Decided on August 26,1996



A.B.Mukherjee, J. - (1.)This is an application under section 482 Cr PC praying for quashing the criminal proceeding being special court case No.6 of 1995 under section 18 of the Narcotic Drugs and Psychotropic Substances Act hereinafter referred to as the Act pending before the court of session at Raiganj. The case of the petitioner is that he was arrested on 20.3.94 by one S.I. of Excise on the allegation of being in unlawful possession of 500 gms. of opium alleged to be kept hidden in a bamboo container embedded beneath the wooden cot of petitioner's bed room in the line hotel. The Prosecution report dated 20.3.94 was filed before the S.D.J.M., Islampur. The petitioner was produced in the court of S.D.J.M. on 21.3.94 and his prayer for bail was rejected by the magistrate and subsequently by the sessions Judge. Later he was enlarged on bail by an order of this court. As per the copy of the seizure list and the prosecution report, search was effected in the bed room of the petitioner at line hotel on 20.3.94 when opium is alleged to have been recovered. After commitment cognizance was taken by the Judge, special court. It is alleged that in terms of section 36-A(I)(d) of the Act cognizance is to be taken on the basis of prosecution report which is to be treated as complaint and as such the taking of cognizance is not in accordance with law. It is alleged that there was total non-compliance of the mandatory provision of section 50 of the Act. No opportunity was given to the petitioner for the search being conducted in presence of a Magistrate or a Gazetted Officer.
(2.)The revisional application is being resisted by the State. It is argued for the petitioner that mandatory provisions of section 50 of the Act has not been complied with. A scrutiny of the original seizure list dated 20.3.04 reveals that at the time of conducting search, some formalities were observed as detailed in page II of the seizure list numbering 'B' amongst others, it mentions that there was no time to obtain search warrant as time would vitiate the very purpose of search. Section 42 of the Act empowers certain officials mentioned therein to make a search of the person or place when he has reason to believe either from his personal knowledge or from information given by any person and take down in writing that any offence punishable under Chapter IV of the Act has been committed with regard to any narcotic Drug and Psychotropic substance. In the event of not taking out the search warrant in terms of section 41 of the Act, section 42 of the Act may be resorted to but in that case the safe-guard provided in section 42(2) of the Act, namely, forwarding a copy of the report of the information received by the officer conducting search must be sent to his immediate superior Official. The safe-guard noted in page 11 of the seizure list does not reveal that this provision was observed.
(3.)In terms of section 50 of the Act, it is incumbent for the officer conducting search to inform the person concerned the option to have the search conducted in the presence of a Gazetted officer of any of the departments mentioned in section 42 or the nearest Magistrate. In case, the person concerned is in favour of such a course, then the person concerned is to be detained until the service of such officer is available. The law gives power to the said officer or the Magistrate as the case may be to discharge the person if he sees there is no reasonable grounds for search as enjoined by section 50(3) of the Act. The safe guard mentioned in page II of the seizure list, clearly shows that no option was given to the petitioner to have the search conducted in presence of a Magistrate or Gazetted Officer of the departments concerned. The purpose of having this safe guard in this statute has been emphasised in several decisions of this court, as well as the appex court. In a deserving case law even given authority to the Magistrate or Gazetted Officer of a concerned departments to discharge the person concerned forthwith in the event of there being as reasonable ground for the search. Therefore, the purpose of this provision is to safeguard the interest of a innocent person who may not be harassed by officials or implicated in a case under the Act falsely. The safe guard is essential in view of the stringent punishment attached to offences under the N.D.P.S. Act. The absence of complying with section 50 of the Act makes the search illegal and as such prosecution an the basis of recovery of any incriminating article under N.D.P.S. Act cannot lye unless section 50 of the Act is deserved strictly. In the present case, as this has not been done, the prosecution is bad In law and its continuance shall be an abuse of process of the court.

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