TMI Blog2018 (1) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... erves to be allowed. Appeal allowed. - Criminal Appeal No. 193 of 2003 - - - Dated:- 7-12-2017 - Hon'ble Lok Pal Singh, J. Mr. Lalit Sharma, Advocate and Mrs. Meena Bisht, Amicus Curiae for the appellant Mr. Raman Kumar Sah, Deputy Advocate General for the State ORDER This appeal is directed against the judgment and order dated 10.06.2003, passed by passed by Additional Sessions Judge/F.T.C. Kashipur, District Udham Singh Nagar, in Special Sessions Trial No.61 of 2001, whereby said court has convicted the accusedappellant Balwinder Singh @ Tete under section 15-B of Narcotic Drugs Psychotropics Substances Act, 9/2001 (for short N.D.P.S. Act), and sentenced him to rigorous imprisonment for a period of 3 years and fine of ` 10,000/- in default of payment of which the convict has to undergo rigorous imprisonment for a further period of 2 year. 2. Prosecution story in brief is that on 20.01.2001 at about 11:45 am, P.W.1 Sub-Inspector Shyam Narayan Mishra of Police Station Bazpur, went from the police station to serve warrant and to recover penalty from one Paramjeet. When he reached at P.S. Beriya, Head Constable Rohtash Singh (P.W.2), Constable Umed S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posal. After hearing the parties, on 28.01.2002, charge of offence punishable under section 18 of NDPS Act was framed against the accused/appellant, to which he pleaded not guilty and claimed to be tried. 4. In order to prove its case, prosecution got examined P.W.1 Sub-Inspector S.N. Mishra (complainant), P.W.2 Head Constable Rohtash Singh (eye-witness of the recovery), P.W.3 Samarpal Singh (Investigating Officer) and P.W.4 Constable Rajesh Singh. Oral and documentary evidence was put to the accused under section 313 Cr.P.C. in the form of questions, in reply to which the accused pleaded that the police arrested him from his house and has falsely been implicated in the case. However, he did not adduce any evidence in defence. The trial court, after hearing the parties, convicted and sentenced the accused/appellant as above. Hence, this criminal appeal. 5. P.W.1 Sub-Inspector S.N. Mishra has reiterated the contents of the F.I.R. in his statement. 6. P.W.2 Head Constable Rohtash Singh has supported the prosecution case and has corroborated the statement of P.W.1 S.N. Mishra. He has proved Ext.A1 and Ext.A3. 7. P.W.3 S.I. Sumarpal Singh has stated that on 29.01.2001 he st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire record. 12. Before any further discussion, Section 50 and 57 of N.D.P.S. Act, would be relevant to mention here, which is reproduced hereunder: 50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. 2[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. 16. The Hon ble Apex Court in the case of Beckodan Abdul Rahiman vs State of Kerala reported in 2002 (4) SCC 229 has held that compliance of Section 42 and 50 are mandatory. Paragraph No. 6 is relevant which is extracted hereunder: 6. We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment. 17. The next argument of learned counsel for the appellant was that the infor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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