MANOJ ORAON Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This interlocutory application has been filed under Section 389(1) of the Code of Criminal Procedure on behalf of appellants for suspension of sentence and enlarging them on bail, during the pendency of the present appeal.

(2.) Learned counsel for the appellants has submitted that the search and seizure was not conducted in accordance to the mandate of provision of Section 50 of N.D.P.S. Act. It is evident from the recital in the F.I.R that the police had given the option to the accused-appellants whether they wanted the search to be conducted by the Magistrate or Gazette Officer or were they willing to undergo the search by the police. Learned counsel while relying on the decision in Vijaysinh Chandubha Jadeja vs. State of Gujarat; (2011) 1 SCC 609 has submitted that the Supreme Court has observed that the procedure prescribed under Section 50 of N.D.P.S. Act, is mandatory and if the search and seizure is not conducted in accordance to the provisions of Section 50 of the Act, then the order and sentence stands vitiated. It is argued that P.W.8, i.e., the independent seizure list witness, has stated that his signature was taken on a blank paper in the police station and nothing was recovered in his presence.

(3.) Learned A.P.P. has opposed and submitted that the contention raised by the learned counsel for the appellants has been considered by the trial court and in para 16 of the judgment, the court below has held that the provisions of Section 100 Cr.P.C as enumerated in Clause 4 of Section 50 of the N.D.P.S Act has been complied with as the independent witness has proved the seizure list.