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2015 (8) TMI 1117 - PUNJAB & HARYANA HIGH COURTNon-Compliance of condition under which search shall be conducted – Appeal against Conviction – Appellant was convicted for offence punishable under Section 20(b) of NDPS Act, 1985 and sentenced to undergo rigorous imprisonment and to pay fine – Informer apprised police party that appellant was selling charas at that time also and if raid is conducted, charas can be recovered from him – After completion of required formalities appellant was charge-sheeted to which he pleaded not guilty and claimed trial – Whether provision of NDPS act was complied with – Held that:- Discrepancies about time when secret information was received and when accused was apprehended are not material discrepancies affecting reliance of prosecution – Officer who has seized article, arrested accused and lodged report, can be said to be 'complainant' only in technical sense – Admittedly recovery was effected from appellant at public place near watercourse at public place, therefore contention of non-compliance of Section 42, rejected – Perusal of notice given under Section 50 reveals that notice is short of compliance, which require to apprise suspect of his right to get his search conducted before Magistrate – Mere fact that gazetted officer, who was called at spot to conduct search also happened to be Executive Magistrate, in no manner, fulfill lacuna left by Investigating Officer – Having failed to comply with provisions of Section 50, in its true spirit, recovery made from appellant was illicit and vitiate his conviction – Therefore, Judgment of conviction and order of sentence recorded by trial Court set aside – Decided in favour of Appellant.
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