1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO. 165 OF 2008 State, Through P.I. Attached to ANC Police Station, Panaji. ... Applicant versus Omsari Ghartimagar, Katmandu, Nepal. ... Respondent Shri C. A. Ferreira, Public Prosecutor for the Applicant. CORAM : N. A. BRITTO, J. DATE : 27TH FEBRUARY, 2009. ORAL ORDER This application is filed by the State to seek leave to appeal against the acquittal of the accused under Section 8 r/w Section 20(b)(ii)(c) of the N.D.P.S. Act, 1985. 2. Heard Shri C. A. Ferreira, learned Public Prosecutor appearing on behalf of the Applicant. 2 3. Perused the Judgment and the record of the case with the assistance of the learned Public Prosecutor. The Respondent was charged and tried with the allegation that on 20-12-2006 at about 17.15 hours she was found in illegal possession of 4.280 kgs. of charas which the accused failed to account. In support of the charge, prosecution had examined seven witnesses. The case of the accused was one of denial. They had stated that she was falsely implicated in the case. 4. The learned trial Court after considering the evidence led by the prosecution has given benefit of doubt to the accused and acquitted her. It appears that there were too many flaws in the case of the prosecution more particular as regards the procedures which were followed in search and seizure as well as subsequent custody of the seized article. The learned trial Court found that the evidence of the Seizing Officer showed that the provisions of Section 50(4) of the Act and Section 51(2) of the Code(Criminal Procedure Code, 1973) were not complied with. The learned trial Court observed as follows:- “Considering the provision of Section 50(4) of the Act and Section 51(2) of the Code, it was mandatory on the part of the raiding officer to inform the accused that her personal search will be carried out by a female and by observing the decency. In the present matter PW7 P.I. Dias admittedly stated to the accused that he wanted to take her search. This disclosure recorded in the panchanama by a male police officer to a female suspect is clearly violative of the provision of Section 50(4) of the Act and Section 51(2) of the Code. No 3 female even though suspected of carrying drugs will allow male officer to conduct her personal search and the offer itself is defective and against the statute itself. Similarly the accused was not informed that her search and the search of the bag was required for recovery of suspected drugs which is also mandatory in order to opt for the search in the presence of the Gazetted Officer or a Magistrate”. 5. The learned trial Court ultimately came to the conclusion that the provisions of Section 50 of the Act were not complied with and in that regard referred to the case of Dilip and others v. State of M.P.(2007 Cri. L. J. 880) wherein the Apex Court had stated that “the provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but, keeping in view the fact that the persons of the appellants were also searched, it was obligatory on the part of PW10 to comply with the said provisions”. The learned trial Court therefore concluded that the safe guards provided in Section 50 of the Act were required to be complied with and violation of such provision would definitely affect the credibility of the prosecution case. Another flaw found by the learned trial Court is as regards the custody of the seized articles which had remained with the Seizing Officer overnight from about 17.15 hours of 20-12-2006 to 9.00 hours of 21-12-2006. In fact, the learned trial Court observed that the evidence did not show where was the sealed cloth parcel during the entire night was and as such it could not be ruled out that it was not in safe custody. 4 5. Considering the above inconsistencies and others discussed by the learned trial Court, in my opinion, this is not a fit case to grant leave to appeal. Application therefore is rejected. N. A. BRITTO, J. `RD