This appeal arises out of a judgment and order rendered by Sessions Court, Rajkot in Sessions Case No.27 of 1990 on 23/12/1992, acquitting the present respondent of the offences punishable under Section 17 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short NDPS Act) and under Sections 66 (A) and 66(B) of the Bombay Prohibition Act. 2. The respondent was prosecuted for possession of contraband of 60 gram of opium which was recovered from his pocket. He was intercepted by Police, as the Police had arranged a watch, pursuant to secret information received by them. As the accused was not holding any valid pass or permit, he came to be arrested. Charge-sheet was filed in the Court of learned Chief Judicial Magistrate, Rajkot, who committed the case to the Court of Sessions and Sessions Case No.27 of 1990 came to be registered. Charge was framed against the accused to which he pleaded not guilty and claimed to be tried.
3. At the end of trial, the Sessions Court found
4. We have heard learned APP, Mr.Dabhi, who has taken us through the record and proceedings and leaned Advocate Mr.Buddhbhatti, appearing for the respondent.
5. We find from the FIR lodged by PSI, Mr.K.K.Patel, as well as, evidence of the Panch Witnesses and evidence of the Police personnel that before making personal search of the respondent, accused was not asked, if he would like to be searched by any Gazetted Officer of his choice or in presence of a Magistrate. This requirement is provided for in Section 50 of the NDPS Act and is mandatory for the Investigating Officer to comply with. If it is not complied with, the entire investigation stands vitiated.
6. For the foregoing reasons, we are of the view that the trial Court was justified in acquitting the accused persons-respondents herein. The view taken by the trial Court is not impossible or palpably erroneous. We do not deem it proper to interfere with the judgment of the trial Court, as we do not find any merits in the appeal. The appeal must fail and stands dismissed.
(A L DAVE, J.) (A J DESAI, J.) sompura