1 S.B.CRIMINAL LEAVE TO APPEAL NO.218/2008 (State Vs. Ravi Prakash) Date of Judgment : 24-11-2008 HON'BLE MR.JUSTICE GUMAN SINGH Mrs.Nirmala Sharma, Public Prosecutor for State. Mr.Sanjay Gangwar, for accused-respondents. This application for leave to appeal has been filed by the State against the judgment of acquittal passed by learned Special Judge, NDPS Cases (Addl.Sessions Judge No.2), Kota dated 18.10.07 whereby the accused-respondent was given benefit of doubt and was acquitted of the offence under Sec.8/21 of the NDPS Act. Heard learned Public Prosecutor for the State and learned counsel for the accused- respondent. The learned Public Prosecutor has contended that the learned trial court has failed to appreciate the evidence in right perspective as non-mentioning of cigarette packet in which sample was sent, is not having material bearing on the guilt of the accused. 2 Per contra, learned counsel for the accused-respondent has supported the judgment of the trial court and submitted that the proceedings of the recovery has been conducted in the superficial manner and non-mentioning of cigarette packet in which the sample was packed and sealed is a lapse on the part of the prosecution and that creates doubt in the proceedings of seizure and sealing at the spot. It is also submitted that the compliance of Sec.50 of the NDPS Act has not been made. In view of rival submissions and on going through the record of the case and examining the judgment of the trial court, it is revealed that the compliance of Sec.50 of the NDPS Act has not been made. It was the duty of the Officer searching the accused to give him option under Sec.50 of the Act acquitting of his right before search before the Magistrate or the Gazetted Officer. The only explanation of not giving this option is stated to be that the accused happened to be a history sheeter of the police station and, as such, it was essential to search him before conducting 3 any proceeding for want of safety. From the evidence adduced, it is revealed that a polythene bag was found in the pocket of accused and search was made immediately as the accused was suspected of keeping any knife or weapon in his pocket. The explanation furnished by PW-9 cannot be made an exception to the compliance of Sec.50 of the NDPS Act. It was bounden duty of the SHO to give him option to be searched before a Magistrate or Gazetted Officer and, as such, for non-compliance of Sec.50, search proceedings are vitiated. Likewise, the learned trial court has given finding that the sample taken on the spot was found packed in the Gold Flake cigarette case as mentioned in the report of FSL (Ex.P-14) while there is not mention in the recovery memo and the learned trial court has found the proceedings of seizure and sealing in the manner at the spot to be doubtful. The finding of the trial court cannot be said to be perverse in view of the fact that the recovery memo Ex.1 specifically mentions that sample was packed in a polythene and then in cloth. That does not co-relate with the packing in Gold Flake cigarette case as 4 found by the FSL. Thus the finding arrived at by the learned trial court cannot be said to be perverse or illegal and calls for no interference. In view of above, the petition for leave to appeal deserves to be dismissed. Consequently the same is dismissed. (GUMAN SINGH),J. sandeep/- item no.14