(1.) This appeal is directed against the judgement dated 2.4.2004 rendered by Special Judge, Rohtak whereby the appellant-accused was convicted for keeping in his possession 800 gms of charas without any permit or license thereby committing an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the NDPS Act). Vide order on sentence dated 5.4.2004, appellantaccused was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for two years.
(2.) Brief facts of the prosecution case are like this that on 23.1.2002, Samunder Singh ASI alongwith police officials was present on the bridge of Minor Canal situated in the area of village Girawar on patrolling and checking of crime. At about 5.15 PM, he received secret information against Rajbir (accused) that he indulges in narcotic drugs and was coming from village Girawar on his scooter bearing No.HR-15-1333. In the meanwhile, the aforesaid scooter came from the village Girawar side. He was apprehended with the help of police officials. On enquiry he disclosed his name as Rajbir son of Ram Singh Jat, resident of Ballamba. Suspecting that he was in possession of charas, notice under Section 50 of the NDPS Act was given to him, giving an option as to if he wanted to be searched by a Gazette Officer, Magistrate or by the police officer himself. The accused exercised his option in favour of Gazetted Officer. Notice to this effect is (Ex.PN) and reply is (Ex. PO). Through Constable Kuldeep Singh, a message was given to DSP, Meham through telephone to reach the spot.
(3.) I have heard Mr. Manish Verma, Advocate for the appellantaccused and Mr. Sandeep Vashisht, Deputy Advocate General, Haryana for the State, besides going through the entire material coming on record. First of all, it was argued by Mr. Manish Verma, advocate for the appellant-accused that in this case compliance of Section 50 of the NDPS Act has not been made. Though notices (Ex.PN and Ex.PB) were given to the accused giving him an option as to if he wanted to be searched by a Gazetted Officers or Magistrate, he had also given him the option as to if he wanted to be searched by that officer as well. In fact both the aforesaid officers i.e. investigating officer and DSP, Meham did not tell the accused that he was having a right to be searched by or in the presence of a Gazetted Officer or Magistrate.