Arumugham vs State

B. Akbar Basha Khadiri, J.—The petitioner stands charged for offence u/s 20(b)(i) of Narcotic Drugs and Psychotropic Substance Act.

The case of the prosecution is that on 21.10.1999, the petitioner was found in possession of one Kilogram of Ganja. He was arrested on

21.1.1999

The learned counsel for the petitioner submits that provisions of Section 42 and 50 of Narcotic Drugs and Psychotropic Substance Act have not

been followed.

Perused C.D. file. It appears, Sub-Inspector of police of Namagiri Pettai along with his party was patrolling in Chinnakakkveri Vellakkalpatty

Road, he came across the petitioner and the petitioner was found in possession of one kilogram of Ganja. It appears, the Sub-Inspector of Police

himself arrested the petitioner and seized the Ganja. It cannot be said that the Sub-Inspector of Police had not followed the mandatory provision of

Section 42(2) of Narcotic Drugs and Psychotropic Substance Act, because he has sent the copy the F.I.R. to his Superior Officer. But it is evident

that provision of Section 50 of Narcotic Drugs and Psychotropic Substance Act have not been followed. It is obligatory on the police officer to

inform the person searched whether he desires to be searched before a gazetted officer or a judicial Magistrate. Failure to inform a person to be

searched would amount non-compliance Section 50 of Narcotic Drugs and Psychotropic Substance Act which is mandatory and it would affect

the prosecution case and vitiate the proceeding. Especially, when no independent witness are available, the person who arrests the petitioner is

expected to serve a notice upon the accused to intimate him whether or not he would like to be searched before a gazetted officer or a Magistrate.

In the instant case, no such notice had been issued and no intimation was given to the petitioner in this regard. I am inclined to grant bail. Bail is

granted.

The petitioner shall be enlarged bail on his executing a bond for a sum of Rs. 5000 (Rupees Five Thousand Only) with two sureties each for a

like sum to the satisfaction of the special Court (Narcotic Drugs and Psychotropic Substance Act), Salem, and on further condition that the

petitioner shall appear before the respondent everyday at 10:30 A.M. for thirty days without fail.