AMAR SINGH Vs. STATE (DELHI ADMINISTRATION)

JUDGEMENT

(1.) I have heard the parties. This is an appeal directed against the order of conviction dated 15-3-1991, passed by the Mr. S. L. Khanna, ASJ. The appellant has been convicted under Sections 18/61/85 of the Narcotic Drugs and 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 one year.

(2.) BRIEFLY stating, the facts of the case are that the In charge, Police Post, Dakshin Puri, on 28-5-1989 received a secret information to the effect that one person would come on a red coloured motorcycle (Make Kawasaki) from the side of Chittranjan Park and he would be carrying opium in the dicky of the motor-cycle and he would go towards Dakshin Puri. On receipt of this information, S.I. concerned constituted a raiding party. It is stated by the prosecution that at about 9.00 p.m., the accused Amar Singh came driving motor-cycle bearing No. 7949 Make Kawasaki. He was stopped and was disclosed the information received by S.I., Mr. S.S. Gill. It is contended by the prosecution that an option under Section 50 of NDPS Act vide Exhibit PW 1/A, which appears to have been wrongly referred to as Exhibit PW 2/A in the impugned judgment , was given to the accused and he was informed that if he so desired, could be searched in the presence of a Gazetted Officer or a Magistrate, but he declined this offer and his reply was recorded at portior marked 'B' to 'B' in Exhibit PW 1/A. A perusal of the said Exhibit PW 1/A reveals that the appellant was given an option to be searched in the presence of a Gazetted Officer only. There is no mention of an option to be searched in the presence of a Magistrate. In my opinion, the learned Additional Sessions Judge has wrongly recorded in his judgment that there was sufficient compliance of Section 50 of the Act. Compliance of Section 50 of NDPS Act in the present case is mandatory. In the facts and circumstances of the case, the prosecution has failed to comply with the said provision as the appellant was given a partial option of being searched in the presence of a Gazetted Officer.

(3.) SECTION 50 of the NDPS Act reads as under: