IMPORTANT POINT
When the Investigation Officer did not offer accused to be taken before Gazetted officer or Magistrate before conducting his search in violation of provision contained in Section 50 of the Narcotic Drugs & Psychotropic Substances Act then accused is entitled to be acquitted.

JUDGMENT

Usha Mehra, J. - Shri Wilson Dayal, son of Nagdayal was convicted and sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/-. In default of payment of fine he was to undergo simple imprisonment for a period of 1-1/2 years.

He was sentenced and convicted vide orders dated 7th November, 1987 and 10th November, 1987 respectively.

2. Ms. Neelam Grover, Advocate, was appointed as Amicus Curiae since the petition was through Jail. She has assailed the impugned order in charge on the ground that there is a clear violation of the provisions of Section 50 and 55 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called as the" Act"). There is a non-compliance of the provisions of law whet he scaled sample was not deposited with he C.F.S.L. expeditiously but was deposited after two months. There was no filling of the C.F.S.L. form nor deposit of the same in the Moharrar Malkhana leaving to the only irresistible conclusion that there was a tampering of the sample and the contents of the parcel.

3. In order to appreciate the point closed by Ms. Grover, at the bar, it will be worthwhile to know in brief the facts of the case.

That the appellant was found in the prohibited area under the jurisdiction of Air Force Station Palam by two personnel of Air Force Police Station at about 2 p.m. on 18.9.1986. According to the prosecution story, the said two police personnel of Air Force namely warrant officer N.M. Gureja and Sg. Narain Singh were patrolling the area. According to them the appellant was going on the road at that time. The appellant on seeing Air Force police, tried to retrace his steps which aroused suspicion and the Air Force police checked the appellant with a view to ascertain his identity. According to prosecution, just at that moment S.I.K.C. Ahluwalia and Constable Ram Nath of Delhi Police happened to reach the spot where the appellant had been stopped.

It is further the case of the prosecution that the appellant was carrying a bag in his hand which on being searched by S.I., K.C. Ahluwalia charas was found there. Since the market was closed, therefore, the appellant was taken to a nearby shop where the charas was weighed and found to be 900 gms. in weight. 50 grams. of charas was separated from the quantity recovered from the appellant as a representative sample which was sent to the office of the C.F.S.L. On receipt of the report from the C.P.S.I. which indicated that the sample was charas, a case was registered against the appellant under Section 21 of the Act.

4. The prosecution examined as many as 10 witnesses. The case of the prosecution primarily rests on the testimony of Narain Singh Yadav, P.W. 1, Head Constable Shiv Raj Singh, P.W. 3, Constable Hardev Singh, P.W. 4, report of the C.F.S.L, Warrant Officer M.N. Gureja, P.W. 7 and S.I.K.C. Ahluwalia, P.W. 8,

5. In order to appreciate the contention of Ms. Grover that there is a clear violation of the provisions of Section 50 of the Act, we must understand what is provided under Section 50, which has been violated. Section 50 reads as under:

SECTION 50

CONDITIONS UNDER WHICH SEARCH OF PERSONS SHALL BE CONDUCTED - (1) When any duty 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 detest 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 - the accused nor he asked the accused to search before whom any such person is him before searching the petitioner. The Warrant brought shall, if he sees no reasonable Officer M.N. Gureja also appearing as P.W. 7 ground for search" forthwith discharge admitted tha