Non-compliance with mandatory search provisions under S. 50 of the N.D.P.S. Act invalidates the conviction.

1. This appeal is directed against the judgment of conviction dated 24-8-1998 and order of sentence dated 27-8-1998 passed by the learned Sessions Judge - cum - Special Judge, Dhanbad, in G.R. Case No. 2950 of 1996, whereby and whereunder, he convicted the appellant under S. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act') and sentenced him to undergo rigorous imprisonment for four years.

2. The prosecution case in brief as stated is that on 27-9-1996 at about 2-00 p.m. while the informant was passing through Balika Vidyalaya near Began Dhowra with a constable noticed that a person was coming on a bicycle from the side of Kumardhubi Market and he had a Jhola on his bicyle and on seeing them, he started fleeing away but he was chased and caught. On search, four kilograms of Ganja was recovered from his jhola but he failed to produce any document in respect of the said Ganja. Accordingly, seizure list was prepared in presence of the independent witnesses. The first information report was lodged accordingly. The police investigated the case and submitted charge - sheet against the appellant.

3. The appellant appeared before the Special Judge and charge under S. 20(b)(i) of the N.D.P.S. Act was framed which was read over to which he pleaded not guilty.

4. Witnesses were also examined in the Court below and after hearing both sides, the learned trial Court convicted and sentenced the appellant in the manner as stated above.

5. On being aggrieved by the impugned judgment of conviction and sentence passed by the learned Court below, the appellant preferred this appeal on the grounds that the learned Court below committed serious error in convicting the appellant though there is an illegality in preparation of seizure list and the provision of S. 50 of the N.D.P.S. Act has not been complied with. It is also claimed that the informant i.e. the police official lodged the first information report and he also took up investigation and submitted charge sheet which is quite illegal and improper in the eyes of law and, as such, the impugned judgment is fit to be set aside.

6. Learned counsel appearing on behalf of the appellant submitted at the very outset
that S. 50 of the N.D.P.S. Act, which is mandatory, has not been complied with in the instant case. In this connection, he relied upon the decisions of the Supreme Court in the case of C. Ali v. State of Kerala (1999) 7 Supreme Court Cases 88 and Babu v. State of Kerala (1999) 8 Supreme Court Cases 499 : (AIR 1999 SC 3861). It is further submitted that the police official is himself the informant of the case and lodged first information report against the appellant and he also investigated the case which is not proper and on this score, learned counsel for the appellant also relied upon the decision of the Supreme Court in the case of Megha Singh v. State of Haryana 1995 CriLJ 3988 : (AIR 1995 SC 2339).

7. It is further argued that the alleged ganja has never been weighed in presence of the seizure list witnesses and as such, the said recovery is also very suspicious and, in the above circumstance, the impugned judgment is fit to be set aside.

8. Obviously provision of S. 50 of the N.D.P.S. Act which is mandatory, has not been complied with. It is well settled that the officer concerned is obliged to inform the accused of his right to be searched in presence of the Gazetted Officer or the Magistrate and there is no material to show that the accused - appellant was ever informed to this effect. S.50 of the N.D.P.S. Act reads as follows :
"50. Conditions under which search of persons shall be conducted. -
(1) When a