Judgment:
S.C. Datta, J.
1. The appellant Pankaj Pradhan having been convicted of the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') has been in appeal.
2. The facts, in brief, are that on 6-10-1990, Sub-Inspector of Excise (P.W. 4) received a secret information about transportation of opium to Madhya Pradesh. He passed on this information to his superior officer, the Circle Inspector (P.W. 5) who is a Gazetted Officer for help and proceeded towards the lower bus stand at Chatrapur, with constable Sisir Kumar Padhy where Barat Chandra Bhanj (P.W. 3) was already on patrol duty. At about 11 a.m., he found the accused in the bus stand carrying a bag in his hand On being pointed out by the informer, the Sub Inspector of Excise (P.W. 4) detained him; called the witnesses and expressed his desire to search him. After giving his identity, he also offered him the opportunity to be searched before his superior officer, i.e. P.W. 5 but the accused. declined. At that time, the Circle Inspector, (P.W. 5) arrived at the spot. On search, 1.350 grams of opium was recovered from his possession for which he could not produce any valid licence or authority for possession of the same. Sample was collected in two packets containing 25 grams each, and they were properly wrapped in paper and sealed. The accused was informed about the ground of his arrest and was produced along with the seized Article before the Judicial Magistrate First Class, Chatrapur on the same day. As the Malkhana Clerk was absent, the J.M.F.C. directed the Investigating Officer (P.W. 4) to deposit the seized Articles on Monday, as the succeeding day was a Sunday. The samples were sent to the Chemical Examiner. On receipt of report, the Investigating Officer submitted prosecution report and this is how the appellant was put on trial before the Additional Sessions Judge, Berhampur.
3. The accused pleaded innocence.
4. On conclusion of trial, the accused was found guilty of the charge, convicted and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. one lakh, in default to undergo R.I. for a period of one year more.
5. As against the order of conviction and sentence, the appellant has come to this Court challenging the legality of the order. The main ground on which the order of conviction and sentence has been assailed is with regard to the non-compliance of the provisions of Section 50 of the Act which requires the arresting authority to ask the accused for his option to be searched either in presence of a Gazetted Officer or in presence of a Magistrate, Learned Counsel for the appellant submits that the. search was conducted in presence of Circle Inspector (P.W.'5) who himself was a member of the raiding party and as such, there has been non-compliance of the mandatory provisions of Section 50 of the Act. He submits that law is well settled by now that is case of such non-compliance by an authority who is empowered under the Act to carry out search and seizure the entire proceeding shall be vitiated. In this connection, learned Counsel for the appellant has taken us through the evidence of Investigating Officer (P.W. 4) and the Circle Inspector (P.W. 5) to establish the fact that P.W. 5 though a Gazetted Officer was a member of the raiding party. It appears from the evidence of the Investigating Officer (P.W. 4) that the Circle Inspector was present during the course of search and seizure. During cross-examination, he states categorically that the search and seizure was affected before the Gazetted Officer who is the Circle Inspector of Excise. It is in the evidence of Circle Inspector (P.W. 5) that the Investigating Officer sent requisition to him stating about the information about transportation of opium and on receiving the information, he proceeded to the District Excise Office through lower bus-stand, Chatrapur. He states that in his presence, the seizure list was prepared by the Investigating Officer. The evidence of these two witnesses clearly establishes the fact that he was a member of the raiding party in whose presence, the search and seizure was effected. Learned Counsel for the appellant submits that since the circle Inspector (P.W. 5) was a member of the raiding party there has not been compliance of the mandatory provisions of Section 50. In this connection, he has referred to a case reported in 1993 Crl LJ 94 (Kar) A.V. Dharmasingh v. State of Karnataka, where it was held as follows :-
The purpose for which this condition is laid down in Section 50 is that the person should be searched before a Gazetted Officer as his demand or before the nearest Magistrate so that the search should be before an independent offfices. The person arresting the accused cannot be said to be an independent person so as to come within the description 'nearest Gazetted Officer' envisaged in auction 12.
This view was re-affirmed in Baby Rao v. State of Karnataka 1993 Cr LJ 2310 (Kar). A Division Bench of the Bombay High Court, 1994 Crl J 1987 (Bom), after examining the scope and nature of the provisions contained in Section 50 of the Act, held otherwise. There it was held that there would be sufficient compliance of provisions of Section 50 of the Act, if a raiding party consists of a Gazetted Officer. However, a single Judge of this Court in a case reported in (1995) 79 CLT 676 (Bijaya Kumar Subudhi v. State of Orissa) held that it would be improper on the part of the arresting authority to get the accused searched in presence of any member of the raiding party even if happens to be a Gazetted Officer. The learned judge referred to a decision reported in Vol. IV (1993) Current Crl. Reports 3095 (sic) in re R. Ramannamma, where it was held as under :.A member of the raiding party even he himself may be a Gazetted Officer or a superior Officer of the department cannot himself perform the dual task of being a party to the search and arriving at a satisfaction that the search is warranted or not as required by Section 50.
6. As noticed earlier, the search and seizure was conducted in presence of a Gazetted Officer of the Department who is also a member of the raiding party. What the Legislature intended was to safeguard the liberty of an accused against false criminal charge and as such, Section 50 of the Act mandates that its provisions are to be complied with strictly before a conviction can be made. In the latest decision of the Supreme Court, re-ported in (1994) 7 OCR (SC) 293 : (1994 Cri LJ 3702) (State of Punjab v. Balbir Singh), it has been held that non-compliance of the provisions of the Act with regard to search, recovery and seizure etc. would vitiate the proceeding. I have discussed earlier how there has been non-compliance of the mandatory provisions of Section 50 of the Act and as such, the appellant deserves to be acquitted.
7. For the reasons stated above, the appellant is entitled to succeed. Therefore, the order of conviction and sentence is set aside and the appellant is acquitted of the charge and be set at liberty forthwith, if not required in connection with any other case.