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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: 08.01.2014

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Crl. Appeal No.663 of 2010

RAKESH @ SHANKER

....Appellant

Through:

Ms. Charu Verma, Adv.

STATE

....Respondent

Through:

Mr. Satish Verma, APP for the State

CORAM:

HON'BLE MR. JUSTICE V.K.JAIN

JUDGMENT

V.K.JAIN, J. (Oral)

The case of the prosecution in nutshell is that on 21.9.2007, when

the police officials were present at bus stand Punjabi Bagh, checking

buses passing from there, the appellant before this Court got down from

the bus. At that time he was carrying a box on his shoulders. An

informer who was present on the spot, informed Inspector Ishwar Singh,

one of the police officials referred above, that the appellant was going to

supply ganja in the jhuggies and the box being carried by him contained

ganja. On search of the trunk being carried by the appellant, 21 kg of

ganja is alleged to have been recovered. This is also the case of the

prosecution that before searching the trunk being carried by the

appellant, a notice under Section 50 of NDPS Act was given to the

appellant, who stated that he did not want the evidence to be created

against him by calling the Magistrate or a Gazetted Officer and,

therefore, no such person should be called.

2. Since the appellant pleaded not guilty to the charged framed

against him, the prosecution examined as many as eight witnesses. One

witness was examined in defence.

3. The complainant Inspector Ishwar Singh came in the witness box

as PW1 and inter alia stated that he informed the appellant about his

legal right to be searched in presence of a Gazetted Officer or a

Magistrate, but he refused to exercise his right. This witness also proved

the notice Ex.PW1/A given to the appellant under Section 50 of the Act.

4. The learned trial Judge vide the impugned judgment and order

dated 5.4.2010 and 13.4.2010 respectively convicted the appellant under

Section 20 of the Act and sentenced him to undergo RI for a period of

ten years and to pay a fine of Rs. One lac and in default of payment of

fine to undergo RI for two months. Being aggrieved, the appellant is

before this Court by way of this appeal.

5. The only contention made by the learned counsel for the appellant

is that since the notice purporting to be under Section 50 of the Act was

given to the appellant, the said notice ought to have complied with the

requirements of Section by intimating the appellant that he had a right to

be search in presence of a Magistrate or a Gazetted Officer, but, what he

was actually told was that he had an option to get searched in presence

of a Gazetted Officer or a Magistrate and, therefore, the appellant did

not come to know that it was his legal right to be searched in the

presence of a Magistrate or a Gazetted Officer. This is her contention

that the aforesaid defect in the notice rendered the recovery to be illegal.

6. The notice given to the appellant is Ex.PW1/A. If translated in

English, it would read as under:

“You Rakesh @ Shanker son of Dev Narayan

Sharma resident of Village Chiranjivpur PO

Fateha, District Begusarai, Bihar are informed that

the police party has an information that you have

ganja with you in a steel trunk or box and you,

therefore, are required to be search. If you so want,

some Magistrate or a Gazetted Officer can be

called for your search as well as of your box.”

7. In State of Delhi versus Ram Avtar @ Rama [2011(7) Scale 428,

the notice given to the respondent in that case reads as under:

“Musami Ram Avtar urf Rama s/o late Shri

Mangat Ram r/o 71/144, Prem Nagar, Choti Subzi

Mandi, Janakpuri, Delhi, apko is notice ke tehat

suchit kiay jata hai ki hamare pas itla hai ki apko

kabje me smack hai aur apki talashi amal mein

laye jati hai. Agar ap chahen to apki talashi ke liye

kisi Gazetted Officer ya Magistrate ka probandh

kiya ja sakta hai.”

The High Court, relying upon the decision of the Apex Court in