Ramkrishan Upadhyay
Chandigarh, February 16
It is a mandatory part under Section 50 of the NDPS Act that the accused has the right to be searched before a gazetted officer or a magistrate. This requires strict compliance. If it is proved on record that the accused was not produced before a magistrate or a gazetted officer, then it can be said that mandatory requirements of Section 50 are not fulfilled.
Observing this, Puneet Mohinia, Judicial Magistrate, First Class, acquitted an accused, Amrinder Singh, a resident of Himachal Pradesh, in an NDPS case on the ground of non-compliance of requirement of affording an option to be searched before a magistrate or a gazetted officer.
Amrinder was arrested on October 5, 2015 from Sector 52, Chandigarh. The police said he was apprehended on the basis of suspicion. He was carrying a paper bag in his hand. On checking, 85 grams of charas was recovered from him. The accused failed to produce any licence or permit for carrying the same.
After the completion of investigation, a challan was presented in the court. After finding a prima facie case, charges against the accused were framed for the offence punishable under Section 20 of the NDPS Act to which he pleaded not guilty and claimed trial.
Denying charges, Harish Bhardwaj, counsel for the accused, argued that the accused was falsely implicated in the case. No independent witness was joined by the police at the time of recovery despite the fact that the prosecution had an ample opportunity to do so. He said Section 50 of the NDPS Act was not complied with the police.
After hearing the arguments, the court said from records and statements of the witness it had been proved that the procedure prescribed under Section 50 was not followed by police officials when the recovery was made from the accused. The court said statutory provisions under Section 50 of the NDPS Act were required to be complied with by the investigating officer i.e. before conducting relevant personal search of the
accused. His consent was required to be taken whether search is to be made by the investigating officer or by magistrate or a gazetted officer.
“The court is of considered opinion that all evidences adduced by the prosecution neither suggest nor prove that the search and recovery was made from the accused in the presence of a magistrate or a gazetted officer. Non-proving of Section 50 of the NDPS Act has caused a serious dent to the prosecution case. As such, the accused is acquitted of the charges framed against him,” said the court in the order.
