- (1.) THIS appeal is directed against the judgment date Jan. 7, 1989, of the District & Sessions Judge, Barmer, convicting and sentencing the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act,1985, (hereinafter referred to as the Act) to year's R. I. and a fine of Rs. one lac and in default of payment of fine to undergo one years further R. I.
(2.) THE petitioner was found to be in posseassion of 2 kg and 100 grams of opium which was recovered as a result of personal search effected by Avtar Singh Station House contention raised by the counsel for the peth one officer, city Kotwali, on Oct. 14. 1987. THE principal is that there was no. Compliance of sections 50 and 57 of the Act. Learned counsel has , in this connection, cited before me Biram vs. State of Rajasthan 1988 Cr. L. R. (Raj.) 79 1990 RCC 268 (1) and Bhanwar Singh vs. State of Rajasthan (2 ). In Biram's case G. K. Sharma,j after noticing the provisions of section 50 of the Act held :- Thus, it is clear that before taking search the officer who is authorised to take Search should ask, the person if her required to be taken before the nearest magistrate Mentioned in 42. Thus search should not be taken unless the condition of this Section is fulfilled. The words " if such person required" are very significant. In the present case there is nothing on the record is snow that the condition of Section 50 of the Act are fulfilled. The S. H. O. has not stated in his statement that he had asked or he had brought to the notice of the accused persons about the conditions of Sec. 50 of the Act, It means that the mandatory provision has not been followed," In Bhanwarsingh's case V. S. Dave, J opined : The Officer, therefore, is obliged to inform the accused before a search is made that if he desires, he can be taken to the nearest gazetted officer of any department for effecting the Breach. This is not a ritual or idle formality to be performed or to append a note at the end of the search memo that the accused has not desired to be taken to the gazetted officer. The right to officer mentioned in S. 42 is only available when he has informed the accused of his right. This is further clear from the words mentioned in sub-section (3) of S. 50 wherein a right is given to the gazetted officer or the Magistrate before whom such person is brought to forthwith discharge that person if he seas no reasonable ground for search but other wise he shall direct that the search be made. A composite reading of sub-secs. (1) and (3) leaves no room of doubt to give the interpretation that the person to be search has to be asked if he requires to be taken to the nearest gazetted officer of any department mentioned in S. 42 or to the nearest Magistrate. In the present case, there is nothing on record to show that the requirements of section 50 of the Act were complied with. The Station House Officer has not stated in his statement that he had informed the accused before the search that if he desired he could be taken to the nearest gazetted officer for effecting the search. As the mandatory provisions of Section 50 of the Act have not been complied with, the conviction of the petitioner cannot be sustained. Accordingly, the appeal is accepted: the conviction and sentence of the appellant for the offence under sectionl8 of the Act is set aside and he is acquitted of the charges levelled against him The accused is in jail. He shall be set at liberty forthwith if not required in any other case. . ;