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Judgment
Appellant is the Slate. This appeal is directed against the judgment dated 24-2-1999 SC No.1 of 1999 (NDPS Act) on the file of the Special Judge, NDPS Act-cum-Metropolitan Sessions Judge, Visakhapatnam wherein the accused was found not guilty of the charge u/s 8(c) read with Section 20(b)(i) of NDPS Act and was acquitted there under.
The case of the prosecution in nut shell is that on 6-11-1999 at 11-00 AM, during the course of the raid conducted by the search party consisting of the Sub-Inspector of Police, Anakapalle town PS (PW3), Mandal Revenue Officer, Anakapalle (PW2) and V. Bheemarao a mediator (PW1) and another mediator and Prohibition and Excise Staff, the accused was found in possession of 3Kgs., of ganja with him and the same was seized by PW3 in the presence of PW2 who is a Gazetted Officer and effected the arrest of accused.
A charge u/s 8(c) read with Section 20(b)(i) of NDPS Act was framed against the accused, to which he pleaded not guilty and claimed to be tried.
To substantiate its case against the accused, the prosecution has examined PWs.1 to 3 and relied on Ex.Pl to Ex.P4 and also got marked MOs.1 and 2. No evidence is adduced on behalf of the accused.
On consideration of the evidence and material on record, the trial Court found the accused not guilty of the offence with which he is charged and acquitted him thereto. Hence this appeal by the State.
The point for determination is whether the trial Court has erred in acquitting the accused for the charge levelled against him?
The evidence of PWs 1 to 3 is relevant to decide this matter. They have stated in their evidence that on 6-11-1998 the accused was apprehended while he was in possession of 3 Kgs., of ganja by search party, upon which seizure was conducted in the presence of PW2 Mandal Revenue Officer who is a Gazetted Officer. The evidence of PWs 1 to 3 is found reliable with regard to the factum of search.
In such circumstances, in view of the various decisions rendered by the Supreme Court as well as this Court, it was held that the procedure u/s 50 of the Narcotic Drugs and Psychotropic Substances Act (for short ''the Act'') is mandatory. In the instant case, PW2 Mandal Revenue Officer who is a Gazetted Officer, is a member of raiding party. PW3 does not say anything about the fact, whether the accused was given an option of being taken before a Magistrate or a Gazetted Officer for the purpose of conducting search. He stated that along with him, he took Mandal Revenue Officer (PW2) and search was conducted in his presence. The trial Court found that unless the accused is made known of his option, the search cannot held to be a valid search and further the Trial Court had found that even if the accused was given an option to be searched in the presence of Mandal Revenue Officer who is a Gazetted Officer, such a search would amount to partial compliance of Section 50 of the Act. On this aspect, 1, in Cr. A No.373 of 1994 having taken into account the judgments rendered in Aswini Alias Ashoka Kumar Behera v. State of Orissa, 1996 Crl.U 900 (Orissa High Court), and Sardar Singh v. State of Rajasthan, 1996 Crl.U 3186 (Rajasthan High Court), held that the partial compliance of Section 50 of the Act, giving option to the accused with regard to the search before a Gazetted Officer only, does not amount to compliance of Section 50 of the Act. It was further held that the accused shall be put to knowledge about his right of exercising option to be searched either before a Gazetted Officer or a nearest Magistrate. In the instant case, mere presence of Mandal Revenue Officer who is a Gazetted Officer is only an indication that the search was intended to be made before the Gazetted Officer without informing the accused about his right of option to be exercised with regard to the search before a nearest Magistrate. In such a case, such search is vitiated for want of compliance of Section 50 of the Act and hence the accused is liable to be acquitted on that ground alone.
The trial Court having considered this aspect has come to a right conclusion with regard to the mandatory nature of Section 50 of the Act and compliance/partial compliance thereof before ordering the acquittal of the accused. Hence, I do not find any reason to interfere with the judgment of the trial Court and the same is liable to be confirmed.
In the result, the appeal is dismissed at the admission stage confirming the judgment of the trial Court.