to undergo further rigorous imprisonment for a period of 4 months.
2. According to the prosecution on 27th August 1993 on receipt of previous information that a person carrying a suitcase will be arriving at Collem Railway Station with a consignment of narcotic drugs, P.I. Alex Peraira along with the other staff members of the Anti-Narcotic Cell accompanied by the A.S.P. Shri Goutem and two panch witnesses proceeded to the Railway Station at Collem at about 8.15 p.m. While they were keeping watch on the passengers leaving the Collem Railway Station, they spotted the accused carrying a light-blue suit-case as he was suspected of being in possession of narcotic drugs. The accused was appreheneded by the raiding party. On a personal search of the accused the raiding party recovered Ganja weighing 7.4 kgs., which was kept in the suitcase, which was carried by him. After preparing the panchanama and fulfiling other formalities, 50 gms. out of the 7.4 kgs. were taken as sample and sent for chemical analysis. On receipt of the Chemical Analyser’s report it was found that the substance was Ganja. The appellant was arrested and charge-sheet was filed against him. After the trial the lower Court found the appellant guilty though he denied having committed the offence.
3. The counsel for the appellant has taken me through the various statements made by the witnesses before the Court. Although two panchas went along with the raiding party and in whose presence the search was made and the contraband seized, only one of them was examined for reasons best known to the prosecution. P.W. 2 is the panch witness who was examined. The learned counsel for the appellant submits that the non-examination of the other panch witness, who was a party to the panchanama is fatal to the prosecution. I cannot agree with this argument of the learned counsel for the appellant. It is not always possible to contend that the evidence of the police needs corroboration by an independent witnesses. But in a narcotic case where the search and seizure are the pivotal portions of the investigation, the statement of the official witness should have been corroborated at least by one independent witness. Here P.W. 5 the Police Inspector, who is the Investigating Officer and who is also responsible for the search has been examined. He has spoken on the detail of events that had taken place on 27th August 1993, with all material particulars and with necessary precision. But the learned counsel for the appellant pointed out that though non-examination of all the panchas may not affect the prosecution case, the evidence of panchas who was examined must be thoroughly corroborated with the evidence of the official witness. I find considerable force in the arguments of the counsel for the appellant. As I pointed out earlier the search and seizure are important parts of the investigation that have to be proved in such a manner as prescribed by the statute. In this background it is profitable to examine the panch witness, Sri Sagarkrishna Ganjakar (P.W. 2). Let us examine his version in the vital part of his statement in Examination-in-Chief, which is as follows :-
“Thereafter, P.I. Alex Pereira introduced himself and the other member of the raiding party to the accused who also introduced me and the other panchas to the accused. P.I. Alex Pereira informed accused that he suspected that the suitcase being carried by the accused contained drugs, and that search is required to be conducted. P.I. Alex Pereira also told to accused that if the accused desired he was free to take the search of the raiding party and the panchas to which the accused declined. Thereafter P.I. Pereira told the accused to open the suit case.
For that purpose the accused removed the key chain from his pocket and opened the suit-case. Inside the suit-case a wrapped bedsheet/bedcover. The said bedsheet was opened and inside-there was a sub-stance looks like grass.”
At the same time it is also useful to examine the statement of P.W. 5, the police Inspector, who conducted the search, on this vital aspect of the case. He stated in his Examination-in-Chief thus :-
“At a little distance, I intercepted the said person and requested him to subject himself for a search of a suit-case for the purpose of narcotic drugs. The accused before the Court is the said person whom I identified. The person was speaking in Hindi. I identified myself to the accused and asked him for his identity. The accused stated that his name was Ashok Kumar Mishra, native of Samastipur in Bihar. The accused got nervous when I asked him to open his suit-case. I also told him that he could state the name of any local gazetted officer or a Magistrate of his choice if he so desired to have the search in the presence of such officer, he declined the offer.”
The last sentence, which was very important and which has been stated by P.W. 5 is inconsistent with Section 50 of the N.D.P.S. Act. Section 50 says :-
“50. 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 of any of the departments mentioned in Section 42 or the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.”
In the case of State of Punjab v. Balbir Singh, , it was held that Section 50 is mandatory and the non-compliance of which will vitiate the prosecution. In view of this I find no corroboration of P.W. 2’s statement of having informed the accused that he is free to be searched before a Gazetted Officer though an offer has been made to the accused by P.W. 5 that he is free to be searched before a Gazetted Officer or a Magistrate. In the examination of P.W. 2 this portion is not there. In the circumstances in the absence of corroborative evidence on an important ingredient to be satisfied under the statute and which was held by the Supreme Court to be mandatory, I think that the non-corroration by the witness, at least by one of the panchas examined by the prosecution is fatal to the prosecution, particularly that portion of evidence satisfying the requirement of mandatory provision of an enactment. I find that there is refraction of breach of Section 50 of the Act in prosecuting this case. That reason alone will be sufficient to vitiate the prosecution.
4. In the light of the above discussion, I find that the lower Court is not justified in finding the appellant guilty of the offence under which he was charged. For non-compliance of the mandate contained in Section 50, I hold that the prosecution fails and the appellant is entitled to acquittal.
5. In the result the appeal is allowed. The Judgment of the Court below is set aside. The appellant is set free forthwith, unless he is required in any other case.
6. Appeal allowed.