IMPORTANT POINT
Search conducted under NDPS Act by a Constable under the instructions of SHO would be (In unauthorised and illegal search. constable being not an authorised officer under Section 41 or 42 of the Act.

JUDGMENT

Khem Chand Sharma, J. - In brief the prosecution case is that on 16.6.1999 at 11 AM. PW 3 Rajesh Chaudhary. Sub-Inspector informed PW6 Shri Rajendra Singh. SHO Kotwali that one person named Ayub aged about 30 years having a country made 'katta' with him was walking near Namak Mandi. Kishanpole Bazar. Jaipur. Having received information the SHO recorded the information in Rojnamacha. (Ex.P. 14 A) and then he along with police personnel proceeded to Kishanpole Bazar in a Government vehicle. The SHO then secured the presence of motbirs. Thereafter, the police party encircled the accused and apprehended him. The SHO gave the accused a notice (Ex.P1) under Section 50 of the Act and informed him of his legal right to have his search conducted either in the presence of a gazetted officer of the police department or of any other department or in the presence of a judicial Magistrate. The accused gave his consent in writing that his search be conducted by the SHO himself.

Thereafter, the SHO got conducted the search of accused by PW 4 Pokhar Mal Constable. During search two packets containing smack was recovered from the right pocket of the trouser of the accused. Accordingly. checking and seizure memo Ex. P3 was prepared in the presence of PW 1 Moti Ram and PW2 Arjundas. The accused was arrested vide arrest memo Ex.P7.

2. On completion of aforesaid formalities PW6 Rajendra Singh prepared a detailed report and on the basis of which a case was registered vide FIR. EX. P 16. During investigation the police recorded the statements of witnesses u/s 161 Cr.P.C. and sent the smack to the FSL for chemical examination. After due investigation, the police submitted a charge sheet against the accused in the court of learned Special Judge, NDPS Cases, Jaipur.

3. The learned trial court, after hearing arguments of counsel for the parties framed charge against the accused under Sec. 8/21 of the Act. The accused denied the charge and claimed trial. During trial, the prosecution in support of its case examined as many as 6 witnesses and exhibited some documents. Thereafter, the accused was examined under Sec. 313 Cr. P.C. Redid not examine any witness in his defence.

4. The learned Special Judge. NDPS Cases, Jaipur, on conclusion of trial, arrived at a conclusion that the prosecution has been able to prove beyond reasonable doubt that the accused was found in possession of smack, which was recovered from the right pocket of his trouser. The learned Special Judge found the accused appellant guilty of having committed offence under Sec. 8/21 of the Act and accordingly vide its judgment and order dated 22.12.2000 convicted the accused appellant of the said offence and sentenced him to undergo rigorous imprisonment for 10 years with a fine of Rs. one lac; in default of payment of fine, to further undergo simple imprisonment for two years.

5. Feeling aggrieved by the aforesaid judgment of conviction and sentence, the appellant has preferred this criminal appeal under Section 374 Cr.P.C.

6. I have heard learned counsel for the parties and perused the impugned judgment and the evidence on record. Mr. Biri Singh Sinsinwar, learned counsel for the accused appellant has assailed the conviction of the appellant on two grounds, namely, (i) that there was complete non-compliance of the mandatory provisions of Section 50 of the Act. Referring to the prosecution evidence. Mr. Biri Singh has submitted that the appellant was searched by a Constable of Police under the directions of Station House Officer. He submitted that search having been taken by a person other than the person authorised by Section 42 of the Act is illegal and thus the unauthorised illegal search has resulted in vitiating trial against the appellant. In support of his argument learned counsel has placed reliance on State of Punjab v. Balbir Singh1, Dilkush G. Sinai v. State of Goa2, and (ii) that very small quantity of smack was recovered from the possession of the appellant, which was fo