TAMMINA DURGA VIJAYAWADA Vs. STATE REP BY PUBLIC

JUDGEMENT

(1.) The appellant/accused was convicted by the lower Court under Section 8(c )/20 (b)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and was sentenced to rigorous imprisonment of one year and fine of Rs.1,000/-. Questioning the same, the accused filed this appeal. It is alleged that on 25.11.2001, 1 1/2 kgs of ganja was seized from possession of the accused near Nehru Statue, Srinivasa Mahal, Kothapeta, Vijayawada and that the accused was having the same without any licence or permit. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found her guilty of the above charge.

(2.) It is contended by the appellant's counsel that non-examination of Inspector of Excise who is a gazetted Officer is fatal to the prosecution inasmuch as it amounts to violation of Section 50 of the Act. It is further contended that PW.1 who is the lone independent mediator, examined by the prosecution, turned hostile to the prosecution and did not support their case.

(3.) PWs.2 and 3 worked as Sub-Inspectors of Prohibition and Excise Department at Vijayawada. They were in the raid party at the time of arrest of the accused and alleged seizure of the contraband from her possession. The raid party consisted of Inspector of Prohibition and Excise (Enforcement), Vijayawada by name N.Kishore. The said Inspector was a gazetted Officer. At the time of arrest and seizure, Ex.P.2 mediators report was drafted. In that mediators report, it is mentioned and PWs.2 and 3 also have deposed before the trial Court to the effect that the raid party appraised the accused of her right to be searched in the presence of Magistrate or gazetted Officer and about the Inspector of Excise by name N.Krishore being a gazetted himself. It is further stated that the accused declined the offer for being taken to a Magistrate or gazetted Officer. Since there was a gazetted Officer in the raid party itself, there is sufficient compliance of Section 50 of the Act in case it is applicable to the present case. I am of the opinion that Section 50 of the Act has no application to this case because it is not a case of personal search of the accused by the raid party. In this case there was no personal search of the accused and it was only a baggage search. According to the prosecution, the accused was having M.O.1 bag containing M.O.2 ganja. In any event, Section 50 of the Act contemplates search of person of the accused in the presence of Magistrate or gazetted Officer and does not further contemplate that the said Magistrate or gazetted Officer should be examined in Court during trial.