NARENDER KUMAR Vs. STATE

JUDGEMENT

(1.) This is an appeal against conviction and sentencepassed by the Additional Sessions Judge dated 2.7.1992. The appellant wassentenced to undergo rigorous imprisonment for a period of 10 years and to paya fine of Rs.1 lac failing which he was to further undergo simple imprisonment forone year. The incident and alleged recovery is dated 3.6.1990. According to Mr.Sanjiv Kumar, learned Counsel for the appellant, notice under Section 50 of theNDPS Act, which is 'Ex. PW-2/A', only limited option was given to the appellantbefore his search. I have perused the notice and it has been mentioned that if theappellant wishes, his search could be taken before a Gazetted Officer. Similarly inthe F.I.R. also this fact is reiterated. Mr. Kumar has argued that partial optionwould tantamount to no option in terms of the mandate of Supreme Court in viewof the decision in State of Punjab v.Balbir Singh, 1994 (1) Crimes 753. What thelearned Counsel for the appellant has contended is that from the bare reading ofSection 50 of the NDPS Act, it postulates that the appellant ought to have beengiven an option whether he would like to be searched before a Gazetted Officer orbefore a Magistrate. If the appellant was given a limited option, that would bemaking the option as contemplated under Section 50 of the Act nugatory as theLegislature has intended that the option should be real and meaningful and thatis why option to the person accused of the offence under the Act to be searchedbefore the Gazetted Officer or the Magistrate is given in the said Section of theAct. In support of his arguments Mr. Kumar has cited the decisions of this Courtin Jagdish v. State, 1994 (3) A.D. Delhi 113, Chameli Devi v. State, (1993) 50 DLT439 and Satish @ Bombaiya v. State, (1991) (44) DLT 561.

(2.) . On the other hand, Mr. Hirdayjot Singh, learned Counsel for the State, hascontended that in the facts and circumstances of this case and in view of thetestimony of PW-3 it was not necessary for the raiding party or the officerconcerned to have given a notice under Section 50 of the NDPS Act. WhatMr. Singh has contended is that there was no prior information with the Policethat the appellant was having article in contravention of NDPS Act. His argumentis that it was a chance recovery and Mr. Singh has further contended that if thatwas so then there was no need for a notice under Section 50 of the Act to be givenby the officer or the raiding party. Mr. Singh has also contended that in any eventthe notice given under Section 50 of the Act was a valid notice and on this scorethe conviction and sentence cannot be set aside.

(3.) I have given my careful consideration to the arguments advanced bylearned Counsel for both the parties. Learned Additional Sessions Judge hascompletely mis-read the provisions of Section 50 of the NDPS Act. To thearguments advanced by the learned Counsel for the appellant, the AdditionalSessions Judge has dealt the same in the following manner.