JUDGMENT
R.R. Prasad, J.
1. The sole appellant, Ashok Kumar Bose having been found in possession of heroin, was put on trial to face charge under Section 20(b)(ii) of Narcotic Drugs and Psychotropic Substances Act, 1985. The learned trial Court having found the appellant guilty for the said charge, convicted him and consequently sentenced him to undergo R.I. for 10 years and also to pay a fine of Rs. one lakh.
2. The case of the prosecution is that on 29.7.1996 at about 12.30 p.m., a secret information was received by Sub-Inspector, Shiv Prakash Kumar (PW 2) that one person near a water tank at Purana Bazar, has been selling some narcotic substance and there young persons have assembled there for purchasing the same. On getting such information it was entered into the station diary and then he along with other police personnel, namely, Kanchan Kumar (PW 1), Sheikh Sabir (PW 3), Raji Ahamad (PW 4) and Constable Raj Narain Singh proceeded to that place and when they reached that place at about 1 p.m. the young boys who had assembled over there on getting sight of the police started fleeing away. However, one person was apprehended, who reportedly had indulged himself in selling the narcotic substance. On being quizzed he disclosed his name as Ashok Kumar Bose (appellant) and in presence of two independent witnesses, namely, Gopal Sao (PW 2) and Suresh Prasad (PW 7) search of his person was made and on being searched 12 packets each containing 1/2 gm. of some substance of brown colour suspected to be brown sugar and also a bag containing 5 gms. of brown sugar were recovered and said Ashok Kumar Bose disclosed to, them that the substance recovered is brown sugar, which is being sold to the persons. Said Ashok Kumar Bose failed to produce any licence and as such the appellant was found in possession of a narcotic substance in contravention of the provisions of the Narcotici Drugs and Psychotropic Substance Act.
3. Thereafter ASI, Shiv Prakash Kumar submitted a written report (Ext. 2) before the Officer-in-charge, Bank More Police Station. Dhanbad. Upon which a case was registered under Section 20(b)(ii) of NDPS Act and a formal FIR (Ext. 5) was lodged and the matter was taken up for investigation by ASI, Ashok Kumar (PW 5), who took the statement of the witnesses arid also made inspection of the place of occurrence and did send the incriminating article before Forensic Science Laboratory. Having been testified at the Forensic Science Laboratory, it was found to be Heroin a contraband taxicant substance and accordingly report to that effect was submitted, which has been marked as Ext. 3.
4. After completion of the investigation, the police submitted charge-sheet against the appellant. Accordingly the cognizance of the offences was taken and in due course when the case was committed to the Court of Sessions the charges were framed, to which the appellant pleaded not guilty and claimed to be tried.
5. In course of the trial, the prosecution examined as many as 8 witnesses. Of them PW 1, Kanchan Kumar, PW 3. Sheikh Sabir and PW 4, Raji Ahamad are the police officials, who accompanied the informant, Shiv Prakash Kumar to a place where one person was reported to have been selling narcotic substance. According to them, when they reached at the place of occurrence they succeeded in apprehending one person from whose possession packets of brown sugar were recovered and he disclosed his name as Ashok Kumar Bose (appellant) and the same was seized under seizure-list (Ext. 1). PW 2 is the informant. Shiv Prakash Kumar, PW 5 Ashok Kumar is the Investigating Officer, PW 6. Gopal Sao and PW 7, Suresh Prasad are the seizure-list witnesses, who though have admitted their signatures over the seizure-list, but have denied that anything was seized in presence of them.
6. After the prosecution case was closed the appellant was questioned under Section 313, Cr PC about the incriminating evidences brought appearing against him, to which he denied.
7. One defence witness seems to have been adduced on behalf of the appellant, whereby it has been stated that on the dale of occurrence the appellant was never at the place of occurrence.
8. The trial Court after taking into consideration the evidences brought on the record, did find the appellant guilty for an offence under Section 20(b)(ii) of Narcotic Drugs and Psychotropic Substance Act and hence convicted and sentenced him as aforesaid.
9. Being aggrieved with that the appellant has preferred this appeal before this Court.
10. Learned Counsel appearing for the appellant submits that the prosecution has failed to observe mandatory provisions as contained in Section 50 of the Narcotic Drugs and Psychotropic Substance Act as before seizure of any incriminating article from the person of the appellant he was never communicated about his right of being searched before any Magistrate or the Gazetted Officer and as such, entire trial gets vitiated and consequently the order of conviction and sentence is quite illegal.
11. Heard learned Counsel for the State.
12. Having heard learned Counsel for the parties and on perusal of the record, I do find that the witnesses, namely, PW 1, Kanchan Kumar, PW 3, Sheikh Sabir, PW 4, Raji Ahamad, including the informant. Shiv Prakash Kumar (PW 2) have testified that when they reached at the place of occurrence on getting information that one person is there, who had indulged himself in selling the narcotic substance, they apprehended one person, who disclosed his name as Ashok Kumar Bose (appellant) and on search being made a substance said to be brown sugar was recovered, but none of the witnesses as aforesaid has said that before search was made option was given to the appellant of his right being searched before any Magistrate or the Gazetted Officer. They’ are conspicuously silent on the point as to whether the appellant was communicated about his right of being searched in presence of Magistrate or any other Gazetted Officer, but the trial Court did not consider the statutory requirement as enshrined in Section 50 of the Narcotic Drugs and Psychotropic Substance Act which reads as under:
Section 50. Conditions under which search of persons shall be conducted.-
When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct the search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorized under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any Narcotic Drug or Psychotropic Substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under Sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.
12. From its reading it is evidently clear that if the person who is to be searched needs to be conveyed the statutory right as to whether he wishes to be searched before the Gazetted Officer or the Magistrate. This proposition of law has been well settled by so many High Courts as well as the Apex Court. Recently in the case of State of Haryana v. Ranbir @ Rana reported in 2006 (3) JLJR (SC) 117 : 2006 (3) East Cr C 136 (SC), Their Lordships have been pleased to reiterate the earlier view of three Judge Bench of the Supreme Court expressed in the case of State of Himachal Pradesh etc. v. Pawan Kumar that Section 50 of the Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying. In the instant case as has been found that mandatory requirement of asking option from the appellant in terms of Section 50 of the Narcotic Drugs or Psychotropic Substance Act has not been complied with conviction of the appellant cannot be upheld. Accordingly, the judgment of conviction and order of sentence dated 31st January, 2005 Passed by Additional Sessions Judge. Fast Track Court No. 6th. Dhanbad in G.R. Case No. 2218 of 1996 is hereby set aside and the appellant is acquitted and he is discharged from the liability of the bail bonds.
14. In the result, this appeal stands allowed.