Judgment :-

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. The challenge in this appeal, by special leave, is to the judgment of a learned Single Judge of the Andhra Pradesh High Court dismissing the criminal appeal filed by the appellant questioning the correctness of the judgment and order passed by the Ist Additional Sessions Judge, Guntur. By the said judgment, the appellant (original accused 3) and two others viz. Myla Rambabu and Myla Muralikrishna (original accused 1 and 2 respectively and for convenience, referred to as ‘A1’ and ‘A2’ respectively) were convicted for offences punishable under Section 8(c) read with Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for six months each and to pay a fine of Rs.5,000/- each. In default of payment of fine, they were directed to undergo simple imprisonment for six months each.

3. According to the prosecution, on 5/1/2001, PW-3 CI Koteswara Rao on receiving reliable information about illegal sale of Ganja at Koneru Bazar, Chenchupeta, Tenali, proceeded to Koneru Bazar along with PW-1 PC Shaik Khasim, PW-2 SI Nageswara Rao and one other constable. They noticed the appellant, A1 and A2 sitting under a bridge. On seeing them, the appellant, A1 and A2 tried to run away. PW-3 CI Koteswara Rao and his team apprehended them. The prosecution story further goes on to say that the appellant, A1 and A2 revealed their names. On questioning, they stated that they were carrying Ganja packets in their pockets. It is further the case of the prosecution that PW-3 CI Koteswara Rao asked them whether they wanted any other gazetted officer for their search and seizure in addition to him to which they replied that they did not want any other gazetted officer and checking by the Circle Inspector of Police was sufficient. In the search, five Ganja packets were recovered from A1, six Ganja packets were recovered from A2 and four Ganja packets were recovered from the appellant. A1, A2 and the appellant are stated to have confessed to the crime. They were then put under arrest. After completion of the investigation, they were charged for the offence under Sections 8(c) read with Section 20(b)(i) of the NDPS Act. The appellant pleaded not guilty to the charge. The evidence led by the prosecution found favour with the trial court and it convicted the appellant, A1 and A2 as aforesaid. The appeal carried from the said judgment was dismissed by the High Court. Hence, this appeal. It must be noted here that A1 and A2 have not challenged the impugned judgment and order and, hence, they are not before us.

4. We have heard, at some length, learned counsel appearing for the appellant and learned counsel appearing for the State of Andhra Pradesh, who has made a valiant effort to support the impugned judgment and order.

5. Though several points were raised by learned counsel for the appellant, it is not necessary for us to deal with them because his contention that in this case there is a violation of procedure contemplated under Section 50 of the NDPS Act appeals to us. Section 50 of the NDPS Act, so far as it is relevant, reads as under :

“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 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