Sorabkhan Gandhkhan Pathan And Another v. State Of Gujarat .

Order

1. The appellants before us and two other persons were charged for offences punishable under Sections 8(c), 20(2), 21, 27, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act) before the Court of Additional Sessions Judge, Ahmedabad in Sessions Case No. 53 of 1993. Learned Sessions Judge after trial came to the conclusion that the prosecution has failed to establish its case against Accused 3 and 4 and hence acquitted them while it found the case against Accused 1 and 2 who are the appellants before us established by the prosecution, hence convicted them under Section 20(b)(ii) read with Section 2(iii)(a) and also read with Section 29 of the Act and sentenced them to undergo rigorous imprisonment for a period of 10 years and imposed a fine of Rs 1,00,000 (Rupees one lakh only), in default of payment of fine the appellants were further directed to undergo simple imprisonment for a period of one year. An appeal filed against the said judgment by the convicted accused before the High Court of Gujarat at Ahmedabad came to be dismissed. Against the said judgment of the High Court the two appellants are before us.

2. Ms Ranjana Narayan, learned amicus curiae appearing for the appellants contended that the courts below have failed to consider the effect of Sections 42 and 50 of the Act, non-compliance with which has vitiated the search and seizure made from the accused persons, therefore, the appellants are entitled to acquittal. She also contended that the prosecution case has not been supported by any of the independent witnesses. Therefore the courts below ought not to have based a conviction on the basis of police witnesses only.

3. She alternatively contended that at any rate assuming that the prosecution has established against A-1, the same cannot be said of A-2 because the prosecution has not led any evidence to show the involvement of A-2 in carrying the narcotic by A-1.

4. To appreciate the argument of the learned counsel, it is necessary to refer briefly to the prosecution case.

5. The prosecution alleges that on an information received by Police Inspector V.K Amaliyar on 12-10-1992 at 12.15 a.m that certain persons were carrying illicit liquor in an autorickshaw, the said Police Inspector organised a raiding party and on intercepting the autorickshaw he found A-1 carrying a hand bag which when searched was found to contain 1960 grams of charas valued at Rs 30,000. It is based on such recovery the appellant and the two other accused persons were charge-sheeted. The contention of the learned counsel for the appellant is that under Section 42 of the Act, it is mandatory for the officer who received the information to reduce the same into writing and to inform his superior officers which the learned counsel submits in this case has not been done. She also contends that the search conducted by the said officer is opposed to the provisions of Section 50 of the Act because an opportunity of being searched by a gazetted officer or a Magistrate was not given to the accused.

6. The courts below have found no merit in this case and we agree with the same because the information received by the police officer was not in regard to any contraband article as contemplated under the Act. The information was in regard to certain illicit liquor, therefore, the search by the officer concerned was not under the provisions of the Act. It is only by accident that in the course of search for illicit liquor the officer concerned found 1960 grams of charas, therefore, this could be treated as a chance recovery for which it is not necessary to follow the procedure contemplated under Sections 42/50 of the Act.

7. However, we notice that so far as Accused 1, Appellant 1 herein is concerned, the contraband in question has been seized from his possession and, in our opinion, the prosecution has established the case against the said accused and the courts below have rightly convicted the said appellant. Whereas in regard to Appellant 2, it is the prosecution case itself that he was travelling in the autorickshaw, along with three other persons. The prosecution has not produced any material whatsoever to establish that either this appellant had the knowledge that Appellant 1 was carrying the contraband or was, in any manner, conniving with the said accused in carrying the contraband. In the absence of any such material, to convict the second appellant only on the ground that he was found in the autorickshaw, in our opinion, is not justified. As a matter of fact, the courts below have rightly acquitted the other two accused on similar ground and, in our opinion, the said benefit ought to have gone to Accused 2 also. For the reasons stated, we find the prosecution has failed to establish its case against Appellant 2. Therefore, this appeal, so far as he is concerned, succeeds and the same is allowed. The said Appellant 2, if in custody, shall be released forthwith, if not wanted in any other case. However, the appeal of the first appellant is dismissed.

8. We record our appreciation for the services rendered by Ms Ranjana Narayan, advocate as amicus curiae in disposing of the appeals and we direct the payment of a sum of Rs 750 as fee to her.