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2018 (1) TMI 119 - HC - Indian LawsSmuggling - ganja - Section 8/20 of N.D.P.S. Act - non-compliance of the provision of Section 50 of the Act - personal search - Held that: - it transpires that the accused-appellant was not apprised by the arresting police party that he had a right under law (under Section 50 of N.D.P.S. Act) to opt for being searched before a Gazetted Officer/Magistrate, which is a mandatory provision which would have adverse effect on the accused-appellant being held guilty - the principle of personal search would apply it would involve search of the body of human being as presented to public view usually with its appropriate coverings and clothings and not any briefcase, bag, container etc., which a person carries with him because these articles are not inextricable from his person. In the case at hand Section 50 of the Act would be applicable which has not been followed in letter and spirit by the prosecution by disclosing to him his legal right to be searched before a Gazetted Officer/Magistrate as is apparent from the evidence which has been taken into consideration above. It is not established beyond reasonable doubt that the contraband Ganja as well as the contraband sample were separately sealed properly and were kept intact in safe custody. It is also not clear as to whether the samples of their seals were also kept safely. Further it is also made clear that when the sample contraband was tested, it was returned with seal of the F.S.L., which was opened before court at the time of recroding of statement of witnesses. The accused-appellant deserves to be acquitted of charges under Section 8/20 of the Act - Appeal allowed.
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