N.K.Bhattacharyya, J. - (1.)By this revision under section 482 of the Code of Criminal Procedure the accused petitioner has challenged the proceeding in connection with Lake Town P.S. Case No. 194 of 1994. dated 23.10.94 and also a proceeding arising out of that Lake Town P.S. Case No. 194 of 1994 being Case No. N-42 of 1994 under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, pending before the court of the learned Additional Sessions Judge, 2nd Court, Barasat, Nort 24-Parganas
(2.)The fact, briefly stated, is that on 23rd October, 1994 at 9-15 hours the complainant J. K. Biswas, I.C. of Lake Town Police Station, along with Sub-Inspector S. Bhattacharyya, Sub-Inspector S. Bose, Constable Debabrata Sarkar, Constable Ranjit Dey and Ram Gobinda Roy, all of the Lake Town P.S., conducted a raid at Dakshindari Bazar near 27 No. Railway Gate, being accompanied by some dis-interested witnesses, and apprehended the accused Mahadev Dey, Panchu Das, Pratima Ghosh, the present petitioner, and Fatema Bewa, and conducted search on them and recovered five small purias of brown sugar from the possession of the accused Panchu Das, weighing about 88 ml., five purias of brown sugar weighing about 88 ml. from the accused Mahadev Dey, six purias of brown sugar weighing one gram from the accused petitioner Smt. Pratima Ghose and four purias of brown sugar from the accused Fatema Bewa, weighing about 70 ml. under different seizure lists. They were taken to the Lake Town Police Station and a complaint was lodged upon which the Lake Town P.S. Case No. 194 of 1994 dated 23.10.94 was started for an offence under section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 and on the basis of the said P.S. Case a case was started before the court of the learned Additional Sessions Judge, tad Court, Barasat, being Case No. N-42 of 1994. Charge-sheet has been submitted and the trial commenced against the accused persons for an offence under section 21 of the aforesaid Act.
(3.)Mr. Debabrata Banerjee, learned Advocate appearing on behalf of the accused petitioner Smt. Pratima Ghose, contended that as section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has not been complied with, the entire proceeding is bad so far as the petitioner is concerned. In support of his submission he relied on two decisions of the Supreme Court, to wit, The State of Punjab v. Balbir Singh reported in AIR 1994 SC 1872 and also the case of Ali Mustaffa Abdul Rahman Moosa v. State of Kerala reported in 1995 C Cr LR (SC) 1. In the case of the State of Punjab (Supra) the Apex Court has held, inter alia, that on prior information, the empowered officer or authorised officer while acting under section 41(2) or 42 should comply with the provisions of section 50 before the search on the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires failure to take him to the gazetted officer or the magistrate would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. It is an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a magistrate. Thus the provisions of section 50 are mandatory.
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