STATE OF HIMACHAL PRADESH Vs. BAHADUR

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 3.4.2003 passed by the learned Sessions Judge, Kullu in Sessions Trial No. 58/02 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.) BRIEFLY stated, the facts of the case are that on 2.2.2002 PW -12 SI Tameshwar alongwith PW -8 ASI Dorje Ram, constable Chand Parkash and PW3 constable Teja Singh, were at Check Post Bajaura, on patrolling and traffic duty. At about 7.00 p.m., PW -12 received a secret information that one person wearing a blue colour jacket was sitting on seat No. 19 of Haryana Roadways Bus bearing No. HR -55 -8087, which was en -route from Manali to Chandigarh. According to this information, the said person was carrying some Charas. The information was reduced into writing and sent through constable Teja Singh to the Supervisory Officer at Kullu. The case of the prosecution further is that the bus was stopped at 7.40 p.m. and the person sitting on seat No. 19 was asked about his identity and he gave his name as Bahadur son of Shayam Lal (accused). He was informed that the police officials suspected that he was carrying some contraband and an option was given whether he wanted to be searched before a Magistrate or a Gazetted Officer or by the police official. The accused agreed to be searched by the police official and on search of the accused, 1 Kg. and 450 grams of Charas was recovered, which was kept in a polythene packet and was concealed under the shirt worn by the accused. Samples were drawn and other codal formalities were completed at the spot. The sample was sent to the Chemical Examiner, who vide his report Ext. PW5/B opined that the sample was of Chras. It is not necessary to give all the facts in detail since we are of the opinion that this appeal can be disposed of on the short ground that there is non -compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act.

(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: -