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Himachal Pradesh High Court · body

2010 DIGILAW 329 (HP)

STATE OF HIMACHAL PRADESH. v. BAL KRISHAN

2010-02-24

RAJIV SHARMA, SURJIT SINGH

body2010
JUDGMENT Surjit Singh, J.(Oral)-This appeal is directed against the judgment dated 17.7.1997 of the learned Additional Sessions Judge, Shimla, whereby respondent-Bal Krishan who was tried for offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for allegedly possessing one kilogram opium has been acquitted. 2. Acquittal has been ordered by the trial court on the grounds that the Investigating Officer did not comply with the provisions of sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 while effecting search, inasmuch as he did not apprise the respondent of his right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the Departments notified as per requirement of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and also he did not record the reasons carrying out the search on the spot without obtaining authorization from authorized officer or a search warrant from a Magistrate. 3. We have heard the learned Additional Advocate General as also the learned counsel for the respondent. Search was conducted at an open public place during daytime. Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 applies when search is effected in a closed place and not when it is conducted at an open or public place. In such a case, it is section 43, which governs search and seizure and not section 42 of the Narcotic Drugs and Psychotropic Substances Act 1985. 4. However, we find from the record that section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was attracted in this case because the recovery was effected from the armpit of the respondent. Record shows that section 50 had not been complied with in letter and spirit. PW-1 Gani Meer though supported the prosecution story as far as recovery of opium is concerned, yet he did not say that the respondent was apprised of his right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the notified Departments, nor was he given option of being taken to Magistrate or a Gazetted Officer of such Department. Though the Station House Officer heading the search party, namely, PW-6 Madan Lal, then Inspector and PW-2 ASI Mal Dutt who was also a member of the party, did say that option was given to the respondent whether he wanted to be searched in the presence of a Magistrate or a Gazetted Officer of any of the notified Departments or on the spot by the Station House Officer, they did not testify nor did they record in the memo Ex.PA that the respondent was apprised of his right to be taken to a Magistrate or a Gazetted officer of any of the notified Departments and to be searched in the presence of such Magistrate or Gazetted Officer. Thus, the provisions of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 had not been complied with in letter and spirit. Therefore, the appeal is dismissed.