ALLAUDDIN AHMAD Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) The appeal is directed against the judgment of conviction dated 23.12.2004 and order of sentence dated 24.12.2004 passed by Shi Prakash Rai, Special Judge ( N.D.P.S. Act), Hazaribagh in G.R. Case No. 2042 of 1992; T.R. No. 1 of 2004 arising out of Sadar P.S.Case No. 380 of 1992, by which judgment he found the appellant, Allauddin Ahmad guilty under Section 21(b) of the Narcotic Drugs and Psychotropic Act and sentenced him to undergo R.I. for 10 year and also to pay a fine of Rs. one lakh and in default of payment of fine he shall undergo further R.I. for 4 years more. However, he acquitted the co-accused, Jawed Akhtar since the provision of Section 50 of the N.D.P.S. Act was not complied.

(2.) It is submitted by the learned Counsel for the appellant that the appellant had raised two legal points before the Special Judge that since seizure was made by the police officers, who were not specially empowered to conduct the search and seizure, hence the entire search and seizure is bad in law and fit to be set aside. It is further submitted that the persons making search and seizure in the house of the appellant, was not an authorized person to make search and seizure under the N.D.P.S. Act and as such the search and seizure itself is bad in law and hence the conviction of the appellant is only fit to be set aside. It was also argued by the learned Counsel for the appellant before the trial court that the mandatory provisions of Section 50 to get the seizure made in presence of gazetted officer or a magistrate was also not done in the instant case and as such the conviction of the appellant is also bad in law and fit to be set aside.

(3.) On the other hand, learned Counsel for the State has supported the prosecution case and stated that two persons were tried for the offence under Sections 18 and 21 of the N.D.P.S. Act and since contraband drug i.e. opium and brown sugar were recovered from the person of the accused-appellant, Allauddin Ahmad and he was acquitted since neither any Magistrate was called nor they were informed that they have got any right to search in presence of Magistrate or gazetted officer, but from the house of this accused-appellant 16 pouch of brown sugar was recovered in total 1Kg.650gms, in that view of the matter, his conviction is sufficient and does not require any interference by this Court.