STATE OF HIMACHAL PRADESH Vs. BAL KRISHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 17.7.1997 of the learned Additional Sessions Judge, Shimla, whereby respondent-Bal Krishan who was tried for offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for allegedly possessing one kilogram opium has been acquitted.

(2.) Acquittal has been ordered by the trial court on the grounds that the Investigating Officer did not comply with the provisions of sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 while effecting search, inasmuch as he did not apprise the respondent of his right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the Departments notified as per requirement of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and also he did not record the reasons carrying out the search on the spot without obtaining authorization from authorized officer or a search warrant from a Magistrate.

(3.) We have heard the learned Additional Advocate General as also the learned counsel for the respondent. Search was conducted at an open public place during daytime. Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 applies when search is effected in a closed place and not when it is conducted at an open or public place. In such a case, it is section 43, which governs search and seizure and not section 42 of the Narcotic Drugs and Psychotropic Substances Act 1985.