The provisions of section 50 of the NDPS Act are not applicable to the search of a side-bag carried by the accused on his shoulder.

( 1 ) PURSUANT to a petition of complaint (Ext. 2) lodged by p. W. 2, Sankar Das Sinha the appellant hereinabove was arrayed before the learned Judge, Special Court (under the NDPS Act), Barasat 24-Parganas (North) in Case No. N-55 of 1997 to answer the following charge : that you, on 27. 10. 97 at about 15 hrs. at Guma Bus Stand, Chowmatha on jessore Road under P. S. Habra, you found in possession of 2 Kgs. brown coloured powder (heroin) in contravention of section 8 of the NDPS Act".

( 2 ) SINCE he pleaded not guilty he was placed on trial which ended in his conviction in respect of the charge framed against him and he was sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (Rupees one lakh only) in default, to suffer further rigorous imprisonment for six months by the judgment and order dated January 29, 2000.

( 3 ) ASSAILING the conviction recorded against him by the learned Trial Court the appellant has preferred this appeal on the ground that there was no compliance of section 50 of the Narcotic Drugs and Psychotropic Substances act, 1985 (hereinafter referred to as the said Act) and the offer for being searched by a Gazetted Officer or a Magistrate was not given in writing and as the gazetted Officer was very much a member of the raiding party the provisions of section 50 of the said Act were not adhered to by the complainant and as the voluntary statement (Ext. 1) recorded by P. W. 1, Rabindra Nath Banerjee was done without giving any caution which was inadmissible; and as P. W. 5, who enquired the case was also a seizing officer, was interested in the conviction and the judgment of the learned Trial Court based on such evidence was required to be set aside.

( 4 ) LEARNED Lawyer appearing in support of the appeal submitted that the article, in question was seized although from a side-bag hanging from his left shoulder the provisions of section 50 of the said Act would be applicable. In this connection he referred to the decision of the Supreme Court in Namdi Francis nwazorvs. Union of India andanr. , 1998 SCC (Cri) 1516 and two other decisions of the Bombay High Court - (1) Dharmaveer Lekhram Sharma and Anr. vs. State of Maharashtra and etc. , 2001 Cr. LJ 4886 and (2) Ebanezer Adebaya alias Monday obtor vs. B. S. Rawat, Collector of Customs, R and I. New Delhi and Anr. , 1996 Cr. LJ 3210.

( 5 ) HE further submitted by referring to the evidence of P. Ws. 3, 5, 6 and 7 that the appellant had a right to be searched in the presence of a Gazetted officer was not stated to him. He referred to the decisions of K. Mohanan vs. State of Kerala, 2000 SCC (Cri) 1228 and Vinod vs. State of Maharashtra, 2003 scc (Cri) 14 and as P. W. 7 was a Gazetted Officer belonging to the raiding party not an independent officer there was also non-compliance of the said provision. In this context he referred to the Supreme Court decision in Ahmed vs. State of Gujarat, 2000 C Cr LR (SC) 449 and also to our Full Bench decision in Jadunandan Roy vs. State of W. B. , 1999 (II) CHN 759. He also referred to a division Bench decision of this Court in All Hossain @ Dulal vs. State of West bengal, 1995 (2) CHN 448 and a decision of the Rajasthan High Court in Nathiya and Anr. vs. State of Rajasthan, 1992 Cr. LJ 2342 in support of his contention that since the Investigation (read enquiry in this case) was conducted by P. W. 5, who was himself a member of the raiding party and was witnessed to the seizure and search. It was on the point vitiates the conviction in the absence of any independent officer conducting the investigation.

( 6 ) LASTLY, with regard to the statement (Ext. 1) recorded by P. W. 5 without administering warning or caution within the import of section 104 (a) of the code of Criminal Procedure makes it inadmissible and to illustrate his point he referred to the decision of the Andhra Pradesh High Court in N. S. R. Krishna prasad and etc. vs. Directorate of Enforcement Loknayak