Mandatory search provisions for female accused under the Narcotic Drugs and Psychotropic Substances Act and lack of authorization for the search led to the quashing of the proceedings.

The petitioner Reena Verma has filed the present criminal miscellaneous writ petition connected with an application under Section 482 Cr. P. C. for quashing of the charge-sheet and all the proceedings including the first information report based on recovery memo, charge-sheet submitted and the charges framed in special criminal case No. 20 of 2004 State v. Reena Verma, under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act arising out of case crime No. 110 of 2004 pertaining to Police Station Sunauli, District Maharajganj pending in the Court of Additional District and Sessions Judge, Maharajganj.

2. The facts in brief of the case are that SSB (Sashastra Surasksha Bal) was posted at Indo-Nepal border for routine checking of the persons passing thereby. It is alleged that on 14-5-2004 at about 4. 30 p. m. a girl named Reena Verma was coming back from Nepal, that she entered the territory of India and that the constables of SSB suspected that she was in possession of some objectionable articles whereupon at Qasba Sunauli, District Maharajganj she was allegedly detained and she was searched. It is further alleged that as a result of her search, certain articles including 5 kilograms Charas were allegedly recovered from her possession. Relating to this occurrence, the first information report was lodged and investigation into the case was made. The investigating Officer submitted the charges and the charge- sheet have also been framed thereupon.

3. Heard Sri D. S. Mishra, learned Counsel for the petitioner, learned Additional Government Advocate for the State and perused the record.

4. It is on the basis of the provisions of sub-section (4) of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sub-section (3) of Section 100 of the Code of Criminal Procedure 1973 respectively, which are reproduced as under:

Section 50 (4 ).-"no female shall be searched by anyone excepting a female"

And

Section 100 (3 ).-"where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. "

5. That the learned Counsel for the petitioner has vehemently argued that the accused/petitioner is a woman, that her search ought to have been necessarily made by a female/woman only, that the aforesaid provisions of Section 50 (4) of the Narcotic Drugs and Psychotropic Substances Act and Section 100 (3) of Code of Criminal Procedure are mandatory, that they have been flagrantly flouted and that there is no cure anywhere for such violation of these mandatory provision of the aforesaid Acts and therefore, the first Information Report/recovery memo, charge-sheet and charges framed stand nowhere.

6. While referring to the specific words/sentences occurring in the recovery memo/first information report, which are in toto reproduced as under:

"sandeh HONE PAR NIYAMANUSAAR USKO CHECK KIYA GAYA TO USKE PASS SE USKE DWARA LAYE JAA RAHE BAG MEIN CHARAS JAISE CHEEZ ANYA SAMAANO KE ATIRIKT BARAMAD HUI"

7. The learned Counsel for the petitioner has further forcefully argued that the petitioner was not informed with her right to be searched before a Gazetted Officer or Magistrate. The search of the alleged accused/ petitioner ought to have been necessarily made before a Gazetted Officer or the Magistrate, but the same was not done in this particular case particularly because the search had already been made before the arrival of the Gazetted Officer as the above words and sentences occurring in the aforesaid first information report/recovery memo speak of themselves.

8. The learned Counsel for the petitioner has also at the last but not the least argued that the present officials, who are alleged to have made search were not at all authorised to make search under any provisions of law. According to him, this is probably the re