- (1.)THIS appeal has been filed by the accused appellant against the judgment and order dated 31. 8. 1987 passed by the learned Sessions Judge, Balotra in Sessions Case No. 10/86 by which he while acquitting the accused appellant for the offence under Section 18 of the Narcotic Drugs & Psychotrophic Substances Act, 1985 (hereinafter referred to as `the NDPS Act'), convicted him for the offence under Section 17 of the NDPS Act and sentenced to undergo ten years rigorous imprisonment and to pay fine of Rs. one lac, in default of payment of fine, to further undergo RI for one year.
(2.)IT arises in the following circumstances:- PW8 Abdul Majid, S. H. O. Police Station Mandli District Barmer lodged FIR Ex. P/11 on 24. 1. 1986 with the Police Station Mandli District Barmer stating inter-alia that on that day, he alongwith Gomaram, Head Constable (PW4), Gumnaram, Head Constable (PW6), Khet Singh, Constable (PW3) and some other police officials proceeded as per secret information of mukhbir and reached near Heeraram-ki-dhani, where they saw a boy having a bag in his hand proceeding towards west side of Heeraram-ki-dhani and that boy was apprehended after encircling him and at that time, two motbirs, namely, PW7 Jeta Ram and PW5 Bhagwanaram were also called and on being asked, that boy told his name as Babu Ram (accused appellant) and then, the bag, which was in his hand, was checked and on opening it, back substance was found and it was assessed that it was nothing, but contraband opium. Thereafter, it was weighed and its weight was found to be 3 kg. , out of which, one sample of 30 grms. was taken for the purpose of chemical analysis and sealed separately on the spot and the remaining opium was also sealed separately on the spot. PW8 Abdul Majid prepared the fard of search and seizure on the spot and the same is Ex. P/3. The accused appellant was arrested through arrest memo Ex. P/4. PW8 Abdul Majid handed over the seized articles to Malkhana Incharge PW4 Gomaram, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/5a. Thereafter, through Ex. P/6a, the sample was sent to SP, Barmer, where it was checked by PW1 Pemaram and, thereafter, vide letter Ex. P/1, the sample was sent to FSL, Jaipur through PW2 Sukharam and the receipt of depositing the sample in FSL, Jaipur is Ex. P/2 and the FSL report is Ex. P/12 where it was reported that the sample was found to be of opium having 1. 61% (One point six one per cent) Morphine. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate and from where the case was committed to the Court of Session. On 4. 8. 1986, learned Sessions Judge, Balotra framed charges for the offence under Sections 17 and 18 of the NDPS Cases against the accused appellant. The charges were read over and explained to the accused appellant. The accused appellant denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 8 witnesses and got exhibited some documents. Therefore, statement of the accused appellant under Section 313 Cr. P. C. was recorded. In defence, one witness was produced by the accused appellant. After conclusion of trial, the learned Sessions Judge, Balotra through his judgment and order dated 31. 8. 1987 acquitted the accused appellant for the offence under Section 18 of the NDPS Act, but convicted him for the offence under Section 17 of the NDPS Act and sentenced in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under section 17 of the NDPS Act only. Aggrieved from the said judgment and order dated 31. 8. 1987 passed by the learned Sessions Judge, Balotra, this appeal has been filed by the accused appellant.
In this appeal, many submissions have been raised by the learned counsel appearing for the accused appellant, but his one of the most important submissions is that in this case, compliance of mandatory provisions of Section 50 of the NDPS Act was necessary as it was a case of personal search and since compliance of mandatory provisions of Section 50 of the NDPS Act has not been made in any manner, therefore, the whole trial against the accused appellant stands vitiated and the accused appellant is entitled to acquittal on this ground alone.

On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge, Balotra.

I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.

To appreciate the above contention, first the legal aspect of Section 50 of the NDPS Act has to be mentioned here. Object and purpose of Section 50 of the NDPS Act

(3.)THE purpose of informing a suspect that search could be taken in the presence of a Gazetted Officer was to ensure that there was safeguard against planting any incriminating article.
These provisions have been made in order to protect the interests of the citizens from irregular and illegal invasion on his liberty by the authorities as well as in the interest of the State to secure the evidence bearing upon the commission of the crime and necessary to enable the justice to be done shall not be withheld from the course of law on merely formal or technical grounds.

The object of making it peremptory on the part of the officer so as to ensure that the officer, who is charged with the duty of conducting the search, to conduct it properly and not to harm or wrong, such as planting of offending drugs by any interested party and to prevent fabrications of any evidence.