- (1.) The short question that has come up for consideration in this appeal is whether the empowered officer, acting under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') is legally obliged to apprise the accused of his right to be searched before a Gazetted Officer or a Magistrate and whether such a procedure is mandatory under the provisions of the NDPS Act.
(2.) PW1, Additional Superintendent of Police (Crimes), Jaipur City, Jaipur got secret information that on 25.2.2001 one Ashok Kumar, the appellant herein would be selling smack to a person near Nandipur under Bridge. After completing the formalities PW1 along with two independent witnesses reached near Nandpuri under Bridge. At about 4.55 P.M. a person came on a scooter, who was stopped by the police force and was questioned. Exhibit P-3, notice was given by PW1 under Section 50 of the NDPS Act to the appellant to get himself searched either before a Magistrate or a Gazetted officer. The appellant gave his consent in writing on Ex.P-3 itself stating that he has full confidence in him and agreed for search. Upon search two packets had been recovered from the right and left pockets of the pant of the appellant. The contra-banned was weighed by PW7, goldsmith and the total weight of the packets was 344 gms. From each packet two samples of 10 gms. were taken and sealed and remaining packets were sealed separately. The appellant was then arrested and the scooter was seized.
(3.) PW1 gave a written report to the Station House Officer, Malviya Nagar Police Station, Jaipur to register FIR No.112/2001 under Section 8 and 21 of the NDPS Act. Ex-P-19, report of the Public Analyst of the Rajasthan State Forensic Laboratory, Jaipur showed that the samples contained the presence of diacetylmorphine (Heroin). On completion of the investigation, challan was filed against the accused. Learned Special Judge, NDPS framed the charge under Sections 8 and 21 of the NDPS Act. Before the Special Judge, prosecution examined 14 witnesses and produced Ex. P1 to P19. The accused-appellant in his statement under Section 313 of the Code of Criminal Procedure stated that false case had been foisted against him.;