BALU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant was accused on the file of learned Special Judge NOPS Cases Chlttorgarh bearing Sessions Case No. 33/2000. Learned Special Judge NDPS Cases Chittorgarh vide Judgment dated February 15, 2002 convicted and sentenced the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') to undergo rigorous imprisonment for ten years and fine of Rs. one lac, in default to further suffer rigorous imprisonment for two years.

(2.) Brief facts necessary for the disposal of this appeal are these : On May 26, 2000 SHO, Police Station Vljaypur after receiving secret information through some Mukhbir proceeded to Vljaypur bus-stand along with police party. Around 11.30 a.m. one person was seen carrying a plastic bag on his right shoulder. The person got halted and on being enquired he gave his name as Balu Jat. A notice under Section 50 NDPS Act was given to him and on being searched he was found possessing 3 100 kg. opium Illegally in the plas tic bag. The opium got recovered and necessary memos were drawn. After usual investigation charge-sheet was filed. Charge under Section 8/18 NDPS Act was framed against the appellant who denied the charge and claimed trial. The prosecution in support of its case examined as many as 12 witnesses and got exhibited 23 documents. In the explanation under Section 313, Cr.P.C., the appellant claimed innocence. No defence witness was however examined. The learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated hereinabove.

(3.) It is contended by learned counsel for the appellant that on being given written notice under Section 50 of the NDPS Act requiring the appellant to exercise option to be searched either before the Magistrate or the Gazetted Officer, the appellant only wrote on the notice 'Main Sehmat Hoon' (I agree) and put his signatures. The appellant did not give any content to be searched by the SHO, but the SHO effected the search and thereby flouted the mandate of Section 50 of NDPS Act. Thus very foundation of prosecution case is illegal and the appellant could not be convicted and sentenced.