Banerjee, J. - (1.) The Statement of Objects and Reasons of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act") categorically records the inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain look at the provisions of the Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safeguards provided under the Statute so as to be in tune therewith.
(2.) At this juncture, however, it would be convenient to advert to the contextual facts briefly : The factual score records that on 23rd January, 2000, Inspector Mr. Katara along with two Head Constables and four Constables was on patrolling duty and whilst on duty at the bus stand at Chowk in Upleta at about 3.00 p.m. it was noticed that the accused on seeing the police started running. This undue movement however aroused the curiosity and as such accused was intercepted and upon having the presence of two Panchas was searched which however led to the disclosure of small size plastic bag containing Charas of about 12 gms. in weight. The inspector lodged a complaint at about 1630 hours and necessary entries were made in the records. The substance found in the plastic bag was forwarded to the Forensic Science Laboratory for opinion and all necessary formalities thereafter were complied with culminating into the filing of the charge-sheet. The learned Sessions Judge framed the charge against the accused who pleaded Rs. not guilty and as a matter of fact in his statement under S. 313, Cr. P.C, the appellant has stated that the evidence stands created, as he was not aware of any such incident as noticed above. The learned Sessions Judge, however, on the basis of available records convicted the accused person and sentenced as noticed earlier. The High Court, however, confirmed the conviction as well as sentenced the accused to suffer rigorous imprisonment for 10 years and a fine of Rs. 1.00 lakh with a default clause as well.
(3.) The principal contention raised that since the deterrent punishments are prescribed under the NDPS Act, the legislature has taken care to incorporate several provisions in Chapter V of the Act and as interpreted by this Court, the provisions are mandatory in nature and non-compliance therewith would completely vitiate the trial. It is on this score it has been contended in support of the appeal that by reason of the factum of ascertainment of the wishes and desires of the accused as regards the search and seizure and that being a mandatory requirement and there being admitted non-compliance therewith, question of either maintaining the guilt of the accused person by the Additional Sessions Judge or confirmation thereof by the High Court would not arise. In this context S. 50 has been very strongly emphasised, which we feel it convenient to set out along with Ss. 51 and 57 on which the appellant also laid strong emphasis. The said provisions read as below : "50. Conditions under which search of persons shall be conducted (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in such-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." "51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act." "57. Report of arrest and seizure Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior." ;