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Ghasita
Sahu Vs. State of Madhya Pradesh [2008] Insc 101 (28 January 2008)
S.B.
Sinha & V.S. Sirpurkar
(Arising
out of SLP (Crl.) No.1743 of 2006) V.S. SIRPURKAR, J.
1.
Leave granted.
2. The
appellant herein challenges his conviction for the offence under Section 8 read
with Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as NDPS Act) recorded by the Trial
Court and confirmed by the High Court.
3. On
the prior information Arun Pandey (PW6) searched the house of the appellant and
found 17.750 Kgs. Of Ganja kept in a gunny bag from one room. Before the search
was taken, the Investigation Officer had completed all the formalities as per
Section 42 of NDPS Act. At the time of search, the appellant was apprised of
the information as also the proposed search and was also given an option to
have a search in presence of a Gazetted officer. However, the appellant had not
opted such an option and consented that the search by the search party led by
Investigating Officer Arun Pandey (PW6). The Ganja (17.750 Kg.) was seized from
one of the rooms and after samples were drawn, rest of it was sent to Malkhana
for the safe custody. The sample packages were sent to Forensic Science
Laboratory wherein it was confirmed that it was Ganja. The investigation having
been completed, the appellant was charge-sheeted. The appellant pleaded not
guilty. However, relying on the statement of Arun Pandey (PW6) and Shiv Kumar
(PW1) as also the documents including the Panchanama, the appellant was found
guilty and was convicted of the offences charged. He was directed to undergo
Rigorous Imprisonment for a period of five years. He was also directed to pay a
fine of Rs.20,000/- in default rigorous imprisonment of one year. This conviction
was challenged before the High Court. However, the High Court, after going
through the evidence confirmed the conviction and the sentence, necessitating
the present appeal.
4. It
was firstly contended by the counsel for the appellant that the search itself
was illegal as the Panchas for the search firstly had not supported the same
and secondly they were not the local panchas. We were, therefore, taken through
the evidence of the two Panchas Raju (PW4) and Sanju Tiwari (PW5). We have
carefully gone through their evidence. Both of them have not supported the
prosecution inasmuch as they have even refused to identify the accused. There
is nothing in their evidence to suggest that they were not local panchas. They
have not even been distantly suggested that they were the usual panchas and
stock witnesses of local police and were not residents of the area wherefrom
the Ganja was recovered. Learned counsel tried to rely on the evidence of Arun Pandey
(PW6). However nothing has been suggested to him in respect of panchas not
being local panchas. The investigating officer seems to have taken all
precautions as per Section 100 of Criminal Procedure Code. Hence the contention
is rejected.
5.
Learned counsel secondly suggested that in fact this accused had met with an
accident with the police jeep driven by Arun Kumar (PW6) and, therefore, he was
falsely implicated at the instance of the police. Very curiously this is not
suggested to the witness at all. In the absence of any suggestion or material
in cross-examination such lame plea cannot be accepted.
6.
Lastly, the learned counsel tried to suggest that the appellant was not given
any idea about his right to have the search taken in presence of a Gazetted
Officer in terms of Section 42 of the Act. We have carefully seen the evidence.
To a specific question: what did you say to the accused at the place of
occurrence?, the answer by the witness is: I told him that we have an
information from Mukhbir that there is some Ganja hidden in your house and I
have to take your search. If you want the search to be conducted in the
presence of some gazetted officer or in the presence of a Magistrate or you had
no objection if I conduct the search myself. Before that even in the
examination-in-chief the witness had very specifically stated Ghasita Sahu
was informed about the information received from the informant and it was asked
from him if he wanted any Magistrate to conduct the search or the police
themselves could have done that. Learned counsel wanted to suggest that
this was not the way to inform the accused of his right. Unfortunately, no such
specific question was put to the witness and in our opinion considering the
language, the search of the house cannot be said to be illegal in any manner.
7. In
the first place, there is no question in this case, of any such right of the
accused. Section 51 of the Act specifically provides that the provisions of
Criminal Procedure Code shall apply in so far as they are inconsistent to the
provisions of the Act to all warrants, arrest, searches and seizures made under
this Act. The right of the search being taken only in presence of a Magistrate
or a gazetted officer is restricted where the search is to be taken of a
person of the accused. In this case the search was of a house and,
therefore, all that the investigating officer had to follow was the conditions
under Section 42 of the Act read with Section 100 Cr.P.C.. Therefore, the
argument that the accused had any right in respect of the aforementioned search
and that right has been breached is wholly incorrect. The law is now settled
that this condition under Section 50 applies only where the search is of a
person of accused [See State of H.P. v. Pawan Kumar [(2005) 4 SCC
350]. In this case the search was not of the person but of his house.
8.
However, it is pointed out by the learned counsel that the quantity of Ganja
was less than the commercial quantity though more than the small quantity and
that the accused has all through been behind the bars after his arrest and he
has almost completed four years in jail. Considering that the accused is a
middle-aged man and comes from the poor background as claimed by the counsel,
we would chose to modify his punishment of five years to the sentence already
undergone. We also reduce the amount of fine from Rs.20,000/- to Rs.10,000/-
and in default of payment of fine the accused would undergo further period of
Rigorous Imprisonment for six months. Barring this modification, the appeal is
dismissed.
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