The provisions of Section 50 of the NDPS Act and Section 100 of the CrPC are mandatory and their non-compliance vitiates the trial.

SHIV KUMAR SHARMA. J, J.

( 1 ) THE appellant was the accused in Sessions Case No. 751 of 1994 on the file of the learned Special Judge. NDPS Cases and Additional Sessions Judge No. 1, Kota. He was found guilty under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (for short the Act) convicted thereunder and sentenced to 10 years rigorous imprisonment and fine of Rs. 1. 00. 000/- (in default of payment of fine to further undergo two years R. I.)

( 2 ) AGGRIEVED by the conviction and sentence the action for filing the instant appeal has been resorted to. I have considered rival contentions and scanned the record.

( 3 ) ON the fateful day of July 3. 1994 at about 1. 30 p. m. the accused appellant (in short the accused) was arrested under Section 8/21 of the Act. The allegation was that he was in illegal possession of 4 gms and 910 mili grams of smack. Charge sheet was filed against the accused. The accused denied the charge and claimed trial. Prosecution examined as many as eight witnesses. In the statement recorded under Section 313. Cr. P. C. the accused stated that he was falsely implicated by the police personals. He was motor cycle mechanic. When he refused to impart honarary service in connection with the repair of Motor Cycles of police personals he was framed and the smack was planted on him by the police.

( 4 ) BEFORE proceeding further following undisputed facts need be noticed: (a) Search was not effected in the presence of independent witnesses. P. W. I Radha Kishan states that he made attempt to search the independent witnesses but could not find. (b) The place where the accused was searched and arrested in the afternoon of July 3, 1994 was a busy thoroughfare. P. W. 5 Mahendra Singh Constable states in his cross examination that (c) Accused was searched by S. H. O. Rajendra Ozha (P. W. 8) in the presence of Satish Khurana C. O. (P. W. 6 ). The accused was informed that if he so wished he could be searched in the presence of Gazetted Officer or Magistrate but the accused agreed to be searched in the presence of Satish Khurana who himself reached at the spot in being informed by Rajendra Ozha. (d) Site plan of the occurrence was not prepared.

( 5 ) DRUG Control Legislation has as it primary aim the protection of public welfare by preserving health and eliminating undesirable social and moral effects commonly associated with the indiscriminate use of narcotic drugs and psychotropic substances. Use of such drugs and substances cripples intellects, dwarfs bodies, paralyses the progress of a substantial segment of our society and frequently makes hopeless and sometimes violent and murderious criminals of persons of all ages who become its victims. Such consequences call for the most vigorous laws to suppress the drug abuse. The plain and apparent object of the Act is to prevent by a rigid control of the possession of the narcotic drugs and psychotropic substances, the danger of public health, and to guard society against the social evils which an uncontrolled traffic in drugs is bound to generate.

( 6 ) BUT with a view to achieve the object of the Act interest of innocent citizen has to be protected from illegal or irregular invasions of his liberties by the Authorities. The interest of the State cannot be magnified by the Authorities by vanishing the safeguards provided in the Act for the protection of citizen and by adopting irregular methods.

( 7 ) PROVISIONS contained in Section 50 of the Act enjoin upon the officer, who is about to search any person under Sections 41 to 43 of the Act, if such person so requires, to take such person without unnecessary delay to the nearest specified Gazetted Officer or the Magistrate. The object of making it peremptory on the part of the officer to take the person, if he so requires, before a specified Gazetted Officer or a Magistrate is to ensure that the officer who is changed with the duty of conducting search, conduct it properly and do no har