JUDGMENT
J.G. Chitre, J.
1. This appeal is being heard today urgently because on request made by Miss Yadav, Hon’ble Shri Justice G.D. Patil has directed expeditious hearing of this appeal as the appellant has been certified by Tata Hospital, Mumbai, to be suffering from acute blood cancer and as submitted by Miss Yadav counting last days in Sassoon Hospital as terminal case.
2. The appellant is hereby assailing correctness, propriety and legality of the judgment and order of conviction and sentence passed by Special Judge for Greater Mumbai in N.D.P.S. Special Case No. 145 of 2000 wherein the learned trial Judge has convicted him for the offences punishable under Section 8(c) read with 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act for convenience).
3. Prosecution case in brief is that on 2.8.2000 at about 6.35 a.m. when Sub Inspector Mehboob was on duty at Sahar Airport Security Section, B-3 Hold, he suspected the activities of the appellant named Subhir @ Vishal Vijay Kali. It so happened that his mental detector sounded an alarm on account of the metal which was affixed on the shoes of the appellant. The appellant was stopped and when he was interrogated it was revealed that the appellant was possessing brown sugar in the said metal portion which was affixed to his shoes. Sub Inspector Sayyed informed about that to PSI Mohite who informed the Sahar Police Station at 6.40 a.m. Thereafter Shri Mohite and PI Bagawe came to airport. Panchas were collected and as per the prosecution case the appellant was given an option as indicated by provisions of Section 50 of NDPS Act. In the presence of panch witnesses the said metal portion was removed from his shoes. Both the boots were found having 5 polythene packets each containing brown sugar which was totally weighing 1220 gms. It was collected in sample packets in presence of panch witnesses and each sample packet was wrapped up in brown paper and plastic bag. Thereafter it was sealed. The entire narcotic drug was so seized by drawing the panchanama in presence of panch witnesses. Those sample packets, the accused were sent to Sahar Airport and in Sahar Police Station those sample packets were kept in the custody of the concerned officer. On 3.8.2000, five samples were sent to F.S.L. Kalina, which after chemical examination found to be containing Diacetyl morphine. The investigation progressed and ended in a trial which resulted in the order of conviction and sentence which has been assailed by this appeal.
4. Shri Keshwani, counsel appearing for the appellant, submitted that in the present case even if it is accepted that Section 43 of the NDPS Act would apply, the members of the raiding party were under obligation to comply with the mandatory provisions of Section 50 of the NDPS Act in its real spirit but they have not done so which is evident from the account given by the prosecution witnesses and panch witnesses. He submitted that as the requirement of Section 50 has not been complied with, the appellant has been prejudiced in his defence and the material which has been collected by the investigating agency by not following the provisions of law cannot be used against the appellant in the trial.
5. Shri Keshwani further submitted that in the present case it cannot be said that whatever was seized from the appellant was examined by the chemical examiner of the F.S.L. and, therefore, it cannot be said that the appellant was possessing narcotic drug as alleged by the prosecution narcotic drug as alleged by the prosecution. Shri Keshwani pointed out the evidence of the panch witness named Kailash Sonkar who stated that after the brown sugar was packeted in brown paper packets and plastic packets, the said samples were marked in vernacular language as ßvÞ] ßcÞ] ßdÞ and so on. But the forwarding letter by which the samples were sent to the B.S.L. shows that the samples were marked in English “A”, “B”, “C”, etc. Shri Keshwani pointed out that the same panch witness when confronted with the sample packet was unable to explain as to how instead of letters in vernacular language the sample packets were having letters in English. Shri Keshwani submitted that the prosecution was unable to explain this situation and, therefore, the prosecution has to suffer so far as present case is concerned.
6. Shri Keshwani also pointed out glaring infirmities in the prosecution evidence which entitled the appellant for acquittal. He submitted that the learned trial Judge did not appreciate the evidence in proper spirit and, therefore, landed in error of recording the order of conviction and sentence against the appellant. According to him, it being illegal, it be set aside and the appellant be acquitted.
7. Shri Saste, Additional Public Prosector appearing for the prosecution, submitted that there is no discrepancy in the evidence at all and the evidence is consistent with the prosecution case. He submitted that it was not necessary for the members of the raiding party to comply with the provisions of Section 50 as it was a matter of chance detection. Shri Saste submitted that the panch witnesses might have committed the mistake in quoting the letters which were written on the samples but they are small mistakes and, therefore, no more value can be given to it. He, submitted that this appeal be dismissed by confirming the order of conviction and sentence.
8. It is the submission of Shri Saste that it is a chance detection case and, therefore, it is not necessary that the members of the raiding party should comply with the provisions of Section 50 of the NDPS Act which has been repealed by Shri Keshwani by submitting that after getting the information from the appellant as per the prosecution case, PSI Siddhiqui gave the information to officer incharge of Sahar Police Station and the said information has been reduced into writing which is at Exhibit 29 and, therefore, it cannot be called to be a chance detection case. It is so. Exhibit 29 shows that at 6.40 a.m. on 2.8.2000 PSI Mohite stated that he received the information from PSI Sayyed on telephone that at Entry No. B-3, Cabin No. 17 he found one passenger named Subhir @ Vishal Vijay Kali resident of Mauritius holding passport bearing No. 0779642 and when this person was search at 6.10 a.m. in male examination cabin, it was noticed that the outer portion of the boots on his feet were protruding and when a query was made in respect of that, he told PSI Sayyed that he was possessing narcotic drug known as ‘gard’ in (sic). Thus, before the raiding party searched the person of the appellant, there was an information produced in writing available in Sahar Police Station and on this information, PSI Mohite, panch witnesses and his colleagues decided to search him for seizure of contraband known as ‘gard’. Whether it is a chance detection case or not, is a point of fact which is to be decided by appreciating the evidence on record. If it is done in right perspective, one will have to conclude that it was not a case of chance detection but it was a case of search on prior information. Therefore, though the appellant was found in airport, his search was taken on prior information which was reduced into writing and, therefore, it was incumbent on the members of the raiding party to comply with the provisions of Section 50 of the NDPS Act because what was to be searched was his person which included the (sic) which were worn by him.
9. There are three versions available in respect of the compliance of Section 50. As per PSI Siddiqui, the appellant was asked whether a gazetted officer or a magistrate should be called to which he said no and preferred to be searched by the members of the raiding party. The version given by the panch witness Sonkar was different. He stated that it was told to appellant that anybody can have the presence of a magistrate or gazetted officer for such search and the appellant declined the said suggestion and preferred to be searched by the members of the raiding party. The version given by PSI Mohite is different. PSI Mohite has stated that PSI Bagawe introduced all the staff members to appellant and told that if he desired to be searched before a magistrate or gazetted officer, they can be called. And in the cross-examination stated that before giving such offer PI Bagawe introduced himself to the appellant as gazetted officer. The sum and substance of this version given by these three witnesses examined by the prosecution cannot be called as true compliance of provisions of Section 50 of the NDPS Act. Section 50 requires that the accused or the person who is to be searched for possession of narcotic drug or for commission of an offence under the provisions of the NDPS Act, is to be appraised of his right under Section 50 of the NDPS Act and he is to be informed that he has a right of being searched before a magistrate or a gazetted officer and after informing him of his right, he should be left to exercise that right. But, in the present case PI Bagawe himself introduced as a gazetted officer before the appellant was appraised of his right under Section 50 of the NDPS Act. Therefore, in real sense his right under Section 50 of the NDPS Act was polluted and he was not given sufficient opportunity of telling whether he should use the option of being searched before a gazetted officer or a magistrate. It was as good as including him to be searched before a gazetted officer or a magistrate. It was amounting to a feeler given to him inviting him to opt for being searched before the members of the raiding party. It is pertinent to note that PI Bagawe has not been examined by the prosecution on this point for the reasons best known to it. Therefore, the prosecution has failed to establish that the appellant was appraised of his right of being searched before the gazetted officer or magistrate as provided by Section 50 of the NDPS Act and as provided by the observations of the Supreme Court in Baldev Singh’s case .
10. In the said judgment, in paragraph No. 54 (4), the Supreme Court observed that there is indeed need to protect society from criminals. The societal intent in safety will suffer it persons who commit crimes are let of because the evidence against them is to be treated as if it does not exist. The answer, therefore, is not the investigation agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under could if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach or the safeguards provided by Section 50 at the trial, would render the trial unfair.
11. In addition to that, another serious infirmity is in existence in the present case which the learned Magistrate has not noticed. It has come in the evidence of Panch witness Sonkar that when the said brown sugar was collected in samples in brown paper envelopes and thereafter in plastic bags, each sample was given identification mark by vernacular letters like ” “, ” “, ” ” etc. But the samples were bearing such identification marks in English. When this panch witness was confronted with those envelopes, he was unable to explain the situation. Same is the evidence of other panch witness named, Yusuf Surve. Yusuf Surve stated that the packets were marked with English letters ‘A’, ‘B’, ‘C’ etc and seals were effected on it. The evidence of PW-1 PSI Sayyed is that sample packets were marked “-1″, ” -1″, ” -1″. etc. when Yusuf Surve was examined, the prosecution have the confusion created by PW-1 and PW-2. Therefore, he was bound to come with a modified story. But the experience tells that the lame cannot be made to run the race. He is bound to be exposed. In the present case, such confusion in the prosecution case has been exposed by the list which was prepared when those envelopes were dispatched in the Sehar Police Station. The said list does not mention anywhere that those envelopes were with seals. He those envelopes been with the sales as stated by the panch witness Yusuf Surve, the said list should have mentioned that those envelopes were with seals bearing the signatures of panch witnesses because accepting such articles was a serious thing and the person responsible for accepting the custody of such articles would have been careful enough to mention in the list about the existence of such seals.
12. Absence of such description in the said list and the total discrepant version given by PW-1 and 2 creates a reasonable doubt whether the same samples were sent to the F.S.L. and were examined by the chemical analyzer and whether they are having the nexus with the report which the prosecution is using for proving that the appellant was found possessing Diacetyl morphine – brown sugar – as indicated by the provisions of the NDPS Act.
13. In the present case, the prosecution evidence itself shows that no safeguards were taken for the purpose of ensuring the custody of the seals. It shows that anybody could have handled the seals as required by him and the practice was prevalent there that anybody was picking the seals and using them for his work. There was no register maintained for the purpose of showing as to when the seals were taken by a particular officer and the purpose for which the seals were taken by him. When the samples are deposited in the same police station, the evidence should show that the safeguards are being used for the purpose of seeing that the seals are not used by anybody as per his whim and wish. There should be safeguards to see that the samples are not tampered with before they are dispatched to F.S.L. The sample should be in safe custody so as to avoid possibility of tampering with its seals and the contents of the envelopes. With that view Section 55 of the NDPS Act has been enacted.
14. In the present case, the mandatory provisions of Section 50 have not been complied with. There is no safeguard in respect of the use and handling of the seal in Sahar Police Station. No register has been maintained in respect of the use of the seal by the officers concerned and in the present case the prosecution has failed to establish a nexus between the samples alleged to have been packed up after the person of the appellant was searched at Sahar Airport and the certificate of the Chemical Examination showing the samples which were examined by him were containing Diacetyl morphine – a narcotic drug prohibited under the provisions of the NDPS Act.
15. The learned trial Judge has not appreciated the evidence on record keeping in view those important aspects and, therefore, he has landed in error of recording the consequential order of holding him guilty of the offences punishable under Section 8(c) read with Section 21 of the NDPS Act and convicting and sentencing him for RI for 10 years and fine of Rs. 1 lac, in default RI for three months.
16. Thus, the appeal is allowed. The appellant stands acquitted of the charges levelled against him. He be released, if not required for any other investigation, proceedings or trial. He be not released if he is undergoing the sentence for any other offence. This order be communicated to him as early as possible because he is counting his last moments as stated by the lawyers appearing for him on account of an acute ailment of blood cancer. He is at liberty to move an application for getting the passport returned back to him because this Court permits return of passport to him. But for the purpose of safety it needs to be done by the trial Court which would be having an opportunity of examining its legal aspect.