IMPORTANT POINT
Courts should look for corroboration to the testimony of police officials by independent witnesses.

JUDGMENT

S.D. Bajaj, J. - On the turning of village Chandu Nangal Police Station Dera Baba Nanak District Gurdaspur of Punjab State HC Malkiat Singh No. 1253 recovered from conscious actual physical possession of accused Des Raj 180 grams of opium wrapped in a glazed paper and carried in right fold of his Lungi.

2. On being prosecuted for it under section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985, the accused pleaded 'not guilty' to the charge and claimed trial.

3. Vide its impugned judgment dated May 4, 1988 learned trial Court acquitted the accused. Feeling aggrieved there from, the State of Punjab has filed Crl. Appeal No. 535-DBA of 1988 in this Court.

4. We have heard Shri Randhir Singh, AAG Punjab for the appellant State, Shri M.S. Bedi Advocate, for the respondent and have perused the entire relevant material on record very carefully.

5. Relevant section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 reads :- "50. Conditions under which search of person 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 or any of the department 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".

6. Interpreting it in llakam Singh v. Union Territory, Chandigarh, 1988 (2) Chandigarh Law Reporter 75, State of Himachal Pradesh v. Sudarshan Kumar@ Kala, 1989 (1) Chandigarh Law Reporter 240 and Amrit Singh v. State of Haryana, Criminal Appeal No. 513-DB of 1987 decided on September 27, 1989 their lordships observed:

"The most glaring and serious flaw however, in the prosecution case, is with regard to the manner of the search of the appellant-Amrit Singh, in the context of the provisions of section 50 of the Act. A reading thereof would show that if any person to be searched so requires, he has to be taken to a gazetted officer or to the nearest Magistrate and then searched in his presence. According to both the P.W. 1 Sub Inspector Narpat Singh and P.W. 2 Sub Inspector Joginder Singh, such option was given to the appellant, but was declined by him. In other words, this safeguard provided by section 50 of the Act is said to have been waived by the appellant and all we have to prove this is the word of two police officers.”

7. The provisions of section 50 of the Act are mandatory in terms and it also stands so settled by judicial precedents, one of which is provided by the judgment of this Court in Hakam Singh v. Union Territory, Chandigarh, 1988 (2) Chandigarh Law Reporter 75. Reference may here also be made to the judgment of the Division Bench of the High Court of Himachal Pradesh in State of Himachal Pradesh v. Sudarshan Kumar, 1989 (1) Chandigarh Law Reporter 240, where it was held that the person about to be searched must be informed of his right under section 50 of the Act to be searched in the presence of a Magistrate or a Gazetted Officer. Violation of this provision, it was held would per se be fatal to the prosecution case. Further, it was observed that such offer, should as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to prove that association of such witnesses was not possible on the facts and circumstances of a particular case.

8. In dealing with the provisions of section 50 of the Act, it canno