MOHAMMAD KHAN S O ALAF DIN CATE HUJAM Vs. STATE

JUDGEMENT

(1.) JUDGMENT :- Appellant stands convicted under Section 20(b)(ii) and Section 23 of the Narocotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act of 1985).

(2.) Prosecution story in brief is that on the night intervening 1/2 Feb., 1988 near factory of Fatehpur Garian, the police party had laid a ambush near the factory of Fatehpur Garian. At about 10.40 p.m. in the mid night the police party heard some persons talking to each other. The police party asked them to disclose their identity. These persons started running. They were three in number. Two of them were successful in escaping from the police cordon, whereas one of them carrying one cloth bag was apprehended by the police party. The person who was so apprehended is none but the appellant in this case. As soon as he was apprehended, he threw the Plastic bag on the ground. The commodity so thrown on the ground was taken possession of. It was found that the packet contained 75 gms. of heroin and 2800 gms. of charas. This was seized immediately. Later on this was subjected to chemical analysis. On chemical analysis it was found that what was taken possession of was 'charas'. However, with regard to packet which was alleged to be containing heroin, no definite opinion become available. This was because of the disturbed situation in the Kashmir valley the requisite report was not received.

(3.) Learned counsel for the appellant submits that in view of law laid down by the Supreme Court of India in the case reported as State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : (1999 Cri LJ 3672) the appellant merits acquittal. It is submitted that it was imperative for the officers to inform the appellant orally or in writing about his right to be searched before a Gazetted Officer or a Magistrate. It is submitted that failure to give such information may not only vitiate the trial but would render the recovery of illicit articles illegal and consequently vitiates the conviction and sentence if recorded on the basis of recovery of such illicit article. It is urged that as the Supreme Court of India has approved the view expressed by the Court in the case of Ali Mustafa Abdul Rahman Moosa v. State of Kerala, (1994) 6 SCC 569 : (AIR 1995 SC 244) and as the facts in Ali Mustafa's case are similar to the facts in the present case, therefore, the conviction recorded in the case cannot be sustained.