STATE OF GUJARAT Vs. ASHOKKUMAR SANKALCHAND

JUDGEMENT

(1.) THIS acquittal appeal arises out of a judgment and order recording acquittal of the respondents of charges under Sections 18 and 25 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and under Sections 16A and 66A of the Bombay Prohibition Act, by City Sessions Court, Ahmedabad in Sessions Case No.248 of 1988.

(2.) AS per the prosecution case, respondents No.1 and 2 were found to be in possession of contraband opium weighing 6 Kg on 08/11/1987 at about 11:00 am near Vashtrapur Andhjan School, while they were travelling in auto-rickshaw bearing Registration No.GRX 6223, which was driven by respondent No.3. The Police was waiting for this rickshaw to come, as they had arranged a watch pursuant to an information received by them about respondent No.1 distributing opium in auto-rickshaw No.GRX 6223.

(3.) SINCE the appeal is very old, we deem it appropriate to examine the merits and for that purpose we have heard learned APP and learned Advocate Mr.Padiya. 5.1 We find that the Police was acting upon prior secret information regarding a Narcotic offence and when the vehicle was intercepted, respondent No.1 was allegedly found to be in personal possession of the contraband. It is an admitted fact, as can be seen from the evidence of Investigating Officer, as well as from the Panchnama of seizure drawn at the time of occurrence, that mandatory requirements of Section 50 of the NDPS Act have not been complied with. No option or opportunity was afforded to the suspect of search being made in presence of any other Gazetted Officer or a Magistrate. This would vitiate the entire investigation and prosecution, as per settled proposition of law. The trial Court was, therefore, justified in recording acquittal.