BABAR AND ANR. Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal arises from the judgment and order in S.T No, 216/94 decided by the District and Sessions Judge, Ratlam dated 10-3-1995.

(2.) THE short facts giving rise to this appeal are that on 4-10-1994 when the Authority under the N.D.P.S, Act received an information that at Sailana the appellants were to bring Heroin, they can be watched. About 2 O'clock when the appel­lants arrived, they stopped them and prepared a Panchanama on their consent Mr. Vinod lal Shrivastava (PW-5) made a search on their person. On preparing a Panchanama it was found that they were in possession of 310gms. each of Heroin. The same was examined by the Analysers and found as such.

(3.) MR . M.A. Bohara, learned Counsel, appearing for the appellants through Legal Aid, argues only one point and that is non- compliance of Section 50 of the N.D.P.S. Act. He argued that the Panchanama does not make out that the appellants were given option of getting the search done by the aforesaid official or by a Gazetted Officer or Magistrate. He argued that Section 50 of the said Act is held to be mandatory by the Apex Court in the case of State of Punjab v. Balbir Singh, (1994) 3 SCC 299:1994 (1) EFR 516. He said that the Supreme Court has said that it is mandatory for the prosecution to hold the search according to Section 50 of the N.D.P.S. Act. He argued that if the accused requires the law as declared by the Supreme Court is that he must be given an option to go before the named Gazetted Officer or the Magistrate for the same.