JUDGMENT
K.R. Vyas, J.
1. The appellant (original accused No. 1 and 3), in this appeal, have challenged the judgment and order dated 17-12-1998 passed in Sessions Case No. 94 of 1993 by the learned Addl. City Sessions Judge, Ahmedabad. The learned Judge, at the end of the trial, convicted the appellants for offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) and sentenced them to suffer R.I. for ten years and to pay a fine of Rs. 1 lac, in default, to undergo R.I. for one year. As far as original accused No. 2 is concerned, according to the learned Judge, his case fell under Section 27 of the Act as small quantity of narcotic substance was found from his possession which was intended for his personal consumption and not for sale. He, therefore, gave benefit under Section 27 of the Act to the original accused No. 2 and sentenced him to pay a fine of Rs. 1500/-, in default, to undergo imprisonment a prescribed under the law.
2. The prosecution case can briefly be stated as under :
Police Constable Narendrasinh Vijaysinh, P.W. 3 Exh. 19 of Madhupura Police Station, while performing his duties on 12-12-1992 at S.K. Lokhandwala Communal Point, received a secret information in the morning from the secret informant that “one person, since last 4/5 days, between 9-15 a.m. and 10-45 p.m., sells ‘padikis’ (very small pouch) of opium, charas or brown sugar, outside Prem Darwaja, Dariapur.” The informant had shown the accused person to Police Constable Narendrasinh from distance. P.S.I. M.S. Patel, P.W. 7 Exh. 15 and P.I. B.S. Shukla, P.W. 4 Exh. 21, while on patrolling, came to Lokhandwala compound in the evening. Narendrasinh sent the aforesaid
secret information to them. Narendrasinh made a note of receipt of secret information vide Exh. 68. Thereafter, Narendrasinh, P.S.I. Mr. Patel and Mr. Shukla went to Madhupura Police Station and reduced the said information in writing in the station diary at Madhupura Police Station vide Exh. 37. The said information was conveyed to Police Superintendent on telephone, and thereafter, necessary arrangements were made for the raid. Panchas were called and statement of Narendrasinh was recorded by P.S.I. Mr. Patel. Constable Bharatkumar was asked to call goldsmith to weigh the substance if any found. Thereafter, P.S.I. Patel, P.I. Shukla, Head Constable Fatesinh, Constable Narendrasinh, Lady Constable Anuben, Constable Udaykumar proceeded for raid from Madhupura Police Station. When they came near Prem Darwaja chowky, near Bhagwati Mill Compound footpath, Constable Narendrasinh identified the persons from distance. Two accused persons were exchanging something and at that relevant point of time, the raid was carried out and two accused persons were caught hold of. On interrogation during the raid, it was found that one of the accused persons was Pirubhai Shaikh, the appellant No. 1 and the second person was Bharatkumar Darbar, the accused No. 2. Before carrying out physical search, the accused persons were asked as to whether they wanted to be searched in presence of a Magistrate or not. Vide Exhs. 56 and 57, both the accused persons were given option to be searched in presence of a Magistrate. However, the said option was not availed of by the accused, and therefore, A/1 and A/2 were searched in presence of P.I. Shukla who was a Gazetted Officer and the panchas. During search of the accused persons, five small ‘padikis’ were found from the possession of A/2. During raid, one ‘padiki’ was opened and brown sugar was found therein. Therefore, A/1 was further interrogated. During interrogation of accused persons, further raid was continued as police went to corner of Vaghari Vas, near Ray Basera School. There, a woman, appellant No. 2 (original accused No. 3) sitting on the footpath, on seeing the police, tried to run away. However, she was caught hold by woman constable Anuben. She carried out the search of A/3 and four small ‘padikis’ were found from the pocket of her frock. All the accused were taken to Prem Darwaja police chowky. Meanwhile, goldsmith Maheshkumar, P.W. 1 Exh. 11 and F.S.L. Expert Pathak came there. Maheshkumar weighed the ‘padiki’. One padiki was of 6 mg. The weight of all padiki was found to be 5 grams with substance therein. F.S.L. Expert Pathak carried out chemical test and it was found that it was a narcotic substance in the padikis. All the padikis recovered from the accused were marked from 1 to 10. The panchnama was carried out in presence of panchas and all padikis seized were sealed in a tin and seizure memo was prepared at Exh. 52. The accused were arrested for offence punishable under the Act and arrest memo in respect thereof was made at Exh. 53. P.S.I. Patel thereafter lodged the complaint at Exh. 54. Muddamal seized from the accused in sealed condition was handed over to P.S.O. John to be put in the safe custody of police station. Exh. 55 is the report to P.S.O. to register the offence. On 14-2-1992, the muddamal seized from the accused was sent to F.S.L. through constable Narendrasinh with a forwarding
note Exh. 59. A yadi sending muddamal to F.S.L. and a letter addressed to Magistrate is also produced by the prosecution at Exh. 60. The prosecution also produced F.S.L. receipt at Exh. 62 and F.S.L. report at Exh. 63. On getting positive report from the F.S.L. Exh. 63, charge-sheet was filed against all the accused.
3. Charge Exh. 2 was framed against the accused to which they pleaded not guilty and claimed to be tried. The prosecution, in order to bring home the charge levelled against the accused, examined Maheshkumar Soni, a goldsmith, P.W. 1 Exh. 11, Chogaji Kasturji, a panch, P.W. 2 Exh. 13, Narendrasinh Vijaysinh, P.W. 3 Exh. 19, Bharatkumar S. Shukla, P.I., P.W. 4 Exh. 21, John Phillip, P.S.O. P.W. 5 Exh. 34, Jagatsinh Madhavsinh, P.W. 6 Exh. 43, M.S. Patel, P.S.I., P.W. 7 Exh. 50, the complainant. Over and above the oral testimony, the prosecution has also relied upon documentary evidence in the form of complaint. Exh. 54, report to register the offence Exh. 55, seizure panchnama Exh. 15, note of receiving secret information Exh. 68, statement/option given to all the accused vide Exhs. 56 to 58 respectively, seizure memo Exh. 52, yadi calling F.S.L. Expert Exh. 51, letter to Magistrate asking permission to send muddamal to F.S.L., letter of intimation of arrest of the accused to the Sub-Magistrate at Exh. 61, despatch letter to F.S.L. Exh. 59, F.S.L. receipt receiving muddamal Exh. 62, F.S.L. report Exh. 63, entry of secret information made in the station diary Exh. 37.
4. In the further statement under Section 313 of the Code of Criminal Procedure, the accused denied the allegations made by the prosecution and claimed their total innocence.
5. We have narrated the entire prosecution case in detail from the evidence of prosecution witnesses, and therefore, it is not necessary for us to re-narrate their evidence as the same would be merely a repetition of facts. In the instant case, P.W. 2 Chogaji Kasturji who was selected as a panch, has not supported the prosecution and was declared hostile. Merely because the panch Chogaji has not supported the prosecution, by that fact itself, the entire prosecution case will not become unbelievable and/or unacceptable. It is now well established that in absence of independent witness like a panch, instead of discarding the evidence of police witnesses, the Court can place reliance provided their evidence is acceptable on close scrutiny. We have closely scrutinised the evidence of complainant P.S.I. Patel Exh. 15, evidence of Narendrasinh Exh. 19 and F.S.L. report Exh. 63. The complainant Patel is not cross-examined by the learned Advocate appearing for the appellant No. 1 though number of opportunities were given as can be seen from the observation made by the learned Judge while recording the evidence. Neither A/1 nor his Advocate remained present on more than one occasion, with the result, the learned Judge was constrained to pass the order of closing their right to cross-examine the complainant. The learned Advocate for original accused No. 2, though cross-examined the complainant at length, nothing substantial has been brought out. In the lengthy cross-examination, attempts were made to confuse the witness. However, the complainant has successfully come out from the test of cross-examination and
had remained consistent in his deposition. Reading the evidence of the complainant, it is clear that the complainant has scrupulously followed mandatory requirements of the Act, namely search, seizure and sending of muddamal to F.S.L. Therefore, nothing can be said in that regard.
6. From the evidence of police constable Narendrasinh, P.S.I. Patel and F.S.L. report, we are clearly of the opinion that the prosecution has stood the test beyond reasonable doubt, namely that the secret information was received by Police Constable Narendrasinh and in connection with the said secret information, raid was carried out and in the said raid, 3.25 grams of brown sugar was found from illegal possession of A/1, 73 mg. brown sugar was found from illegal possession of A/2 and 383 mg. was recovered from the illegal possession of A/3. Police Constable Narendrasinh has fully corroborated the evidence of P.S.I. Patel and there does not appear to be any infirmity in his evidence. Not only that, as per the evidence of Narendrasinh, on 14-12-1992, he had taken muddamal in sealed condition from Crime Writer Jagatsinh and it was delivered by him to F.S.L. From the Entry No. 44, it is clear that Narendrasinh had collected the said tin from Jagatsinh and had gone to F.S.L. for submitting the same for testing. Narendrasinh, in his evidence, has stated that he sent the muddamal to F.S.L. From the report of F.S.L., it is clear that the F.S.L. received muddamal in sealed condition, and therefore, there was no question of tampering with the muddamal which was sealed under panchnama.
7. Similarly, P.I. B.S. Shukla was also one of the members of the raiding party who has been examined at Exh. 24. He has fully supported the evidence of P.S.I. Patel, and therefore, corroborated the prosecution case. P. I. Shukla himself being a Gazetted Officer was present and had informed the accused that the accused had an option of being searched in presence of a Magistrate in compliance with the mandatory provisions of the Act. We, therefore, see no reasons to doubt the version of the prosecution witnesses.
8. P.S.O. John Phillip, Exh. 54, in his evidence has stated that he was on duty as P.S.O. at Madhupura Police Station on 13-12-1992 and he had handed over station diary to P.S.I. Patel and P.S.I. Patel had made an entry in the station diary. The said station diary was renamed to him by P.S.I. Patel. He has further stated that the muddamal seized from the accused was kept in custody in the police station and as he was on leave, it was handed over to Crime Writer Jagatsinh, who in turn, handed over the same to Narendrasinh on 14-12-1992 for the purpose of sending it to F.S.L. Constable Jagatsinh, Exh. 43, in his evidence has fully supported the say of P.S.O. John Phillip.
9. F.S.L. report Exh. 63 clearly indicates that padikis marked 1 to 10 contained morphine diacetyl morphine (heroin), the bane and methaqulone. All chemical tests made were found positive. Padikis mark 1 to 5 contained 325 mg. substance, padiki mark 6 contained 73 mg. substance while padikis mark 7 to 10 contained 383 mg. substance.
10. From the F.S.L. report, it is proved beyond reasonable doubt that the padikis seized from the possession of the accused contained brown sugar.
Dated : 4-5-2002 :
11. Learned Advocate for the appellants, after inviting our attention to the evidence of the complainant P.S.I. M.S. Patel submitted that no option was given to the appellants of search to be carried out in presence of a Gazetted Officer. It was, therefore, submitted that there is breach of provisions of Section 50 of the Act. P.S.I. Patel, in his evidence, has stated that the accused were asked as to whether the search was to be carried out in presence of a Magistrate to which the accused declined. Sub-section (1) of Section 50 provides that 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 to the nearest Magistrate.
On plain reading of this provision, it is clear that the concerned officer is required to give an option to the person before carrying out search, namely whether he would like to be searched in presence of a Gazetted Officer or the nearest Magistrate. Thus, offering of search before either of the authority cannot and will not result in violation of Section 50.
The Division Bench of this Court, in the case of Salimuddin @ Jugan N. Ansari v. State of Gujarat, 1999 (3) GLR 2581 has held that legislative intent being offering option to be searched before a senior officer mentioning only one of the two senior officers and omitting the other while asking a question would not result in violation of Section 50. That was a case where the accused was asked whether he wanted to be searched in presence of a Gazetted Officer, not mentioning search before the Magistrate. In the instant case, P.S.I. Patel had, in fact, given an option to the accused as to whether they would like to be searched before the Magistrate and omitted to offer the option to be searched before a Gazetted Officer. As laid down by this Court in Salimuddin’s case (supra), this would not result in violation of Section 50 of the Act, and therefore, we see no merit in the submission of the learned Advocate for the appellants and we reject the same.
12. Learned Advocate submitted that the complainant had not informed the accused about their right to be searched in presence of either Gazetted Officer or a Magistrate, and therefore, there is breach of provisions of Section 50 of the Act. It is not possible for us to accept the submission advanced on behalf of the accused. In our opinion, on correct interpretation of Section 50 of the Act, it would be sufficient if the accused is informed about his being searched and examined in presence of a senior officer such as Gazetted Officer or Magistrate. We are supported in our view by the decision of this Court in the case of R.B. Mishra v. State of Gujarat, 2000 (1) GLR 137 wherein the Division Bench of this Court has laid down that :
“The provision does not speak about informing the accused that the accused has a right to be searched in presence of a nearest Gazetted Officer or a nearest Magistrate. It speaks about informing the accused as to whether he would require to be searched in presence of a nearest Gazetted Officer or a nearest Magistrate.
XXX XXX XXX XXX It is the interpretational process of Section 50 of the N.D.P.S. Act which has brought about the conclusion that the accused has such a right and not that he has to be informed that he has such a right. In our considered opinion, it would be sufficient if the accused is informed about his being searched and examined in presence of a senior officer such as Gazetted Officer or a Magistrate." We, therefore, see no merit in this submission too.
13. As observed earlier, even though panch Chogaji Kasturji, P.W. 2 has not supported the prosecution, on appreciating the evidence of Constable Narendrasinh, P.S.I. Patel, P.I. Shukla and F.S.L. report Exh. 63, the prosecution has successfully established the case beyond reasonable doubt against the accused. However, on the same reasoning, A/3 cannot be convicted. As far as A/1 and A/2 are concerned, the complainant Mr. Patel, in fact, carried out search of their person and found ‘padikis’ containing brown sugar while in the case of A/3, search was carried out by lady Constable Anuben. It is the prosecution case that Anuben, lady constable, recovered padikis containing brown sugar from the pocket of the frock of A/3. Unfortunately, the prosecution, for the reason best known to it, has not examined lady constable Anuben. Admittedly, the search of A/3 was not carried out in presence of lady panch. Therefore, except the evidence of the complainant Mr. Patel and other prosecution witnesses who were present at the time of search, there is no evidence on record. Thus, even if we accept the evidence of complainant Mr. Patel regarding the search carried out by him of A/1 and A/2, even though he is not supported by independent panch witness, the evidence of the complainant Patel will be of no assistance for convicting A/3 since he has not carried out search of A/ 3. It is the lady constable Anuben who carried out search of A/3 and since she is not examined in the instant case, there is practically no evidence regarding the search of A/3 having been carried out.
14. Section 51 of the Act provides that, “The provisions of the Code of Criminal Procedure, 1973 shall apply, insofar as they are not inconsistent with the provision of this Act, in all warrants issued and arrests, searches and seizures made under this Act.”
Section 100 of the Code of Criminal Procedure provides for persons in charge of closed place to allow search. Sub-section (3) of the said Section provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.
Section 51 of the Code provides for search of arrested persons. Sub-section (2) thereof provides that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. This would follow that the search of the accused is to be made only by a lady police officer in presence of a lady panch and for maintaining strict regard to decency, search in public place be avoided. The facts of the case on hand
reveal that A/3 was searched by lady constable Anuben on a footpath of the public road in presence of all male police officers where norms of decency could not have been observed.
15. Thus, taking the overall view of the matter, it clearly transpires that A/3 who was searched by lady constable Anuben who according to the prosecution, recovered contraband substance from the person of A/3, is admitted not examined which would raise a serious doubt about the recovery of contraband article from the person of A/3. No independent evidence like panch much less a lady panch has supported the complainant. In this view of the matter, we are clearly of the opinion that the prosecution, in the instant case, has failed to establish recovery of muddamal brown sugar from the possession of A/3. In any case, she deserves the benefit of doubt. We, therefore, allow this appeal qua the A/3 only.
16. In the result, Criminal Appeal No. 117 of 1999 is partly allowed. We confirm the judgment and order of conviction and sentence passed against appellant No. 1-Pirubhai Noorbhai Shaikh. We, however, set aside the judgment and order of conviction and sentence passed in Sessions Case No. 94 of 1993 dated 17-12-1998 by learned Addl. City Sessions Judge, Ahmedabad so far as appellant No. 2-Bismillabibi widow of Yusufbhai Mohammed Shaikh is concerned. We accordingly direct that the appellant No. 2-Bismillabibi, widow of Yusufbhai Mohammed Shaikh be set at liberty forthwith if not required in any other case. Order accordingly.