(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. Present appeal is preferred by State of Gujarat against the judgment and order dated 12th October, 1992, rendered by learned Sessions Judge, Navsari in Sessions Case No.108 of 1990 recording acquittal of the present respondent who was charged for an offence punishable under Narcotic Drugs & Psychotropic Substances Act, 1985, of possessing 2 k.g. of Ganja on 6.10.1990 near Vadhai Bus Stand.
2. As per prosecution case, Unarmed Head Constable of Vadhai Police Station Devabhai Motibhai received a secret information that a man is waiting near bus stand with a plastic bag in his hand containing Ganja. He, therefore, approached such person who happened to be the respondent and interrogated him. He was identified to be the respondent and it was found that in the plastic bag carried out by him 2 k.g. Ganja was found. He did not have any permit to hold the same. Samples were drawn and contraband was seized, accused was arrested and FIR was lodged. At the end of investigation, chargesheet was filed in the Court of learned JMFC, who in turn committed the case to the Court of Sessions and Sessions Case No.108 of 1990 came to be registered. Charge was framed against the accused at Exh.1 to which accused pleaded not guilty and came to be tried.
3. The prosecution examined number of witnesses and adduced evidence which was found to be not satisfactory by the trial court and, therefore, the trial court recorded acquittal and hence this appeal.
4. We have heard learned APP Mr.Neeraj Soni for the appellant-State of Gujarat. He has taken us through the evidence on record and submitted that the trial court committed an error in acquitting the accused although there was an ample evidence. We have heard learned advocate Ms.Sadhana Sagar who has opposed the appeal.
5. What we find from the record is that the mandatory requirement of NDPS Act have not been appropriately followed. The officer receiving the secret information did not adduce the same into writing nor he did passes to his immediate superior as required under Section 42 of the Act. Apart from that, we find that the seizure was from person of the accused and, therefore, he ought to have given opportunity of being searched in presence of a Gazetted Officer of his choice. That option does not appear to have been given as required under Section 50 of the NDPS Act. Provision of Section 50 has been held to be mandatory and any breach of that would vitiate the investigation.
6. We also find that the investigation has been carried out by a Head Constable, who is below the rank of PSI. Whereas, the Notification of the Government in this regard requires that investigation to be carried out by a Police Officer above the rank of Head Constable. Investigation, was therefore, carried out by a person who was not authorized to investigate, and last but not the least, the raiding officer and the investigating officer are the same. All these aspects make the appeal weak. The view taken by the trial court is not an impossible one. The trial court has relied on several judgments which support its view. In our view, therefore, no error can be said to have been committed by the trial court in recording acquittal.
7. In light of above defects, we are of the view that no interference is called for in the judgment and order of acquittal recorded by the trial Court. The appeal must fail and stands dismissed.
(A L DAVE, J.) (A J DESAI, J.) syed/