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TMI Blog2013 (5) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... ector, while patrolling reached at the outer gate of ISBT where Constable Balwant Singh met him and both of them found the accused-appellant sitting on two white coloured bags on the left side of the footpath. On seeing the police party he tried to run away leaving the bags which raised a suspicion in the mind of the Sub-Inspector and that led to the apprehension and interrogation of the accused. Eventually, on search of the bags, it was found that those contained 64 Kgs. of poppy straw powder packed in 32 bags of polythene. After the search was carried out samples were sealed and sent to the Forensic Science Laboratory for examination. The investigating agency on completion of other formalities filed the charge-sheet before the trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Section 50 of the NDPS Act is not attracted to the case at hand as two bags were searched and not the person of the accused-appellant. 7. To appreciate the first limb of submission, we have carefully scrutinized the evidence brought on record and perused the judgment of the High Court and that of the trial Court. It is noticeable that the evidence of PW-7, namely, Ritesh Kumar, has been supported by Balwant Singh, PW-5, as well as other witnesses. It has come in the evidence of Ritesh Kumar that he had asked the passerby to be witnesses but none of them agreed and left without disclosing their names and addresses. On a careful perusal of their version we do not notice anything by which their evidence can be treated to be untrustworthy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the NDPS Act, two learned Judges referred to the decisions in Madan Lal v. State of H.P.[ (2003) 7 SCC 465 ] and State of H.P. v. Pawan Kumar[(2005) 4 SCC 350], and came to hold as follows: - "Thus, applying the interpretation of the word "search of person" as laid down by this Court in the decision mentioned above, to facts of present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted by the investigating officer and the evidence collected thereby, is not illegal. Consequently, we do not find any merit in the contention of the learned counsel of the appellant as regards the non-compliance with Section 50 of the Act." 14. Tested on the bedrock of the aforesaid dictum, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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