LAWS(DLH)-1996-12-75

BARUN KUMAR Vs. STATE DELHI ADMINISTRATION

Decided On December 07, 1996
BARUN KUMAR Appellant
V/S
STATE OF DELHI Respondents

JUDGEMENT

(1.) I have heard the parties. This is an appeal directed against the order/Judgment of conviction dated 16.01.1993, passed by Mr. Kuldcep Singh,ASJ, Delhi. The appellant has been convicted under Section 18 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 one year.

(2.) Briefly stating, the facts of the case are that on 14.7.1989, ASI Ram Kishan alongwith SI Sri Kishan, Constable Ved Pal and SPO Hari Ram was present in the area of P.S. Nangloi. They received an information that a person who sells opium and is in possession of opium,is standing at the corner of Kamruddin Nagar waiting for the customers. They formed a raiding party and requested the passers-by to join, but no body agreed. ASI also informed the SHO about the secret information on telephone and requested him to reach the corner of Kamruddin Nagar, Najafgarh Road. ASI alongwith the other staff reached the spot andrrested the accused. It is contended by the prosecution that an option under Section 50 of NDPS Act 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.

(3.) In this case, admittedly no written notice under Section 50 NDPS was given. The witnessses Public Witness . 2, Public Witness . 3, Public Witness . 4 and Public Witness . 10 have deposed about the fact of accused having been informed that he had a right to be searched in the presence of the Gazetted Officer. This at best could be considered as a partial compliance of the mandatory requirements of Section 50 NDPS Act. It appears that subsequently, the prosecution tried to improve upon its case by producing Public Witness . 6, Hari Ram, who is Special Police Officer and it cannot be ruled out that he is under the influence of the Police Authorities and he has deposed that a complete option was given. It may be noticed that statement of Public Witness . 6 was recorded on a date subsequent to the dates on which the earlier three witnesses had been examined. The chances of his having een tutored with a view to improve upon the case of prosecution cannot be ruled out. Therefore, his testimony does not inspire confidence. Strict compliance of Section 50 of NDPS Act in the present case is mandatory. In the facts and circumstances of the case, it appears that the prosecution has failed to comply with the said provision as the appellant was given at best only a partial option of being searched in the presence of a Gazetted Officer.