RAJESHWAR MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal by the sole appellant arises from the judgment and order of the 2nd Additional Sessions Judge, East Champaran at Motihari in case no. 10 of 1998/49 of 1993 convicting him under section 23 of the Narcotic Drugs and Psychotropic Sub -stances Act (hereinafter called the Act) and awarding sentence of rigorous imprisonment for 14 years and fine of Rs. 1,50,000/ - and in default, further rigorous imprisonment for two and a half years.

(2.) IT may be stated at the outset that along with the appellant herein, one Ramashray Sah was also convicted by the same judgment. Ramashray Sah preferred Criminal Appeal No. 169 of 2000 which was allowed by a Division Bench of this Court on 26.2.2002. The learned Judges held that as it was a case of body check, the requirement of Section 50 of the Act should have been followed, and on account of non -compliance thereof, the conviction was not in accordance with law which was accordingly set aside.

(3.) MRS . Nirmala Kumari, appearing amicus curiae for the appellant submitted that as the case of the appellant stands on par with that of Ramashray Sah, his conviction too is fit to be set aside. Sri Rakesh Kumar, learned counsel for the Customs, submitted that it is not a case of noncompliance of Section 50 of the Act. He submitted with reference to the evidence of P.W. 1 that the person of the appellant was searched in presence of a gazetted officer namely, Assistant Commissioner of Customs and, therefore, the question of informing the accused appellant about his rights envisaged in Section 50 of the Act did not arise. Counsel urged that it was only where the search of a person is not made in presence of a gazetted officer or a magistrate that the suspect has to be given an opportunity and informed about his right to get his person searched in presence of the gazetted officer or a magistrate.