EMANUELY MURD AISELEPH Vs. STATE

JUDGEMENT

(1.) I have heard the parties. This is an appeal directed against the order of conviction dated 18.9.1993, passed by Mr.Kuldip 'singh, ASJ Delhi. The appellant has been convicted under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a term of ten years plus a fine of Rs 1 lakh, in default whereof rigorous imprisonment for another two years

(2.) Briefly stating, the facts of the case are that on 28.1.1989, in the evening there was an information that Tanzanian national will come with a heavy quantity of smack On this information raiding party was organised. Mr.A.C. Sharma, ACP, Crime Branch with the informer reached Kuldip Hotel, Paharganj, New Delhi and held a Nakabandi. At about 9.45 p.m., one Negro came from Paharganj and another Negro was found coming from the eastern side of Paharganj. One Negro, coming from eastern side. Amiri Ali Ligaga passed on the polythene bag to other Negro, Emanauely Murd Aiseleph, which was seized and it contained 600 gm. of smack. The appellant was searched in the present case straightaway without being informed of his right that he, if h so desired, could be searched in the presence of a gazetted officer or a Magistrate. Admittedly, no such option was given in the present case. There are some other points also urged before me, but it will not be necessary in the light of the above facts to dwell upon those grounds because in my opinion, this appeal can be disposed of on the question of non-compliance of the mandatory provisions of Section 50 of NDPS Act by the officers, who took a personal search of the appellant. Section 50 of NDPS Act reads as under:-

(3.) According to provisions of Section 50, the accused must be informed of his right that if he so wishes, he can be searched in the presence of the gazetted officer or the nearest Magistrate. It is not disputed that no such information by a written notice or otherwise as contemplated under Section 50 NDPS Act, was given to the appellant. In the Ruqqa, it is stated that option under Section 50 of NDPS Act was not given to he appellant. This Ruqqa has been prepared after the search had been conducted. This is only one sided version. There is no witness to the Ruqqa prepared by the police. There is also no reference to this Ruqqa in the cross-examination of the accused. Even Fard Jamatalashi is vague and silent about such an option having been offered. In the case of State of Punjab Vs. Balbir Singh, reported as JT 1994 (2) SC 108, the Hon'ble Supreme Court has held that it was imperative on the part of the officer intending to search, to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a Magistrate. The Hon'ble Supreme Court has held this provision to be mandatory and its non-compliance would vitiate the trial.