Non-compliance of Section 50 of the NDPS Act and Section 100(4) CrPC renders the search and seizure illegal and can lead to the acquittal of the accused.

1. - The instant appeal has been preferred by the State of Raj asthan challenge the judgment dated 20.06.2008 passed by the learned Special Judge, NDPS Cases, Sri Ganganagar in Cr.Case No.64/2006 whereby the respondent was acquitted of the charge under Section 8/21 of the NDPS Act.

2. Succinctly stated the facts of the case are that the SHO Kotwali, Sri Ganganagar and his associates were allegedly on patrolling duty on 25.07.2006 at about 5.35 P.M. It is stated that a person was seen standing in a suspicious condition near the gate of Gopi Ram Bagechi. He started running in a seeing the police vehicle. He was over powered and on asking the reason for trying to escape, the suspect could not give any satisfactory explanation.The police party suspected the action of the accused in trying to run away the locality the Act not complied - Accused acquitted. on seeing the police personnel, and therefore, if was thought fit to conduct his personal search. It is alleged that a by passer named Balram gave his counsel to be the witness in the search proceeding.The apprehended person disclosed his name to be Ajay @ Ajju. He was allegedly given an option of being searched in the presence of a Gazetted Officer but he gave consent for being searched by the SHO himself. Accordingly, the accused was searched and from the right hand pocket of his trousers, a plastic and smelling, the recovered. The pouch contained a powder like substance. On tasting and smelling, the recovered substance felt like smack and was seized, weighed and thereafter sealed after taking out a sample. The accused was apprehended and thereafter the police party reached back the police station Kotwali, Sri Ganganagar where an FIR No.321/2006 was registered and investigation commenced. On conclusion of the investigation, a charge sheet was filed against the respondent for the offence under Section 8/21 of the NDPS Act.

3. The learned trial Judge at the conclusion of the trial by the judgment impugned dated 20.06.2008 proceeded to acquit the respondent from the charge under Section 8/21 of the NDPS Act. For acquitting the respondent from the charge, learned trial Judge principally relied upon the non-compliance of Clause 4 of Section 100 of the Cr.P.C. It was held that two respectable person of the locality were not kept to witness the proceeding and thus the search and seizure are vitiated.

4. The State has approached this Court by way of the instant appeal challenging the respondents acquittal.This Court granted leave to the State for filing appeal against the judgment of acquittal by order dated 21.11.2008. The respondent Ajay @ Ajju was summoned by a bailable warrant in the sum of Rs. 10,000/- and was directed to appear before this Court on 05.01.2009.He furnished the bail bonds in pursuance to the bailable warrants served on him for appearance before this Court 02.04.2009. However, the respondent failed to mark his attendance before this Court whereupon this Court by order dated 24.07.2009 directed the issuance of warrant of arrest against him. The respondent Ajay @ Ajju was arrested and by order dated 13.10.2009 he was directed to he released on furnishing a personal bond. He was directed to submit a surety before the Dy.Register (Judicial) on 31.10.2009. However, he failed to appear on 31.10.2009 and furnish the surety as directed. On this, his personal bond was again forfeited on 11.11.2009 and he was directed to be summoned through warrant of arrest. Ultimately, the respondent was arrested and produced before this Court on 02.09.2011 and was sent to judicial custody. Thereafter he continue to be lodged in custody.

5. Learned Public Prosecutor vehemently urged that the acrguittal of the respondent as recorded by the learned trial Court was absolutely uncalled for. He submits that simply for the non-compliance of Section 100(4) Cr.P.C. the proceedings of search and seizure cannot be nullified. He thus submits that the acquittal of the respondent deserves to be set