(Per : HONOURABLE MR.JUSTICE A.L.DAVE) Present appeal arises out of a judgment and order rendered by Sessions Court, Panchmahal at Godhra in Sessions Case No.99 of 1993 on 24/02/1993 whereunder the respondent was acquitted of charges levelled against him punishable under Sections 30 of the Narcotic Drugs & Psychotropic Substances Act, 1985.
2. The facts of the case in brief are that the respondent was found to be in possession of 40 Gram of Ganja packed in 11 small polythene bags at about 10:00 a.m. on 26/11/1991 at Devgadhbaria near Aadivasi Sansodhan Kendra. He did not possess any pass or permit therefore and was therefore arrested. It is also the case of prosecution that on 28/11/1991 at about 15:00 hours, he discovered 05:00 gram of Charas from Jay Chamunda cabin owned and possessed by him. The respondent was therefore arrested and prosecuted. He was charge-sheeted for possessing Ganja and Charas in violation of provisions of NDPS Act punishable under Section 20 of the said Act. He pleaded not guilty to the charge and came to be tried.
3. The trial Court acquitted the respondent mainly on the ground that mandatory requirement under Section 50 of the NDPS Act have not been followed and, therefore, the investigation would be vitiated and, hence this appeal.
4. We have heard learned APP, Mr.Dabhai, appearing for the appellant - State of Gujarat and have examined the records and proceeding.
5. We find that the trial Court was justified in taking a stand that mandatory requirement of Section 50 have not been followed. The said provision requires the Investigating Officer to give an option to the suspect to get himself searched in presence of a Magistrate or a Gazetted Officer of his choice. That option is not even claimed to have been offered to the respondent and, therefore, the investigation stood vitiated.
6. If the trial Court has acquitted on this ground, the trial Court was fully justified. The view taken by the trial Court cannot be said to be erroneous. We, therefore, refuse to exercise our appellate jurisdiction in this acquittal appeal. The appeal must fail and stands.
(A L DAVE, J.) (A J DESAI, J.) sompura Top