MD.KALIMUDDIN @ MD.ALIMUDDIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the impugned judgment of conviction and order of sentence dated 8.9.1997 passed in G.R, Case No. 1944 of 1995 whereby and where under the learned Sessions Judge -cum -Special Judge, Dhan -bad held the sole appellant guilty, under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substance Act, (hereinafter to be referred as 'NDPS Act ') and convicted him and sentenced him to undergo R.I. for four years and also imposed a fine of Rs. 2,000/ - and in default of payment of fine, to further undergo R.I. for three months.

(2.) THE prosecution case in brief is that the informant Dilip Kumar, Sub -Inspector of Police -cum -Officer -in -charge of Loyabad outpost alongwith constable Panchu Das and Constable Bijli Ram was on ambush duty at about 7.15 p.m. on 29.5.1995. At the same time, the informant got confidential information that the appellant illegally deals in sale of contraband ganja and illicit liquor. On this piece of information, the informant along with two constables and two independent witnesses raided the residential house -cum -shop of the appellant and in course of search, 33 packets each containing 2 grams and 8 packets each containing 1 grams of ganja and 61 polythene pouches each containing 200 ML of illicit liquor were recovered and seized from a bag kept in the shop of the accused and a seizure list was prepared. After investigation, charge sheet in the case was submitted, but before submission of charge sheet, all paraphernalia regarding the handing over the seizure list to the appellant, examination of the seized contraband, etc. were complied with. After submission of charge sheet, cognizance in the case was taken and the learned Court below recorded the evidence of witnesses '' both oral and documentary ''produced on behalf of both the sides and came to a finding and held the appellant guilty and convicted him and sentence him as aforesaid. 3. While assailing the judgment, learned counsel for the appellant has submitted that there is no compliance of mandatory provisions of Section 50 of the NDPS Act and due to non -compliance of Section 50 of the NDPS Act, the trial has been vitiated. It was further submitted that from perusal of the judgment, it will appear that appellant was not given an opportunity or was not asked to know about his right whether he wants his premises to be searched in presence of a Magistrate or a Gazetted Officer and the informant without complying with the mandatory provisions of Section 50 of the NDPS Act, made searches and recovered the contraband articl es as aforesaid. In this connection, my attention was drawn to 1997 Supreme Court Cases (Cri) 830 wherein it has been held that non -compliance of mandatory requirement of informing the accused of his right to know as to whether search of his premises to be made in presence of a Gazetted Officer or a Magistrate renders conviction unsustainable. My attention was further drawn to 1995 Supreme Court Cases (Cri) 564 wherein also, it has been held that for searching premises of the appellant, requirement of Section 50 of NDPS Act, has to be complied with as provisions of this section are mandatory in nature and accused should be informed of his right that premises be searched in presence of a Gazetted Officer or a Magistrate, but from perusal of the entire records, I do not find that any such information has been given to the appellant informing him of his right, whether he wants, his premises to be searched only in presence of a Gazetted Officer or a Magistrate and the informant by searching premises without complying with the mandatory requirement of Section 50 of NDPS Act has violated the mandatory provisions of law.