SHAMIM AKHTAR Vs. STATE

JUDGEMENT

(1.) The short point involved in the case is whether the police under Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short referred to as "NDPS Act"), is required to give an option to the accused to have him searched in the presence of a gazetted officer or a Magistrate even when an Assistant Commissioner of Police, a gazetted officer was a member of the raiding party. Before dealing with this point, a few facts relevant to the case need be given as under : -

(2.) On 23rd July, 1990 an information was alleged to have been received by Assistant Commissioner of Police, Gandhi Nagar to the effect that a person having Charas in his possession comes in a train from Uttar Pradesh and when die tram slows down near Kailash Nagar before the bridge, he gets down from the moving train. The informer then met SI Jaivir Singh and informed that on July 23, 1990 at about 5.30 p.m. that particular person would be coming in the Moradabad passenger train carrying Charas in his briefcase and would get down there. On receipt of this information, a memo was prepared and two public witnesses were requested to join die raiding party and they agreed to join the same. Sh.O.P.Yadav, Assistant Commissioner of Police, Gandhi Nagar was informed and he also reached the spot. SI Jaivir Singh along with SHO Harvans Singh, two public witnesses and other staff had allegedly held Nakabandi along the western wall of Hanuman Mandir. At about 6.02 p.m. Moradabad passenger train came and slowed down before it reached opposite Kailash Nagar and a man having a briefcase of light brown colour got down from the train. When he came near the temple he was overpowered at the instance of the informer. He was informed about the presence of ACP and was told that the police had a secret information regarding Charas in his possession. A memo was prepared and the ACP directed search of the accused. SI offered his own search to the accused but the accused declined to search the SI. On checking of the briefcase, a polythene packet containing Charas was recovered which on weighment was found to be seven kilograms. After completion of investigation, the challan was submitted to Court. Charge under Section 50 of the NDPS Act was framed against the accused to which he pleaded not guilty. After the recording of evidence and completion of trial, the Additional Sessions Judge by his judgment dated 22nd November, 1991 held the appellant guilty of the charges leveled against him and convicted him under Section 20 of the NDPS Act and by order dated 28th November, 1991 sentenced him to undergo rigorous imprisonment of 10 years and a fine of Rs. 1 lakh.

(3.) Aggrieved by tills order, the appellant has filed this appeal. Admittedly, notice under Section 50 of the NDPS Act was not given to the appellant. The Additional Sessions Judge in his judgment while dealing with the provisions of Section 50 of the NDPS Act has held that in his view as the whole machinery was put into action by ACP, Sh.O.P. Yadav, who was a gazetted officer and he being present when the accused was apprehended and searched and the ACP having disclosed his identity to the accused before the search, there was no necessity of giving any notice under Section 50 of the Act because the accused was not to be taken anywhere for being searched and he was acquainted with the fact that ACP was a gazetted officer. It is this finding of the Court which is assailed before me by the appellant.