SIKANDAR Vs. STATE

JUDGEMENT

(1.) THE appellant was convicted by the III Additional Sessions Judge, Pondicherry in S.C.No.3 of 1993 for an offence punishable under Sec. 20(b)(i) of N.D.P.S. Act, 1985 and was sentenced to undergo R.I for 3 years and to pay a fine of Rs.5,000, in default, to undergo S.I for 6 months and hence this appeal.

(2.) P.W.3 - Inspector of Police, Muthialpet, Pondicherry, after receiving information from P.W.2 - Superintendent of Police, Special Branch, Pondicherry over phone, rushed to Indira Gandhi Park, Solai Nagar, Muthialpet, Pondicherry with P.W.1 and Manjini @ Krishnan and along with other police party at 3.30 p.m on 6.9.1992 and found the appellant and other accused possessing bags. After ascertaining their names and enquiring them, he was satisfied that they were selling Ganja. Therefore, he took them along with the witnesses to P.W. 2's office at about 4.00 p.m. and in the presence of P.W.2, the appellant and others were examined and 950 grams of Ganja leaves in 378 packets found in a polythene bag was recovered from this appellant. An amount of Rs. 15.50 was also recovered from the appellant. Certain amounts of ganja were also seized from A.2 and A.3 also with which were are not concerned presently. The Mahazar has been marked as Ex.P.1, attested by P.W.1. and another witness.

(3.) THE main thrust of argument of the learned counsel appearing for the appellant is that Sec. 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 has not been properly followed, since search was not made in the presence of an independent gazetted officer. In support of his contention, he relied on a ruling of the Calcutta High Court reported in Kartick Shaw and another v. State of West Bengal (2001) 4 C.C.R. 382. According to the learned counsel, P.W.3 taking the accused to a Gazetted Officer of the same Department is not sufficient compliance of Sec. 50 of N.D.P.S. Act. A Full Bench of Calcutta High Court in Jadunandan Roy v. State of West Bengal, (2000) C.C.R. 165 relied on in the earlier ruling held that once an option is exercised, the accused is required to be taken to the nearest Gazetted Officer or the Magistrate, but the said provision would be made nugatory if the Gazetted Officer is already at the spot. According to the Full Bench, the provision contemplates a decision by an independent Officer and not an officer, who is already a member of the raiding party. THEy have also held that the search must be conducted in the presence of a Magistrate or a Gazetted Officer, who is totally independent and is not in any way interested in the success of the raid. THE learned counsel further argues that the search said to have been made in the presence of P.W.2 on whose direction P.W.3 went to locate the accused is vitiated as P.W.2 is interested in the success of the raid.