STATE OF HIMACHAL PRADESH Vs. MANOJ KUMAR

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 4.10.2002 passed by the learned Sessions Judge, Kullu in Sessions Trial No. 53/02 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act).

(2.) THE prosecution story in brief is that on 31.1.2002 PW -8 SI Balwant Singh alongwith PW -3 H.C. Chaman Lal and PW -5 C. Sunil Kumar was standing at a place known as Pahli (Banjar) for routine checking duty. At about 8.00 a.m. a person was seen coming on foot from Gushaini side towards Banjar. On seeing the police, this person tried to run away. This aroused the suspicion of the police officials who apprehended the said person. On enquiry, he disclosed his name to be Manoj Kumar (accused). The accused was informed that the police officials suspected that he may be carrying some contraband and thereafter gave him an option of his right to be searched before a Gazetted Officer or Magistrate vide memo Ext.PW -1/C. The accused consented to be searched by the police. Thereafter during the search of the accused, khaki colour envelope was found tied to the legs of the accused. On opening the said envelope, charas weighing 3 Kg and 900 gms was recovered. Two samples of 25 grams each were drawn separately and the two samples and the bulk charas were sealed in three separate parcels bearing seal impression 'B '. NCB form was filled up on the spot and thereafter the charas was taken into possession vide seizure memo Ext.PW -1/A. Ruqua Ext.PW -8/A was sent to the police station on the basis of which, FIR Ext.PW -4/A was registered. After completing the other formalities the case property including the charas was deposited with the PW -4 MHC Mohan Lal in the police station.

(3.) THE Constitution Bench of Apex Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609 dealt with the question as to how the provisions of Section 50 have to be complied with. The Apex Court held that Section 50 is mandatory and casts a duty upon the Investigating officer to inform the accused that he had a legal right to insist that he be searched either by a Gazetted Officer or a Magistrate. The Apex Court interpreted Section 50 in the following manner: -