TaxTMI 
TaxTMI 
2002 (9) TMI 872
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....brown sugar besides a sum of Rs. 2800/-. The samples were taken and forwarded to the Chemical Analyser who reported that heroin (diacetyl morphine) is detected in both the samples. 2. The prosecution examined in all six witnesses in support of the charge. The learned Special Judge (NDPS) accepted the prosecution evidence relating to recovery of brown sugar from the person as also from the house of appellant and held the appellant guilty under Section 21 of the NDPS Act. On conviction, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. one lakh, in default, to suffer further rigorous imprisonment for two years. The period of detention undergone during the investigation and trial was set off in terms of Section 428 Criminal Procedure Code. The appellant challenges the conviction and sentence imposed by filing this appeal. 3. The learned Advocate for the appellant substantially and mainly urged two points before me. The first contention advanced by him is that insofar as recovery from person is concerned, the safeguard under Section 50 of the NDPS Act have not been complied with inasmuch as the appellant was not informed....
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....f brown sugar, without having any valid licence, permit or authorisation and thereby committed an offence punishable under Section 21 of N.D.P.S. Act, within my cognizance. And, I hereby direct that, you above named accused be tried by me on the said charge." In the charge, there is neither any specific reference to the recovery of part of brown sugar from personal search nor there is reference to recovery of the balance brown sugar from the house of appellant. In my considered opinion, the charge has thus caused serious prejudice to the appellant. 6. Be that as it may, coming to the challenges advanced by the learned Advocate for appellant, I shall first deal with the challenge relating to the recovery from the person of the appellant. This recovery, admittedly, was made on prior information and the police party had gone along with the panchas. Section 50(1) of the NDPS Act provides that when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 and Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departm....
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....nbsp; (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." it has been pointed out by the Apex Court in the aforesaid judgment that failure to inform the accused about existence of his right to get search before a Gazetted officer or a Magistrate would cause prejudice to the accused. 8. In this judgment, the Apex Court did not express any opinion as to whether the provisions of Section 50 of the NDPS Act are mandatory or directory, but it was held that failure to inform the person concerned of his right to get search conducted before a Gazetted Officer or a Magistrate wo....
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....the presence of the Executive Magistrate or Magistrate or Gazetted Officer of any department of the State Government. If you desire we can make arrangement of the same." This notice only speaks of a provision relating to personal search in the presence of Executive Magistrate or Magistrate or Gazetted Officer as also that if the appellant so desired, arrangement could be made for the same. This notice, in my opinion, in the context and evidence on record, does not apprise the appellant of his right but only points out the existence of such provision. The accused must be made aware of the right in clear, unambiguous and categorical terms that he has a right to get himself searched before the Gazetted Officer or the Magistrate and that if he so desires he can be taken to a Gazetted officer or a Magistrate. The notice in question falls short of the requirement under Section 50(1) of the NDPS Act. Besides this, the pancha witness Dr Sitaram Joshi (PW 5) on this aspect has stated that the police told the accused that search had to be taken and police asked the accused whether he intended to offer the search before Executive Magistrate. This deposition also does not con....
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....the conviction of the appellant on the basis of recovery of illicit article from his possession cannot be sustained and is required to be set aside. 14. It may be mentioned here that the learned Special Judge, NDPS has in para 11 of the judgment stated that the Investigating officer is a Gazetted Officer and as such, there is compliance of Section 50(1) of the NDPS Act in the present case. This finding of the learned Special Judge, NDPS cannot fulfil the requirements of Section 50 of the Act inasmuch as P.W. 6 Wasudeo Sidam is Investigating Officer and the Gazetted Officer before whom the accused is to be taken for search in case the accused so desires, cannot obviously be the Investigating Officer himself, but has to be another Gazetted Officer. If the reasoning of the learned Special Judge, NDPS is accepted, it will have the effect of nullifying the provisions of Section 50 of the NDPS Act. The learned Special Judge has thus taken an erroneous view in respect of Section 50 of the Act when he has stated that there is compliance of Section 50 of the NDPS Act because the Investigating Officer himself is a Gazetted Officer. 15. Now, coming to the second challenge advanced by th....
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....d that police entered the house of the accused and the accused took out a packet containing brown sugar. In cross-examination he stated that he did not know the owner of the house. In this context, statement of this witness that the police entered the house of the accused, does not have much significance. On this aspect, the Investigating Officer Wasudeo Sidam (PW 6) has stated that the accused told that brown sugar and the sale proceeds were in the house and he agreed to produce the same. He further stated that accused took them to a building and went into the bed-room and from one cupboard he took out a polythene bag containing brown sugar. He admitted during cross-examination that he had not enquired about the ownership and occupation of the building from where the property was produced by the accused in the Corporation record. He also stated that he did not record statements of adjoining occupants of the house. In case of recovery from the house, it is incumbent on the prosecution that the house from where recovery is effected, either belongs to the accused or that it was in his occupation. None of this has been proved by the prosecution. In this respect, learned Advocate for t....