D.C.Dalela, J. - (1.) The short point on which the appeal is being decided does not require detailed discussion of facts and evidence. According to the prosecution on 3.10.1992 at 11 a.m. in Sardar Shahar on the road, 65 gms. of opium was recovered from the possession of the accused-appellant. Thus he was charged for the offence under section 8/18, NDPS Act, After recording the necessary evidence and hearing both the sides, the learned Special Judge NDPS Act Cases, Churu vide his judgment dated 13.6.1995 convicted the appellant for the said offence and sentenced him to a righours imprisonment for ten years and a fine of Rs. one lac.
(2.) Against this conviction and sentence this appeal has been preferred.
(3.) I have heard the arguments of both the sides. In this case it has not been proved beyond all reasonable doubt that the provisions of section 50, NDPS Act have been fully complied with. In the case of State of Punjab v. Balbir Singh, and in the case of Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, and in case of Sayyed Mohd v. State of Gujarat, it has been laid down by the Supreme Court that the provisions of section 50 of the NDPS Act are mandatory and noncompliance whereof would vitiate the conviction. In Ali Mustaffa Abdul Rahman Moosas case, (supra) the Apex Court has observed: "In State of Punjab v. Balbir Singh (supra) it has been held that before the authorised or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a gazetted officer or of a Magistrate. It was also held that section 50 confers a valuable right on the person to be searched in presence of a gazetted officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction. In Sayyed Mohd. v. State of Gujarat (supra) the Supreme Court's observations are: It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs and the Court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it T1for the possession of which he fails to account satisfactorily. Having regard to the grave consequences that maven tail the possession of illicit articles under the NDPS Act, namely the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has engaged the safeguard contained in section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir SinghTs case AIR 1994 SCW 1802 that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. From the above observations, it is evident that it is imperative on the part of the officer conducting a search to inform the person to be search of his right, if he so requires, to be searched before a Gazetted Officer or a Magistrate.";