JUDGMENT :

The appellants are accused in S.C. No.589/2004 on the file of the Additional Sessions Judge, Ernakulam. The above case is chargesheeted by the Circle Inspector of Police, Mattancherry against the appellant alleging offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act).

2. The prosecution case is that on 26.4.2004, at 4.45 p.m., the Sub Inspector of Police, Mattancherry and party apprehended the accused on the cement road portion in front of the entrance of Mahajanavadi, Gujarathi road Mattanchery in possession of 16 ampules of Tidigesic. The accused is thereby alleged to have committed the offence. The final report was filed under Section 22 (c) of the NDPS Act.The court framed charge under Section 22(b) of the NDPS Act.

3. To substantiate the case, the prosecution examined PW1 to PW7. Ext.P1 to Ext.P10 are marked as exhibits. M.O.1 to M.O.5 are the material objects. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 22 (b) of the N.D.P.S. Act. The accused is sentenced to undergo rigorous imprisonment for 40 months. He is also directed to pay fine of Rs. 20,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for three months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

4. Heard the counsel for the appellant and the Public Prosecutor. Counsel for the appellant submitted that the accused in this case is entitled acquittal for the simple reason that there is violation of Section 50 of the NDPS Act. The counsel submitted that when the accused insisted for the presence of a gazetted officer, the detecting officer requested the Circle Inspector of Police to witness the seizure. Accordingly, the Circle Inspector came and the seizure was in front of the Circle Inspector. The same Circle Inspector is the investigating officer also. The learned counsel relied the judgment of the Apex Court in State of Rajasthan Vs. Parmanand and Another (2014 KHC 4138). The Public Prosecutor submitted that the trial court after considering the entire oral and documentary evidence, came to the conclusion that the accused committed the offence under Section 22 (b) of the NDPS Act. There is nothing to interfere with the well considered judgment of the trial court.

5. The point for consideration in this case is whether the accused committed the offence under Section 22(b) of the NDPS Act.

6. Altogether 7 witnesses were examined in this case. PW1 and PW2 are the independent witnesses. They turned hostile to the prosecution. PW3 and PW4 are the Head constables who accompanied the detecting officer and they are occurrence witnesses. Ext.P4 is marked through PW5. PW6 is the detecting officer. PW7 is the Circle Inspector of Police who investigated the case.

7. The short point to be considered in this case is whether there is violation of Section 50 of the NDPS Act. It is an admitted fact that Section 50 of the NDPS Act is a mandatory provision and if the same is violated, the accused is entitled acquittal. Section 50 of the NDPS Act says that when any officer duly authorised under Section 42 is about to search any person under the provisions of Sections 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.

8. I perused Ext.P1 seizure mahassar along with the evidence of the detecting officer who is examined as PW6. The admitted case of PW6 is that when the accused was asked whether he want the presence of a gazetted officer, the accused said that he want the presence of a gazetted officer while searching his body. Thereafter, the detecting officer requested PW7, the Circle Inspector to witness the search. Accordingly, PW7 came to the spot and body search was conducted in the presence of PW7