Himachal Pradesh High Court: Chander Bhushan Barowalia, J., allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 20 of NDPS Act, 1985.
The case against the appellant was that while the police was on patrol duty, the appellant saw the police and started to run. He was apprehended by the police. The appellant was carrying a bag which was searched and it was found that the appellant was carrying charas. Thereafter, the person of the appellant was searched by the police personnel without informing him about his right under Section 50 to get searched before a Magistrate or a Gazetted Officer. He was tried by the trial court and convicted under the section mentioned above. Aggrieved by the same, the appellant filed the instant appeal.
The High Court relied on the Supreme Court decision in State of Rajasthan v. Parmanand, (2014) 5 SCC 345, wherein it was laid down that compliance with the condition of Section 50 NDPS Act, was a mandatory provision. The purpose of the section is to inform the person to be searched about his right to get searched before a Magistrate or a Gazetted Officer. However, in the present case, there was no compliance with the mandatory provision. The High Court was of the view that such failure on part of the police, vitiated the case against the appellant due to not following the procedure laid by the law. In such circumstances, the High Court held that the appellant could not have been convicted by the trial court. Accordingly, the appeal was allowed and the impugned judgment was set aside. [Joginder Singh v. State of H.P., 2018 SCC OnLine HP 836, dated 03-07-2018]
