AMAR SINGH Vs. STATE DELHI ADMN

JUDGEMENT

(1.) I have heard the parties. This is an appeal directed against the order of conviction dated 15.3.1991, passed by Mr. S.L. Khanna, ASI. The appellant has been convicted under Sections 18/61/85 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a term often 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 Incharge, Police Post, Dakshin Pun, 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 Chitranjan Park and he would be carrying opium in the dicky of the motorcycle and be would go towards Dakshin Pun. 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 motorcycle bearing No. 7949 Make Kawasaki. He was stopped and was disclosed the information received by S.L, Mr. S.S. Gill. It is contended by the prosecution that an option under Section 50 of NDPS Act vide Exhibit P.W. 1/A, which appears to have been wrongly referred to as Ex. 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 portion marked B to B in Exhibit P.W. 1/A. A perusal of the said Exhibit P.W. 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.) 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 partial compliance of the mandatory provisions of 50 of NDPS Act by the officers, who took a personal search of the appellant.