IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No.754 of 2008 Date of decision: 24.7.2008 State of H.P. Petitioner Vs Ramesh Kumar Respondent Coram: The Hon’ble Mr.Justice: R.B. Misra, J. The Hon’ble Mr.Justice: Surjit Singh, J. Whether approved for reporting?1 For the Petitioner: Mr. P.K.Sharma, Additional Advocate General alongwith Mr. P.M. Negi, Deputy Advocate General. Per Surjit Singh, J.(Oral) Respondent Ramesh Kumar was charged with and tried for offences punishable under Section 21(b) and 22(b) of the Narcotic Drugs and Psychotropic Substances Act for allegedly being in possession of non-commercial quantity of (i) Dextromethorphen Hydrochloride, (ii) Nitrazepam, and (iii) Dextropropoxyphene Hydro Chloride, all narcotic drugs. According to the prosecution when a police party headed by PW9 Inspector N.K. Sharma was on patrol duty, information was received by said Inspector N.K. Sharma that the respondent indulged in illicit sale of narcotic drugs. Respondent was present in his hotel at the relevant time. Police party went there. Respondent was told that it was suspected that he had some narcotic drugs with him and so it was intended to search his person and in case he so desired, search of 1 Whether reporter of local papers are allowed to see the judgment ? 2 his person could be arranged in the presence of a Magistrate or Gazetted Officer of any of the notified departments. Memo with regard to the aforesaid option given to the respondent was prepared. Respondent allegedly opted for his search by PW9 Inspector N.K. Sharma. Search was conducted and 100 tablets of Nitrazepam, 20 capsules of Primovon spas were recovered from his person and then 600 capsules of Primoron spas and eight sealed packet of tablets Nitrezapam 10 mg and four unsealed packets of Petmol spas total numbering 50 capsules were recovered from the search of his store. Samples of recovered drugs were sent to Chemical Examiner who opined that three of the drugs fell within the category of Narcotic Drugs, for the purposes of Narcotic Drugs and Psychotropic Substances Act. Trial Court has acquitted the respondent mainly on the ground that mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act had not been complied with, inasmuch as respondent was not apprised of his right of being searched in the presence of a Magistrate or a Gazetted Officer of any of the notified departments but was only given an option to be searched in the presence of a Magistrate or a Gazetted Officer of any of the aforesaid departments or by the police people present on the spot. Learned Additional Advocate General was required to read the contents of memo of option prepared by PW9 SI N.K. Sharma at the time of alleged compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. As per contents of this memo respondent was not apprised of his right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the notified departments. It is by now well settled that for the compliance of Section 50, the accused is required to be apprised of 3 his right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the notified departments, so as to enable him to exercise his right, under Section 50, of the Narcotic Drugs and Psychotropic Substances Act, effectively. In this behalf, we may refer to a judgment of constitution of Bench of SC in State of Punjab vs. Baldev Singh 1999, Criminal Law Journal 3672 and Vijaysingh Chandubha Jadeja vs. State of Gujrat (2007) 1 SCC 433. There are many more judgments of the Hon’ble Supreme Court on the point. Since in the present case, respondent was not apprised of his right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the notified departments, if he so desired, we do not think the trial Court has committed any illegality in acquitting the respondent. Hence, present petition for grant of leave to appeal is dismissed. ( R.B. Misra ), J. ( Surjit Singh ), J. 24th July, 2008 (vs)