STATE OF HIMACHAL PRADESH Vs. BHAG SINGH

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 2nd April, 2003, passed by the learned Sessions Judge, Kullu in Sessions trial No. 1172002 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 the Act).

(2.) THE prosecution story in brief is that, P.W. 8, S.I Jagdish Chand received secret information that a person wearing a chocolate colour sweater was travelling in a bus from Bathahar to Banjar and was carrying some charas. The information was reduced into writing and sent to the S.P. Kullu vide wireless message EX. P.W. 2/A. Thereafter, P.W. 8 alongwith other police officials and two independent witnesses formed a raiding party. When the raiding party reached at Khundan mor, the Pvt. Bus was stopped. The accused was accosted and apprised that the police officials were suspicious that he was carrying some charas and an option was given to him as to whether he was willing to give his search before the Magistrate or a Gazetted Officer. The accused consented to be searched before the police and on search by the I.O., charas was found tied to the legs of the accused.

(3.) IT is, thus, clear that the accused not only must be informed that if he so desires, he can be taken to the nearest Gazetted Officer or Magistrate but he also must be informed that he has a legal right in this regard. In the present case, the consent memo itself (EX. P.W. 4/A) shows that he was only told that if he wanted, he could get his search done before the Magistrate or Gazetted Officer. He was not informed that he has a legal right in this behalf. Therefore, on account of non compliance of section 50 accused has to be acquitted.