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TMI Blog1994 (9) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search would be conducted in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant was found in possession of 780 gms of charas in the first class waiting room of the railway station at Quilon. PW 6, Ashok Kumar, Sub-Inspector of Police attached to the Quilon Railway Station, on receipt of reliable information that a foreigner having charas in his possession was sitting at the Quilon Railway Station, went to the platform where PW I Constable Nataraja Pillai was on patrol duty. Both PW I and PW 6 went to the first class waiting room. The appellant was found sitting there with a bag. On suspicion, he was questioned by PW I and PW 6. The appellant took out a small packet of charas from his bag and handed it over to PW 6. On further questioning and search, PW 6 recovered three big packets of charas from the bag which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of submissions were made by learned counsel for the appellant, we need not detain ourselves to deal with all those submissions as in our opinion there is force in the main argument of the learned counsel for the appellant viz. that on account of the non-compliance with the provisions of Section 50 of the NDPS Act, which provisions have been held to be mandatory by this Court in State of Punjab v. Balbir Singh the conviction and sentence of the appellant cannot be sustained. 5. From the testimony of PW 6, it is apparent that before reaching the first class waiting room at the railway station, he had received information that a foreigner was sitting with charas at the railway station. The appellant was thereafter spotted and subjected to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 316, para 16) "The words if the person to be searched so desires are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search would be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Pooran Mal case only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against the party under the Income Tax Act. The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten that liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. "Unlawful possession" of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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