REPORTABLE

              IN THE SUPREME COURT OF  INDIA           CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO.  957  OF 2003

STATE OF RAJASTHAN ..  APPELLANT

vs.

SHANTI ..  RESPONDENT

J U D  G M E N T

Dr. ARIJIT PASAYAT,J.

Heard learned counsel for the State and for the respondent.

Challenge  in this  appeal  is  to the judgment  of  the learned  single  

Judge of Rajashtan High Court at Jodhpur dismissing the appeal filed by the  

State  questioning the correctness of the judgment of acquittal recorded  by

learned  Additional  District  and  Sessions  Judge  No.2,  Hanumangarh.  Two  

persons faced trial for alleged commission of offences under Sections 8 and  

18 of the Narcotic Drugs and Psycotropic Substances Act, 1985 (in short the  

`NDPS Act').   

-2-

Allegation was that on 18/1/1999 the Station House Officer,  Police  

Station Pilibanga received secret information

that  the  respondent  Shanti  and  her  son  Darshan  alongwith  her  husband  

Shankar Lal were habitually indulging in the sale and purchase of opium and  

the  respondent  Smt.  Shanti  was  expected  to  come  with  opium  near  a  

particular  place.   The  police  officer  reached  the  place  and found that  the  

respondent was carrying a bag in her hand.  She was stopped and searched.  

The bag was found to carry about 10 kgs. of opium.  On the information given  

by her, another 20 kgs. were seized from near her residential house.  Accused  

Shankar Lal was also arrested in connection with the second recovery of 20  

kgs. of opium.  Charge-sheet  was  filed after  investigation. As the accused  

persons pleaded innocence trial was held.  The trial Court found that there  

was violation of the provisions of Section 42 (2), 50, 55 and 57 of the NDPS  

Act and acquitted the accused. Questioning the acquittal, the High Court was  

moved by the State.  The High Court did not find any substance in the appeal  

filed by the State and dismissed it.

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So far as the present appeal is concerned, it has to be noted that the  

special leave petition was dismissed against the respondent No.2 i.e. Shankar  

Lal and notice was issued qua the present respondent.   

Learned  counsel  for  the  appellant  stated  that  Section  50  had  no  

application because there was no personal search.  It is also pointed out that  

Sections 55 and 57 are not mandatory. The prosecution version was clearly  

established.  Learned counsel for the respondent on the other hand submitted

that  the  trial  Court  and  the  High  Court  have  found  that  there  was  non-

compliance with the requirement of Sec.42(2).

So far  as  the  conclusions  regarding  Sec.50  recorded  by the  trial  

Court and the High court  are concerned, they same are not in line with what  

this  Court  has  said.   Section  50  has  application  only  when  there  was  

personal  search.   In  the  instant  case   the  samples  were  collected,  after  

seizure, from her bag.  Nevertheless, there has been non-compliance with the  

requirement  of  Sec.42(2)  as recorded both by the trial  Court and the High  

Court.  That being so there is no merit in this appeal.

The appeal is dismissed accordingly.

                          ................ .J.               (Dr. ARIJIT PASAYAT)

             ...................J.

                                       (ASOK KUMAR GANGULY) New Delhi, April 21, 2009.