SANDEEP MEHTA,J. - (1.) By way of this appeal, the appellant herein has approached this Court for challenging the judgment dated 28.06.2017 passed by the learned Special Judge, N.D.P.S. Act Cases, Pratapgarh in Sessions Case No. 05/2010 whereby, the appellant was convicted for the offence under Section 8/21(b) of the NDPS Act and was sentenced to 6 years' R.I. and a fine of Rs. 60,000/- in default of payment of fine, to further undergo 1 year's R.I.
(2.) Facts in brief are that the SHO, Police Station Pratapgarh, Pratap Singh (PW-15) allegedly received a source information on 26.05.2009 that the appellant herein, who is a disabled person would be procuring illicit brown sugar from Akkhepur and would be proceeding to Banswara via Pratapgarh Zero Mile Circle. The information was considered reliable and was taken down in writing and forwarded to the superior officials and thereafter a Nakabandi was laid on the Pratapgarh Banswara road. At about 08.40 pm., a person, whose features tallied with those of the appellant, was seen standing near the Rajeev Gandhi Park. He was confronted by the police party and identified himself to be Sikandar. He was given a notice under Section 50 of the NDPS Act and then his personal search was conducted. A power like substance packed in polythene was found tied with a white cloth on the abdomen of the accused which upon opening was suspected to be brown sugar. The recovered contraband weighed 250 gms. with the polythene packing. The requisite procedure of sampling, sealing, etc. was conducted on spot. The accused was arrested and thereafter, the police party returned to the police station Pratapgarh where FIR No. 168/2009 was registered and investigation commenced. The sample collected from the suspected contraband was forwarded to the Forensic Science Laboratory from where a positive report regarding presence of brown-sugar was received. After investigation, a charge-sheet was filed against the appellant herein for the offence under Section 8/21 of the NDPS Act and against the co-accused Wasim for the offence under Section 8/29 of the NDPS Act. Charge was framed against the accused in these terms. Both the accused pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses in support of its case. The accused, upon being examined under Section 313 Cr.P.C., 1973 denied the prosecution allegations. The accused Sikandar himself appeared as a defence witness and a witness Ganeshlal was also examined in defence. At conclusion of proceedings, the trial court proceeded to acquit the co-accused Wasim from the charge under Section 8/29 of the NDPS Act but convicted and sentenced the accused appellant as above by the impugned judgment dated 28.06.2017. Hence this appeal.
(3.) Shri Pitaliya learned counsel representing the appellant raised a solitary contention to challenge the appellant's conviction. He urged that alleged recovery of contraband was effected during the personal search of the appellant. Before searching him, the seizure officer, allegedly gave a notice (Ex.P/8) to the accused under Section 50 of the NDPS Act. He urged that the notice contains three options with the third option being that the accused could get himself searched by the SHO himself. He urged that apprising the accused of the third option that the police officer could himself search the accused is contrary to the mandatory requirement of Section 50 of the NDPS Act as has been held in the judgment rendered by Hon'ble the Supreme Court in the case of State of Rajasthan v. Parmanand and Anr., reported in 2014(2) Criminal Court Case 077 (S.C.) : AIR 2014 SC 1384 . He further urged that the I.O. did not record the option selected by the accused on the notice and without recording the consent of the accused, he himself proceeded to conduct personal search of the accused. He thus contended that the entire proceedings of search and seizure are vitiated as having been carried out in gross contravention of mandatory requirement of Section 50 of the NDPS Act and therefore, implored the Court to set aside the impugned judgment and acquit the accused of the charges.;