J.N. Patel, J.
1. The appeal is directed against the judgment and order dated 30.8.1991 passed by 8th Additional Sessions Judge, Nagpur in Sessions Trial No. 382/91 in which the appellant came to be convicted for having committed offence under Section 22 of the N.D.P.S. Act and was sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and in default to undergo rigorous imprisonment for two years.
2. It was the prosecution's case that on 9.11.91 P.S.I. Sakharkar along with other Police Officers of the Crime Branch, N.D.P.S. Cell, Nagpur left for patrolling duty in order to conduct raid in respect of gard, charas and other narcotic substances. In front of Timki Police Chowki they received information through informant that a person named Mohd. Zafar Mohd. Sikandar i.e. accused was selling gard (Heroin) to specific customers at Mominpura Masumshaha Takiya in front of Hafiz Bakery and that he was carrying gard packets with him. Therefore, on receiving such information at about 17.30 hours P.S.I. Sakharkar called for two panchas and conveyed to them the information received by him and explained the object and purpose of calling them for the purpose of conducting raid and personal search of the concerned person. It is prosecution's case that said information was conveyed to A.C.P. Paraskar on telephone from Timki Police Chowki who permitted them to conduct the raid immediately and so police party alongwith panchas proceeded on foot to Hafiz Bakery and when they went to Hafiz Bakery they found the appellant accused near the electric pole in front of Hafiz Bakery. The accused was accosted by the police party. The police party introduced themselves to the accused. Panchas were also introduced and the appellant accused was informed that they want to take his personal search for Gard (Heroin- Brown Sugar). The appellant accused was specifically asked that whether he wants to give personal search before Executive Magistrate or Gazetted Officer of any other department; he declined on this the police staff and panchas gave their personal search to him. After this the appellant accused was searched in the presence of panchas, in the search yellow coloured plastic bag of popcorn was found in the left side pocket of the shirt of accused, it was containing 9 small paper packets. The paper packets were opened in presence of panchas, they were found to be containing Gard weighing 50 milligrams each; the contents were weighed together and total weight was about 450 milligrams of the value of Rs. 225/-. In addition to this a cash of Rs. 25/- was also found in denomination of 2 currency notes of Rs. 10/- and one currency note of Rs. 5/-; which was found in the same pocket. Out of the total Gard about 150 milligram of Gard powder was taken out separately in a blank paper by way of sample. The sample packet as well as the packet containing Gard powder were thereafter wrapped, tied and sealed. One more packet was prepared in which the plastic bag and blank papers which were found in the packet also came to be seized. The appellant accused having been found in possessions of Gard he was informed that he has committed offence punishable under Section 22 of the N.D.P.S. Act and came to be arrested. The police party thereafter came to Police Station Tahsil, Sub-Division Kotwali; where P.S.I. Sakharkar lodged a report (F.I.R. Exhibit 18). Police Inspector Bhadilkar who was present at the police station registered Crime No. 22/91 against the appellant accused for having committed offence under Section 22 of the N.D.P.S. Act. P.S.I. Sakharkar handed over sealed packet to P.I. Bhadilkar alongwith C.A. forms and requisitioned for sending the sample to the Chemical Analyser for analysis. Thereafter, P.S.I. Sakharkar reported the matter to the Deputy Commissioner of Police and also sent its copy to A.C.P. of having successfully conducted the raid. As the Chemical Analysis report was positive and investigation was concluded the charge-sheet came to be filled against the accused on 27.5.91.
3. The learned Additional Sessions Judge framed the charge (Exhibit 2) against the accused person on 10.7.91 for having found in possession of 9 small packets of brown sugar weighing 450 milligrams worth Rs. 225/- in contravention of Section 8(c) of the N.D.P.S. Act and thereby having committed offence under Section 22 of N.D.P.S. Act. The appellant accused pleaded not guilty and claimed to be tried.
4. The appellant accused took up the defence of denial and stated that he was taken by three police constables to Police Chowki and falsely implicated in the case. The prosecution examined in all 4 witnesses in support of their case namely : (1) complainant P.S.I. Sakharkar (P.W. 4); (2) a panch Hemraj (P.W. 3); (3) Police Head Constable Ramdas (P.W.I)(4) Police Constable Ravi (P.W. 2); in addition to relying upon the search and seizure panchanama exhibit 15 and the Chemical Analyzer's report exhibit 20. Accused did not examine himself or any witness in his defence. The learned Additional Sessions Judge found that the prosecution has proved that on 9.1.91 at about 5.45 p.m. near Hafiz Bakery in Mominpura appellant accused was found in conscious possession of 9 small papers packets containing brown sugar weighing 450 milligrams worth Rs. 225/- in contravention of Section 22 of the N.D.P.S. Act and convicted and sentenced the appellant accused, which is impugned in this appeal.
5. It is the contention of Mr. Habibuddin Ahmed, learned Counsel for the appellant accused that the prosecution has failed to establish its case against the appellant accused for having committed offence under Section 22 of the N.D.P.S. Act. He submitted that the search and seizure which was conducted by police in the presence of panchas, suffers from non-compliance of Sections 42 and 50 of the N.D.P.S. Act.
6. Mr. Ahmed submitted that according to prosecution P.S.I. Sakharkar P.W. 4 had received specific information about the appellant accused selling drug at a particular place and it is on this information P.S.I. Sakharkar proceeded to conduct raid and therefore, as required under Section 42 of the N.D.P.S. Act it was obligatory on part of P.S.I, Sakharkar on receiving such information to take down it in writing and forthwith send copy thereof to his immediate official superior. Mr. Ahmed submitted that admittedly in this case evidence of P.S.I. Sakharkar clearly shows that he did not take down in writing the information received by him from the informant that a person of the description of the appellant accused was in possession of the drugs and was selling drugs at a particular place as contemplated under Section 42(1); on the other hand in his evidence he has clearly stated that on receiving such information he informed his Superior Officer on telephone who permitted him to carry out the raid which is again not in accordance with Section 42(2). As what is required is if the officer takes down information in writing under Sub-section (1) he shall forthwith send the copy thereof to his immediate Superior Officer. Therefore, it is submitted by Mr. Ahmed the learned Counsel for the appellant accused that in absence of compliance with the mandatory provisions of Section 42 the whole proceeding undertaken by P.S.I. Sakharkar leading to accosting the appellant and taking his search and seizure of the contraband was vitiated and therefore on this very ground conviction arrived at by the learned Additional Sessions Judge deserves to be set aside. Mr. Ahmed has placed reliance on the case of Lamm Bolin v. State of Maharashtra 1996 (4) Bom. C.R. 520.
7. Mr. Habibuddin Ahmed learned Counsel for the appellant accused submitted that the prosecution case also suffers from another major lacuna in not complying with the mandate of Section 50(1) of the N.D.P.S. Act as the P.S.I. Sakharkar before causing search of the appellant accused did not inform him of his valuable right of being searched in presence of a Gazetted Officer of any of the department or before the nearest Magistrate and in absence of such communication to the appellant accused the search and seizure of the contraband would stand vitiated and therefore the appellant accused cannot be held responsible for being found in possession of the contraband.
8. Mr. Ahmed learned Counsel for the appellant accused submitted that non-compliance of Section 50(1) goes to root of the matter and the search and seizure made in contravention of the requirement is fatal to the prosecution case as held in the case of State of Punjab v. Balbir Singh : 1994CriLJ3702 . Mr. Ahmed submitted that Supreme Court in Balbir Singh's case has observed that
this is valuable right given to the person to be searched in presence of a Gazetted Officer or Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the Authorised Officer informing him. The language is clear and the provision implicitly makes it obligatory on the Authorised Officer to inform the person to be searched of his right.
Mr. Ahmad submitted that this principle has been incorporated in Section 50 of the N.D.P.S. Act following Mirinda Rule of U.S.A. and therefore it is of utmost importance that this rule should be followed in letter and spirit. Mr. Ahmad submitted that in the subsequent cases the Supreme Court has emphasised the importance of this provision and now it is well settled law that in case the accused is not made aware of his right as provided in Sub-section (1) of Section 50, then the search and seizure effected in violation of the provisions would stand vitiated as held in the case of Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat : 1995CriLJ2662 . Mr. Ahmed has also placed reliance on the case of Shantabai v. State of Madhya Pradesh .
9. Mr. Ahmed submitted that in the present case the prosecution has not produced any evidence to show that the appellant accused was made aware of this right, that if he so requires, he can be taken without any delay to any of the Gazetted Officers or nearest Magistrate in whose presence his search can be conducted. It is submitted that there is no independent corroboration to the evidence of P.S.I. Sakharkar on this point. As the prosecution's witness Hemraj who is a panch does not say about it in his evidence before the Court. Hemraj P.W. 3 has only stated that 'police surrounded him and caught him they told him that they had information that he used to sell brown sugar and asked him whether he would take of their search or whether they should take his search. Thereafter he took search of police as well as panchas; then police took search of accused and found 9 paper packets in left side shirt pocket of the accused and also speaks about seizure of cash of Rs. 25/-'. It is therefore submitted that the panch witness who has been examined by the prosecution having failed to support the prosecution's case on this count; the Court should have no hesitation to arrive at a conclusion that the accused appellant was deprived of his valuable right, compliance of which was mandatory in nature and therefore whole search and seizure his vitiated and the conviction and sentence based on such search and seizure is liable to be set aside.
10. The learned A.P.P. Mr. Fulzele submitted that in the facts and circumstances of the case, there was no necessity of following the procedure under Section 42 of the N.D.P.S. Act for the very reason that the information received by the Police Officer was in respect of person selling contraband in public place and having possession of such contraband and therefore it was not necessary for the Police Officer to have recorded this information in writing and forwarded it to his superior. It is therefore submitted that non-compliance of Section 42 would not come in the way of the prosecution and therefore, this contention of the learned Counsel for the appellant has no meaning.
11. As regards the compliance of Section 50 of the N.D.P.S. Act, it is submitted by learned A.P.P. Mr. Fulzele that before conducting the search of the appellant accused P.S.I. Sakharkar P.W. 4 did inform the appellant accused of his right to be searched in presence of Gazetted Officer or the nearest Magistrate and the appellant accused having declined, then only he proceeded to search him in presence of panchas. It is further submitted that this fact is also corroborated in the panchanama Exhibit 15 and therefore it cannot be said that there is no compliance of the requirement under Section 50(1) of the N.D.P.S. Act. The learned A.P.P. submits that merely because panch omitted to state this fact it would not make the whole search and seizure illegal. As panch has supported the prosecution's case, in so far as the recovery is concerned and has also admitted that the panchanama was drawn in his presence and he has signed as it was correctly recorded and therefore, even this contention of the learned Counsel for the appellant cannot be accepted. It is submitted that the appeal therefore has no merit and it deserves to be dismissed.
12. As regards the first contention of the learned Counsel for the appellant accused is concerned in relation to non-compliance of procedure prescribed under Section 42 of the N.D.P.S. Act is concerned, this Court has no hesitation to hold that in the facts and circumstances of the case Section 42 will not be applicable.
13. Chapter V of the N.D.P.S. Act provides for the procedure to be followed for the purpose of search and seizure to be carried out by the Authorised Officer. Section 42 provides for power of entry, search, seizure and arrest without warrant or authorisation. It contemplates that certain officers are authorised to carry out search and seizure and arrest of a person without warrant or authorisation such as being an officer superior in rank to a peon. Sepoy or constable in the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer being an officer superior in rank to a peon, sepoy or constable of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset.... (emphasis supplied) empowers such officers to carry out the search in the manner provided in Clauses (a) to (d) of Sub-section (1) of Section 42. Proviso to Sub-section (1) further provides that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Sub-section (2) of Section 42 further provides that where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. Plain reading of this Section 42 makes it crystal clear that the procedure contemplated in Section 42 is to be followed when the information is about any narcotic drugs or psychotropic substance in respect of offence punishable in chapter IV has been committed in any building conveyance or enclosed place. The facts of the present case as brought on record by the prosecution by examining P.S.I. Sakharkar P.W. 4; and Hemraj - panch P.W. 3 clearly go to show that the information received by P.S.I. Sakharkar was that a person by name Mohd. Jafar aged about 40-45 years, beard of whom is grown upto 1/2 inch and who is some what fair complexioned and having deepish cheeks, sells Card to his specific customers in front of Mominpura Masumshaha Takiya Hafiz Bakery and when the Police Officer on receiving such information called for panchas and proceeded at the spot they found that the appellant accused standing near an electric pole near Hafiz Bakery. The personal search and seizure panchanama exhibit 15 also records that the appellant accused was found near an electric pole in front of Mominpura Masumshaha Takiya Hafiz Bakery. In these facts and circumstances it cannot be said that Section 42 would be attracted to the case. On the other hand it will be Section 43 of the N.D.P.S. Act which would govern the field. As it provides for power of seizure and arrest in public places by any officer of any of the departments mentioned in Section 42. Under Section 43 such officer may seize in any public place or in transit, any narcotic drug or psychotropic substance for which he has reason to believe that an offence under Chapter IV has been committed and it also authorises such officer to detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his Company. Explanation to Section 43 defines 'Public Place' it includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. It is not the case of the appellant accused that the place where he was accosted by the police and searched was not a public place. In the case of Sayar Puri v. State of Rajasthan : 1998CriLJ4589 a two Judge Bench of the Supreme Court has held that the accused was found sitting on a public road and therefore, neither procedure under Section 42(2) of the Act was required to be followed nor the site plan required to be prepared and therefore as already we have held; we have no hesitation to hold that the police party which conducted the raid and search and seizure of the contraband from the appellant accused were not required to follow the procedure laid down under Section 42 of the N.D.P.S. Act and therefore prosecution case does not suffer from any such illegality of non-compliance of Section 42 of the N.D.P.S. Act.
14. Another contention of the learned Counsel for the appellant is that the appellant accused was not made aware of his right to be searched in presence of a Gazetted Officer or a Magistrate; we do not find any substance in this contention. No doubt it is a settled law that the procedural requirement and safeguard of Section 50 should be scrupulously followed by the Investigation Officer and the right of the accused to be searched in presence of Gazetted Officer or Magistrate is an important right which cannot be taken away: must be adhered. As observed by Apex Court in the case of Saiyad Mohd Saiyed Umar v. State of Gujarat (cited supra) in para 10 of the judgment it is stated as under:
It is necessary, therefore, that Courts dealing with the offences under the N.D.P.S. Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the officer concerned that he had a right to be searched before the Gazetted Officer or a Magistrate. It need hardly be emphasised that accused must be made aware of his right or protection granted by statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with.
If we examine the evidence led by prosecution in the case on the point we find that P.S.I. Sakharkar P.W. 4 deposed that when police party accosted the accused he told him in Hindi that they had information that he was possessing Card packets. He also asked him whether he was willing to have his search before the Executive Magistrate or any Gazetted Officer. The said person told him that he was not willing so and he has no objection to conduct of his search by we police. In his cross-examination except for making suggestion that he did not tell the accused whether he was willing to have search in presence of Gazetted Officer or Magistrate: nothing can be brought on record that the appellant accused has not been forewarned of his right as claimed by him in his evidence. This fact is also recorded in panchanama Exhibit 15 - 'Thereafter he was told that his personal search was to be taken for Gard (Heroin); thereafter he was asked as to whether he wanted to give his personal search before the executive Magistrate or Gazetted Officer of any of other department; on that he told that there was no need of it and that we could take his personal. Thereafter we and the panchas gave him our personal search. After he got ascertained that we and the panchas were not having gard and any other narcotic substance his minute personal search was taken in the presence of the panchas'. The personal search panchanama Exhibit 15 is contemporaneous document recording the recovery made in-presence of panchas and reflects as to what happened and sufficiently corroborates the evidence of P.S.I. Sakharkar P.W. 4 that the appellant accused was duly informed of his right of search to be taken before Gazetted Officer or Magistrate for the purposes of his search. Merely because the panch omitted to say so in his examination-in-chief before the Court would not discredit the prosecution's case that the requirement of Sub-section (1) of Section 50 is not complied with in letter and spirit.
15. We have examined the evidence led by the prosecution in support of their case P.S.I. Sakharkar P.W. 4 has supported the prosecution's case which led them to the appellant accused who was found standing near electric pole near Hafiz Bakery and was accosted after making the appellant accused aware of his right to be searched in presence of Magistrate or Gazetted Officer. His search was taken in the presence of panchas and they found 9 small paper packets wrapped in one yellow colour plastic bag of popcorn in left side pocket of his pant: each packet was containing approximately 50 milligrams of brown sugar in all 450 milligrams of brown sugar was found; out of which sample of 150 milligrams of brown sugar was separately wrapped and sealed. Sum of Rs. 25/- was also found on the person of the appellant accused. The search and seizure came to be reduced under panchanama Exhibit 15. Prosecution has examined panch Hemraj P.W. 3 who in his evidence has supported prosecution's case in so far as the recovery of contraband is concerned; on searching the appellant accused which came to be seized and sealed. The panch has admitted his signature and that of the co-panch on the panchanama as well as on the muddemal article No. 2. Evidence of P.S.I. Sakharkar is further corroborated by F.I.R. Exhibit 18; the prosecution has clearly established that the contraband seized from the person of the accused were sealed after drawing necessary sample and that sealed articles were handed over to Tahsil Police Station of which Police Head Constable Ramdas P.W. 1 had taken charge by making entry in the muddemal register at serial No. 10 in respect of deposit of 3 sealed packets in Crime No. 22/91. It has further come in his evidence that sealed packet containing the sample alongwith C.A. form was handed over to Police Constable Ravi P.W. 2 who had taken it to the Chemical Analyser's office and obtained acknowledgment of the chemical analyser which is Exhibit 12. The Chemical Analyser's report has been placed on record at Exhibit 22. In the said report it is clearly mentioned that - one sealed intact parcel was received from Tahsil Police Station and the description of article contained in the parcel as Exhibit - blackish brown coloured substance wrapped in paper labelled - Crime No. 22/91 property No. 10/91. The result of analysis is - Heroin (diacetylmorphine) is detected in exhibit alongwith other opium alkaloids. The exhibit falls under Section 2(xvi) of the N.D.P.S. Act, 1985. The Chemical Analyser Report is signed by M.P. Kurhekar, Assistant Director, Regional Forensic Science Laboratory, State of Maharashtra, Nagpur -12,
16. In the facts and circumstances we find that the prosecution has established that the appellant accused was found in possession of contraband weighing 450 milligrams Heroin in contravention of Section 8(c) of the N.D.P.S. Act and which is punishable under Section 21 of the N.D.P.S. Act.
17. Before we part with this judgment we find that an error has crept in as regards the application of an appropriate section right from the stage of registering the offence at Tahsil Police Station vide Crime No. 22/91 when police registered an offence under Section 22 of the N.D.P.S. Act against the appellant accused. The same error was continued when the charge-sheet came to be filed and the learned Additional Sessions Judge proceeded to frame the charge Exhibit 2. The charge records as under:-
That you above named accused on or about 9th day of January 1991 at about 5.45 p.m. at Mominpura Masumshaha Takiya in front of Hafiz Bakery found in possession of 9 small packets of brown sugar weighing about 450 milligrams value at Rs. 225/- meant for the purposes of sale without permit, licence or authorisation and thereby committed an offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act of 1985 and within the cognizance of the Court of Sessions.
(Emphasis supplied)
18. We have no hesitation in our mind to hold that this error in describing the Section 22 of the N.D.P.S, Act which crept in the case has not in any manner caused prejudice to the accused as can be seen from the charge itself; the accused was made well aware of the fact as to what was seized from him. The error appears to have travelled upto the stage of judgment which we find is due to casual approach of the learned Trial Court; as the learned Trial Court failed to examine which section of the N.D.P.S. would be applicable in the case particularly when the Chemical Analyser's report was before it and the Chemical Analyser in his result of analysis has clearly described that Heroin (diacetylmorphine) is detected in exhibit alongwith other opium alkaloids. The exhibit falls under Section 2(xvi) of the N.D.P.S. Act, 1985. The Trial Court ought to have been that the contraband found in possession of the appellant accused was manufactured drug and punishment for contravention of Section 8(c) in relation to manufactured drug is provided under Section 21 of the N.D.P.S. Act and not under Section 22 which relates to psychotropic substance. Schedule 1 of the N.D.P.S. Act provides for and describes narcotic drug and in item No. 3(b) of narcotic drug the Diacetylmorphine (Heroin) is mentioned which clearly show that the contraband found in possession of the appellant accused fell in category of narcotic drugs and the same is punishable under Section 21 and not under Section 22 of the N.D.P.S. Act ; therefore we proposed to correct the error and find the accused guilty of having committed offence under Section 21 and not under Section 22 of the N.D.P.S. Act. In so far as the punishment imposed under the impugned judgment and order is concerned it is identical for person having committed an offence under Section 21 or 22 and therefore except the correction in the section nothing more is required to be done. We do not find any merits in the appeal. The conviction and sentence passed by the Trial Court is confirmed. The appeal is dismissed.