Strict compliance with the provisions of Section 50 of the NDPS Act, particularly in informing the accused of their right to be searched before a Gazetted Officer or Magistrate, is mandatory and non-compliance can lead to the dismissal of the appeal and affirmation of the trial court's judgment.

JUDGMENT

1. This criminal appeal is preferred under section 378 of Cr.P.C. by the appellant State being aggrieved by the judgement dated 28.01.1999 passed by Special Judge, NDPS Act, Ratlam in Special Case No.18/1998 whereby the respondent has been acquitted by the learned Trial Court from the offences punishable under Section 8/21 of the Narcotics Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as The NDPS Act).

2. The prosecution story in short is that on 02.02.1998 at about 12.30 PM, the SHO of police Station GRP, Ratlam has received an information that two persons are standing near the pillar of Main Gate of the Ratlam Railway Station in front of platform no.4 having black and white bags in their hands containing smack. Thereafter, on the information given by the informer, the police prepared a Panchnama vide Ex.P/4 and the SHO alongwith the team has reach on the spot, he had given a proposal and told the right of the accused to be searched in front of Gazetted Officer or Magistrate and prepared Ex.P/5 i.e. declaration of the accused. After taking consent of the accused vide Ex.P/6, the SHO Vinay Sharma has searched the accused in front of the witnesses and members of the team and prepared a panchnama of search vide Ex.P/7. During Search in front of the witnesses, the SHO has found a bag containing a plastic bag in which brown coloured powder was found. On being asked from the accused, the accused itself has told that the powder was smack. Thereafter, the police has prepared a panchnama for arrest vide Ex.P/8 and also prepared a Panchnama for weight and smell of the contraband vide Ex.P/9 and P/10 in which the contraband was found to be of 250grams. Vide Ex.P/11, seized the clothes of the accused, vide Ex.P/13, taken two samples of the contraband of five grams each and vide Ex.P/14 prepared arrest memo of the accused. Vide Ex.P/15 prepared the spot map, sent the appellant to the Police Station and vide Ex.P/20 exhibited the seized article/contraband in the Malkhana. The samples were thereafter sent for chemical examination which confirmed the substance as 'Dy-acetyl Morphine' (Heroin). After investigation and following the due procedure, filed the charge-sheet against the accused under the aforesaid provisions of the Act.

3. The accused abjured his guilt and he took a plea that he is innocent.

4. The prosecution has examined total 09 witnesses namely Ramprasad (PW-1), Kishore Verma (PW-2), Kailashchandra (PW-3), Babu (PW-4), Mukesh (PW-5) Vinod Lohkre (PW- 6), Vinay Sharma (PW-7), Ravindra Singh (PW-8) & Harilal Yadav. In defence, no witness has been examined.

5. The accused was tried and charged under Section 8/21 of the Narcotics Drugs Psychotropic Substances Act, 1985. The learned trial Court, after considering the evidence and material available on record has acquitted the accused, as stated above.

6. The appellant/State has preferred the present appeal mainly on the ground that judgment and order of the trial Court is contrary to law and facts available on record. The learned trial Court committed error in not considering that there is no material contradictions and omissions appeared in the statements of prosecution witnesses. Learned counsel for the appellant has further submitted that the learned trial Court has not considered the statements of prosecution witnesses in its right prospect and discarded the same wrongly which is clear violation of principle of nature justice. Learned counsel for the appellant has vehemently contended that the learned trial Court has not correctly discussed, analysed and evaluated the prosecution evidence. The learned trial Court has erred in considering that the provisions of Sections 42 and 50 of The NDPS Act have not been complied with. It is also submitted that the SHO has given proper intimation or information about the right of the accused to be searched in front of the Gazetted Officer or before the nearest Magistrate. The search was conducted by the team only after