BADRI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE short point on which the appeal is being decided does not require detailed discussion of facts and evidence. According to prosecution on 14-5-92 in (sic) at 11.00 a. m. the accused-appellant was searched and thereupon 2.500 kgs. of opium was recovered from his possession. Thus, he was charged for the offence under Section 8/17-18, NDPS Act. After recording the necessary evidence and hearing both the sides the learned Special Judge, NDPS Act cases, Jodhpur vide his order dated 6-4-93 convicted the accused-appellant for the said offence and sentenced him to a rigorous imprisonment for ten years and a fine of Rs. one lac. In default of the fine a further imprisonment for one year was directed.

(2.) AGAINST this conviction and sentence this appeal has been preferred by the accused-appellant.

(3.) IN the case in hand, the accused-appellant was given only one option to be searched in the presence of a Gazetted Officer. The option to be searched in the presence of a Magistrate was not given to the accused-appellant. PW 9 is S. H. O. Samunder Singh Rathore, who conducted the search of the appellant. He has deposed that before the search is made the accused was informed as to whether he wants the search to be effected in the presence of a Gazetted Officer and when the appellant expressed his desire for the search in the presence of the Gazetted Officer, he was taken before the Circle Officer or Dy. S. P., who was a Gazetted Officer and there the search was effected and the recovery was made. From the memos Ex. P-1and Ex. P-2 it is also evident that the accused-appellant was given only one option to be searched in the presence of a Gazetted Officer. No option for the search in the presence of a Magistrate was given to the accused-appellant. In my opinion, therefore, the provisions of Section 50 have not been fully complied with. Thus, there has been a non-compliance of the provisions of Section 50 of the NDPS Act.