A. K. SHRIVASTAVA, J.

( 1 ) FEELING aggrieved by the judgment of conviction and order of sentence dated 21-8-2000 passed by Special Judge, (N. D. P. S. Act) Guna in Spl. Sessions Trial no. 5/1999 whereby the appellant has been convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances act, 1985 (hereinafter referred to as 'act') and has been sentenced to suffer rigorous imprisonment of ten years and fine of rs. l. OO. OOO/- (rupees one lac), in default further R. I. of two years, the appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure.

( 2 ) IN brief the case of the prosecution is that on 23-11-1999 Siddha Nath Rathour, who was Station House Officer In-charge of p. S. Dharnabada went for the investigation of Crime No. 228/99 under Sections 363 and 366, IPC at Rutiyaee, he received an information from an informant that a lady wearing red clothes and resident of Pagara is having Opium with her. The said information was recorded in writing and was sent to s. D. O. P. Raghogarh through Constable No. 966 Veer Bhan Singh. The S. O. along with his force proceeded towards A-B road, Guna and at the instance of the informant found one lady nearby a hotel, on being asked she stated her name to be Halki Bai (accused/ appellant ). A notice under Section 50 of the n. D. P. S. Act (Ex. P-4) was given to her and she voluntarily agreed to give search to the station House Officer In-charge. Being a lady her search was taken by one Uma Devi wife of Prabhulal Sharma. In the search 500 gms of Opium, which was found in two polythene packets, was seized from her person. At the spot seizure memo was prepared, the contraband article was sent for chemical examination and after completion of the investigation a charge-sheet was filed before the special Judge.

( 3 ) THE Special Judge framed charges punishable under Section 8/18 of the Act. Needless to emphasis the appellant abjured her guilt. Her defence is of false implication. In her defence the accused examined one kamar Lal.

( 4 ) THE learned Special Judge after appreciating the evidence came to hold that the appellant committed the offence for which she was charged and convicted her under Section 8/18 of the Act and passed the sentence mentioned hereinabove. Hence this appeal.

( 5 ) IN this appeal Shri Gajendra Sahu, learned counsel for the appellant has contended that it is the case of the prosecution that the contraband article was recovered from the person of the appellant and, therefore, there should be a valid notice under section 50 of the Act. According to the learned counsel for the appellant, nowhere in the notice under Section 50 of the Act it has been so mentioned that the accused is having right to get herself searched before a gazetted Officer or Magistrate. Having not done so, the conviction cannot be accorded and the appeal be allowed.

( 6 ) REFUTING the aforesaid submission of the learned counsel for the appellant, it has been contended by Shri Khurana, learned counsel for the State that the trial Court examined each and every aspect of the matter and came to hold that the appellant committed the offence and she has been rightly convicted and punished.

( 7 ) AFTER having heard the learned counsel for the parties, I am of the view that this appeal deserves to be allowed. On bare perusal of the Panchnama (Ex. P-4) which is a notice under Section 50 of the Act nowhere it is gathered that it was informed to the accused that it is her right to get herself searched in person by a Gazetted Officer or magistrate. According to me, this condition is mandatory and presupposed. The Apex court in the case of K. Mohanan v. State of kerala, 2000 SCC (Cri) 1228 in para 6 has held that:"if the accused, who was subjected to search was merely asked whether he re- quired to be searched in the presence of a gazetted Officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What P. W. 1 has d

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