(Per : HONOURABLE MR.JUSTICE A.L.DAVE) Present appeal arises out of a judgment and order rendered by Sessions Court, Rajkot in Sessions Case No.106 of 1989 on 30/06/1992 acquitting the respondent - accused for the offence punishable under Section 66 (A) of the Bombay Prohibition Act and under Sections 8 and 17 of the Narcotic Drugs & Psychotropic Substances Act, 1985.
2. As per prosecution case, the respondent was intercepted at about 22:50 hours on 28/10/1987 in the market of Village Jasdan. He was searched in presence of two Panch Witnesses and was found to possess 249 gram opium, which was found from the pocket of his trouser. Panchnama was drawn and respondent was arrested. Charge-sheet was filed in the Court of learned JMFC, who in turn committed the case to the Court of Sessions and Sessions Case No.106 of 1989 came to be registered. Charge was framed at Exh.1 to which accused pleaded not guilty and came to be tried.
3. The trial Court found that the search and seizure was not appropriately supported by the Panch Witnesses. The trial Court also found that mandatory requirement as prescribed under Section 50 of the NDPS Act was not observed. The trial Court found that Panchas have not supported the search and seizure and, therefore, recorded acquitted. Hence, this appeal.
4. We have heard learned APP, Mr.Dabhi, appearing for the appellant - State of Gujarat.
5. Having gone through the evidence, we find that the trial Court was justified in observing that the Panch Witnesses have not supported the search and seizure.
6. 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.
7. 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.
8. 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.) sompura Top