The consent to a search under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 must be informed and voluntary, and the accused must be given the complete option to be searched before a Gazetted Officer or a Magistrate.

V.S.Aggarwal, J.

1. This appeal is filed by Mohinder Singh appellant directed against the judgment and the order of sentence passed by the leaned Additional Sessions Judge, Ambala dated 16.9.1995. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act). The appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac. In default of payment of fine, he was to undergo further rigorous imprisonment for two years.

2. The incident pertains to 8.10.1993. It is alleged that SI Ram Singh was present at Doorbin Chowk, Ambala Cantonment in connection with patrolling and crime checking. He was accompanied by UCG Ram Phal and Constable Tej Veer. At about 6.00 p.m. the appellant was seen coming from the side of Railway Station. He was having a card board carton on his head. On seeing the police party, he returned back and started walking briskly. It aroused the suspicion to SI Ram Singh. The appellant was stopped. He was told that if he likes his person can be searched before a Gazetted Officer or a Magistrate. A notice in this regard was served to the appellant. The appellant did not accept the offer and expressed full faith in SI Ram Singh. His consent was recorded in writing.

3. Thereupon the card board carton was searched. It was found to contain poppy husk. The contents were weighed and found to be 8-1/2 kilogram. 500 grams was taken as the sample. The sample and rest of the poppy husk were converted into two separate parcels and sealed with the seal of SK. Both the parcels were taken into possession vide a recovery memo, duly attested by the witnesses. The seal after use was entrusted to UCG Ram Phal.

4. Ruqa was sent to the police station, on the basis of which formal First Information Report was recorded by ASI Dharam Pal. Rough site plan was prepared and the appellant arrested. While the appellant was being brought to the police station. Inspector Banwari Lal met them on the way. The appellant was produced before him alongwith the recovered poppy husk. He verified the facts and affixed the seal of BL on both the parcels. The case property was deposited with the Malkhana Moharrir. Subsequently, the representative sample was sent for chemical analysis. It was reported that contents were poppy husk. On these broad facts, challan as against the appellant was presented in Court.

5. The learned trial court framed a charge against the appellant for the offence punishable under Section 15 of the Act to which the pleaded not guilty and claimed a trial. During the course of trial, the prosecution examined six witnesses which included Inspector Ram Singh PW-3 and UCG Ram Pal PW-6. They are the two witnesses pertaining to the recovery of poppy husk from the person of the appellant and other co-related proceedings at the spot. The statement of the appellant was recorded and evidence of the prosecution was put to him in the form of diffenent questions. He denied recovery of poppy husk from his person and contended that he has falsely been implicated. Nothing was stated to have been recovered from his person.

6. The learned trial Court on appraisal of evidence held that provisions of Section 50 of the Act had been complied with. The argument that it was a partial offer given to the appellant, was rejected keeping in view that in the written notice given to the appellant complete option contemplated under sub-section (1) of Section 50 of the Act had been given. It was held that prosecution has successfully proved recovery of poppy husk from the person of the appellant and with these basic findings, the impugned judgment and the order of sentence were passed. Aggrieved by the same, the present appeal has been filed.

7. Both Inspector Ram Singh PW-3 and UCG Ram Pal PW-6 in their testimonies before the learned trial Court stated that when the appella