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2015 (8) TMI 1117 - HC - CustomsNon-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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