MD ISMAI GULTANIA Vs. STATE

JUDGEMENT

(1.) 1. Two questions which crop up in this jail appeal can be met with the single answer. The conviction of the convict/appellant recorded by the learned Trial Court in respect of the charge of section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act) and sentence of rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (Rupees one lakh); in default, to suffer further rigorous imprisonment for a period of two years on 15.3.2000, has been questioned on the ground that the provisions of section 12 of the said Act was not complied with in so much as PW. 3, who acted on a source information and apprehended the convict/appellant, did not send inform ation to his Superior Officer as required under sub-section (2) of section 42 of the said Act and there was non-compliance of section 50 of the said Act as the right to be searched in the presence of either a Gazetted Officer or a Magistrate, was not informed to him.

(2.) Learned State Defence appearing in support of the jail appeal referred to the decisions of Vinod vs. State of Maharashtra, 2003 SCC (Cri.) 14, Beckodan Abdul Rahiman vs. State of Kerala, 2002 C Cr LR (SC) 522 and K. Mohanan vs. State of Kerala, 2000 SCC (Cri.) 1228, in support of his contention that unless the Police Officer concerned conducting a search on the basis of prior information, informs the accused of his right, the mandatory requirements of section 50 of the said Act cannot be said to be complied with. He showed from the evidence of PW. 3 and PW. 4 both the members of the raiding team that nowhere the question of the said right was informed to the convict/appellant; whereas only the word 'offer' was stated by both PW. 3 and PW. 4.

(3.) Learned State Defence showed from the evidence of PW. 4 that the intimation was not given to the Superior Officer in writing which violated the provisions of section 42 of the said Act. He referred to the decision of a Division Bench of our Court in Abdul Khalek @Raja vs. Narcotic Control Bureau, Eastern Zonal Unit, 2002(1) CHN 85 and prayed for setting aside the conviction recorded against the convict/appellant.