State of U.P. Vs. Subhash Kumar Singh Tomar

narcotics - search - legality of - sections 20 and 50 of narcotic drugs and psychotropic substances act, 1985 - respondent was accused of possessing charas - trial court convicted respondent under section 20(b) of ipc - respondent on appeal high court set aside conviction of respondent on sole ground that provision of section 50 of act of 1985 had not been complied with - hence, present appeal - whether non compliance of section 50 of act of 1985 can be ground for setting aside of conviction of accused? - held, as per section 50 of act of 1985 suspected person has right to require his search to be conducted in presence of gazetted officer or magistrate - empowered officer is obliged to inform suspect about his right - failure to inform suspect of his right would render search illegal - in instant case respondent had not been informed about his right given under section 50 of act of 1985 - hence, search of respondent was illegal - accordingly order of acquittal was valid - no interference by present court in impugned order warranted for - appeal dismissed - sections 20(b) & 50: [dr.arijit pasayat, lokeshwar singh panta & p. sathasivam,jj] seizure of contraband from accused evidence of public witnesses showing that requirement of section 50 was not complied with held, no interference with the acquittal of accused. - the failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is in compliance with section 50. similarly, if the person concerned required on being so informed by the empowered officer or otherwise i. that search be conducted in the presence of a gazetted officer or magistrate the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence to the accused based solely on recovery may treat the search as bad......accused and his personal search resulted in recovery and seizure of 500 grams of charas. two samples of 25 gms. each were separately taken and sent for chemical analysis. on analysis the contraband was found to be charas by the public analyst. before the high court the only stand taken by the accused was that there was non-compliance with the requirement of section 50 of the act. the high court found on going through the evidence of pws 1 and 2 that there is nothing to suggest that the requirement of section 50 was complied with. accordingly, the judgment of acquittal was passed. in support of the appeal, learned counsel for the appellant-state submitted that there is nothing to doubt the statement of public witnesses pws. 1 and 2 that they had seized the contraband articles from the accused persons.2. it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect on the basis of prior information to inform the suspect that he has the right to require his search to be conducted in the presence of a gazetted officer or a magistrate. the failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is in compliance with section 50. similarly, if the person concerned required on being so informed by the empowered officer or otherwise i.e. that search be conducted in the presence of a gazetted officer or magistrate the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence to the accused based solely on recovery may treat the search as bad.3. above being the position in law, the judgment of the high court does not suffer from any infirmity to warrant interference.4. the appeal fails and is dismissed.