STATE OF HIMACHAL PRADESH Vs. NACHHATAR SINGH
LAWS(HPH)-1997-5-68
HIGH COURT OF HIMACHAL PRADESH
Decided on May 05,1997

STATE OF HIMACHAL PRADESH Appellant
VERSUS
NACHHATAR SINGH Respondents


Referred Judgements :-

STATE OF HIMACHAL PRADESH VS. PIRTHI CHAND [REFERRED TO]


JUDGEMENT

R.L.KHURANA, J. - (1.)THE State of Himachal Pradesh has directed the present revision petition against the order dated 6.7.1987 of the learned Sessions Judge, Una, whereby the respondent Nachhattar Singh was discharged of the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).
(2.)THE prosecution story briefly may be stated thus. On 22.3.1986, Sub Inspector Daulat Ram, the then S.H.O. of Police Station , Amb, alongwith certain other police officials was on patrol duty and were proceeding on the road leading to Dera Baba Barbagh Singh, Nehri. When the police party reached near Patwarkhana, the respondent tried to slip away on seeing the police party. He was accordingly apprehended and during the course of his personal search 60 gms. of opium was recovered from his pocket. The opium so recovered was seized and taken into possession after taking out 5 gms thereof separately as sample. On the basis of the report sent to the police station, a case under Section 9 of the Opium Act came to be registered. After necessary investigation, the respondent was charge -sheeted and sent up for trial for the offence under Section 9 of the Opium Act, before the Sub -Divisional Judicial Magistrate, Amb. Later on, a supplementary challan was put up by the investigating agency on the ground that the offence under Section 18 of the NDPS Act was made out and that the Opium Act stood repealed on and with effect from the date of coming into force of the NDPS Act. The learned Magistrate upon presentation of such supplementary challan committed the case for trial to the Court of Sessions at Una, since all the offences under the NDPS Act were triable by a Court of Sessions.
(3.)THE learned Sessions Judge, upon consideration of the material placed on record, came to the conclusion that apart from the non -compliance with certain other provisions of law, there was non -compliance of Section 50 of the NDPS Act, which requires that before a person sought to be searched, he is to be given an option whether he would like to be searched in the presence of a gazetted officer or a Magistrate.
It is well settled proposition that the provisions of Section 50 of the NDPS Act are mandatory and the non -compliance thereof is fatal to the prosecution case.



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