STATE OF H.P. Vs. RAM RATTAN S/O SH. MAHABIR, RESIDENT OF VILLAGE MOHANA, TEHSIL BALAMGARH, DISTT. FRIDABAD, HARYANA

JUDGEMENT

(1.) THE present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C. in reference to the impugned judgment dated 11.12.2006, passed by the learned Special Judge, Fast Track Court, Kullu, Himachal Pradesh, in Sessions Trial No. 92/04, acquitting the accused - respondent for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). The prosecution case in brief is that on 25.01.2004, a police team headed by SI Daya Sagar along with ASI Narian Singh and other police officials while on patrol duty apprehended the accused -respondent.

(2.) On obtaining consent of the accused -respondent, his personal search was conducted and a polythene envelope containing 1 Kg. charas was found, out of which two samples 25 gms each were separated and the same were sealed with seal impression 'T'. Thereafter the samples were sent for chemical examination. After investigation the accused was charge -sheeted for the aforesaid offence. In order to prove its case, the prosecution has examined as many as 7 witnesses. Inter alia on many other grounds and keeping in view the inconsistencies and contradictions considered for acquitting the accused by the learned trial court, the important aspect that requires consideration is that while making his personal search the accused -respondent was not apprised of his legal right of being searched before a gazetted officer or a Magistrate, as such, mandatory requirement of Section 50 of the NDPS Act was not complied with. For non -compliance of mandatory requirement of Section 50 of the NDPS Act, in view of judgment of the Hon'ble Supreme Court (Constitution Bench) in Vijaysinh Chandubha Jadeja vs. State of Gujarat, : (2011) 1 SCC 609, the prosecution case is vitiated. Relevant paragraph of Vijaysinh Chandubha Jadeja's case supra are extracted below: -

(3.) IN view of the above discussion, for non -observance of the mandatory requirement of Section 50 of the NDPS Act, the present criminal appeal becomes devoid of any merit, as we also find that the learned Special Judge, Fast Track Court, has rightly arrived at the finding that the prosecution has failed to bring home guilt against the accused beyond reasonable doubt. Accordingly, the appeal is dismissed. The bail bonds furnished by the accused -respondent are cancelled and surety discharged.