Nirmaljit Kaur, J. - (1.) THIS is a leave to appeal under Sec. 378(III) & (I) Cr.P.C. against the order dt. 15.9.2011 passed by the Special Judge (N.D.P.S.) Cases, Sri Ganganagar whereby he has acquitted the accused -respondent from the charges under Sec. 8/ 18 of the NDPS Act. While praying for setting aside the order of acquittal, learned counsel for the State submitted that the respondent has wrongly been acquitted by the trial Court on the ground that Section 50 of the NDPS Act was not complied with. It was further contended that on the said date, the SHO, Police Station Lalgarh Jatan along with Ran Singh, Shanker Lal, Hava Singh and Kailash Chandra reached at Bhagath Singh Tiraha near Lalgarh Jatan while patrolling, they saw one person was standing near the road. On seeing the police, he started running and hid himself behind the wall. On asking, he disclosed his name Nand Lal @ Nand Kishore. However, he did not give any reason as to why he had started running. Accordingly, the police gave notice to Mohan Lal and Ram Lal who were standing near Tiraha and took their consent as independent witnesses. The respondent was searched and on search, one white plastic packet was recovered in the pocket of his trouser in which black coloured liquid opium was filled. He did not have the licence to carry the said opium. Thus, the same was stated to be a chance recovery and in case of chance recovery, compliance of Section 50 is not necessary.
(2.) LEARNED counsel for the respondent, however on the other hand submitted that there was no ground to interfere in the order passed by the trial Court as the same was not a chance recovery but the search was conducted on suspicion. Heard.
(3.) IT is not disputed by the learned counsel for the State that the SHO, Police Station, Lalgarh Jatan had searched the respondent on suspicion. Once the search is conducted on the basis of suspicion, the question of chance recovery does not arise. In the facts of the present case, the SHO, Police Station Lalgarh Jatan, had enough time even to give notice to Mohan Lal and Ram Lal to appear as independent witnesses. Hence, it cannot be said to be chance recovery. Thus, it was incumbent upon the concerned police officer to comply with Section 50 of the NDPS Act. It has been held in the various judgments of the Hon'ble Apex Court that provisions of subsection (1) of Section 50 make it imperative for the empowered officer to inform the person concerned i.e. the suspect about the existence of his right that if he so required, he can be searched before a gazetted officer or a Magistrate. Failure to inform the suspect about the existence of his said right shall cause prejudice to him. Admittedly, no such offer was made to him,;