IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.19 of 1995. Dated of Decision: September 15, 2009. State of H.P. ……… Appellant. Versus Manga Ram. ………. Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. For the Appellant : Mr. P.M. Negi, Deputy Advocate General. For the Respondent : None. Surjit Singh, J (oral): Non-bailable warrant issued against the respondent is back with the report that no person by the name of the respondent is available on the given address. We have perused the record and heard the learned Deputy Advocate General. From the perusal of the record, we find that the appeal is without merit and, therefore, we proceed to dispose of it, on merits, without insisting upon the presence of the respondent. Prosecution case as per material on record is like this. On 19th August, 1993, PW7 ASI Jeet Singh of Police Station, Dalhousie ------------------------------------------------------------------------------------------- Whether reporters of local papers may be allowed to see the judgment? 2 was patrolling in the area of Banikhet. When he reached near toll tax barrier, he saw the respondent coming from bazaar side. On seeing the ASI, respondent tried to hide himself. That aroused the suspicion of ASI Jeet Singh that he might be carrying some drug or psychotropic substance. So, he nabbed the respondent and told him that he intended to search him, and if he so desired search could be arranged in the presence of a Gazetted Officer. The respondent allegedly opted for being searched on the spot. On search of his person, 400 grams of Charas hidden by the respondent inside the underwear worn by him was recovered. One sample weighing 10 grams was separated and made into a parcel, which was sealed. Bulk Charas was made into a separate parcel and that parcel was also sealed. Both the parcels were deposited with the SHO, who affixed his own seal. Sample was sent to the Chemical Examiner, who vide report Ex.PB, reported that sample contained contents of Charas. On receipt of the report of Chemical Examiner, report under Section 173 Cr.P.C. was filed against the respondent. Learned trial Court has acquitted the respondent on a number of grounds. One of the grounds is that the mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act had not been complied with. As per memo of option Ex.PC, respondent was told that it was intended to search his person and in case he so desired, search could be arranged in the presence of some Gazetted Officer. This was not a proper compliance of the provision of section 50 of the Act. 3 As per Section 50 of the Narcotic Drugs and Psychotropic Substances Act, a person sought to be searched has a right to be searched in the presence of a Magistrate or a Gazetted Officer. Law is well settled that before the search is conducted in a matter where provision of Section 50 is attracted, the person sought to be searched has to be apprised of his right to be searched in the presence of a Gazetted Officer or a Magistrate, and that in case, if he so desires, search can be arranged in the presence of a Magistrate or a Gazetted Officer of one of the notified department. In the present case, respondent was not apprised of this right. Further, he was told that search could be arranged in the presence of a Gazetted Officer. He was not told that it could be arranged in the presence of a Magistrate also. Thus, it is a case of non-compliance of mandatory provision of Section 50 of the NDPS Act. Hence, we see no reason to interfere with the judgment of acquittal. Consequently, the appeal is dismissed. (Surjit Singh) Judge September 15, 2009. (Surinder Singh) (Pds) Judge.