NAUMAN KHAN Vs. STATE OF U P

JUDGEMENT

(1.) ONKARESHWAR Bhatt, J. This appeal has been preferred by the appellant against the judgment and order dated 28-4-1994, passed by the then IVth Additional Sessions Judge, Saharanpur in Special Case No. 1 of 1994. The appellant has been convicted under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as 'the Act' and sentenced to 10 years rigorous imprisonment and to a fine of Rs. 1,00,000/-, in default of payment of fine two years' further simple imprisonment has been awarded.

(2.) SRI Raj Kumar Khanna, for the appellant and SRI G. S. Bisaria, learned A. G. A. , for the State have been heard.

(3.) IT is also been contended that there is partial compliance of Section 50 of the Act inasmuch as the arresting Officer Atit Gahlot asked the appellant whether he wants the search to be made before a Gazetted Officer. The arresting Officer has not stated about the option to be searched before a Magistrate. Although, in the statements before the Court S. I. Atit Gahlot, and PW-2, Sardar Singh, had stated that the appellant was offered to be searched before a Gazetted Officer or a Magistrate to which he declined. However, in the recovery memo Gazetted Officer alone finds place. The statements of the witnesses about the search being made before a Magistrate appears to be an improvement. In the case of Nishan Singh v. State of U. P. , 1995 (1) JIC 852 (All) : 1995 (32) ACC 651, when only offer was made to get searched before a Gazetted Officer and there was no mention of Magistrate it was not held that the right of the appellant emanating from Section 50 of the Act is not protected. The provision of Section 50 requires that on prior information the empowered officer or the authorized officer before the search of a person is made should inform such person that if he so requires he shall be produced before a Gazetted Officer or a Magistrate. Failure to inform would amount to non-compliance of Section 50 of the Act. The evidence on record shows that Section 50 of the Act has not been complied with.