JUDGMENT
V.K. Tahilramani, J.
1. The appellant has preferred the present appeal impugning the judgment and order dated 6th May 1987 passed by the Additional Sessions Judge, Pune in Sessions Case No. 426 of 1986. By the said judgment and order the appellant was convicted under Section 20 of the NDPS Act, 1985 and sentenced to R. I. for ten years and fine of Rs. 1 lakh in default R. I. for six months.
2. It is the prosecution case that on 9th November 1986, P.W. 1 P.S.I. Kadam received an information that one Ramesh Chavan (appellant) resident of Dattawadi colony which is under the Swargate Police Station, possesses and sells charas in his house No. 424 of Dattawadi. P.S.I. Kadam immediately summoned the panchas and proceeded towards the spot of offence. The raiding party noticed that in the open court yard of house, four persons were sitting together. They apprehended the persons. The appellant came to be searched and on the personal search of the appellant, in his hand, one plastic packet containing 55 ‘charas’ pellets were found. Thereafter, the appellant came to be arrested. The case came to be registered. After due investigation, the charge sheet came to be filed and in due course, the charge came to be framed against the present appellant under Section 20 of NDPS Act and under Section 20 read with Section 29 of NDPS Act. As stated above, the appellant came to be convicted by the learned Sessions Judge and hence, the present appeal.
3. The learned advocate for the appellant has mainly raised two submissions i.e. the provisions under Section 50 of the NDPS Act, have not been complied with. He has contended that under Section 50, it is mandatory that the accused person should be informed before his search is taken about his right to be searched in the presence of a Gazetted Officer or a Magistrate. In the present case before the personal search of the appellant was taken, he was not apprised of his right to be searched in the presence of Gazetted Officer or a Magistrate. Thus it was submitted that in the present case, before the personal search of the appellant was taken, he was not apprised of his right under Section 50 and thus, conviction of the appellant is vitiated on this count.
4. I have perused the evidence led by the prosecution in the present case. P.S.I. Kadam who had received information and was part of the raiding party is examined as P.W. 1, Police Head Constable N. P. Raut who was also part of a raiding party is examined as P. W. 2, Mr. G. N. Mane the panch witness relating to the search of the appellant and the seizure of pellets from him, is examined as P.W. 3. P.W. 4 Police Head Constable Sarjerao Gulabrao Dhole is the person who had received the muddemal articles and P.W. 5 Police Constable V. G. Gode is the person who had carried the articles to the C. A. On perusal of the record pertaining to this case and especially the evidence of those witnesses connected with search and seizure, it is clear that it is nowhere reflected that the appellant was apprised of his right to be searched in presence of the Gazetted Officer or Magistrate as envisaged under Section 50 of the NDPS Act.
5. The learned advocate for the appellant in support of his contention, has placed reliance on the decision of the Apex Court in Mahinder Kumar v. State of Panaji (Goa), and State of Punjab v. Baldev Singh. In Baldev Singh’s case (supra), in paragraph 55, it is observed thus :
“On the basis of the reasoning and discussion above, the following
conclusions arise :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. (4) .......... (5) .......... (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
6. In the case of Mahinder Kumar (supra), it has been held that the provision of Section 50 of the Act are mandatory. It was further observed in the said case that as the mandatory requirements had not been adhered to, the accused is entitled to be acquitted.
7. In the present case, there is no doubt that the conviction has been recorded only on the basis of possession of the pellets of Charas by the appellant which were recovered from his person during his search. Prior to the search the appellant was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate. Thus, the said search being conducted in violation of the provisions of Section 50 of NDPS Act, the appellant would be entitled to the acquittal.
8. In the result, the appeal is allowed.
The judgment and order dated 6th May 1987 recorded by the Addl. Session Judge, Pune in Sessions Case No. 426 of 1986 is set aside. The appellant is on bail. His bail bonds shall stand cancelled.