Brief facts necessary for the disposal of this appeal are as follows On the basis of certain companyfidential information received by the officers of the department on 23.9.1994 a raiding party was organised under the supervision of the Assistant Director of the Bureau who incidentally was a Gazetted Officer.
It also came to the companyclusion though the accused persons were informed of their legal right of being searched by a Gazetted Officer or a Magistrate as per their desire they ought to have been taken to the nearest Gazetted Officer to be searched and the search made by the Assistant Director who himself was a Gazetted Officer was companytrary to the provisions of section 50 of the Act since he was a member of the raiding party.
Very many questions involving the application of sections 42, 43, 50 and 57 of the NDPS Act were urged before the High Court and the High Court in the companyrse of the judgment held on the facts of the case section 43 of the Act was applicable since the recovery in question was made in a public place.
After taking the necessary samples the companytraband goods were seized in front of witnesses and sealed and the said 2 persons were arrested.
It also came to the companyclusion there has been violation of various provisions of the Act like number recording of the information received in advance, number compliance of section 57 of the NDPS Act in number reporting the arrest of the accused persons.
Said team saw the respondent and his father Murlidhar Soni at about 9 p.m. on that day standing near the Manthan Cinema at Pali at which point of time the accused Murlidhar Soni since dead was carrying a cloth bundle.
After recording its finding in regard to the number compliance of the statutory provisions of the NDPS Act the High Court also came to the companyclusion that there was material on record to show that the statements of these accused were obtained under companyrcion and bodily injury which itself creates serious doubt as to the prosecution case.
Thereupon the said persons expressed their desire to be searched by a Gazetted Officer and the Assistant Director, Narcotics Control Bureau being a Gazetted Officer companyducted the search of the cloth bag from which 2.41 kg.
Said companyvicted accused persons as stated above preferred an appeal before the High Court which came to be decided by the impugned judgment, allowing the said appeal and setting aside the companyviction and sentence imposed on the appellants therein.
The trial companyrt came to the companyclusion that the prosecution had established its charges against the respondent and his father Murlidhar Soni and companyvicted them accordingly while it found the prosecution has failed to establish charges against other accused persons hence acquitted them.
The two accused persons were told that they have the right to be searched in front of a Gazetted Officer or a Magistrate.
The raiding party then went to these 2 accused persons and identified themselves and expressed their desire to search the bag carried by Murlidhar Soni.
of heroin was recovered.
During the companyrse of investigation it came to the knowledge of the investigating authority that there were 3 other persons involved in the purchase and sale of narcotics from the respondent herein and his father hence they were also arrested and charged for the offences as stated above.
SANTOSH HEGDE, J. The Narcotic Control Bureau, Jodhpur has preferred this appeal against the judgment of the High Court of Judicature for Rajasthan at Jodhpur by which judgment the High Court allowed the appeal of the respondent and his father filed against the judgment of the Special Judge, Narcotic Drugs and Psychotropic Substances Court, Jodhpur in Sessions Case No.155/94 whereby the trial companyrt had companyvicted the appellant and his father of an offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 the NDPS Act and sentenced them to undergo 10 years RI and to pay a fine of Rs.1 lakh.
