IMPORTANT POINT
Section 50, NDPS Act applies to search and recovery of a person only. It is not attracted in search of bag, brief case, container etc.

JUDGMENT

A.K. Sikri, J. —That the present statutory appeal is directed against the impugned order dated 23.3.2010 whereby the High Court has convicted the appellant by reversing the judgment of the Trial Court, which had acquitted the appellant of the charges under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act').

2. As per the case of the prosecution, on 15.9.1992 the appellant was spotted by the police party headed by Sub-Inspector, Mohinder Singh at Bus Stand Ratta Khera. At that time, the appellant was having a plastic bag in his hand. On seeing the police party, appellant had tried to conceal his presence by sitting near the water tank on the pretext of passing urine. The appellant was apprehended on suspicion and notice (Ext. P-A) under Section 50 of the Act was served upon him seeking his consent as to whether he wanted his search to be made in the presence of a Gazetted Officer or a Magistrate. The reply of the appellant to the notice is Ex. P-A/1 whereby he desired that the plastic bag, which he was carrying, be searched in the presence of a Magistrate. Thereupon Chet Ram, Tehsildar (PW-2) was summoned to the place of recovery and in his presence the search of the bag of the appellant was conducted. Opium weighing 5 Kgs. was found in the bag which was in possession of the appellant. After separating a sample weighing 50 grams, the sample and the remaining opium were separately sealed with the seal bearing impression 'MS'., which was entrusted to Khema Ram, Chaukidar, who had joined in the police party from Bus Stand, Ratta, Khera.

3. After the trial, the appellant was convicted of the charge under Section 18 of the Act vide judgment dated 08.6.1995 passed by the Trial Court.

4. The appellant appealed against his conviction. The appeal was decided on 29.1.1999 by the High Court. The conviction was set aside on a technical ground and the matter was remitted back to the Trial Court. It will be pertinent to mention here that the said appeal was allowed primarily on the ground that it was not clear as to whether Chet Ram, Tehsildar in whose presence the search of the bag of the appellant was conducted, was discharging the duties of a Magistrate as well or not. As pointed out above, when the appellant was served with notice under Section 50 of the Act seeking his consent about his search he had desired that he be searched in the presence of a Magistrate. It is on this request that Chet Ram, Tehsildar was summoned. The contention of the appellant before the High Court was that Chet Ram was not discharging the duties of a Magistrate and, therefore, there was violation of Section 50 of the Act. Since this aspect was not examined while convicting the appellant of the aforesaid offence, the appeal was allowed and the matter was remitted back. This is clear from the following order passed by the High Court:

“Resultantly, the appeal is allowed. The judgment and order of the Trial Court stand set aside and directions are given to the Trial Court to recall Chet Ram and get an elucidation from him as to whether he was discharging the duties of a Magistrate on the date of the recovery of opium or not. Prosecution will also be at liberty to lead such evidence in support of their case in order to show that Chet Ram was bestowed with powers of Magistracy. The accused will also have the liberty to lead such evidence to rebut the case of the prosecution.”

5. After the remand, the statement of Chet Ram (PW-2) was recorded afresh by the Trial Court. The opportunity was given to the prosecution as well as the appellant to produce additional evidence. In support of its case that Chet Ram was conferred with the duties of an Executive Magistrate as well, the prosecution produced photostat copy of the Haryana Government Notification No. 21/39/78-JJ(4) Part II published on 16.6.1982 (Ex. P-X) whereby all the Tehsildars in the State of Haryana were appointed as Executive Magistrates a