1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO.327 OF 1992 Chandrakant Tukaram Hirve ...Appellant Vs. The State of Maharashtra & Anr. ...Respondents Mr.S.V.Kotwal i/b.V.V.Purwant, Advocate for the Appellant Mrs. A.A. Mane, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 10TH NOVEMBER, 2009 ORAL ORDER: 1.The Appellant has challenged his conviction under the judgment of the learned Additional Sessions Judge, Baramati in Sessions Case No.5/1990 by which he is convicted under Section 18 of the Narcotic Drugs & Psychotropic Substances Act,,1985 (N.D.P.S. Act) and sentenced to suffer Rigorous Imprisonment for 10 years and pay a fine of Rs.1,00,000/- and in default to suffer Rigorous Imprisonment for further 2 years. He has also been convicted under Section 66(1)(b) of the Bombay Prohibition Act and sentenced to suffer Rigorous Imprisonment for 6 months and to pay fine of Rs.1000/- and in default of fine to suffer Rigorous Imprisonment 2 for 2 months. 2.The Appellant has essentially challenged his conviction under the N.D.P.S Act. The main contention on behalf of the Appellant is that the mandatory provision of Section 50 of the N.D.P.S.Act is not followed and the Appellant was not taken to the nearest Gazetted Officer or the nearest Magistrate when his search was taken by P.W.4 under panchanama dated 28th October 1988. 3.The facts show that on receipt of said information P.W. 4 attended the residence of the accused, where his search was taken. P.W.4 s evidence shows that he offered his personal search and thereafter, searched the Appellant. The substances that were found in possession of the Appellant are set out in paragraph 2 of his evidence. The evidence does not show that the officer informed the Appellant of his statutory right under Section 50 to require the officer to take him to the nearest Gazetted Officer or the nearest Magistrate. 4.The Appellant s Advocate has relied upon the case of State of Punjab Vs. Balbir Singh (1994) 3 S.C.C, 299 in which it has been held that to impart authenticity and peripheral to the proceedings this safeguard has been incorporated in the Legislation. The person must be aware of his statutory right and that can be only by 3 the officer informing him. It is held in the judgment that it is obligatory on the part of the officer to inform the person to be searched and if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. Failure to inform that person of such right and failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is held to be mandatory. 5.Learned Additional P.P has not been able to show the Court that P.W.4, who sought to take search of the Appellant informed the Appellant of his statutory right or that the Appellant upon such information did not require the officer to take him to another Gazetted Officer or the nearest Magistrate. 6.I am also shown the judgment in the case of Ahmed Vs. State of Gujarat 2000 All M.R.(Cri.) 1899 S.C., in which it is held that if that officer himself is a Gazetted Officer, he is required to take the person to be searched to another Gazetted Officer. The observations in that judgment show that this mandatory procedure cannot be denied on the ground that the officer conducting the search was himself a Gazetted Officer. 4 7.In view of the absence of this mandatory requirement, the trial is vitiated and hence, the conviction recorded by the learned Additional Sessions Judge, Baramati is required to be set aside. Order accordingly. (SMT. ROSHAN DALVI, J.)