SURESH KUMAR AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Accused-appellants-Suresh Kumar, Irshad Alam and Om Prakash, in the instant appeal seek to quash the judgment dated 30.7.1999 of the learned Special Judge (NDPS Cases) Bharatpur in Sessions Case No. 172/97 whereby each of the appellant was convicted under section 8/21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'the NDPS Act') to undergo 10 years rigorous imprisonment and a fine of Rs. 1,00,000.00 and in default to further undergo one year rigorous imprisonment.

(2.) The case of the prosecution is that on 18.7.1997 a bus belonging to UP Roadways No. UP 80 9846 was intercepted and the appellants were found having illegally possessed charas. After having completed all legal formalities provided in the NDPS Act, the appellants were arrested and charge-sheet was filed. Charge under section 8 /21 of the NDPS Act was read over to the appellants, who denied the charge and claimed to be tried. As many as 9 prosecution witnesses were examined. Thereafter statements of the appellants were recorded under section 313 Crimial P.C. The appellants did not produce any defence witness and the learned trial Court after hearing arguments convicted the appellants as indicated hereinabove.

(3.) Mr. A.K. Gupta, learned counsel appearing for the appellants invited my attention to the various infirmities in the case, but I proceed to discuss the infirmity related to Sec. 50 of the NDPS Act which goes in the root of the case. Before scanning the prosecution evidence it may be recapitulated that the provisions contained in Sec. 50 of the NDPS Act cast statutory duty on the person intending to take search that the person to be searched is to be informed that he has legal right to be searched in the presence of a Gazetted Officer or the Magistrate. This provision is mandatory in nature and violation thereof would be prejudicial to the accused. The words in Sec. 50 are unambiguous and have no scope for interpretation to the effect that the police officer or any other authority can violate this provision at their whims and pleasure. The intention of the Legislature obviously is that as stringent punishments are provided under the Act, there should be sound safeguards to ensure that innocent persons are not harassed or unnecessarily detained by any arbitrary or whimsical actions of the police or the other authorities.