UMAKANTA PATEL Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, accused of an offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') for his allegedly being in possession of Ganja weighing 650 grams, has approached this Court under Section 439, Cr. P.C. for his release, his application having been rejected by the Special Judge, Bhawanipatna.

(2.) Mr. D. K. Misra, learned counsel for the petitioner perfervidly advanced his argument that there being partial and not full compliance of Section 50 of the Act, the petitioner as of right is entitled to be released on bail. In support of his submission he relied upon certain decisions of this Court, viz., Rabi Sahoo v. State, (1994) 7 Ori CR 460, Fakir Sundari v. State of Orissa, (1995) 8 Ori CR 320, and Narahari Das v. State, (1995) 9 Ori CR 121.

(3.) It has been authoritatively held by the Hon'ble Supreme Court in State of Punjab v. Balbir Singh, (1994) 6 Ori CR (SC) 283 : AIR 1994 SC 108 (sic.) that Section 50 of the Act is mandatory and non-compliance thereof vitiates the trial. As has been observed, it is imperative on the part of the officer to inform the person to be searched of his right that if he requires to be searched before a Gazetted Officer or a Magistrate. This is a valuable right given to the person to be searched in presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and credit-worthiness to the proceedings while equally providing important safeguard to the accused. There being no dispute about the legal proposition as has been ruled by the Apex Court as to the consequence of non-observance of the mandate prescribed by Section 50 of the Act, the question arises whether the Court while considering the prayer for bail can look into the relevant records to find if there has been compliance or otherwise of the aforesaid provision.