1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT The State of Raj. Vs. Mahamood S.B.Criminal Appeal No. 365/1998. DATE OF JUDGMENT :::: August 29, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.B.K.Sharma, Public Prosecutor, for the State. Mr.Nawab Ali Rathore for Mr.N.A. Naqvi, for the accused-respondent. BY THE COURT Challenge in this appeal is to the judgment dated 28th July, 1997 whereby the Additional Sessions Judge No.2 (Special Judge, N.D.P.S., Act cases) Kota acquitted the accused respondent Mahamood in the offence under Section 8 read with Section 21 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “Act, 1985”). 2. The prosecution case is woven like this: That on 23rd November 1995 PW/8 Shri Mohan Lal Cheeta S.H.O. Police Station Makbara received an information about smack being sold by accused Mahmood in Hiran Bazar at Kota. Shri Mohan Lal Cheeta reached at the house of the accused Mahmood where Mahmood was found standing on main road. The accused was apprehended by the Police Party and on search a small packet wrapped in white coloured polythene was found in 2 the right pocket of his trouser which contained smack. The net weight of the smack was found to be 21 grams 600 ml.grams wherefrom a sample of three gms was separately taken and duly sealed. Shri Mohan Lal Cheeta seized the recovered smack vide memo Ex.P/2, recorded the statements of the witnesses, prepared site plan Ex.P/3, arrested the accused Mahmood vide Ex.P/4, drew necessary memos and after usual investigation sent the accused respondent for trial to the Court. 3. The accused Mahmood was indicted for the offence under Section 8 read with Section 21 of the Act 1985 who pleaded not guilty and claimed trial. The prosecution has examined eight witnesses to prove its case. The accused respondent in his explanation under Section 313 of Cr.P.C. claimed innocence. On completion of trial the Court acquitted the accused respondent as indicated hereinabove. 4. Heard the learned Public Prosecutor appearing for the State, learned counsel for the accused respondent and with their assistance, scanned the relevant material available on record. 5. The crucial question springing for consideration in the instant appeal is as to whether PW/8 Shri Mohan Lal Cheeta complied with the mandatory provisions of Section 50 of Act 1985 at the time of search of the accused? 3 6. A perusal of information memo Ex.P/1, recovery memo Ex.P/2 and FIR Ex.P/10 reveals that an option was given to the accused in writing as to whether he wished to give his search in the presence of a Magistrate or a Gazetted Officer. The accused exercised his option and wished to be searched by a Magistrate or a Gazetted Officer but all these three documents further reveal that the search was taken by the S.H.O. Police Station Makbara PW/8 Shri Mohan Lal Cheeta himself in the presence of Circle Officer. In information memo Ex.P/1 it is mentioned that the accused gave his option like this: "इस पर महमूद ने राजपǒऽत अिधकǐर के सम¢ तलाशी कȧ ःवेÍछा से इÍछा ÈयƠ कȧ है Ǒक राजपǒऽत अिधकाǐर कȧ मोजूदगी मे S.H.O को तलाशी देना चाहता हँू!" In recovery memo Ex.P/2 where option was given to the accused, he said “ǔजस पर महमूद ने अपनी तलाशी ःवेÍछा से Ǒकसी गजीटड अिधकारȣ के सम¢ िलवाना ःवीकार Ǒकया!" FIR Ex.P/10 speaks in different language. It reads the option given by the accused as Under: "ǔजस पर महमूद ने अपनी तलाशी ःवेÍछा से Ǒकसी मǔजःशैट अिधकारȣ के सम¢ िलवाना ःवीकार Ǒकया!” 7. All these three documents unequivocally leads the Court to read that the accused gave an option for the search to be taken by a Magistrate or a Gazetted Officer, but he was 4 never taken before the Magistrate or any Gazetted Officer. On the contrary PW/8 Shri Mohan Lal Cheeta himself took the search of the accused in the presence of Circle Officer which cannot be said to be the strict compliance of the Provisions of Section 50 of Act 1985. 8. It is well settled that provisions of Section 50 of the Act, 1985 are mandatory in nature in the light of the judgments rendered by the Hon'ble Apex Court in the case of Mohinder Kumar Vs. State of Panaji, AIR 1985 SC 1157; State of Punjab Vs. Labh Singh 1997 Cr.L.R. (S.C.) 76; Ali Mustfa Vs. State of Kerala, AIR 1995 SC 244 and State of Punjab Vs. Balveer, AIR 1994 SC 1872. It is found mandatory to give a notice in writing to the accused and ask him if he so required, he could be taken to the nearest gazetted officer of any of the departments mentioned in Section 42 of the Act, 1985 or to the nearest Magistrate. Sub-section (2) of Section 50 contemplates that if such requisition is made, the officer could detain the accused until he could take him to the gazetted officer or the Magistrate as the case may be. 9. In the case of Beckodan Abdul Rahim Vs. State of Kerala (2002) 4 SCC 229, the Hon'ble Apex Court has held that the safeguards 5 mentioned in Section 50 are intended to serve a dual purpose to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. Section 50 has been introduced with the obvious intent to avoid any harm to innocent persons and to avoid raising of allegation of planting of fabrication by prosecuting authorities. It is now well settled by the catena of judgments of the Hon'ble Supreme Court as also this Court, that the provisions of Section 50 are mandatory in nature and the empowering authority is required to make strict compliance thereof. The Hon'ble Supreme Court has also held that if any gazetted Officer happens to be a member of the raiding party and he takes the search of the accused and recovers the contraband article, it will not be taken to be the strict compliance of the mandatory provisions of Section 50 of the Act of 1985. 10. In the instant appeal, the compliance of the Provisions of Section 50 of 'Act 1985' has not at all been made by PW/8 Shri Mohan Lal Cheeta. On the contrary, the search of the accused has been taken against the option he so desired. Flagrant non-compliance of the mandatory provisions of Section 50 of 'Act 1985' casts grave doubt about the credibility of the Investigating Officer. PW/8 Shri Mohan Lal 6 Cheeta, taking search against the tangible option given by the accused has caused prejudices resulting in miscarriage of justice and deprivation of his valuable right. 11. Secondly, the search of the accused is found to have been taken on 23rd November 1995 and the amendment in Section 50 of Act 1985 came in force on 2nd October, 2001. Prior to incorporation of sub Section (5) in Section 50, the authorised officer himself could not search the suspect, but with effect from October 2, 2001 the authorised officer in an emergent situation may effect the search and seizure subject to the checks provided in sub section (6). These amended provisions are not applicable to the search and seizure effected on November 6, 1997 in the instant case. By effecting search and seizure by himself the Seizure Officer again flouted the mandate of section 50. Looking to his convenience PW/8 Shri Mohan Lal Cheeta made attempt to stretch the mandatory provisions and illegally took the search of the accused in the presence of Circle Officer which has not only caused prejudices to the accused but has conducted illegal search and seizure in toto. 12. The learned trial Court in its detailed discussion has properly appreciated the prosecution evidence and considered all the 7 possible aspects of the case. The judgment of the learned trial Court is found to be cogent and well merited. It suffers from no infirmity and I fully concur with the finding of acquittal arrived at. In view of the above mtrix, the impugned judgment calls for no interference. 13. For these reasons, the State appeal being devoid of merits stands dismissed. The accused-respondent is on bail, his bail bond stands discharged. (MAHESH BHAGWATI),J PCG