Decided on August 23,2012

Anand Bhandari Appellant


Servesh Kumar Gupta, J. - (1.) THIS appeal has been preferred by the appellant against the judgment and order dated 24/27.9.1999, passed by the Additional Sessions Judge, Dehradun in Special Sessions Trial No. 23/94, State v. Anand Singh Bhandari, whereby the appellant Anand Bhandari has been convicted under Section 8/20 of the NDPS Act and sentenced to undergo ten years' rigorous imprisonment and a fine of rupees one lakh. Accused appellant was simultaneously tried in Sessions Trial No. 25/96, wherein he has been convicted under Section 25 of the Arms Act and sentenced to undergo one year's rigorous imprisonment. All the sentences have been directed to run concurrently.
(2.) IN short, the prosecution version is that on 23.4.1993, police got an information that appellant does the business of vending contraband charas. So, one SI Sharad Kumar of Police Station Cantt. Dehradun taking few constables with him proceeded towards the spot where the accused was standing. The said SI sent one of the fellow constables, Ashok Kumar to fetch the public witnesses and then reach at the spot. All told, the police personnel nabbed the accused. He was apprised regarding his right to be searched before a Gazetted Officer or a Magistrate, but he waived his right and asked the police personnel to make search of his person. Accordingly, the SI searched his person and recovered 40 gms of charas and a country made pistol. Recovery memo Ex. A -1 was prepared at the spot. All other formalities were completed by the police party and after investigation chargesheet was submitted against the accused appellant. Prosecution examined all four constables and one SI to prove its case. PW 6 Dr. O.P. Taneja, Joint Director, was also examined to prove that the contraband narcotic recovered from the accused was charas. After conclusion of the trial, the court below found the accused guilty and sentenced him as stated above.
(3.) LEARNED Counsel for the appellant argued that no compliance of Section 50 of the NDPS Act was made by the nabbing party. He must have been taken to a Gazetted Officer or a Magistrate before the search was conducted upon his person. The mention of denial on the part of the accused from being taken to the Magistrate or a Gazetted Officer has been done in the recovery memo by the police personnel themselves. Accused never waived his right. It also seems to be very ridiculous that all police personnel including the aforenamed SI offered the accused to take search of every police personnel in order to rule out the possibility of having such charas with the police. Further it has been stated in the recovery memo that one Constable Ashok Kumar was sent to procure the public witnesses but he returned with vacant hands and apprised the SI that no public man is ready to be a witness of the incident.;

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