TaxTMI 
TaxTMI 
2006 (11) TMI 557
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....on was informed and 5 kgs. 890 gms opium was recovered. They were arrested at the spot. Learned Sessions Judge, Guna recorded a judgment of acquittal, inter alia, holding that the search and seizure was vitiated in law as mandatory statutory requirements contained in Sections 50 and 42 the NDPS Act were not complied with. The seizure witnesses did not support the prosecution case. The informant also did not comply with the requirements of Section 57 of the NDPS Act. Sealing of the contraband materials was not carried out in accordance with law as no responsible officer fixed seal on the seized samples. The State preferred an appeal before the High Court against the said judgment of acquittal which was registered as Criminal Appeal No.524 of 1998. The High Court reversed the said judgment of the learned Sessions Judge holding : (1) provisions contained in Section 57 of the NDPS Act are not mandatory and there has been a substantial compliance of the said provision as the informant Shri S.S. Tomar did not have any prior information; (2) the question of obtaining any warrant from a Magistrate or a Gazetted Officer under Section 41 did not arise; (3) he has also no oppor....
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....diate official superior." The witnesses of the seizure were : P.W.1 - a sweeper engaged in the police station and P.W.2 - a cycle mechanic who was carrying on his business in front of the police station. They were examined before the learned Trial Judge. They have not supported the case of the prosecution at all. They were declared hostile. Having regard to the testimonies of the said witnesses, as also various other circumstances as noticed in his judgment, the learned Sessions Judge opined that the likelihood of S.S. Tomar having prior information about the matter cannot be ruled out. The learned Judge found that P.W.10 in his cross-examination accepted that he entertained doubts that the accused had been in possession of contraband and, therefore, he intended to comply with the provisions of Section 50 of the NDPS Act. The High Court, however, without meeting the reasonings of the learned Sessions Judge proceeded to take the prosecution case as gospel truth and opined that neither the provisions of Section 50 of the NDPS Act nor Section 42 thereof were required to be complied with. The First Information Report did not contain any statement that the provisions of Section....
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....under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated i....
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....earch would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory....